IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9598 of 2000 with CIVIL APPLICATION No.8715 of 2000 in SPECIAL CIVIL APPLICATION No 9598 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE JAYANT PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- CHHAGANBHAI KALUBHAI MALI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9598 of 2000 MR AJAY R MEHTA for Petitioner No. 1-18 MR PRACHCHHAK, Ld. AGP for Respondent No. 1-2 RULE SERVED BY DS for Respondent No. 2 MR RN SHAH for Respondent No. 3 MR PC KAVINA for Respondent No. 4-9 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE JAYANT PATEL Date of decision: 19/04/2005 ORAL JUDGEMENT 1. The short facts of the case are that the petitioners, who are claiming the status as vegetable merchant, have approached this Court for challenging the order passed by the Collector dated 28.8.2000, whereby various directions are given, inter alia, to collect difference of the market price as per the Rules in response to the shops which are allotted to Respondents No.4 to 9. As per the case of the petitioners, Chora Building at which the shopping centre is constructed is required to be used for vegetable market and not for any other purpose. It appears that respondent No.3 Municipality had passed the resolution for construction of Santrampur Urban Development Coop. Bank Limited Vegetable Market. Thereafter, the building was constructed and so far as Respondents No.4 to 9 are concerned, the Municipality passed the resolution No.149 dated 30.7.1998, whereby the Municipality resolved for accepting the development amount as Rs.40,000/= for the persons who were having cabins numbered and for unnumbered cabins it was agreed to accept the amount of Rs.55,000/= and it was also agreed to allot the shop on rental basis. It appears that the petitioners approached before the Collector under Section 258 of the Gujarat Municipalities Act (hereinafter referred to as the "Act") and the District Collector ultimately examined the matter and passed the order on 28.8.2000, whereby he found that the resolution of the Municipality dated 30.7.1998 vide No.149 could not have been passed by the Municipality before undertaking the process for disposal of the property in public interest. However, the Collector found that considering the financial position of the vegetable merchants, who are petitioners herein, it may not be possible for them to spend huge amount and he found that there is already a building of Dharmashala, where a separate vegetable market can be constructed and, therefore, ultimately so far respondents No.4 to 9 are concerned, the Collector directed that the difference of the development charge already paid and the market value which may be fixed as per the Rules be recovered from them within a period of six months and on that condition only the possession of the cabins be handed over. The District Collector also issued the direction to the Municipality for holding of the public auction by fixing the upset price in respect to ten other shops and for allotment on monthly rent. It is further directed by the District Collector in the said impugned order that whatever the development fund which may be realised from the allotment of the shops be deposited in the separate bank account and the amount be utilised for the construction of vegetable market by using the building of Dharmashala and after planning of the same, the allotment will be required to be made as per the rules. It is under these circumstances, the petitioners have approached this Court by preferring this petition. 2. Before considering the rival submissions of the parties it deserves to be recorded that on 11.9.2000 this Court (Coram: P.K.Sarkar, J.) passed the following order: "1. Heard learned counsel Mr. Ajay Mehta for the petitioners. Issue rule. Petitioners to take steps for service of rule on respondents within two days. Rule returnable on 3-10-2000. 2. I have also heard Mr. Mehta on interim prayer. It is submitted by Mr. Mehta that the Government has allotted certain land to the Santrampur Nagar Palika for construction of a vegetable marked. Accordingly a Resolution was passed as back in 1992 by the Nagar Palika for construction of vegetable market. Thereafter, during the progress of the construction, the Nagar Palika has taken another Resolution that instead of the vegetable market, the stalls will be allotted for the general market. It is submitted by learned counsel that the Nagar Palika has obtained donations for construction of vegetable market. Present petitioners are vegetable vendors and they have challenged the decision of the Nagar Palika on two counts, firstly the Nagar Palika should have started vegetable market in the newly construction building, and secondly the Nagar Palika has taken a Resolution to allot 7 cabins/ shops to 7 persons at a lower premium. In the case of the allottee a premium of Rs.55,000/- is to be paid, whereas in the case of 7 persons/ cabin holders it has been decided by the Nagar Palika to allot them shops at a premium of Rs.40000/-. Learned counsel also drawn my attention to the order of the Collector dated 28-8-2000 passed in Appeal No. 3/2000. The Collector in his order observed that, in the matter of taking a decision for allotment to 7 cabin holders, the procedure has not been followed by the Nagar Palika. It appears that the Nagar Palika has taken a decision to accept lower premium from the 7 cabin holders and the matter requires an examination to ascertain why such a decision was taken by the Nagar Palika. The Collector, even though discussed in his order about procedural lapses, no finding has been given by the Collector. It is submitted by learned counsel for the petitioners that the Nagar Palika is making haste to give delivery of possession of all the 7 stalls to 7 cabin holders and it may be that, in the meantime one has already taken possession in the market. 3. I am of the view that, the matter needs thorough inquiry and accordingly the Collector, Panch Mahal district is directed to make an inquiry regarding the procedural lapses in the matter of allotment to 7 cabin holders by Santrampur Nagar Palika. The Collector may submit the report whether any favour has been shown to the 7 cabin holders and whether any irregularity has been committed by the said Nagar Palika in the matter of allotment of 7 shops to 7 cabin holders. The Collector may submit his report before this Court through Government Pleader agency on/or before 3-10-2000. In the meantime if the shops are not allotted/ handedover to these 7 cabin holders, same shall not be done till the next date. Registry is directed to supply a copy of this order to learned AGP Mr. Mukesh Patel and a copy of this order also be sent directly to the Collector, Panchmahal district. Over & above, a fax message in respect of present order be sent to the Collector, Panchamahal district at the cost of the petitioners by today itself. In addition, direct service permitted." 3. Therefore, by interim order the Collector, was directed to make an inquiry regarding the procedural lapse in the matter of seven cabin holders by Santrampur Nagarpalika. It was also ordered that in the meantime, if the shops are not allotted/handed over to these seven cabin holders the same shall not be done till the next date. Thereafter, on 3.10.2000 this Court (Coram: P.K. Sarkar, J.) passed further order, which is reproduced as under: " I have heard Mr.Ajay R. Mehta, learned Counsel appearing on behalf of the petitioners and Mr. Asim Pandya, Ld. Addl. Central Govt. Standing Counsel, on behalf of the respondent No.3, Nagar Palika. The learned Counsel, on behalf of the respondent, prays for time for filing counter affidavit. Learned Counsel, on behalf of the petitioner, has no objection, but he submitted that the interim order was passed on 11-9-2000, directing the respondents not to allot or hand over possession of the cabin shops, if those are not allotted/handed over to the seven cabin holders. Learned Counsel further submitted that inspite of that order, cabin shops are being allotted to these seven cabin holders. Learned Counsel, on behalf of the respondent, disputed this fact and submitted that before the order was passed on 11-9-2000, shops were already allotted. However, it is made clear that if the shops are not allotted, then the same shall not be allotted/handed over to these 7 cabin holders till the next date. The matter is ordered to be listed on 11-10-2000." Hence, it was observed that if the shops are not allotted, then the same shall not be allotted/handed over to these seven cabin holders till next date. Thereafter, on 23.8.2004, this Court (Coram: Jayant Patel, J.) passed the following order: " 1. Heard Mr. Mehta for the petitioners, Mr. Kavina for the respondents No. 4 to 9 and Mr. Dave for the respondents No. 1 and 2. 2. Upon hearing the learned counsel appearing for the parties, it appears that by the impugned order dated 28.8.2000 passed by the Collector, it has been ordered to hold public auction of ten shops, and for 7 shops the difference is to be recovered. 3. For both the purposes, i.e either to maintain the order passed by the Collector or even for quashing of the order passed by the Collector, it is required to be brought on record the auction price of the property in question, and thereafter the matter can be further decided for passing consequential orders based on the same. 4. Mr. Kavina, learned counsel appearing for the respondents No. 4 to 9 submitted that the possession of the shops are already given by the President of the Municipality whereas Mr. Mehta, learned counsel for the petitioner submitted that it is on account of the collusion by the President of the Municipality, the possession is handed over, and he submitted that as such, the respondents No. 4 to 9 have no specific right or privilege to be treated differently for the purpose of allotment of the shops. 5. In my view, the question regarding different treatment given by the Collector in the impugned order shall be considered later on, but with a view to arrive at a figure for ascertaining the market price of the property in question, the auction of all the shops are required to be held, and the said auction may not be finalized and may be placed before this Court for further orders. 6. Under the above circumstances, by further interim order, it is directed the Municipality, under the supervision of an officer who may be nominated by the District Collector, shall hold the auction of all 17 shops but shall not finalize the auction and shall submit the report of auction proceedings before this Court. It would be open to the officer holding the auction to accept the requisite amount towards participation in the auction. It is further made clear that till further orders, the possession of the aforesaid 7 shops which are said to be in physical possession of respondents No. 4 to 9 shall not be disturbed but the said possession shall be continued subject to further orders which may be passed by this Court in the petition. The aforesaid auction be completed within a period of six weeks from today. 7. S.O. to 1st October 2004 for passing further orders." When the matter was thereafter considered on 27.10.2004, the following order was passed. " Mr.Shah, learned Counsel places on record the advertisement of auction to be held under the supervision of Dy. Collector, Lunavada Prant, Lunavada. Mr.S.K.Rathod, Dy. Collector is present and he states that for participation in the auction each of the participants will be required to deposit Rs.25,000/= and once the offer of any of the participants is accepted, he will go out of the zone of consideration and the remaining bidders will be allowed to participate. 2. Mr.Kavina, learned Counsel appearing for respondents No.4 to 9 submitted that it may be clarified that such auction may be held without prejudice to the rights and contentions of respondents No.4 to 9 in this petition and he also submitted that as respondents No.4 to 9 have already deposited the amount earlier of Rs.40,000/= towards development charges when the possession of the shops in question were handed over, respondents No.4 to 9 may be allowed to participate without depositing the amount of Rs.25,000/= which is the condition for other participants to submit their offer. 3. So far as the first part is concerned, the auction to be held as per the order dated 23.8.2004 is subject to the further orders which may be passed by this Court in this petition and, therefore, no separate clarification is required. The second request of Mr.Kavina cannot be accepted for the simple reason that if the respondents No.4 to 9 are asserting their right for the shops in question which are allotted by the Municipality earlier and if without prejudice to their rights and contentions in this petition, they are desirous to participate in the auction, they stand on the same position at par with the other participants at the auction and, therefore, if respondents No.4 to 9 are desirous to participate at the auction without prejudice to the rights and contentions in SCA No.9598/2004, it would be for them to comply with the conditions to deposit the amount of Rs.25,000/= at the time of participation. 4. S. O. to 4.11.2004 for reporting compliance of the earlier order. Direct service today." 4. As the first auction did not materialise positively, once again the matter was considered by the Court on 8.2.2005 and the following order was passed: " This court after hearing the parties had passed the following order on 23.8.2004: "1. Heard Mr. Mehta for the petitioners, Mr. Kavina for the respondents No. 4 to 9 and Mr. Dave for the respondents No. 1 and 2. 2. Upon hearing the learned counsel appearing for the parties, it appears that by the impugned order dated 28.8.2000 passed by the Collector, it has been ordered to hold public auction of ten shops, and for 7 shops the difference is to be recovered. 3. For both the purposes, i.e either to maintain the order passed by the Collector or even for quashing of the order passed by the Collector, it is required to be brought on record the auction price of the property in question, and thereafter the matter can be further decided for passing consequential orders based on the same. 4. Mr. Kavina, learned counsel appearing for the respondents No. 4 to 9 submitted that the possession of the shops are already given by the President of the Municipality whereas Mr. Mehta, learned counsel for the petitioner submitted that it is on account of the collusion by the President of the Municipality, the possession is handed over, and he submitted that as such, the respondents No. 4 to 9 have no specific right or privilege to be treated differently for the purpose of allotment of the shops. 5. In my view, the question regarding different treatment given by the Collector in the impugned order shall be considered later on, but with a view to arrive at a figure for ascertaining the market price of the property in question, the auction of all the shops are required to be held, and the said auction may not be finalized and may be placed before this Court for further orders. 6. Under the above circumstances, by further interim order, it is directed the Municipality, under the supervision of an officer who may be nominated by the District Collector, shall hold the auction of all 17 shops but shall not finalize the auction and shall submit the report of auction proceedings before this Court. It would be open to the officer holding the auction to accept the requisite amount towards participation in the auction. It is further made clear that till further orders, the possession of the aforesaid 7 shops which are said to be in physical possession of respondents No. 4 to 9 shall not be disturbed but the said possession shall be continued subject to further orders which may be passed by this Court in the petition. The aforesaid auction be completed within a period of six weeks from today. 7. S.O. to 1st October 2004 for passing further orders." 2. Thereafter, on 27.10.04, in connection with the very auction the following order was passed: "Mr.Shah, learned Counsel places on record the advertisement of auction to be held under the supervision of Dy. Collector, Lunavada Prant, Lunavada. Mr.S.K.Rathod, Dy. Collector is present and he states that for participation in the auction each of the participants will be required to deposit Rs.25,000/= and once the offer of any of the participants is accepted, he will go out of the zone of consideration and the remaining bidders will be allowed to participate. 2. Mr.Kavina, learned Counsel appearing for respondents No.4 to 9 submitted that it may be clarified that such auction may be held without prejudice to the rights and contentions of respondents No.4 to 9 in this petition and he also submitted that as respondents No.4 to 9 have already deposited the amount earlier of Rs.40,000/= towards development charges when the possession of the shops in question were handed over, respondents No.4 to 9 may be allowed to participate without depositing the amount of Rs.25,000/= which is the condition for other participants to submit their offer. 3. So far as the first part is concerned, the auction to be held as per the order dated 23.8.2004 is subject to the further orders which may be passed by this Court in this petition and, therefore, no separate clarification is required. The second request of Mr.Kavina cannot be accepted for the simple reason that if the respondents No.4 to 9 are asserting their right for the shops in question which are allotted by the Municipality earlier and if without prejudice to their rights and contentions in this petition, they are desirous to participate in the auction, they stand on the same position at par with the other participants at the auction and, therefore, if respondents No.4 to 9 are desirous to participate at the auction without prejudice to the rights and contentions in SCA No.9598/2004, it would be for them to comply with the conditions to deposit the amount of Rs.25,000/= at the time of participation. 4. S. O. to 4.11.2004 for reporting compliance of the earlier order. Direct service today." 3. Today, when the matter is further taken up, it has been reported by the learned advocate for the petitioner that because of some misconception on the part of the petitioner, no offers were submitted. Mr.Shah, Ld.advocate for the respondent-Municipality also submitted that the Municipality is desirous to readvertise for auctioning of the shops in pursuance of the earlier order passed by this court. Mr.Shah also further submitted that the Municipality is desirous to utilise the money as the property is lying idle. Kavina, Ld.counsel appearing for respondent Nos 4 to 9 resisted such course being adopted by the Municipality on the ground that the petitioner has prior right over seven shops which are in the possession of his clients and he wanted to make various submissions for supporting the stand that the case of the respondent Nos 4 to 9 who are in possession of seven shops stands on different footing and therefore those shops may not be ordered to be auctioned by the Municipality even if the Municipality is desirous to readvertise the auction. He also submitted that only 10 shops, i.e. remaining shops, barring shops which are in the possession of the respondent Nos 4 to 9 may be ordered to be auctioned. He submitted that earlier order, dated 23.8.04 and the subsequent order, dated 27.10.04 were the interim orders of the court and the court is not bound by such interim orders and the court may consider the contention of respondent Nos 4 to 9 once again before allowing the Municipality to readvertise or before ordering the reauction of the shops. He submitted that as now the respondent Nos 4 to 9 are ventilating the grievance as they were in the earlier petition being SCA No.12406/2000 the question may be examined once again by this court even for the purpose of passing interim order on the point as to whether the Municipality should be allowed to reauction all the shops or excluding the shops which are in possession of the respondent Nos 4 to 9. 4. In my view, there is no change in circumstances except the fact that the offers were not received at the time when the attempt was made by the Municipality for auction and therefore if the Municipality is desirous to make another attempt, it can not be said that the matter would be required to be considered, once again, for adopting same course which was ordered by this court earlier as per order dated 23.8.04 read with order, dated 27.10.04. The aforesaid is coupled with the circumstance that the respondent Nos 4 to 9 in pursuance of order, dated 27.10.04 without prejudice to the rights and contentions in this petition have also deposited amount of Rs.25,000/- each for enabling them to participate in the auction. Therefore, I find that it may not be required for this court at this stage to examine the various contentions which have been raised by Kavina for respondent Nos 4 to 9 for contenting the prior or special right which is claimed by respondent Nos 4 to 9. The said prior or special right over the shops which are in their possession would be considered by the court only at the time when further order is passed after the report of the auction is produced and the said aspect is also reflected in the earlier order, dated 23.8.04 passed by this court. 5. In view of the above, it is observed that the municipality shall be at liberty to readvertise for auction of all shops in pursuance of order, dated 23.8.04 read with the order, dated 27.10.04 passed in this petition and the Municipality may also permit those persons who have already deposited the amount for participating at the auction in addition to the new offers which may be received. 6. The aforesaid exercise shall be completed within a period of 5 weeks from today and report shall be submitted on 21.3.05. 7. The office to place the matter on 22.3.05 for passing further orders." 5. It appears that at the second auction the Municipality received the offers in respect to Shops No.1, 2, 3, 8, 9 and 10, which are allotted to Respondents No.4 to 9, except Shop No.6 allotted to Nitin Aswin Upadhyay. As per the affidavit filed by the Chief Officer of the Municipality dated 4.4.2005, (1) in respect to Shop No.1 which is allotted to Respondent No.7 herein, he has participated at the auction and price offered is of Rs.2,50,000/=; (2) in respect to Shop No.2 which is allotted to Respondent No.6 herein, he has participated and the price offered is Rs.2,50,000/=; (3) in respect to shop No.3 which is allotted to Respondent No.9 herein, the price offered is of Rs.2,30,000/=; (4) in respect to shop No.8 allotted to Respondent No.5 herein, the price offered is of Rs.2,30,000/=; (5) So far as shop No.9 is concerned, the present occupant who is allotted the shop has not participated, but one Dhalpat M. Lalchvani offered the price of Rs.2,50,000/=; (6)