IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 148 of 1999 in SPECIAL CIVIL APPLICATIONNo 328 of 1999 with LETTERS PATENT APPEAL No 129 of 1999 In SPECIAL CIVIL APPLICATION NO.601 OF 1999 with LETTERS PATENT APPEAL No 255 of 1999 IN SPECIAL CIVIL APPLICATION NO.903 OF 1999 with LETTERS PATENT APPEAL NO.481 OF 1999 IN SPECIAL CIVIL APPLICATION NO.1735 OF 1999 With Civil Applications Nos.7701 to 7704 of 2001 In Letters Patent Appeals Nos.129,255,481 and 148 of 1999 With Civil Application No.655 of 1999 In Letters Patent Appeal No.148 of 1999 With Civil Application No.567 of 1999 In Letters Patent Appeal No.129 of 1999 With Civil Application No.1571 of 1999 In Letters Patent Appeal No.255 of 1999 With Civil Application No.3687 of 2000 In Civil Application No.2709 of 2000 In Civil Application No.655 of 1999 In Letters Patent Appeal No.148 of 1999 With Misc. Civil Applications No.1626 & 1690 of 2000 In Civil Application No.2709/2000 in Civil Application No.655/99 In Letters Patent Appeal No.148 of 1999 With Civil Application No.174 of 2000 In Civil Application No.567 of 1999 In Letters Patent Appeal No.129 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 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 Civil Judge? : NO @ KISAN FERTILIZERS Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 148 of 1999 MR KS JHAVERI for Appellants Ms.Harsha Devani, learned AGP, for respondents Nos.1 and 2 Mr.P.K.Jani, Mr.Tushar Mehta, Mr.N.D.Nanavati with Mr.H.C.Buch, Mr.H.P.Raval, Mr.P.M.Thakkar with Mr.Y.M.Thakkar, Mr.D.T.Dave, Mr.B.B.Naik, Ms.Kusum M.Shah, and Ms.K.J.Brahmbhatt for respective respondents. 2. LETTERS PATENT APPEAL No. 129 of 1999 MR MH RATHOD for Appellant Ms.Harsha Devani, learned AGP, for respondents Nos.1 and 2 Mr.P.K.Jani for respondent No.3 3. LETTERS PATENT APPEAL No. 255 of 1999 MR KETAN D SHAH for Appellants Ms.Harsha Devani, learned AGP for respondents 1 and 2 Mr.P.K.Jani for respondent No.3 4. LETTERS PATENT APPEAL NO.481 OF 1999 Mr.K.D.Shah for appellant Ms.Harsha Devani, learned AGP, for respondents Nos.1 and 2 Mr.P.K.Jani for respondent No.3 -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MR.JUSTICE RAVI R.TRIPATHI Date of decision: 14/08/2001 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE M.R.CALLA) 1 . Letters Patent Appeal No.148/99 arises out of the judgment and order dated 4.2.99 passed by the learned single Judge in Special Civil Application No.328/99 filed by Kisan Fertilizers and 24 other traders against the State of Gujarat, Deputy Director, Agricultural Marketing and Rural Finance and District Registrar, Co-operative Societies and the Agricultural Produce Market Committee, Deesa respondents Nos.1 to 3 respectively. This Special Civil Application No.328/99 was rejected by the learned single Judge on the ground that decision of allotment of shops by the Agricultural Produce Market Committee at Deesa was subject to the revisional jurisdiction of the Director of Agricultural Marketing and Rural Finance of the Government of Gujarat and the State Government had still wider power under Sec.48 of the Gujarat Agricultural Produce Markets Act, 1963 to go into and examine the proceedings of Director of Agricultural Marketing and Rural Finance or of any Market Committee. Learned single Judge has held that the petitioners had an efficacious and alternative remedy against the decision of the Market Committee. Letters Patent Appeal No.129/99 arises out of the judgment and order dated 3.2.99 passed in Special Civil Application No.601/99 as was preferred by one Shri Jaswantlal Shantilal Shah, a trader carrying on business in the rented premises situated within the Market area of the Agricultural Produce Market Committee, Deesa, whereby Special Civil Application was rejected on the ground that the same was premature and that against the final decision to be taken by the Agricultural Produce Market Committee alternative remedy was available to the petitioner under Sec.48 of the Act. Letters Patent Appeal No.255/99 arises out of Special Civil Application No.903/99 filed by traders, named Mafatlal and Parsottambhai and Co. and one Shri Bharatkumar Kevalbhai Shankle of Deesa, which was rejected by the learned single Judge by his order dated 12.2.99 on the ground that alternative remedy under Sections 47 and 48 of the Act was available to them and that even otherwise the petition could not be entertained as the petitioners slept over their rights and did not avail the remedy available against the Resolution of the Agricultural Produce Market Committee, Deesa with regard to the allotment of the shops. Letters Patent Appeal No.481/99 arises out of Special Civil Application No.1735/99 filed by a trader, named Parsottambhai Vaktabhai, which was rejected by the learned single Judge by his order dated 10.3.99 on the ground that the petitioner had not applied for the allotment of the shops and also that action with regard to the allotment of the shops by the Market Committee was subject to revisional powers of Director of Agricultural Produce Market Committee and the State Government and that remedy had also not been availed. 2. Whereas all these matters involve a common question with regard to the allotment of the shops by the Agricultural Produce Market Committee at Deesa and common question of law based on identical facts are involved, we propose to decide all these four Letters Patent Appeals by this common judgment and order as under:- Brief history and the background: -- Under Bombay Agricultural Produce Market Act, 1939, a Market Committee was constituted for Deesa Taluka on 21.11.57. -- The said Committee passed a Resolution No.11 on 21.12.57 and different other Resolutions on subsequent dates and as per these Resolutions 38 plots were leased out to individuals and Panjrapole for developing the same. -- In 1958, 14 traders were allotted shops on permanent lease as they had shifted their business from the old Market yard. -- With the coming into force of the Agricultural Produce Market Act, 1963, the aforesaid Agricultural Produce Market Committee, Deesa was deemed to be a Market Committee established and set up under the Gujarat Agricultural Produce Market Committee under the said Act. This market Committee has a principal Market yard at Deesa and sub market Yard at Bhildi, Taluka Deesa and Vegetable Sub-market Yard near Sardar Baug, Deesa. -- During 1970-75, eleven shops were given on lease on renewal basis for every 3 years. -- Prior to 1986 various kinds of vegetables and foods were not regulated commodity falling within the purview of Gujarat Act, 1963 and they were not regulated items to be dealt with and traded only through Agricultural Produce Market Committee. -- By Notification dated 19.7.86 these commodities i.e. items of vegetable and food were brought within the purview of the regulated commodity under the Gujarat Act and the Rules framed thereunder. -- On 2.12.87 the area in question i.e. City Survey No.323, which had been earlier declared as Revenue Survey No.22 of Sheet No.40 as the principal market yard by the State of Bombay, was denotified as market yard and the new market yard started its operation on Patan Palanpur Highway. -- The plots were leased out by charging construction cost and at that time 106 occupiers were occupying the shops in the sub market yard. -- On 18.1.88 the Market Committee issued notices to all occupiers for vacating the premises. -- During 25.2.88 to 5.3.88, 54 occupiers have challenged the action of the Agricultural Produce Market Committee seeking to vacate them and Civil Suits were filed before Civil Judge (J.D.), Deesa. The remaining 52 occupiers also did not vacate the premises though they had not challenged the action of Agricultural Produce Market Committee by filing any Civil Suit or otherwise. -- On 22.12.88 a Notification was issued by the State Government declaring City Survey No.323 as sub market yard of Vegetables and Fruits; sub-market could not develop as the 106 occupiers had not vacated the premises and matters were sub judice before the Civil Court at Deesa. -- Agricultural Produce Market Committee therefore resolved to settle the disputes with the occupiers and with the litigants in the Civil Suits on 28.1.91 because pending disputes with the occupiers, as aforesaid, the sub market yard was not developing. -- On 13.9.91 in the special general meeting of the Agricultural Produce Market Committee, Resolution No.2 was passed empowering the Chairman to enter into the settlement with the occupiers and the litigants as under;- 1. 18 Traders (lease holder of the plots) who have constructed the superstructure at their cost and who have agreed to hand over the possession without claiming damages of the same, should be given shop on the terrace of cattle shed by charging 1,75,000/- towards the construction cost. 2. The 14 shops to be allotted to the 14 Traders, (permanent lease holder who shifted their business from Gandhi Chowk to the present Sub Market Yard at the request of A.P.M.C.) by charging construction cost of Rs.2,00,000/-- on the terrace of the cattle shed. 3. 20 shops at the Sub Market Yard to be allotted to the Panjra Pole by charging the construction cost as determined by the committee, as the Panjra Pole had agreed to hand over the possession of the lease hold plots with construction before the expiry of lease period and without claiming any damages. 4. 32 Traders occupying the open shed on rental basis shall be accommodated in the shops to be constructed on the first floor on the cattle shed by charging the construction cost that may be determined by the committee. 5. The 11 Traders occupying shops of A.P.M.C. on lease to be allotted the plots of shop cum go-down in the first phase of S.S.Market Yard (Principle Market Yard). 6. 8 Traders, occupying the shops below the office of Talk Sangh should be kept as it is and the rules of Vegetable market should be made applicable to the occupiers. 7. 2 shops should be allotted to the Akhol Mahadevia Co.Op.Society in the Vegetable Market in lieu of 2 go-downs of the Society. 8. 1 shop at the Vegetable Market to be allotted to the Ranpur - Vadavas Sahkari Mandali in lieu of the open shed. -- On 14.9.91 settlement in terms of Resolution No.2 dated 13.9.91 was recorded before 502 Lok Adalat at Deesa. -- During 15.9.91 to 20.5.92, 74 occupiers were accommodated as per the settlement, 8 occupiers could not be accommodated on the cattle shed as per Item No.1 and 2 of Resolution and 23 occupiers were waiting for the possession of the shops as the Vegetable market was not ready. --- -- On 21.5.92 in the general body meeting of Agricultural Produce Market Committee, it was resolved by Resolution No.3 to allot 8 shops in the Vegetable Market Yard to traders and plot holders who could not be accommodated earlier in the shops as per item Nos.1 and 2 of the Resolution No.2 dated 13.9.91 and as per the settlement before the 502 Lok Adalat. -- On 2.3.94 at the general body meeting of the Agricultural Produce Market Committee it was resolved by Resolution No.9 to allot shops to 44 persons as recommended by the wholesale potato merchants and green vegetables merchants association by charging construction cost. -- On 6.4.94 the Vegetable and Fruits Development Sub-committee vide Resolution No.2 resolved to allot one shop each to remaining traders as per the Resolution No.9 dated 2.3.94. -- After the completion of construction work of the sub market yard, the general body meeting of the Agricultural Produce Market Committee vide its resolution No.13 resolved to charge the construction costs from the allottees as under:- Rs.2,40,000/-- as the construction cost for 30' shop. Rs.2,65,000/- as the construction cost for 35' shop. Rs.2,85,000/- as the construction cost for 40' shop. Rs.5000/-- towards transfer fees. Rs.1500/-- towards yearly rent. -- On 27.10.97 the Agricultural Produce Market Committee invited applications for allotment of shops from the agriculturists of Deesa Taluka producing vegetables as resolved by sub committee of Vegetable and Fruit. -- On 16.12.97 it was resolved by Agricultural Produce Market Committee to allot 15 shops (out of 43 applications in pursuance of notice dated 27.10.97) by lucky draw to the agriculturists engaged in the production of vegetables. 3. In this background when the agricultural produce market committee decided to renovate the old market and started the construction for that purpose and the construction work of the sub market yard was over, the question came up with regard to the allotment of 20 shops. It was apprehended that the shops were likely to be allotted to traders who are not traders in the agricultural produce and that there was likelihood of allotting the same without following any procedure prescribed by the Directorate of Agricultural Marketing and Rural Finance and the possession in pursuance of such allotment was to be handed over before 22.1.99 by the Agricultural Produce Market Committee and, therefore, Special Civil Application No.328/99 dated 13.1.99 was preferred before this court by traders i.e. Kisan Fertilizers and 24 others seeking a direction against the State of Gujarat and Deputy Director, Agricultural Marketing & Rural Finance and District Registrar, Co-operative Societies to see that the Agricultural Produce Market Committee makes the allotment of shops only in accordance with law and in compliance with the circulars issued by the State of Gujarat on 5.9.75 and 19.5.92 and from restraining the Agricultural Produce Market Committee from allotting shops in contravention of these circulars and to direct the respondents to allot the shops to the eligible persons through public auction. In this Special Civil Application No.328/99 the notice was issued on 15.1.99 returnable on 4.2.99 and ad interim relief in terms of para 6(B) was granted restraining the respondents from allotting the shops in sub market yard situated at Station Road, Deesa. It appears from the affidavit in rejoinder dated 4.2.99 filed by one Shri Prabhubhai Popatbhai Thakore - Petitioner No.1 in the Special Civil Application No.328/99 that an affidavit in reply had already been filed by one Shri Nanubhai Shantilal Shah, Chairman of the Agricultural Produce Market Committee, although we do not find such reply in the record of the Special Civil Application No.328/99. This Special Civil Application No.328/99 was decided and dismissed by the learned single Judge on 4.2.99 and the ad interim relief, which was granted on 15.1.99 while issuing the notice was vacated. 4. Against this order dated 4.2.99 passed by the learned single Judge, Letters Patent Appeal No.148/99 was preferred by the 25 original petitioners i.e. Kisan Fertilizers and 24 others, as aforesaid and on 9.2.99 notice returnable on 11.2.99 was issued. It appears that on 9.2.99 the Civil Application No.655/99 for stay in this matter had also come up before the Division Bench and in that Civil Application also notice returnable on 11.2.99 was issued and in the order sheet in this Civil Application No.655/99 the date of the order has been written as 11.2.99 by mistake. It must have been 5.2.99 instead of 11.2.99 because it is the returnable date which was 11.2.99. In any case, the fact remains that the order of status quo as on that day till 11.2.99 was passed by the Division Bench. On 7.3.2000 when the matter came up before the Division Bench it was found that shops had been allotted to 89 persons and these 89 persons were also to be arrayed as parties and therefore, on 7.3.2000 the Division Bench granted time to the learned counsel for the appellants to implead all these 89 persons as party respondents and notice upon them was directed to be served through Secretary of the Market Committee and the order of interim status quo granted earlier was continued till further orders and the matter was directed to be listed soon after service on the additional parties. It further appears that a Draft amendment was then moved on behalf of all the appellants seeking to implead 100 more persons as parties i.e. Ms. Vardhaji Nagaji and Co. to Neelmani Fruit Centre and this draft amendment was allowed by the Division Bench on 10.4.2000 raising the total number of respondents from 3 to 103. 5. It further appears that thereafter Civil Application No.3686/2000 was moved by 'Shree Deesa Shakbhaji Vepari Association', a Registered Public Trust under the Bombay Public Trusts Act, 1950 through its President Shri Pratapji Bhimaji represented by Shri Harin P. Raval, Advocate and through this Civil Application No.3686/2000 it is claimed that the members of the applicant trust are holders of licences issued by Deesa Nagar Palika under the Bombay Shops and Establishments Act, 1948 and that the members of this applicant-trust were engaged in the business of commission agent and were wholesalers for last number of years, that prior to the establishment of principal market yard at the State Highway there existed an old market yard, which was the principal market yard and there were approximately 70 shops. These 70 shops were demolished and out of these 70 shops, all shops were not of the ownership of Agricultural Produce Market Committee, Deesa and that there were approximately 30 shows which belonged to Panjarapole, Deesa, which were purchased on ownership basis from the said Panjarapole by the dealers and licence holders, who were dealing in grains, food grains, etc. and the remaining shops were of the ownership and were constructed by the Market Committee, that on account of demolition of the shops, which originally belonged to Panjarapole, a dispute arose and the matter was settled in Lok Adalat whereby it was decided to allot 20 shops to Panjarapole, Deesa in lieu of the 30 shops of the ownership of Panjarapole, Deesa, which were demolished for construction of the new sub market yard for the vegetables; whereas the Market Committee had resolved to allot 68 shops to existing persons, who were engaged in the trade and business of commission agents and wholesale dealers and retailers in vegetable and 20 shops were decided to be allotted to Panjarapole, Deesa, out of 119 shops which were proposed to be constructed in the sub market yard after demolition of the old shops, apart from the shops there were Ring Stall where the business was carried out by small retailers, who were semi wholesalers and who were also decided to be allotted shops which were to be newly constructed at the sub market yard by the Agricultural Produce Market Committee and that these 20 persons are also members of the applicant Trust, that pursuant to the aforesaid Resolution of the year 1994 letters had been issued to the members of the applicant Trust by the Agricultural produce Market Committee calling upon them to deposit building fund of Rs.50,000/-- being the first instalment of Rs.25000/-- to be deposited on or before 25.6.94 and the second instalment of Rs.25000/-- to be deposited before 20.7.94. Pursuant to this letter, 28 members of the applicant Trust deposited Rs.25,000/-- each, by letter dated 25.1.96 members of the applicant - Trust were called upon to deposit the second instalment of Rs.25000/-- on or before 20.7.94 and pursuant to this letter, members of the applicant - Trust deposited the second instalment of Rs.25,000/-- each, in 1999 further notices were issued to the members of the applicant Trust inter alia pointing out that a further amount of Rs.50,000/-- was required to be paid by each of the members of the applicant - Trust towards building fund in pursuance to the allotment of shops made to the members of the applicant - Trust and the members of the applicant - Trust deposited a further sum of Rs.50000/-- each, that the application dated 11.10.99 had also been made to the Chairman of the Agricultural Produce Market Committee by the applicant Trust pointing out that they are the real traders and commission agents carrying on business in the area of Market Committee, Deesa and despite of allotment and payment of huge sum of Rs.100000/-- by each one, which has been utilised towards construction of the shops by the Market Committee, no possession was given, and request was made to complete the allotment by giving possession of these shops to the members of the applicant - Trust, that not only members of the applicant - Trust were allotted shops in 1992, but huge amount of Rs.1,00,000/-- with interest in case of some of the members had been collected, which is lying as deposit since the years 1994, 1996 and 1999 in the sums of Rs.25,000/--, Rs.25,000/-- and Rs.50,000/--, that not only that the market Committee has earned interest on the aforesaid amount, but the present shops in question are constructed out of funds which were deposited by members of the Applicant - Trust, which were now sought to be auctioned so as to defeat the rights of the members of the applicant - Trust and on one hand the present shops are constructed out of the funds of the members of the applicant - Trust, on the other hand the members of the applicant - Trust are left high and dry without any allotment in view of the challenge in the present proceedings and on yet another hand the right of the members of the applicant - Trust, at least 28 in number, is sought to be permanently jeopardised on the basis of the order, which has been obtained by the Market Committee in collusion with the original appellants without pointing out the true and correct facts and without pointing out that out of the only 30 biggest size shops of 480 sq.fts. available for allotment, 29 shops were sought to be auctioned so as to defeat the rights of 28 members of the applicant - Trust for no fault on the part of the members of the applicant - Trust, that during the pendency of these proceedings, the applicant had come to know that in view of the statement contained in the notice dated 19.5.2000, which is an advertisement proposing to hold auction of shops Nos.1 to 29 on 30.5.2000 and that the first line of the advertisement itself suggest that pursuant to the judgment rendered in the pending Civil Application No.2709/2000, the advertisement was sought to be issued for holding public auction, that the said advertisement was published in the news paper "Rakheval" in its Edition dated 20.5.2000, that members of the applicant trust had also been issued necessary licences by the Agricultural Produce Market Committee, that original petitioner in Special Civil Application No.328/99 sought writ of mandamus for allotment of the shops in accordance with law and in compliance of the circulars issued by the State of Gujarat dated 5.9.75 and 19.5.92 and restraining the Agricultural Produce Market Committee from allotting the shops in contravention of the circulars and a direction has been sought against the Market Committee to allot the shops to the eligible persons by public auction and that the Incharge Secretary of the Market Committee had issued a letter to the Applicant - Trust that in accordance with the Resolution fixing the price of the market committee, shops Nos.1 to 89 had been allotted to the members of the applicant - Trust, that the present Chairman of respondent No.1 Market Committee, namely, Shri Govabhai Desai belongs to the group of original petitioners in Special Civil Application No.328/99 and was acting in hand in glove with them and in order to benefit these original petitioners against the interest of the members of the applicant - Trust and, therefore, it is clear that this trust has to protect interest of its members and for this purpose it was necessary that the Trust is also impleaded as party respondents in this Appeal. It appears that Civil Application No.3686/2000 was moved during vacation and on 29.5.2000 notice was issued and the service was waived on behalf of respondent No.1 by Mr.P.K.Jani and on behalf of respondents