Mumbai
Agricultural Produce Market Committee & ANR Vs. Sharafatullah Hafiz Inayatulla
& ANR [2000] INSC 57 (15 February 2000)
N.S.Hegde,
A.P.Misra
SANTOSH
HEGDE, J.
CA.../2000
{@ SLP c .(CC 3870/99)} Delay condoned.
Leave
granted.
In
this appeal, the appellant has challenged the order made by the Division Bench
of the Bombay High Court dated 8th September, 1998 whereby the High Court held that the respondent had substantially
complied with the norms fixed for allotting galas for trading in wholesale
fruits in the market presently situated at Navi, Mumbai. Consequent to the
decision of the appellant to shift wholesale markets including the fruit market
from Bombay Municipal Corporation Area to Navi Mumbai, disputes arose as to the
allotment of galas to the vendors which dispute was challenged before the High
Court of Bombay in various writ petitions and the High Court, with a view to
avoid arbitrariness in the allotment of galas, had appointed Mr. Justice Daud
(Retired) to formulate the norms based on which the gala would be allotted to
various claimants. Justice Daud had submitted various reports. Ultimately, the
report dated 6th July,
1999 came to be
accepted. As per this report, the basic requirement needed for the allotment of
a gala was that the claimant had to establish that he was doing the concerned
business for 5 years within a block period of 1985-86 to 1994-95 which should
be reflected by way of payment of market fee irrespective of the quantum and
further show that he held an APMC licence for a period of at least 2 years
during the said block period. Since the respondent was not allotted a gala in
spite of his claim that he was qualified to be allotted a gala within the norms
referred to above, he filed Writ Petition No.4248 of 1998 before the High Court
of Bombay which having been allowed, the Market Committee has preferred the
above noted appeal. Before the High Court, the respondent contended that he had
been doing business as a fruit vendor for many years in the Subsidiary Market
at Mahatma Jyotiba Phule Mandai, Bombay. A dispute had arisen between him and the appellant herein consequent
to which the appellant had filed a suit in the City Civil Court at Bombay wherein the appellant had sought
for an injunction against the respondent restraining him from doing business in
the market without obtaining necessary licence from the appellant and paying
the required market fee. It was the contention of the respondent before the
High Court that during the pendency of the said suit there was certain correspondences
between him and the appellant-Committee consequent to which he had paid all the
arrears of market fee due from him which was accepted by the appellant and he
had also accepted the authority of the appellant to insist on taking out a licence.
Therefore, his activity as a trader being accepted by the Market Committee for
the relevant period fixed by Justice Daud, he was entitled to be granted a
gala. The claim of the respondent before the High Court was opposed by the
appellant primarily on the ground that though appellant did carry on business,
he did not hold a licence during the relevant period i.e. 1985-86 to 1994-1995.
Therefore, he was not entitled for the grant of a gala since the condition
precedent for the allotment of a gala being the payment of the market fee and
having held licence during the relevant period which conditions the respondent
did not satisfy. The High Court having considered the facts of the case came to
the conclusion that there was a dispute between the appellant and the respondent
in regard to the authority of the Market Committee to levy fee and taking of a licence.
Still, the fact remained that the writ petitioner was doing business for a
number of years including the block period fixed by Justice Daud and
subsequently the writ petitioner had paid all the arrears of market fee which
was accepted by the Market Committee.
Therefore,
there was substantial compliance of the norms fixed by Justice Daud and the
fact that the writ petitioner had not taken out a licence, was due to the
pending dispute which did not exist any more in view of the fact the writ
petitioner had accepted the authority of Market Committee and the two norms
fixed by Justice Daud was more in the nature to establish the fact that a
claimant was doing business for at least 5 years during the block period which
fact not being in dispute, the writ petitioner was entitled for the allotment
of a gala. Challenging the above order of the High Court, it was contended
before us that the High Court committed a factual error in coming to the
conclusion that the suit which was filed by the Market Committee had since been
compromised and because of this basic error the Court came to the conclusion
that the respondent had established his right for the allotment of a gala, which
finding of the High Court, according to the appellant, is erroneous because, as
a matter of fact, the suit was never compromised and the respondent had also
not taken a licence.
It is
also further contended by the appellant that if allotments are to be made on
the basis of the finding of the High Court then all the persons similarly
situated as the respondent will also be entitled to similar allotment which
would create practical difficulties inasmuch as the number of galas available
will not be sufficient to accommodate all such claimants. The appellant also
pointed out before us that some more writ petitions are still pending in the
High Court making similar claims.
Before
we proceed to examine the correctness of the order impugned before us, we
should bear in mind the fact that the High Court appointed a Commission
presided over by Justice Daud only for the purpose of finding out norms by
which allotment could be made avoiding the allegation of arbitrariness. Justice
Daud, as could be seen from the records available before us, had elaborately
considered the factual situation and had fixed certain norms. We have already
referred to some of the relevant norms applicable to the facts of the case,
i.e., that a person staking a claim for the allotment of a gala must establish
that he was doing business in the original place at least for a period of 5
years during the block period viz., 1985-86 to 1994-1995.
Of
course, in addition, it is also necessary that the claimant should establish
that he had a licence from the APMC for a period of at least 2 years during
that block period. In the instant case, the High Court noticed that there was
no dispute in regard to the factum that the respondent was doing business for
at least 5 years during the block period, if not more, but the contention is
that he had not paid the market fee and had not obtained the licence. This
lacuna, the High Court felt, was due to genuine dispute between the parties and
now that the appellant had accepted all the arrears of market fee, the High
Court came to the conclusion that the dispute does not exist any more and that
his not obtaining the licence by itself, did not detract from the fact that the
writ petitioner had in fact done business during the relevant block period.
Having come to this conclusion, the High Court held that there was substantial
compliance of the norms. It is true in the course of the discussion of the
facts of the case, the High Court referred to a compromise which, in our
opinion, is obviously an error and this error in fact did not vitiate its
finding. Therefore, we are in agreement with the finding of the High Court that
when the respondent had established that he was doing business during the
relevant period, non-payment of market fee because of the pendency of the
dispute in a competent court of law and subsequent acceptance of the arrears of
market fee would justify the claim of the respondent for the allotment of a
gala. In regard to the absence of a licence, it must be held on the basis of
the facts of this case that when the Market Committee accepted the arrears of
market fee for a past period, it should be deemed that it accepted the business
done by the respondent during that period to be legitimate and there is no
question of issuing a licence for a period which has already expired. That
apart, Justice Daud norms were meant to establish the fact that a claimant to a
gala had in fact done legitimate business in the market for a period of at
least five years during the block period which we have held the respondent had
done. Therefore, we do not find any reason to differ with the conclusion
arrived at by the High Court.
However,
we must deal with the next contention raised on behalf of the appellant in
regard to the possible difficulty that may be faced by the Market Committee
arising from the claims of similarly situated persons as the respondents before
us. First of all, no material has been placed before us to show that there are
claimants who had regularly done business during the relevant period and who
like the writ petitioner had not paid the market fee and obtained a licence
because of any genuine dispute with the Market Committee which dispute
culminated in legal proceedings. Assuming that there are such further claimants
then their conduct will have to be judged with reference to laches as and when
they stake their claims. Further assuming that in the pending cases the claims
of the writ petitioners are similar to that of the respondents herein even
then, in our opinion, no problem can be envisaged because Justice Daud had
taken note of this fact and had recommended a norm which he termed as :
"Early Bird Norm" which in principle means that the allotment will be
made between the similarly-situated persons on the basis of the date of
application which, in our opinion, is a fair method to be adopted in the event
of there being more eligible claimants than the available number of galas. For
these reasons, this appeal fails and the same is dismissed.
SLPc
No. 10733/99 :
In
view of the judgment of this Court in C.A.
No.../2000
(arising out of SLPc ..(cc No.3870/99), this petition is also dismissed.
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