# M/S HANDE WAVARE & CO v. RAMCHANDRA VITTHAL DONGRE & ORS

- **Citation:** [2019] 9 S.C.R. 181
- **Court:** Supreme Court of India
- **Decided:** 2019-07-10
- **Case number:** Civil Appeal No. 5350 of 2019
- **Bench:** R. Banumathi, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-hande-wavare-co-v-ramchandra-vitthal-dongre-ors-34018
- **Pages:** 31

## Headnote

Maharashtra Agricultural Produce Marketing (Development
and Regulation) Act, 1963- ss.43, 52B - Government of
Maharashtra decided to shift the wholesale fruit and vegetable
market situated in Crawford Market to Vashi, Navi Mumbai to reduce
the congestion - Agricultural Produce Market Committee (APMCrespondent no.5) constructed two types of galas/shops, small galas
and big galas - Committee appointed to suggest the norms to allot
the galas/shops- Dispute pertains to the allotment of large gala/
shop no.F-158 in lottery conducted by APMC- Appellant selected
in the lottery for allotment of the said gala - Decision to conduct
lottery challenged by respondent no.1 before respondent no.6 -
Allotment by lottery to the appellant set aside - Order of respondent
no.6 set aside and the decision of APMC drawing the lottery and
allotting the said gala to the appellant was confirmed - Respondent
No.2 filed writ petition - Allowed by High Court while directing
APMC to allot the said gala in his favour - On appeal, held: As
per the norms, no trader who has not paid the booking amount can
get large gala or part thereof or more than one small gala -
Respondent no.2 himself neither made the application before the
cut-off date nor paid the booking amount - Amount paid by father
of respondent no.2 was sought to be transferred to respondent no.2
- Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by the Committee -
Respondent No.2 cannot claim allotment of Gala No.F-158 dehors
the norms fixed by the Committee which were directed to be strictly
followed by the High Court - Neither respondent no.1 nor
respondent no.2 are eligible to claim allotment of large gala -
Appellant having paid the market fee of Rs.9844.10 in the time frame
of 1985-86 to 1994-95 which is less by Rs.155.90 to the required
norm of Rs.10,000/-, falls under the category of "marginally falls
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short of the norms" and is entitled to make claim for the large gala
- Findings of the High Court that one 'GS', who was not considered
eligible to participate in the lottery, is not eligible to claim large
gala set aside - Directions issued - Constitution of India - Art.14.
Constitution of India - Art.14 - Enforcement of, in negative
manner - Held: Not permissible - If any illegality or irregularity
has been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality or
irregularity cannot be perpetuated on the ground of discrimination
or hardship.
Disposing of the appeals, the Court
HELD: 1.1 Claim of respondent No.2- Respondent No.2
himself did not make any application for booking of any gala nor
did he pay any amount for booking the gala. As per the norms
suggested by Daud Committee, there was no scope of transfer of
booking of gala and the booking amount from one person to
another. In the impugned judgment, the High Court held that
the right of respondent No.2 to get large gala has been crystallised
by the order dated 24.09.2002 of Director of Agricultural
Marketing and when the large Gala No.F-158 became available,
APMC ought to have allotted the same to respondent No.2. As
per the norms, no trader who has not paid the booking amount
can get a large gala or part thereof or more than one small gala.
Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by Daud
Committee. Merely because, in other cases, gala booked in the
name of one person is transferred in the name of another person,
it cannot be the reason to adopt the same irregularity in the case
of the second respondent also. If any illegality or irregularity has
been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality
or irregularity cannot be perpetuated on the ground of
discrimination or hard

## Text

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M/S HANDE WAVARE & CO.
v.
RAMCHANDRA VITTHAL DONGRE & ORS.
(Civil Appeal No. 5350 of 2019)
JULY 10, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Maharashtra Agricultural Produce Marketing (Development
and Regulation) Act, 1963- ss.43, 52B - Government of
Maharashtra decided to shift the wholesale fruit and vegetable
market situated in Crawford Market to Vashi, Navi Mumbai to reduce
the congestion - Agricultural Produce Market Committee (APMCrespondent no.5) constructed two types of galas/shops, small galas
and big galas - Committee appointed to suggest the norms to allot
the galas/shops- Dispute pertains to the allotment of large gala/
shop no.F-158 in lottery conducted by APMC- Appellant selected
in the lottery for allotment of the said gala - Decision to conduct
lottery challenged by respondent no.1 before respondent no.6 -
Allotment by lottery to the appellant set aside - Order of respondent
no.6 set aside and the decision of APMC drawing the lottery and
allotting the said gala to the appellant was confirmed - Respondent
No.2 filed writ petition - Allowed by High Court while directing
APMC to allot the said gala in his favour - On appeal, held: As
per the norms, no trader who has not paid the booking amount can
get large gala or part thereof or more than one small gala -
Respondent no.2 himself neither made the application before the
cut-off date nor paid the booking amount - Amount paid by father
of respondent no.2 was sought to be transferred to respondent no.2
- Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by the Committee -
Respondent No.2 cannot claim allotment of Gala No.F-158 dehors
the norms fixed by the Committee which were directed to be strictly
followed by the High Court - Neither respondent no.1 nor
respondent no.2 are eligible to claim allotment of large gala -
Appellant having paid the market fee of Rs.9844.10 in the time frame
of 1985-86 to 1994-95 which is less by Rs.155.90 to the required
norm of Rs.10,000/-, falls under the category of "marginally falls
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short of the norms" and is entitled to make claim for the large gala
- Findings of the High Court that one 'GS', who was not considered
eligible to participate in the lottery, is not eligible to claim large
gala set aside - Directions issued - Constitution of India - Art.14.
Constitution of India - Art.14 - Enforcement of, in negative
manner - Held: Not permissible - If any illegality or irregularity
has been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality or
irregularity cannot be perpetuated on the ground of discrimination
or hardship.
Disposing of the appeals, the Court
HELD: 1.1 Claim of respondent No.2- Respondent No.2
himself did not make any application for booking of any gala nor
did he pay any amount for booking the gala. As per the norms
suggested by Daud Committee, there was no scope of transfer of
booking of gala and the booking amount from one person to
another. In the impugned judgment, the High Court held that
the right of respondent No.2 to get large gala has been crystallised
by the order dated 24.09.2002 of Director of Agricultural
Marketing and when the large Gala No.F-158 became available,
APMC ought to have allotted the same to respondent No.2. As
per the norms, no trader who has not paid the booking amount
can get a large gala or part thereof or more than one small gala.
Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by Daud
Committee. Merely because, in other cases, gala booked in the
name of one person is transferred in the name of another person,
it cannot be the reason to adopt the same irregularity in the case
of the second respondent also. If any illegality or irregularity has
been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality
or irregularity cannot be perpetuated on the ground of
discrimination or hardship. Merely because, in few other cases,
gala booked in the name of one person was transferred in the
name of other persons in deviation from the norms fixed by Daud
Committee, the Director, Marketing was not right in holding that
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the second respondent is entitled for allotment of large gala by
transfer of booking of large gala from his father-Farhatullah Haji
Barkatullah to his name. Father of respondent No.2 though paid
the booking amount of Rs.1,32,000/-, he has not paid the requisite
cess amount to be eligible for the third large gala. Where report
of the Daud Committee specifically fixed the norms for the traders
who have paid the booking amount and traders who have not
paid the booking amount distinctly, the norms cannot be
compromised or diluted by allowing the traders to get the booking
amount of one trader be transferred to another thereby, enabling
him to claim allotment of gala which he otherwise, would not have
entitled to. Respondent No.2 cannot make a claim for allotment
of Gala No.F-158 dehors the norms fixed by Daud Committee or
otherwise, it would amount to diluting the norms fixed by Daud
Committee which has been directed to be strictly followed by the
High Court vide its order dated 07.05.1999 in W.P. No.2556 of
1999. The order dated 24.09.2002 passed by the Director of
Agricultural Marketing is contrary to the norms fixed by Daud
Committee. The order of the High Court holding that respondent
No.2 is entitled to large gala cannot be sustained and is liable to
be set aside qua respondent No.2. [Paras 23, 26, 27-29, 32]
[196-H; 197-A, E; 198-G; 199-C-H; 200-A-D; 201-E-F]
1.2 Claim of Appellant- During the period between 198586 to 1994-95, the appellant had paid an amount of Rs.9844.10
towards cess/market fee and Rs.34,000/- towards booking a gala.
The cess/market fee paid by the appellant was less by Rs.155.90
to the required norm of Rs.10,000/-. The market fee of Rs.9844.10
paid by the appellant was in the time frame of 1985-86 to 1994-95
and thus the appellant had not fulfilled the norms as per the Daud
Committee report and thus the appellant is falling under the
category of "marginally falls short of the norms." The appellant
placed reliance on the order of the High Court dated 07.05.1999
passed by the High Court in W.P. No.2556 of 1999 whereby the
Division Bench has directed APMC to make allotment strictly
by adhering to the norms laid down by the learned Commissioner.
In WP No.2556/1999, the High Court further directed that if any
gala remains vacant after allotment in accordance with the norms,
it will be open to APMC to allot to those who "marginally falls
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL
DONGRE & ORS.
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short of the norms" that have been laid down. The appellant having
paid the market fee of Rs.9844.10 in the time frame of 1985-86
to 1994-95 which is less by Rs.155.90 falls under the category of
"marginally falls short of the norms" and is entitled to make a
claim for the large gala. Without considering the rival contentions
of the parties, the High Court was not right in holding that
respondent No.2 alone was entitled for the allotment of large
Gala No.F-158. [Paras 33, 34] [202-C-G]
1.3 Claim of 'GSS': 'GSS' was allotted a small Gala No.M748 in 1999. The amount of Rs.3,000/- paid by him to the Traders
Association transferred to APMC in 2003, be it for lease premium
or booking amount, the fact remains that he had paid only
Rs.32,725/- before the cut-off date for taking the gala. Though,
he was allotted small gala, the same can be taken into account for
holding that he falls within the category of "marginally falls short
of the norms" and is entitled to claim large gala. The findings of
the High Court that he is not eligible to claim large gala is not
sustainable and the is set aside. [Paras 35, 40] [202-G; 205-F-G]
1.4 M/s 'RVD': M/s 'RVD is a registered partnership firm
consisting of two partners. Both the partners obtained licences
in their individual capacities. There are no norms suggested by
Daud Committee making a partnership firm separately eligible
for allotment of a Gala on the basis of the licence issued in the
name of the individual partner, the amount paid by said individual
partner towards booking of the Gala, payment of cess made by
such individual partner, etc. In the absence of specific norms for
the partnership firms, the norms framed for individual traders
are applicable for the partnership firms. When the firm was
registered in the year 2014 and it has not complied with any of
the norms fixed by Daud Committee, the firm cannot seek for
the allotment of any gala, much less a large gala. Considering the
submissions of both the parties, in the impugned judgment, the
High Court rightly held that the partnership firm consisting of
'RVD' and 'GVL' is not separately entitled for allotment of any
separate Gala. The partnership firm was registered only in the
year 2014 and the firm was neither in existence nor carried on
any business prior to cut off date. The High Court rightly rejected
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the contention that the registration would relate back to the date
of execution of the partnership deed in the year 1987. The High
Court rightly rejected the plea that the firm was eligible to apply
for allotment of large Gala No.F-158. [Paras 41, 47 and 48]
[206-B; 208-B-D; 209-A-C]
1.5 In view of the concurrent finding of Director of
Agricultural Marketing dated 04.06.2014 and the findings of the
High Court in the impugned judgment that M/s RVD is not eligible
to claim large gala, nothing survives for consideration in
W.P.No.234 of 2004 pending before the High Court of Bombay.
In the light of affirming the view taken by the High Court that the
firm M/s RVD is not eligible to claim allotment of large gala, the
High Court shall dispose of the said writ petition W.P.No.234 of
2004 by passing appropriate orders. Respondent No.1 and
respondent No.2 are not eligible to claim allotment of large gala
and the judgment of the High Court is liable to be set aside. The
appellants and 'GS' (who are marginally short of the norms) are
eligible to claim allotment of large gala along with others.
[Paras 49-51] [209-E-H]
1.6 Since there is huge competition for the large gala, instead
of adopting the lottery method, after fixing the market value in
order to fetch more revenue for APMC, offers should be invited
in sealed covers. In order to attract better offers, it is appropriate
that appellant should vacate the large Gala No.F-158 at the
earliest. The counsel appearing for APMC has stated that the
small Gala No.M-821 earlier allotted to the appellant is still vacant.
APMC shall forthwith pass an order for re-allotting the said small
sized Gala No.M-821 to the appellant and the appellant shall
vacate the large Gala No.F-158 before the end of September,
2019. Considering the fact that APMC itself has fixed the market
value of large Gala No.F-158 at Rs.55,00,000/- in the year 201314, it is deemed appropriate to fix the upset value at Rs.55,00,000/
-. The four eligible claimants shall quote their offers in a sealed
cover and accordingly, the large Gala No.F-158 be allotted to the
one who is quoting the highest price. The impugned judgment of
the High Court is set aside. Following directions issued- (i)
Respondent No.2 is not entitled to claim allotment of large gala
and findings of the High Court qua respondent No.2 is set aside;
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL
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(ii) The findings of the High Court that the firm-'RVD' is not
entitled to claim allotment of large gala is affirmed; (iii) The
possession of small Gala No.M-821 shall be restored back to the
appellant and it shall vacate the large Gala No.F-158 on or before
30.09.2019. The amount of Rs.27,69,500/- deposited by the
appellant towards the large gala No.F-158 shall be refunded to
him by APMC immediately within two weeks from the date of his
vacating; (iv) The upset value of large Gala No.F-158 shall be
fixed at Rs.55,00,000/- as fixed by the Director of Agricultural
Marketing, APMC and the same shall be notified by APMC by
the end of October, 2019. The four eligible claimants shall quote
their offers for the large gala and shall submit sealed tenders to
APMC on or before 15.11.2019. The sealed tenders are to be
opened by APMC in the presence of a higher level officer
preferably, the Joint Director of Marketing and in the presence
of all the four claimants or their representatives on 22.11.2019;
and (v) The large Gala No.F-158 shall be allotted to the claimant
who has quoted the highest price. Payment of the amount for
allotment of large gala by the successful allottee shall be paid as
per the rules of APMC.[Paras 52-54] [210-D-H; 211-A-F]
State of Bihar v. Upendra Narayan Singh and Others
(2009) 5 SCC 65 : [2009] 4 SCR 866 - relied on.
Hanumant Murlidhar Gavade v. Mumbai Agricultural
Produce Market and Others (2012) 1 SCC 729 : [2011]
16 SCR 229; M. Meenakshi and Others v. Metadin
Agarwal (Dead) by LRs. and Others (2006) 7 SCC 470:
[2006] 5 Suppl. SCR 505 ; Anita International v.
Tungabadra Sugar Works Mazdoor Sangh and Others
(2016) 9 SCC 44 : [2016] 6 SCR 635 - referred to.
Case Law Reference
[2011] 16 SCR 229
 referred to
Para 1
[2009] 4 SCR 866
 relied on
Para 28
[2006] 5 Suppl. SCR 505 referred to
Para 30
[2016] 6 SCR 635
 referred to
Para 31
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CIVIL APPELLATE JURISDICTION: Civil Appeal No 5350 of
2019
From the Judgment and Order dated 21.11.2018 and 07.12.2018
of the High Court of Judicature at Bombay in Writ Petition No. 10328 of
2014
With
Civil Appeal Nos. 5351, 5352, 5353-5354, 5355-5359 of 2019.
Vinay Navare, Sr. Adv., Uday B. Dube, Ms. Gwen Karthika,
Ravindra Sadanand Chingale, Sandeep Sudhakar Deshmukh,
Vishwajeet M., Amol Nirmalkumar Suryawanshi, Anoop Kandari, Nishant
Ramakantrao Katneshwarkar, Rakesh K. Sharma, Nishant, Parthiv
K.Goswami, Ms. Diksha Rai, Palak Mahajan, Ishan Bisht,
Sandeep Sudhakar Deshmukh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. These appeals arise out of the judgment dated 21.11.2018 passed
by the High Court of Bombay in WP No.8959 of 2014 and batch of writ
petitions in and by which the High Court held that only the second
respondent is eligible for the allotment of large gala and directed the
appellant-M/s Hande Wavare & Co. to vacate the large Gala No.F-158
in the Mumbai Agricultural Produce Marketing Committee, Vashi and
further directing the Mumbai Agricultural Produce Marketing Committee
to hand over the said gala to respondent No.2-Habibullah Farhatullah.
3. The dispute pertains to the allotment of large Gala/shop No.F158 in a lottery conducted by respondent No.5-Mumbai Agricultural
Produce Market Committee (APMC) on 25.09.2013. The brief facts
giving rise to these appeals are that the Government of Maharashtra
decided to shift the wholesale fruit and vegetable market situated in
Crawford Market to Vashi, Navi Mumbai in order to reduce the
congestion. With a view to facilitate traders dealing in wholesale trading
of fruit, APMC has constructed two types of galas/shops viz. small galas
admeasuring 300 sq. ft. (200 sq. ft. + 100 sq. ft. loft) and large galas
admeasuring 450 sq. ft. (300 sq. ft. + 150 sq. ft. loft) each. On 26.04.1998,
the High Court of Bombay appointed Justice S.M. Daud, former Judge
of the High Court as the Court Commissioner to suggest the norms to
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL
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allot the galas/shops in the newly constructed wholesale market at Vashi
to the traders so shifted. Learned Commissioner submitted three reports
stipulating norms for eligibility for two-time frames which were accepted
by the High Court. The first-time frame was 1985-86 to 1994-95 and
second time frame was of 1991-92 to 1994-95. For proper appreciation
of the contention regarding fulfilment of norms or otherwise, we have
referred to the relevant portion of the report of the Commissioner as to
the norms for entitlement of gala.
4. In the case of Hanumant Murlidhar Gavade v. Mumbai
Agricultural Produce Market and Others(2012) 1 SCC 729, the
Supreme Court had cancelled the allotment of the large gala bearing
No.F-158 which was allotted in favour of Hanumant Murlidhar Gavade
as he was found not eligible for the large gala having made short payment
of cess and APMC was directed to allot only a small gala to Hanumant
Murlidhar Gavade. Consequently large gala bearing No.F-158 became
vacant. Several claimants made claims for the allotment of the said large
gala/shop. The first respondent-a partnership firm by name M/s
Ramchandra Vitthal Dongre approached the High Court in a Civil
Application No.13 of 2012 in WP No.234 of 2004 for an early hearing
seeking allotment of the said large gala. The High Court vide its order
dated 07.01.2013 disposed of the application acceding to the submissions
of the Agricultural Produce Market Committee-APMC that apart from
the applicant therein there are four other claimants and directed APMC
to scrutinize the claim of all eligible claimants for the allotment of Gala
No.F-158.
5. Pursuant to the order of the High Court dated 07.01.2013, a
meeting was convened by the Board of Directors of APMC on
07.03.2013 to conduct a lottery for allotment of Gala No.F-158 amongst
five traders viz. (i) M/s Ramchandra Vitthal Dongre-respondent No.1;
(ii) Shri Habibullah Farhatullah-respondent No.2; (iii) M/s Bhalchandra
Chintaman Lele (Shri Kedar Keshav Lele)-respondent No.3; (iv) Shri
Ashok Dhondiba Punde-respondent No.4; and (v) M/s. Hande Wavare
and Company (Shri Kashinath Wavare)-appellant. On 26.08.2013, notices
were issued to all the said five claimants with direction to participate in
the lottery proposed to be drawn on 19.09.2013. Out of the five claimants
who were allowed to participate in the lottery, only four claimants
participated in the said lottery drawn by APMC. Respondent No.1-M/s
Ramchandra V. Dongre participated in the said lottery system under
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protest. Habibullah Farhatullah-respondent No.2 refused to participate
in the lottery. The appellant-M/s. Hande Wavare and Company was
selected in the said lottery for allotment of the said Gala No.F-158 and
its value was fixed at Rs.28,77,000/- as per Government ready reckoner
and was directed to pay Rs.27,69,500/- as consideration within one month
for allotment of said gala by deducting the amount of Rs.1,07,500/- initially
deposited by the appellant for the purpose of allotment of one small gala
and APMC asked the appellant to return the small gala allotted to him
back to APMC. The appellant M/s Hande Wavare & Co. deposited the
amount of Rs.27,69,500/- to APMC on 07.01.2014. The appellant also
surrendered its small gala to APMC.
6. The decision to conduct lottery was thereafter challenged by
the firm M/s Ramchandra Vitthal Dongre under Section 52B of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Act, 1963 before respondent No.6-Director of Agricultural
Marketing. Respondent No.6 vide its order dated 04.06.2014 partly
allowed the appeal filed by Ramachandra V. Dongre and set aside the
allotment by lottery to appellant M/s Hande Wavare & Co. and directed
APMC to allot said gala by inviting bids from five claimants in a sealed
cover. Director, Marketing observed that the allotment of the large gala
to the appellant by way of a lottery by reducing the price of the said gala
from Rs.55,00,000/- as initially fixed value as per government rate to
Rs.28,77,000/- was not proper. The Director of Agricultural Marketing
further observed that APMC should have considered the market rate
and the value of the said gala from the government approved valuer and
should have called for sealed tenders from five claimants and ought to
have allotted the said gala to the claimant who is paying the maximum
value. The Director held that APMC has not followed the statutory
system and erred by allotting gala by lottery system to M/s Hande Wavare
and Co. thereby causing financial loss to the APMC and thus, set aside
the allotment of large gala to the appellant.
7. Aggrieved by the cancellation of allotment, appellant Kashinath
Wavare filed a Revision Application No.28 of 2014 under Section 43 of
MAPMC Act before the State Government. Challenging the said order
of Director of Agricultural Marketing, respondent No.1 also filed revision
in Revision Petition No.27 of 2014 under Section 52B of MAPMC Act
before the State Government. The Hon'ble Minister for Co-operation,
Marketing and Textile-respondent No.7 vide his order dated 12.09.2014
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL
DONGRE & ORS. [R. BANUMATHI, J.]
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allowed the revision petition filed by Kashinath Wavare and dismissed
the revision petition filed by respondent No.1-Ramachandra Vitthal
Dongre and set aside the order of respondent No.6-Director of
Agricultural Marketing and confirmed the decision of APMC drawing
the lottery and allotting the said gala to the appellant M/s. Hande Wavare
& Co. The Hon'ble Minister observed that there was not only a single
party but there were five claimants who were eligible for the allotment
of Gala No.F-158 and upheld the process of allotment undertaken by
APMC by confirming the decision of the Board of Directors to draw the
lottery and determining the price of the Gala at Rs.28,77,000/- instead of
its market value of Rs.55 lakhs.
8. Aggrieved by the order of APMC and the order of Minister,
M/s Ramchandra Vitthal Dongre filed W.P. Nos.8959 and 8975 of 2014
before the High Court and respondent No.2-Habibullah Farhatullah filed
W.P. No.10328 of 2014. Challenging the allotment of large gala to the
appellant and also challenging the lottery method adopted by APMC,
Ganpat Shinde who was not considered eligible to participate in the lottery
filed W.P. No.2090 of 2015 before the High Court. The appellant
Kashinath M. Wavare filed W.P.(ST) No.35978 of 2017 against the order
of the Director of Marketing dated 29.04.2015.
9. The High Court heard all the writ petitions together and
considered the claim of the claimants for allotment of large gala. By the
common judgment dated 21.11.2018 allowed WP(C) No.10328/2014 filed
by respondent No.2-Habibullah Farhatullah directing the APMC to allot
the said gala in his favour. The High Court held that respondent No.2Habibullah fulfilled all the eligibility criteria formulated by Justice Daud
Committee. The High Court held that once the large Gala No.F-158
became available by virtue of the judgment passed in Hanumant
Murlidhar Gavade,respondent No.2 ought to have been allotted the
large Gala in compliance with the order dated 24.09.2002 passed by the
Director of Agricultural Marketing in Appeal No.34/2002 which was
filed by respondent No.2. The High Court set aside the order passed by
the Hon'ble Minister for Co-operation, Marketing and Textile by observing
that "APMC thus could not have drawn lottery to consider the claim of
other four claimants under the guise of implementing the order dated
07.05.1999 passed by the Division Bench in WP(C) No.2556/1999 in
the case of Shantaram Y. Bhagat v. The Mumbai Agricultural Produce
Market Committee and another". Aggrieved, the appellant-M/s. Hande
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Wavare and Co. has filed appeal before the Supreme Court. The
Supreme Court vide its order dated 11.01.2019 issued notice and directed
the parties to maintain status quo.
10. Mr. Uday B. Dube, learned counsel appearing for the appellant
submitted that APMC is having only one large Gala No.F-158 vacant
for which claim is made by traders like appellant, who otherwise fulfil
the guidelines fixed by Daud Committee but were "marginally fall short
of the norms". It was submitted that as per the order of the High Court
dated 07.05.1999 in W.P.No.2556 of 1999, Board of Directors of APMC
has rightly taken the decision to conduct lottery amongst the eligible
claimants and the same ought not to have been set aside by the Appellate
Authority-Director of Agricultural Marketing and the High Court. The
learned counsel further submitted that respondent No.2-Habibullah
Farhatullah has not booked the gala in his name nor paid the amount and
is not entitled for allotment of a large gala as he has not paid the amount
for booking the gala.
11. It was submitted that Farhatullah Haji Barkatullah-father of
respondent No.2- had initially deposited the amount seeking allotment
for three galas and after allotment of two large galas by APMC, instead
of taking refund of the amount deposited for the third gala, father of
respondent No.2 requested APMC to transfer the said amount deposited
by him in the account of his son-respondent No.2. It was contended
that the High Court ought to have independently considered the claim of
respondent No.2 and recorded a finding regarding the eligibility of
respondent No.2-Habibullah Farhatullah to get a large gala on merits
instead of relying upon the technical ground raised by respondent No.2
that APMC did not challenge the order passed by the Director of
Agricultural Marketing dated 24.09.2002. The learned counsel further
submitted that the rights of the third parties i.e. the rights of the appellant
and others cannot be decided on the ground of non-challenge by APMC
especially when it was demonstrated by the appellant as to how
respondent No.2 was not entitled for any large gala. It was urged that
the appellant and other claimants were not parties before the Director
of Agricultural Marketing and hence, the said order dated 24.09.2002
cannot be said to be binding on the appellant and other traders.
12. Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing
for respondent No.1-M/s Ramchandra Vitthal Dongre reiterated that
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the eligibility of partnership firm of the M/s Ramchandra Vitthal Dongre
had never been an issue and respondent No.1-firm has all along been
fighting for allotment of second large gala and the eligibility of which,
was never disputed in other proceedings. The learned counsel submitted
that the norms fixed by Daud Committee do not expressly prohibit the
claim of respondent No.1-firm and the High Court erred in saying that
the firm M/s Ramachandra Dongre is not eligible to claim allotment of
large gala.
13. Mr. Vinay Navare, learned senior counsel appearing on behalf
of the appellant Ganpat Sabaji Shinde in SLP(C) Nos.4927-31 of 2019
submitted that Ganpat Sabaji Shinde has deposited an amount of
Rs.35,725/- with APMC during the period between 1987-1991 for
allotment of large gala which amount was more than Rs.34,000/- as per
norms. It was submitted that though APMC claims that an amount of
Rs.32,725/- has been made by him, further amount of Rs.3,000/- has
been paid by him to the trader's association which was transferred to
APMC and, therefore, Ganpat Sabaji Shinde satisfies the norms fixed
by Daud Committee and APMC erred in excluding Ganpat Sabaji Shinde
from making a claim to the large Gala No.F-158.
14. Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf
of respondent No.2 submitted that Director of Agricultural Marketing
vide its order dated 24.09.2002 allowed the transfer of the booking amount
in the name of father of respondent No.2 to his name thereby, entitling
him for a large gala. It was further submitted that the order dated
24.09.2002 has not been challenged and binding on APMC and, therefore,
the High Court rightly held that the right of respondent No.2 has been
crystallised and, therefore, respondent No.2 was the only eligible claimant
for allotment of the large Gala No.F-158. The learned senior counsel
further submitted that in view of eligibility of respondent No.2 for large
gala, APMC could not have considered the case of other claimants under
the alleged category of "marginally falling short". It was submitted that
taking note of inconsistent stand taken by APMC in various proceedings,
the High Court rightly set aside the order of the Hon'ble Minister and
directed allotment of large Gala No.F-158 to respondent No.2.
15. Taking us through the materials, Mr. Rakesh K. Sharma, learned
counsel for respondent No.5-APMC submitted that respondent No.2Habibulla Farhatullah did not pay any booking amount and under the
norms suggested by Daud Committee, there was no scope for transfer
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of booking of one claimant to the name of any other person and the
order dated 24.09.2002 passed by the Director of Agricultural Marketing
in the appeal filed by the respondent No.2 is contrary to the norms fixed
by Daud Committee and the orders passed by the High Court and the
Supreme Court. It was urged that respondent No.2 himself did not pay
any booking amount and therefore, the question of allotting any large
gala to respondent No.2 did not arise. It was also contended that
respondent No.2-Habibullah Farhatullah did not participate in the lottery
on the pretext that he had the order dated 24.09.2002 in his favour passed
by Director of Agricultural Marketing. The learned counsel further
submitted that since there were more than one claimants, Board of
Directors of APMC had taken the decision to conduct lottery amongst
the claimants who were "marginally fall short of the norms" in
compliance with the norms fixed by Daud Committee and the Hon'ble
Minister rightly affirmed the same. It was submitted that by placing
reliance upon the order dated 24.09.2002 passed by the Director, the
High Court erred in holding that respondent No.2 is eligible for allotment
of large gala and the impugned order is liable to be set aside.
16. Upon consideration of the submissions and impugned judgment
and other materials on record, the following points arise for determination
in these appeals:-
(i) When respondent No.2-Habibullah Farhatullah himself has not
booked the large gala before the cut-off date nor paid the booking
amount, whether the High Court was right in saying that only
second respondent is entitled for allotment of large gala by getting
the transfer of the booking amount from his father to his name?
(ii) Dehors the norms fixed by Daud Committee, whether the High
Court was right in placing reliance only upon the order of Director,
Marketing dated 24.09.2002 to hold that the second respondent
is entitled for allotment of large gala?
(iii) Whether the High Court was right in saying that APMC could
not have considered the case of other claimants under the
category of "marginally fall short of the norms" and that
drawing of lottery was without jurisdiction?
17. Norms laid down by Justice Daud Committee:- In the
year 1987-88, APMC had decided to shift all the subsidiary market of
fruits and vegetables from Mumbai to Vashi, Navi Mumbai. In the year
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1995, the construction of the said market was completed. In view of the
dispute between traders in respect of the allotment of galas/shops, several
petitions came to be filed before the High Court. On 26.04.1998, the
High Court appointed Shri Justice S.M. Daud as a Court Commissioner
to suggest the norms to allot the galas/shops in the newly constructed
wholesale market at Vashi. The learned Commissioner submitted three
reports which were accepted by the High Court. As pointed out earlier,
the said new wholesale Fruit Market had total number of 1029 galas.
Out of 1029 galas, 732 being the large galas each measuring 450 sq.ft.
and 297 small galas each measuring 300 sq.ft. The Daud Committee
provided for eligibility for two-time frames. The first-time frame was
1985-86 to 1994-95 and the second time frame was of 1991-92 to
1994-95.
18. What is relevant for these appeals is the norms fixed by learned
Commissioner for "Fruit Market" which has 1029 galas viz. 732 large
galas and 297 small galas. As earlier mentioned, the learned Commissioner
submitted three reports inter-alia stipulating the norms for allotment of
galas/shops in the newly constructed wholesale market. The first time
frame was 1985-86 to 1994-95 and the second time frame was of 199192 to 1994-95. No one would get more than three large galas and for
retaining the third, the claimant would have to pay the market price
within ninety days of the acceptance of the norms by the High Court.
19. First time frame was from 1985-86 to 1994-95. For those who
came into the business from 1991-92 to 1994-95 had booked the galas
up to 31.12.1993, the second time frame 1991-92 to 1994-95 was made
applicable. The relevant recommendations of the Committee read as
under:-
"Time frame 1985-86 to 1994-95. Booking effected.
The claimant has to establish doing of five years business as
reflected in payment of market fee irrespective of quantum thereof.
He must further show that he held an APMC licence for at least
two years in the above ten years period as also that he did business
in one of the years 1995-96 or 1996-97 - this again to be
established by proof of cess paid. The cess - space nexus
will be as under:-
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No one to get more than three large galas and for retaining the
third, the person retaining, will have to pay the market price within ninety
days of the acceptance of the norm by the High Court.
The next category is of those who have booked galas up to
31.12.1993 and have come into the business from 1991-92 to 1994-95.
For them the time frame will be 1991-92 to 1994-95. The eligible in this
category will be those who have held APMC licences for at least three
years, have done business for three years as reflected in the payment of
market fee irrespective of quantum and also show that they were doing
business in 1995-96 or 1996-97 by proof of having paid market fee about
having done business either in 1995-96 or 1996-97. The cess-space
nexus will be thus:-
20. The High Court vide its order dated 07.05.1999 in Writ Petition
No.2556 of 1999 directed APMC to make allotment strictly by adhering
to the norms laid down by Daud Committee. In the said order, the High
Court further issued directions that in case any galas remaining in balance
after allotment in accordance with norms, APMC to allot the same to
those who "marginally fall short of the norms" that have been laid
down. The said order of the High Court reads as under:-
"1. Pursuant to the orders passed by this Court Justice Daud was
appointed for laying down norms for the purpose of allotment of
Galas in the Agricultural Produce market Committee's market at
Total Cess Paid
Entitlement
1.
Rs.1,500/- to Rs.5,000/-
Half small gala
2.
Rs.5,001/- to Rs.10,000/-
1 small gala
3.
Rs.10,001/- to Rs.15,000/-
Half large gala
4.
Rs.15,001/- to Rs.90,000/-
1 large gala
5.
Rs.90,001/- to Rs.3,00,000/-
2 large galas
6.
Above Rs.3,00,000/-
3 large galas

Total Cess Paid
Entitlement
1.
Rs.2,500/- to Rs.7,500/-
Half small gala
2.
Rs.7,501/- to Rs.25,000/-
1 small gala
3.
Above Rs.25,000/-
1 large gala

M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL
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Vashi, New Bombay, Justice Daud has accordingly passed his
awards laying down the norms. APMC is directed to make
allotment strictly by adhering to the norms laid down by Justice
Daud. If any Galas remain in balance after allotment in accordance
with the norms it will be open to the APMC to allot the same to
those who marginally fall short of the norms that have been laid
down. The orders of allotment as also the orders refusing allotment
will be treated as orders having been passed under the
Maharashtra Agriculture Produce Marketing (Regulation) Act,
1963 and the same will be appealable under Section 52B of the
Act. It goes without saying that the orders granting or refusing to
allot galas will be supported by reasons." [underlining added]
In Hanumant Murlidhar, the Supreme Court has also reiterated
that the allotment should be strictly in accordance with the norms fixed
by Daud Committee.
21. As pointed out earlier, after decision in Hanumant Murlidhar,
large Gala No.F-158 had fallen vacant. Stand of APMC is that as per
the meeting of Board of Directors held on 07.03.2013, it was inter-alia
resolved that allotment of Gala No.F-158 be done amongst the five eligible
claimants viz. (i) M/s Ramchandra V. Dongre; (ii) Mr. Habibullah
Farhahtullah; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav
Lele); (iv) Mr. Ashok Dhondiba Punde; and (v) M/s Hande Wavare &
Co. by drawing lottery. In the decision taken by the Board of Directors
in its meeting held on 26.04.2013, allotment of the said gala by drawing
lottery was confirmed. As discussed earlier, allotment of Gala No.F-158
to the appellant-M/s Hande Wavare & Co. has led to the series of
litigations.
22. In the above facts and circumstances, it is to be considered
whether the High Court was right in holding that respondent No.2Habibullah Farhatullah is entitled for allotment of large gala without
making booking of large gala before 31.12.1993 and by getting transferred
booking amount of his father in his name after acceptance of new norms
by the High Court.
23. Claim of respondent No.2-Habibullah Farhatullah:-
Respondent No.2-Habibullah applied for licence in the year 1991-1992
in his own name and obtained licence in the year 1992. Admittedly,
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respondent No.2 does not fall within the first-time frame 1985-86 to
1994-95. Respondent No.2 himself did not pay any amount for booking
of gala. On 04.01.1999, father of respondent No.2- Farhatullah Haji
Barkatullah paid an amount of Rs.1,32,000/- as booking amount for three
large galas. As per norms fixed by the learned Commissioner for
allotment of three large galas, total cess payable is above Rs.3,00,000/-
. Since father of respondent No.2 paid amount less than Rs.3,00,000/-,
he was allotted only two large galas. In his letter dated 23.03.1999,
father of respondent No.2 stated that he had paid Rs.1,32,000/- for
booking of two large galas initially and that his son Habibullah started
the business of fruits trade since 1991-1992 and that he asked for booking
of one large gala in the name of his son viz. respondent No.2. However,
APMC did not accept the booking in the name of his son and therefore,
Farhatullah Haji Barkatullah- father of respondent No.2 booked the third
gala in his own name. In the said letter, father of respondent No.2 has
also stated that the third gala booked in his name i.e. in the name of
father of respondent No.2 may be transferred to his son-respondent
No.2 and also the remaining amount be transferred to his son-respondent
No.2 and that he may be allotted a large gala. Be it noted, respondent
No.2 himself did not make any application for booking of any gala nor
did he pay any amount for booking the gala. It is also pertinent to note
that as per the norms suggested by Daud Committee, there was no
scope of transfer of booking of gala and the booking amount from one
person to another.
24. In the application for allotment of large gala on 26.04.1999,
respondent No.2 was allotted a small Gala No.M-775 by APMC which
was not accepted by respondent No.2. Another application filed by
respondent No.2 for allotment of large gala was rejected on 02.05.2001
against which respondent No.2 filed an Appeal No.34/2002 before the
Director of Agricultural Marketing.