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PETITIONER: MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE & ANR.

       Vs.

RESPONDENT: SHARAFATULLAH HAFIZ INAYATULLA & ANR.

DATE OF JUDGMENT:       15/02/2000

BENCH: N.S.Hegde, A.P.Misra

JUDGMENT:

     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

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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

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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

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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.