REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   5350    2019 (Arising out of SLP(C) No.33627 of 2018)

M/S HANDE WAVARE & CO.            ...Appellant

VERSUS

RAMCHANDRA VITTHAL DONGRE      …Respondents & ORS.   

WITH

CIVIL APPEAL NO.   5351    2019 (Arising out of SLP(C) No.567 of 2019)

CIVIL APPEAL NO.  5352    2019 (Arising out of SLP(C) No.792 of 2019)

CIVIL APPEAL NO.  5353-54   2019 (Arising out of SLP(C) Nos.2942-43 of 2019)

CIVIL APPEAL NO.  5355-59   2019 (Arising out of SLP(C) Nos.4927-31 of 2019)

J U D G M E N T

R. BANUMATHI, J.

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

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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.F-158  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  allot  the  galas/shops  in  the  newly

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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

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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  protest.  Habibullah  Farhatullah-

respondent  No.2  refused  to  participate  in  the  lottery.  The

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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

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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

allowed  the  revision  petition  filed  by  Kashinath  Wavare  and

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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.

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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.2-Habibullah  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 Wavare and Co. has filed

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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

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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

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reiterated  that  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.

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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.2-Habibulla Farhatullah did not pay any booking

amount  and  under  the  norms  suggested  by  Daud  Committee,

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there was no scope for transfer 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.  

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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 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

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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 1991-92 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.   

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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:-

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

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

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having paid market fee about having done business either in 1995-96

or 1996-97.  The cess-space nexus will be thus:-

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

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

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

17

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.2-

Habibullah  Farhatullah  is  entitled  for  allotment  of  large  gala

18

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,  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

19

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.  APMC

opposed  the  claim  of  respondent  No.2  contending  that

respondent No.2 did not pay any booking amount in his name or

in the name of others and therefore, the question of allotment of

any large gala to him did not arise.  APMC also took the stand

20

that as per the norms fixed by the learned Commissioner, there

was  no  scope  of  transfer  of  booking  of  gala  and the  booking

amount  from  one  person  to  another.  By  the  order  dated

24.09.2002, Director of Agricultural Marketing allowed the appeal

preferred by respondent No.2 and directed APMC to allot large

gala to him by pointing out that in fourteen other cases, booking

of galas made by one person were transferred to other persons.  

25. While allowing the Appeal No.34/2002 filed by respondent

No.2  (order  dated  24.09.2002),  the  Director  of  Agricultural

Marketing called for report from the Joint Director of Marketing to

ascertain whether there were other cases of allowing transfer of

booking from one person’s name to the other in allotting the galas

in the name of transferee. By referring to the report of the Joint

Director of Marketing and observing that APMC in fourteen cases

has allowed the transfer of the booking of the galas in the name

of others and allotted the galas to such transferees,  in Appeal

No.34/2002,  Director  of  Agricultural  Marketing  observed  as

under:-

“From the report of Shri Kokare, it is clear that in 14 cases which are

on record the booking was done in the names of some other persons

and the Respondent has allowed the transfer of the bookings of the

galas in the name of others and further allotted the galas to such

21

transferees.  This has not been denied by the Respondent  Market

Committee.  Considering  the  fact  that  the  Market  Committee  has

allowed transfers in large number of cases, there is no justification for

not  allowing transfer  of  the  booking in  the name of  the  Appellant

where the booking was in the name of his father and the transfer was

requested in the name of the son i.e. present Appellant………. This is

a glaring case of injustice by the Respondent committee against the

Appellant. In view of this, it would be in the interest of justice to allow

the appeal  of  the  Appellant  and give  directions to  the  agricultural

Produce Market Committee, Mumbai to allot one large gala to the

Appellant……….”

26. In the impugned judgment, the High Court held that the right

of respondent No.2 to get large gala has been crystallised by the

above  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. The

High Court held that APMC ought not to have drawn lottery to

consider  the claim of  four  other  claimants who fall  “marginally

falls short of the norms” fixed by the Daud Committee under the

guise of implementing the order dated 07.05.1999 passed by the

Division Bench in Writ Petition No.2556 of 1999.  The High Court

mainly relied upon the order of Director of Agricultural Marketing

dated 24.09.2002 and observed that the said order has attained

22

finality and is binding on APMC and thus directed APMC to allot

large gala to respondent No.2 on first priority.     

27. Respondent No.2 heavily relies upon the order of Director of

Agricultural Marketing dated 24.09.2002 allowing the transfer of

booking amount from the name of  his  father  to  his  name and

thereby entitling him for a large gala which was also accepted by

the High Court. Before considering the effect of the order dated

24.09.2002,  let  us  evaluate  the  eligibility  of  respondent  No.2-

Habibullah as per the norms laid down by Daud Committee. 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.

As pointed out earlier, Habibullah himself has neither made the

application before the cut-off date nor paid the booking amount;

the 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 Daud Committee.  

28. As pointed out earlier, the Director, Marketing held that the

second respondent is entitled for allotment of large gala mainly on

the ground that in few other cases, gala booked in the name of

one person has been transferred to another person.  In the order

23

dated 24.09.2002, the Director, Marketing has pointed out such

instances where booking of gala in the name of one person has

been transferred to other persons and observed that the second

respondent cannot be discriminated.  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.  As

held  in  State  of  Bihar  v.  Upendra  Narayan  Singh  and  others

(2009)  5  SCC 65,  Article  14  of  the  Constitution  of  India  is  a

positive concept and it cannot be enforced by a citizen or a court

in  a  negative  manner.  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, in

our  considered  view,  the  Director,  Marketing  was  not  right  in

holding  that  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.

24

29. 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.

The High Court, in our view, did not keep in view that respondent

No.2 had neither booked the gala before the cut-off date nor paid

the  amount  and  the  High  Court  proceeded  hold  as  to  the

entitlement of respondent No.2 mainly on the basis of the order

dated 24.09.2002.  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.

30. The order of the Director of Agricultural Marketing in Appeal

No.34/2002 has not been challenged by APMC. In this context,

25

Mr.  Huzefa  Ahmadi,  learned  senior  counsel  appearing  for

respondent No.2 submitted that the order dated 24.09.2002 has

become final and the same is binding on APMC. Placing reliance

upon  M. Meenakshi and Others v. Metadin Agarwal (Dead) by

Lrs. and Others (2006) 7 SCC 470, it was contended that unless

the  order  passed  by  competent  authority  is  challenged  and

declared as “not valid”, its correctness cannot be considered in

collateral proceedings. In M. Meenakshi, it was held as under:-

“18. It  is  a  well-settled  principle  of  law that  even a void  order  is

required to be set aside by a competent court of law inasmuch as an

order  may be void  in  respect  of  one person but  may be valid  in

respect of another. A void order is necessarily not non est. An order

cannot be declared to be void in a collateral proceeding and that too

in the absence of the authorities who were the authors thereof. The

orders passed by the authorities were not found to be wholly without

jurisdiction. They were not, thus, nullities.”

31. Placing  reliance  upon  Anita  International  v.  Tungabadra

Sugar Works Mazdoor Sangh and Others (2016) 9 SCC 44,  it

was  submitted  that  the  order  passed  by  the  competent

court/quasi-judicial  authority  like  the  Director  of  Agricultural

Marketing has the force of law until the same is set aside by a

court of competent jurisdiction.

26

32. There is no quarrel  over the proposition laid down in the

above decisions. But in the peculiar facts and circumstances of

the present case, in our view, respondent No.2 cannot base his

entitlement for allotment of large gala solely on the basis of the

order  dated  24.09.2002  of  Director  of  Agricultural  Marketing,

dehors the norms fixed by Daud Committee which were directed

to be strictly complied with by the High Court. In the order dated

07.05.1999 in W.P. No.2556 of 1999, when the High Court has

directed APMC to make allotment of galas strictly by adhering to

the norms laid down by Daud Committee, the order of Director of

Agricultural Marketing dated 24.09.2002 cannot prevail over the

order of the High Court. While so, the High Court, in our view,

erred  in  holding  that  by  the  order  of  Director  of  Agricultural

Marketing dated 24.09.2002, right of respondent No.2 to get large

gala has been crystallised and that APMC ought to have allotted

the  same  to  respondent  No.2  instead  of  conducting  lottery

amongst all the eligible claimants. The High Court erred in relying

upon the above order of Director of Agricultural  Marketing and

directing APMC to allot the said large gala to respondent No.2

without keeping in view the norms fixed by the Daud Committee.

The order dated 24.09.2002 passed by the Director of Agricultural

27

Marketing  is  contrary  to  the  norms  fixed  by  Daud  Committee.

Dehors  the  norms  fixed  by  Daud  Committee  which  has  been

directed to be strictly complied with (vide order dated 07.05.1999

in WP No.2556/1999), respondent No.2 cannot claim entitlement

for the large gala based on the said order and 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.

33.    Claim of  Appellant  M/s  Hande Wavare & Co.  (Shri

Kashinath Wavare):-  Let us now consider the eligibility of the

appellant.  As  pointed  out  earlier,  as  per  the  resolution  of  the

Board  of  Directors  held  on  07.03.2013,  appellant  M/s  Hande

Wavare & Co., respondent No.2-Habibullah Farhatullah and three

others  were  the  eligible  claimants.  Prior  to  the  allotment  in

question, the appellant M/s Hande Wavare & Co. was allotted a

small size Gala bearing No.M-821. As per the norms suggested

by  the  learned  Commissioner,  the  wholesale  broker  in  fruit

section who was falling in the time frame of 1985-86 to 1994-95

was entitled for large gala on fulfillment of the conditions viz. (i)

He  should  have  booked  gala  by  paying  booking  amount  upto

Rs.34,000/- before closing date; (ii) He should hold licence issued

28

by the APMC for at least two years between the year 1985-86 to

1994-95; (iii) He should have done business for at least five years

between the years 1985-86 to 1994-96; (iv) He should have done

business either in the year 1995-96 or 1996-97 by paying cess;

and (v) For entitlement of large gala, he should have paid cess

between Rs.10,001/- to Rs.90,000/- in the years 1985-86 to 1994-

95. According to the appellant, he was satisfying all the conditions

except  condition No.5.   During the period between 1985-86 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.”

34. 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.  As  pointed  out  earlier,  in  WP

29

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 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. In our view, 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.  

35. Claim of  Ganpat  Sabaji  Shinde:  Ganpat  Sabaji  Shinde

has been allotted a small Gala No.M-748 in 1999. According to

the  appellant  Ganpat  Shinde,  he  had deposited  an  amount  of

Rs.32,725/- with APMC during the period between 1987 and 1991

for allotment of large gala. It  is  in dispute between the parties

whether  the appellant  Ganpat Shinde had deposited a sum of

Rs.35,725/-  or  Rs.32,725/-  prior  to  31.12.1993  with  APMC.

Appellant  Ganpat  Shinde  alleges  that  he  has  deposited

Rs.32,725/- with APMC and he had paid an amount of Rs.3,000/-

to  the  Trader’s  Association  which  according  to  him  was

30

transferred to APMC aggregating to the total of Rs.35,725/- which

is more than the required amount of Rs.34,000/-.  According to

APMC,  the  records  of  APMC  did  not  show  any  receipt  of

Rs.35,725/- before 31.12.1993.  According to APMC, the amount

of Rs.3,000/- paid by Ganpat Shinde to Traders Association was

received  by  APMC  only  in  the  year  2003  and  the  same was

adjusted  towards  the  lease  premium  of  small  gala  No.748

allotted.  APMC rejected  the  claim  of  Ganpat  Shinde  by  order

dated  17.02.2010  which  was  challenged  by  Ganpat  Shinde  in

Appeal No.14 of 2010 under Section 52B of APMC Act.  By the

order  dated  09.11.2011,  Director  of  Agricultural  Marketing  set

aside the order dated 17.02.2010 and directed APMC to afford an

opportunity  of  hearing  to  Ganpat  Shinde  and  take  appropriate

decision on merits.  

36. Mr.  Vinay  Navare,  learned  senior  counsel  appearing  for

appellant Ganpat Sabaji Shinde submitted that though appellant

Ganpat  Shinde  sent  various  letters  requesting  for  allotment  of

Gala  No.F-158,  the  same  was  not  considered  and  he  was

informed by APMC (letter dated 19.10.2013) that Gala No.F-158

has been allotted by lottery system and therefore, his request for

allotment of large gala cannot be considered. On the other hand,

31

by its order dated 26.11.2014, APMC agreed to allot small size

Gala No.M-745 to Ganpat Shinde for value of Rs.25,50,000/- i.e.

at the price determined by Government approved valuer.  As per

the  decision  of  the  Board  of  Directors  in  the  meeting  dated

28.02.2014,  APMC  resolved  to  allot  small  Gala  No.M-745  to

Ganpat  Shinde.   By  the  communication  dated  26.11.2014,

Ganpat Shinde was asked to pay Rs.19,66,517/-  as per ready

reckoner. Challenging the order of the Board of Directors and the

order dated 26.11.2014, Ganpat Shinde filed Appeal No.2/2015

before the Director, Marketing.  According to APMC, since Ganpat

Shinde has not given his consent for allotment of additional small

gala and to the resolution of the Board of Administrators held on

14.01.2015, it was resolved to cancel the allotment of small size

Gala No.M-745 to Ganpat Shinde and the same was informed to

Ganpat  Shinde  by  letter  dated  18.02.2015.  Appellant  Ganpat

Shinde  challenged  the  Board’s  resolution  dated  14.01.2015  in

Appeal  No.  12  of  2015.   Director  of  Marketing  had  taken  up

Appeal No.2 of 2015 and 12 of 2015 together and the appeals

were allowed by order  dated 29.04.2015 whereby the Director

held that Ganpat Shinde is entitled for large gala.  Challenging

the  order  of  the  Director,  Marketing  dated  29.04.2015  holding

32

Ganpat Shinde entitled for large gala, Kashinath Wavare filed writ

petition in WP(Stamp) No.35978 of 2017.  Contention of Ganpat

Shinde is that Kashinath Wavare has no locus standi to challenge

the order passed by the Director, Marketing and the eligibility of

the appellant for large gala.

37. Insofar  as  the  case of  Ganpat  Shinde  is  concerned,  the

High Court held that  “there was a dispute between the parties

whether  the  appellant  had  deposited  a  sum of  Rs.35,725/-  or

Rs.32,725/- prior to 31.12.1993 with APMC”. The High Court also

observed that there was a dispute that out of Rs.35,725/-, a sum

of Rs.3,000/- was adjusted towards the lease of Gala No.M-748

and  therefore,  the  High  Court  rejected  the  claim  of  appellant

Ganpat  Shinde  that  he  had  deposited  more  than  Rs.34,000/-

towards  the  allotment  of  large  gala  prior  to  the  cut-off  date.

Though,  appellant  Ganpat  Shinde  claims  that  amount  of

Rs.35,725/- has been paid only for allotment of large gala, APMC

claims that the same is not borne by record namely letter dated

03.07.2003 of APMC which reads as under:-

“…..Subject to terms and conditions of the Gala allotment, amount

of Rs.35,725/- which you have been paid till date is transferred to

Gala No.M-748. …….”

33

38. The High  Court  held  that  since Ganpat  Shinde had paid

only  a  sum of  Rs.32,725/-  towards  booking  amount  and  was

accordingly allotted a small Gala No.M-748 in the year 1999 and

that he is not entitled to claim allotment of large gala.    The High

Court was not right in holding that Ganpat Shinde had paid only

Rs.32,725/-.   It  is  pertinent  to  note  that  in  the  above

communication dated 03.07.2003, APMC stated about the receipt

of the payment of Rs.35,725/-.   As rightly contended by senior

counsel  Mr.  Vinay  Navare,  APMC  for  the  first  time  by  its

resolution dated 17.02.2010 stated that Ganpat Shinde has paid

registration  booking  amount  of  Rs.32,725/-  and  that  Ganpat

Shinde  does  not  satisfy  the  norms  fixed  by  Daud  Committee

requiring deposit of an amount of Rs.34,000/-.   

39. Contention of APMC is that its records show Rs.32,725/- in

the  name  of  Ganpat  Shinde  and  the  sum  of  Rs.3,000/-  was

received in the year 2003 from the Traders Association and the

same was considered towards the lease premium of Gala No.

M-748 allotted vide letter dated 29.02.1999.  Further contention of

APMC is that in any case, Rs.3,000/- came to be deposited only

in 2003 well after the cut-off date and it is immaterial whether it is

adjusted towards the lease amount or not and therefore, Ganpat

34

Shinde has neither satisfied the eligibility norms nor satisfied the

norms fixed by Daud Committee.

40. Admittedly, amount of Rs.3,000/- paid by Ganpat Shinde in

the account of Traders Association was transferred to the account

of APMC only in the year 2003.  But APMC is not right in saying

that  the  said  amount  of  Rs.3,000/-  was  adjusted  towards  the

lease premium amount.  In the reply to the information sought

under  Right  to  Information  Act,  APMC  has  stated  that  the

amounts  are  not  adjusted  to  lease  premium  but  they  are

transferred towards booking amount.   The reply to RTI  are as

under:-    

“Market  Committee  did  not  register  the  Gala  in  the  Fruit  and

Vegetable  Division  in  personal  name  of  association.   The

concerned  association  in  the  Fruit  and  Vegetable  Market

Compound deposited the amounts of their members to the Market

Committee.  Association submitted recommendation letters in the

name of their members to the Market Committee.  The amounts

intimated  by  the  association  were  transferred  on  the  members

towards booking amount.  These amounts are not towards lease

premium, but they are transferred towards booking amounts.  The

Market Committee had not prepared any rules for the same.”            

The amount of Rs.3,000/- paid by Ganpat Shinde to the Traders

Association transferred to APMC in 2003, be it for lease premium

or booking amount, the fact remains that Ganpat Shinde has paid

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only  Rs.32,725/-  before  the  cut-off  date  for  taking  the  gala.

Though, Ganpat Shinde was allotted small gala, the same can be

taken into account for holding that Ganpat Shinde falls within the

category of “marginally falls short of the norms” and he is entitled

to claim large gala.  The findings of the High Court that Ganpat

Shinde is not eligible to claim large gala is not sustainable and

the same is liable to be set aside.   

41. M/s Ramchandra Vitthal Dongre: M/s Ramchandra Vitthal

Dongre is a registered partnership firm consisting of two partners

respondent  No.1-Ramchandra  Vitthal  Dongre  and  G.V.  Lohot.

According to the appellant-Ramchandra Vitthal Dongre, the firm

applied  for  partnership  registration  on  12.12.2005  and  was

registered  on  31.05.2014.  Ramchandra  Vitthal  Dongre  paid

substantial market fees for carrying on the business of wholesale

fruit  distributor.  He  paid  booking  amount  of  Rs.10,000/-  on

04.06.1988 and Rs.34,000/- on 09.09.1991.  G.V. Lohot had paid

Rs.32,725/-  on  09.09.1991.  Both  the  partners  have  obtained

licences  in  their  individual  capacities.  Respondent  No.1-

Ramchandra Vitthal Dongre was allotted a large Gala No.G-247

on 28.09.1995 and is in possession of the same in his individual

capacity.  Ramchandra  Dongre  had  paid  cess  above

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Rs.1,01,156/- during the period of ten years i.e. between 1985-86

and 1994-95. Subsequent to the cancellation of allotment of two

large  Galas  in  favour  of  M/s  Indian  Fruit  Co.,  Ramchandra

Dongre  was  allotted  a  second  large  Gala  No.F-124  on

09.05.2001  and  he  paid  an  amount  of  Rs.1,27,500/-  on

23.05.2001. However,  the appeal preferred by M/s Indian Fruit

Co. under Section 52B of the Act was allowed by the Director of

Agricultural  Marketing  vide  order  dated  13.12.2001  and  the

allotment of second large gala No.F-124 in favour of Ramchandra

Vitthal Dongre was cancelled. Against which, Ramchandra Vitthal

Dongre filed writ petition W.P.No.234 of 2004. In the year 2012,

when Gala No.F-158 became vacant, Ramchandra Dongre filed a

civil application in the said writ petition filed by him seeking an

early  hearing.  The High Court  vide  its  order  dated 07.01.2013

disposed of the application accepting the submissions of APMC

that apart from Ramchandra Vitthal Dongre, there are four other

claimants and directed APMC to scrutinize the claim of all eligible

claimants for allotment of Gala No.F-158.

42. Insofaras M/s Ramchandra Vitthal Dongre  is  concerned,

the  question falling  for  consideration is  whether  the firm-M/s

Ramchandra  Vitthal  Dongre  has  complied  with  the  norms  laid

37

down by Daud Committee and whether the firm is eligible for the

allotment of large Gala.

43. The contention of  Ramchandra Vitthal  Dongre is  that  the

booking  amount  paid  on  behalf  of  M/s  Ramchandra  Vitthal

Dongre  is  Rs.76,725/-  (amount  paid  for  individual  booking

amounts paid by the partners in their own individual name) and is

therefore, eligible for allotment of said large gala. It is contended

that the allotment of Gala No.F-124 made by APMC, their stand

taken in three affidavits filed by APMC in Writ Petition No.4101 of

2001,  Writ  Petition  No.3194  of  1999  and  Writ  Petition(Stamp)

No.10993  of  2002  numbered  as  Writ  Petition  No.234  of  2004

prove that the firm is eligible for a large Gala.

44. The contention of  Ramchandra  Vitthal  Dongre is  that  his

partnership  firm-M/s  Ramchandra  Vitthal  Dongre  satisfies  the

norms  laid  down  by  the  learned  Commissioner.  The  said

partnership firm consists of two partners who hold licences given

by  APMC.  Admittedly,  the  firm got  registered  only  in  the  year

2014.  One  partner,  Ramchandra  Vitthal  Dongre  has  been

carrying on the business in his individual capacity and has been

earlier allotted a large gala. The other partner G.V. Lohot is also

carrying on business in his own individual name.   

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45. Claim of  Ramchandra Vitthal  Dongre is  that  the firm had

paid  the  booking  amount  of  Rs.76,725/-  which  is  denied  by

APMC.  The contention  of  APMC is  that  no  booking  has  been

made in the name of the partnership firm, no cess amount is paid

and  no  licence  was  obtained  by  it.  According  to  APMC,

Ramchandra Vitthal Dongre had paid Rs.10,000/- on 04.06.1988

and Rs.34,000/-  on 09.09.1991. G.V. Lohot was not doing any

business till the year 1991. G.V. Lohot started business by taking

licence in his name for the year 1991-92 and Rs.32,725/- was

paid by him on 09.09.1991 towards booking of gala.  The said

amount was paid by Ramchandra Vitthal Dongre and G.V. Lohot

in their individual capacities and not by the firm. As the booking

amount was paid in their individual capacity, Ramchandra Vitthal

Dongre  was  allotted  Gala  No.G-247  which  was  a  large  Gala.

Registered  Deed  of  Sub-lease  dated  29.10.1999  was  also

executed  in  the  name  of  Ramchandra  Vitthal  Dongre  in  his

individual  capacity.  According  to  APMC,  Ramchandra  Vitthal

Dongre had paid booking amount and cess only in his individual

capacity and was accordingly allotted a large gala and his claim

for second gala in the name of the firm is not sustainable. Insofar

as G.V. Lohot is concerned, he was issued a licence by APMC on

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30.07.1972 which was renewed from time to time upto 2014 and

said G.V. Lohot is also carrying on the business in his individual

name only.  

46. Insofar  as  three  affidavits  filed  by  APMC in  Writ  Petition

No.4101 of 2001, Writ Petition No.3194 of 1999 and Writ Petition

(Stamp) No.10993 of 2002 numbered as Writ Petition No.234 of

2004 on which reliance was placed by M/s Ramchandra Vitthal

Dongre  is  concerned,  contention  of  APMC is  that  those  three

affidavits  were  in  respect  of  the  claim  of  Ramchandra  Vitthal

Dongre as proprietor and not by M/s Ramchandra Vitthal Dongre,

the partnership firm and thus, no reliance on those three affidavits

can be placed by M/s Ramchandra Vitthal Dongre. It is stated that

APMC never admitted the claim of the firm.  

47. 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

40

2014 and it has not complied with any of the norms fixed by Daud

Committed, 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 Ramchandra Vitthal Dongre and

G.V. Lohot is not separately entitled for allotment of any separate

Gala.  Based  on  the  documents  of  the  individual  partners,  the

relevant findings of the High Court are as under:-

“In  my  view,  the  license  obtained  by  an  individual  partner,  the

booking amount, if any, paid by such individual partner, payment of

cess, if  any, paid by such individual partner or other requirements

which individual partner is required to be fulfilled as per the norms

suggested  by  the  learned  Commissioner  for  being  eligible  to

allotment  of  such  gala  cannot  be  utilised  by  the  partnership  firm

consisting of such partners to make such firm eligible for allotment of

any  gala  under  the  said  norms  suggested  by  the  learned

Commissioner………… In my view, the documents relied upon by the

petitioner for seeking allotment of the said gala No.F-158 which were

the documents  of  individual  partner  of  the  petitioner  could not  be

used and/or relied upon for the purpose of seeking allotment of the

said gala No.F-158 in the name of the said partnership firm.”

The contention of APMC is that Ramchandra Dongre has been

doing business and paid money only in his individual capacity. As

pointed out earlier, G.V. Lohot started business by taking licence

41

in his name for the year 1991-92 and paid the money only in his

individual capacity.  

48. 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, in our view, rightly rejected

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-M/s  Ramchandra

Vitthal Dongre was eligible to apply for allotment of large Gala

No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are

carrying on the business in their individual name therefore, the

amount paid by the individual partners cannot be treated as the

payment made by the firm and the High Court rightly held that the

appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a

separate allotment of gala.

49. After  the appeal  preferred by M/s  Indian Fruit  Co.  under

Section 52B of MAPMC Act which was allowed by the Director of

Agricultural Marketing vide order dated 13.12.2001, the allotment

of second large Gala No.F-124 in favour of Ramchandra Dongre

was cancelled. Challenging the cancellation of allotment of Gala

No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of

42

2004. It is unfortunate that the said W.P.No.234 of 2004 has been

kept  alive  for  about  fifteen  years.   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

Ramchandra Vitthal Dongre is not eligible to claim large gala, in

our  view,  nothing  survives  for  consideration  in  W.P.No.234  of

2004 pending before the High Court of Bombay. In the light of our

finding affirming the view taken by the High Court that the firm

M/s Ramchandra Vitthal Dongre 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.

50. In our considered view, respondent No.1-M/s Ramchandra

Vitthal Dongre and respondent No.2-Habibullah Farhatullah are

not eligible to claim allotment of large gala and the judgment of

the High Court is liable to be set aside.  

51. Next question for consideration is as to who are all eligible

to  make  claim  for  the  allotment  of  large  gala.  In  view  of  the

foregoing  discussion,  the appellants-M/s  Hande Wavare & Co.

and Ganpat Shinde (who are marginally short of the norms) are

eligible to claim allotment of large gala along with others. As per

43

the counter filed by APMC in writ petition W.P.No.10328 of 2014,

other  than  appellant-M/s  Hande  Wavare  &  Co.,  two  other

claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele

(Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba

Punde are also eligible for allotment of large gala.  

52. The  only  other  point  to  be  considered  is  whether  the

allotment to be made by sealed tenders or by draw of lottery. As

seen from the order of the Director of Agricultural Marketing dated

04.06.2014,  APMC initially  fixed the value of  said  gala  as  per

government  rate at  Rs.55,00,000/-.  The Director of  Agricultural

Marketing  observed  that  instead  of  accepting  the  amount  of

Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC

should have considered the market rate and getting valued the

said  gala  from  government  approved  valuer  and  should  have

called for sealed covers from the claimants and ought to have

allotted the gala to the claimant who is paying the maximum value

for allotment of large gala. In our considered view, 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-M/s

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Hande Wavare & Co. should vacate the large Gala No.F-158 at

the earliest. The learned counsel appearing for APMC has stated

that the small Gala No.M-821 earlier allotted to the appellant-M/s

Hande Wavare & Co. is still vacant.  APMC shall forthwith pass

an order for re-allotting the said small sized Gala No.M-821 to the

appellant-  M/s  Hande  Wavare  &  Co.  and  the  appellant  shall

vacate the large Gala No.F-158 before the end of  September,

2019.

53. 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

2013-14,  we  deem  it  appropriate  to  fix  the  upset  value  at

Rs.55,00,000/-.  The  four  eligible  claimants.  viz.  (i)  M/s  Hande

Wavare  and  Co.;  (ii)  Mr.  Ganpat  Sabaji  Shinde;  (iii)  M/s

Bhalchandra Chintaman Lele (Mr.  Kedar Keshav Lele);  and  (iv)

Mr.  Ashok Dhondiba Punde 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.  

54. In the result, the impugned judgment of the High Court is

set aside and these appeals are disposed of with the following

directions and observations:-

45

(i) It is held that respondent No.2-Habibullah Farhatullah is not

entitled to claim allotment of large gala and findings of the

High Court qua respondent No.2-Habibullah Farhatullah is

set aside;

(ii) The findings of  the High Court  that  the firm-Ramchandra

Vitthal Dongre 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-M/s  Hande Wavare & Co.  and M/s

Hande Wavare & Co. 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 viz.

(i)  M/s  Hande Wavare  and Co.-appellant;  (ii)  Mr.  Ganpat

Sabaji  Shinde;  (iii)  M/s Bhalchandra Chintaman Lele (Mr.

Kedar  Keshav Lele)-respondent  No.3;  and  (iv)  Mr.  Ashok

Dhondiba Punde-respondent  No.4 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

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(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.

…………………………..J.                                                                   [R. BANUMATHI]

…………………………..J. [R. SUBHASH REDDY]

New Delhi; July 10, 2019

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