JUDGMENT
Dr. B.S. Chauhan, J.
1. Both these appeals have been filed under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment and order dated 21.8.1996 passed by the learned Single Judge in S.B. Civil Writ Petition No. 3343/1993.
2. Both the appeals are being disposed of by this common judgment as they have arisen from the same judgment. The dispute is in respect of one shop bearing No. F/II/15, situated in the market yard of Krishi Upaj Mandi Samiti, Mandore Road, Jothpur (for short “the Samiti”). The factual matrix of the case reveals that the case has a chequerred history. A large number of shops were constructed and handed over to the Samiti in the year 1989. M/s. Rai Chand Mohan Lal, appellant in D.B. Civil Special Appeal No. 79/1997 (hereinafter referred as M/s. Rai Chand”) applied for allotment of a shop but could not succeed. However, alongwith other persons who could not get the allotment, it filed S.B. Civil Writ Petition No. 2985/1992, M/s. Asha Ram Mahendra Kumar and twelve others v. Krishi Upaj Mandi Samiti and Ors. During the pendency of the said writ petition, some other shops were constructed and handed-over to the Samiti. Out of the said shops, M/s. Rai Chand was allotted a shop bearing No. F/II/15 by Resolution dated 19/20th June, 1993 contained in Annexure. P. 5. to the writ petition and it was issued an allotment order in respect of said shop on 20.6.1993 (Annexure. P. 6). However, the said allottee could not get the possession of the shop as M/s. Uma Trading Company (the appellant in D.B. Civil Special Appeal No. 583/1997) (hereinafter called “M/s. Uma Trading) took its possession forcibly on the pretext that the Additional Secretary of the Samiti had made a verbal assurance to him on 27.3.1993. Apprehending the eviction from the said shop, the appellant M/s. Uma Trading filed a civil suit and obtained injunction order on 21.6.1993, However, the said suit was dismissed by the order dated 2.7.1993. The said appellant filed S.B. Civil Writ Petition No. 3063/1993 on 29.6.1993 praying therein that it should not be evicted from the said shop and ultimately the interim order was passed on 8.7.1993 that the said firm should not be dispossessed from the said shop without following due process of law. On the same day, i. e., on 8.7.1993, the respondent No. 2 the Deputy Secretary to the Government-passed an order making that allotment in favour of M/s. Uma Trading without giving any notice to the original allottee M/s. Rai Chand. In the said order dated 8.7.1993, the respondent No. 2, on 20.6.1993 made a reference that M/s. Uma Trading had not been considered for allotment only on the ground that the said firm dealt with tea, a Non-Scheduled Item under the Rajas than Agricultural Produces Markets Act, 1961 (hereinafter called “the Act, 1961”) and the said firm could not have been deprived of the allotment as earlier allotments had also been made in favour of the tea dealers.
3. Being aggrieved and dissatisfied M/s. Rai Chand filed S.B. Civil Writ Petition No. 3343/1993 challenging the order dated 8.7.1993. This Court, vide order dated 15.7.1993, stayed the operation of the order of cancellation of M/s. Rai Chand and restrained the respondent No. 1 and 2 from making allotment in favour of M/s. Uma Trading but its possession was maintained. On 24.7.1993. M/s. Rai Chand made an application (Annexure. Rule 4/1) that if it is allotted an alternative shop bearing No. D/18 and possession is handed over to the said firm, it would not have any claim over the shop in dispute. It appears that the Government, also, passed an order to make the allotment in favour of the said firm in respect of Shop No. D/18 on 27.7.1993. On 7.12.1993, the earlier writ petition No. 2985/1992 filed by M/s. Asha Ram Mahendra Kumar and others, came for hearing and it was dismissed as infructuous as the parties therein had been made allotment of shops subsequent to the filing of the said writ petition. However, as there was some dispute regarding M/s. Rai Chand’s allotment, the Court made an observation that M/s. Rai Chand already moved an application to make the allotment of another Shop No. D/18 and allotment order had already been passed, the said firm would not have any claim over the shop in dispute, as is evident from the copy of the said judgment contained in Annexure. R/4/4. Meanwhile, M/s. Uma Trading had, also filed S.B. Civil Writ Petition No. 3279/1993 challenging the order passed by the respondent No. 3 under the provisions of the Public Premises (Unauthorised Occupant) Act, 1971 (for short, “the Act of 1971”). On 13.8.1996, when the matter filed by M/s. Uma Trading came-up for hearing, the writ petition No. 3279/1993 was dismissed as withdrawn and its another writ petition No. 3063/1993 was dismissed as not pressed. However, S.B. Civil Writ Petition No. 3343/1993 filed by M/s. Rai Chand was allowed by the learned Single Judge, vide judgment and order dated 21.8.1996 solely on the ground that the order of allotment dated 20.6.1993 in favour of M/s. Rai Chand had been cancelled by the respondent No. 2 vide order dated 8.7.1993 (Annexure-11) without giving an opportunity of hearing to the said allottee and, thus, it was bad in law. The learned Single Judge gave liberty to respondent No. 2 to pass an appropriate order after affording an opportunity of hearing to all the parties concerned. Being aggrieved and dissatisfied, both the dealers have filed these appeals.
4. Heard Shri K.N. Joshi for M/s. Uma Trading; Mr. D.S. Shishodia, Senior Advocate with Mr. Manish Shishodia and Mr. Heera Lal Kela for M/s. Rai Chand and Mr. M.S. Singhvi for the Samiti.
5. Mr. Joshi has submitted that vide order dated 8.7.1993, the shop had been allotted to M/s. Uma Trading and there is no reference of the cancellation of allotment in favour of M/s. Rai Chand and, therefore, it was not necessary for the respondent No. 2 to accord hearing to M/s. Rai Chand before passing the order dated 8.7.1993. In fact, it is the anchor sheet of his contention and the main ground of appeal. No doubt, the name of M/s. Rai Chand did not find place in the said order but in effect, it cancels the allotment in favour of the said firm. In substance, the order dated 8.7.1993 is tantamount to cancellation of allotment order made in favour of M/s. Rai Chand and further allotment of the said shop in favour of M/s. Uma Trading. Admittedly, the respondent No. 2 passed the said order without giving any opportunity of hearing to the original allottee, i. e., M/s. Rai Chand. Nearly a Constitution Bench of the Supreme Court, in Udit Narain Singh Malpahriya v. Member, Board of Revenue, Bihar. , has held that it would be against all principles of natural justice to make an order adverse to a party behind its back and any order so made cannot be effective one. If an Authority passes an order in such a manner, the order can be ignored by such a party as not being binding on it. In Director, E.S.I. Scheme v. Dr. Sabita Mohanty 1995 Suppl. (2) SCC 369, the Apex Court explained the scope of principles of natural justice by placing reliance on the judgment in General Medical Council v. Spackman 1943 AC 627, wherein it has been observed as under:
If the principles of natural justice are violated in respect of any decision, it is, in deed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.
(Emphasis Added)
6. In: Municipal Corporation v. Chelaram & Sons and Anr. it has been observed that it is not only necessary to give an opportunity of hearing but also to pass a speaking order. In Move Steel (India) Ltd. v. M.C.D. and Ors. , the Hon’ble Supreme Court has observed that if an order is passed without hearing a party and it adversely affects it, the exercise of power would be unwarranted, irrelevant and arbitrary.
7. There is a distinction between rejecting an application of allotment and passing an order cancelling the allotment made earlier, as after the allotment some right has accured in favour of the said dealer, it could not have been taken away without hearing him. In Purtabpur Company Ltd. v. Sugarcane Commission of Bihar , the Hon’ble Supreme Court had observed that “it would not be proper to equate an order revoking or modifying a licence with a decision not to grant a licence.” It further referred to and relied on the judgment in; Schmidth v. Secretary of the State, 1969 (2) Ch. 149, wherein it had been observed as under:
If his permit is revoked before the time limit expires, he ought…to be given an opportunity of making a representation; for he would have a legitimate expectation of being allowed to stay for the permitted time.
The said judgment was approved and followed by the Hon’ble Supreme Court in; Maneka Gandhi v. Union of India and Anr. .
8. Thus, in view of the above, we are of the considered opinion that there could have been no justification for the respondent No. 2 to pass the impugned order dated 8.7.1993 in such a gross and flagrant violation of principles of natural justice and we have no hesitation to say that passing an order in such a way amounts to abuse of power as the order was passed even without summoning the record and without any application of mind.
9. It is next contended by Mr. Joshi that the observations made by this Court in its judgment and order dated 7.12.1993 referred to above, are bringing and M/s. Rai Chand cannot stake any claim on the shop in dispute. The earlier writ petition was dismissed on 7.12.1993 as having become infructuous and regarding this disputed shop, already S.B. Civil Writ Petition No. 3343/1993 was pending. There could be no justification that while dismissing the earlier writ petition as infructuous. The Court cannot not over-sight the fact that D-18 or any other shop could not be allotted to M/s. Rai Chand till today and his grievance of cancelling his allotment order dated 20.6.1993 by the impugned order dated 8.7.1993 continues. Sri Singhvi appearing for the Samiti made a bald statement that neither D-18 nor any other shop is available for allotment. In such a fact-situation, the submission made by Shri Joshi cannot be sustained.
10. It is next submitted by Shri Joshi that M/s. Rai Chand was not entitled for allotment as it had already been allotted a shop in Bhagat-Ki-Kothi Area, Jodhpur. Under the Rules, the said firm was not entitled for consideration for allotment as the Rules embargo the allotment of second shop in the same market area. It is not disputed at the Bar that Mandore Market Area is different from that of Bhagat-Ki-Kothi, Jodhpur. It is difficult to hold that M/s. Uma Trading can take such a plea after it had withdrawn its writ petition challenging the order of allotment to M/s. Rai Chand.
11. Mr. D.S. Shishodia appearing for M/s. Rai Chand has submitted that the respondent No. 2 had no competence to pass the order dated 8.7.1993 as the order of allotment could have been cancelled by the Director of the Samiti in exercise of its revisional powers conferred upon him under Section 39 of the Act, 1961. As the learned Single Judge has not gone in the issue of jurisdiction/competence, it is not necessary for us to decide the same. However, it becomes necessary, if we approve the impugned judgment in to and religate the parties to the respondent No. 2 as the learned Single Judge has given a liberty to the respondent No. 2 to pass an appropriate order after hearing the parties. In the instant case, M/s. Uma Trading had filed writ petition before this Court challenging the order dated 20.6.1993, allotting the shop in dispute in favour of M/s. Rai Chand and the same had been dismissed as having become infructuous, the said firm cannot be permitted to re-agitate the issue before any statutory Authority as it is settled law that once a higher Court has dealt with the issue at the behest of a particular party, the said party cannot be heard by a lower Court or Authority unless the matter is remitted to it. This principle is based on public policy that a party cannot be permitted to approach two Forums for the same cause of action. (Vide Kabri Pvt. Ltd. v. Shiv Nath Saroha and Anr. ). As M/s. Uma Trading had withdrawn the writ petition, there was nothing before the Court to remand. In the instant case M/s. Uma Trading cannot be permitted to file a successive petition before this Court challenging the order dated 20.6.1993 as it would be barred by the principle enshrined in Order 23 Rule 1, Code of Civil Procedure. (Vide. Sarguja Motors Transport Company Ltd. v. State Transport Appellate Tribunal and Ors. ), it cannot be heard by any statutory Authority on the validity of the said order. In view of the above, it is also, not necessary for us also, to decide whether M/s. Uma Trading, a dealer in tea which is not a Scheduled Item under the Act, can be entitled for allotment of shop under the control of the Samiti.
12. However, it will be great injustice if M/s. Uma Trading Company is not permitted to agitate its grievances before any appropriate forum. It has challenged the order of allotment in favour of M/s. Rai Chand dated 20.6.1993 by filing a writ petition which has been dismissed as withdrawn by this Court vide order dated 7.12.1993. M/s. Rai Chand has, also, met the same situation earlier when the judgment and order dated 7.12.1993 was passed by this Court. Thus, in the peculiar facts and circumstances of the case, the ends of justice would meet if M/s. Uma Trading is permitted to revive its earlier writ petition challenging the order of allotment in favour of M/s. Rai Chand.
13. Thus, in view of the above, we hold that the impugned order dated 8.7.1993 passed by the respondent No. 2 has rightly been quashed by the learned Single Judge. However, the liberty granted by the learned Single Judge to the respondent No. 2 to pass an appropriate order after hearing the parties concerned, is set-aside.
14. Thus, in consequence of it, the special appeals stand disposed of finally.