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SCA/4044/2004 8/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4044 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
KANTIBHAI
VIRCHANDBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL SHARAD SHAH for
Petitioner(s) : 1,
MR JANAK RAVAL AGP for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 1 - 2.
MR DILIP B RANA for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 10/02/2010
ORAL
JUDGMENT
The short facts of the case appear to be that the market yard in
question was constructed by the Agricultural Produce Market
Committee, Patan (hereinafter referred to as ‘the Committee’ for
short) for traders, including the vegetable merchants. It was
insisted by the Market committee to the traders to shift their
business to the market yard as the stalls were available. However,
the same was resisted. Thereafter, the Market Committee also
undertook the process for allotment of the stalls to the traders in
the year 1996, but it appears that there was resistance to shift
their business to the market yard. Ultimately on 18.5.1996, in a
joint meeting of the Market Committee, Traders and the Deputy
Director, it was agreed to allot the shops on development charge of
Rs.41,000/- and the monthly rent was fixed for Rs.200/-. Six
traders agreed for the same. The essential purpose of the market
committee was to see that the market yard functions smoothly and was
to get regular income of market fees. Thereafter, the market
committee fixed the upset price of Rs.1,25,000/- and published
advertisement in the newspaper Hamlok
on 5.4.2007, but there was no response and nobody came forward for
purchase of the plots and the matter remained as it was. It appears
that thereafter, the traders made application to the market
committee to allot the shops on payment of Rs.31,000/- as
development fee and the matter was deliberated and ultimately, it
was agreed to allot stalls for Rs.41,000/- for the development fees
and the monthly rent was fixed of Rs.200/- in the resolution passed
by the market committee on 2.11.1999. Accordingly, 74 persons were
allotted plots, and they paid the development fees and they were
paying the rent also. On 29.7.2000 the Director of Agricultural
Market Committee for Rural Finance issued instructions to the market
committee to recover additional amount of Rs.22,335/- from each of
the allottee comprising of the group of 74 persons and further
directed to recover monthly rent of Rs.650/- from those persons
without giving any opportunity of hearing to the allottees. The
petitioners herein carried the matter in revision before the State
Government under Section 48 of Gujarat Agricultural Produce Market
Act (hereinafter referred to as ‘the Act’) against the said
instructions of the Director and the State Government found that the
opportunity of hearing was not given, therefore, the matter was
remanded back to the Director. It appears that thereafter the
Director, Agricultural Marketing, once again passed the order,
whereby the direction to recover the additional amount and monthly
rent of Rs.650/- was maintained. The petitioners further carried
the matter in revision before the State Government. The State
Government in the revision found that, based on the report of the
engineer towards construction cost of Rs.63,335/- and for monthly
rent of Rs.650/-, the Director has exercised the power, therefore,
the State Government did not interfere with the instructions issued
by the Director and dismissed the revision vide order dated
13.2.2004. It is under these circumstances, the petitioners have
approached this Court by the present revision.
Heard Mr.Mehul Sharad Shah, learned
Counsel for the petitioners, Mr.Raval, learned AGP for the State
Authorities and Mr.Rana, learned Counsel for Mr.Jhaveri for
respondent No.3 Market Committee.
As such
the matter is pertaining to the recovery of the cost of construction
by the Market Committee by way of development fee. It appears from
the report of the Engineer that the cost assessed was of
Rs.63,335/-. It is true that such report is not produced by either
side of the petition, but there is reference to the said report.
Report of the approved Engineer could be said as a report of an
expert on the aspects of cost structure. If the Director or the
State Government have acted upon such report, so as to compel the
Market Committee to recover the cost of the shops/stalls by way of
development fees, at the time of allotment to the traders, such
exercise of the power cannot be said to be unreasonable or
arbitrary. The learned Counsel for the petitioners contended that
the copy of the report was not supplied and no material is produced
in the present record as to the basis for arriving at the figure of
Rs.63,335/-. In such situation, the matter could have been referred
to some other Governmental authority for arriving at the figure of
cost structure by the Market Committee.
However,
at that stage, Mr.Shah, learned Counsel for the petitioners,
declared that let there not be any reference to any other agency and
the petitioners would agree at the cost structure fixed by the
Director based on the report of the Engineer as that of Rs.63,335/-
and he submitted that Rs.41,000/- per stall was already paid at the
time of allotment and pursuant to the interim order dated 10.8.2004
passed by this Court, the difference of Rs.22,335/- was also
deposited by the petitioners concerned and he submitted that the
said amount may be retained by the Market Committee towards the
development fee by way of compliance to the order of the Director.
However, he contended that the rent, which is fixed at Rs.650/-,
could be said as discriminatory and arbitrary inasmuch as the Market
Committee has not charged rent to any shop-holder at the rate of
Rs.650/-, therefore, the petitioners would be entitled to the same
treatment. In furtherance to his contention, he submitted that the
rent fixed for the earlier allottee of the shop was of Rs.200/- and
they are paying the rent at the rate of Rs.200/- per month and not
only that, but he also submitted that for the subsequent allottees,
the rent is the same as that of Rs.200/- per month. Therefore, the
same treatment should be given. He alternatively submitted that
since the petitioners were desirous to enjoy the benefits of the
interim order dated 10.8.2004 and created the situation of holding
of no action if the rent was paid at the rate of Rs.650/- per month,
the rent already paid at the rate of 650/- per month by way of
difference may be retained by the Market Committee, but for the
period of unpaid rent, the Market Committee may not recover the
amount exceeding Rs.200/- per month. He submitted that, if for the
unpaid rent, the same treatment is given at the rate of Rs.200/- per
month, the petitioners would not insist for the refund of the
difference amount of development fee as well as the rent already
paid at the rate of Rs.650/- per month.
Whereas,
on behalf of the Market Committee, it was submitted that since the
petitioners had paid the amount of Rs.650/- as monthly rent, the
Market Committee did not hold public auction, but subsequently since
2004 the petitioners have not paid any rent to the Market Committee
even at the rate of Rs.200/- per month.
Whereas,
the learned Counsel appearing for the petitioners, in contra,
contended that the rent was tendered at the rate of Rs.200/- per
month but as was not at the rate of Rs.650/- per month, the same was
not accepted by the Market Committee.
The
learned AGP has supported the order passed by the lower authority.
It appears
to the Court that if the Director has acted upon the report of an
expert for directing the Market Committee to recover the development
fee at par with the cost structure, the same even otherwise also
could be maintained. The attempt to contend that in the year 1996
the allotment was for Rs.41,000/- cannot be accepted, because the
petitioners are alloted the shops in the year 1999, after three
years and, therefore, keeping in view the element of appreciation
also the amount of Rs.63,335/- cannot be said as invalid, more
particularly because there is no other material produced before this
Court to show that the cost structure of the Market Committee was
otherwise in the year 1999. No further discussion may be required
on the said aspects in view of the declaration made on behalf of the
petitioners that the petitioners are ready to abide by the amount of
Rs.63,335/- as development fee, therefore, the said part of the
order of the lower authority does not deserve to be interfered with.
On the
aspects of equal treatment to be given by the Market Committee, the
matter, if examined, it appears that when the shops were allotted in
the year 1996, the rent fixed by the Market Committee is at Rs.200/-
per month. Thereafter when the shops were allotted in the year 1999
with the higher premium of Rs.23,335/- more, i.e. the total of
Rs.63,335/-, as against the earlier premium of Rs.41,000/- in the
year 1996, the Market Committee had decided to charge monthly rent
of Rs.200/-. As per the statement made at the bar by the learned
Counsel for the petitioners as well as by the learned Counsel for
the Market Committee, when the auction has been subsequently held
after 2004, the price realised of the shop is about Rs.2 lac and
more, but the monthly rent is fixed at Rs.200/- per month only.
Therefore, it is undisputed position that barring the petitioners,
for other traders, who have occupied the stalls, the Market
Committee has charged Rs.200/- per month as rent. Under these
circumstances, for the subsequent period, if the rent is maintained
at the rate of Rs.200/- per month, keeping in view the aforesaid
peculiar circumstances that there is already an additional amount
towards development fee and the amount of arrears is already paid,
for which the refund is not claimed by the petitioners and the
Market Committee has decided to charge the same rent even to the
subsequent allottees, the amount of Rs.200/- as rent for the
remaining period can be maintained if the market committee has to
maintain the parity.
In view of
the aforesaid, the impugned order passed by the Director and its
confirmation thereof by the State Government deserves to be modified
to the effect that the direction for recovery of the additional
premium at the rate of Rs.22,335/- shall remain confirmed, but the
direction for recovery of the monthly rent of Rs.650/- shall stand
modified to the effect that the amount of rent already paid at the
rate of Rs.650/- pursuant to the interim order dated 10.8.2004 shall
not be required to be refunded, but after the interim order dated
10.8.2004, if the concerned shop holders have not paid the monthly
rent, the same shall be payable at the rate of Rs.200/- per month
and the accumulated arrears shall be paid within six weeks from the
date of receipt of the order of this Court. It is also observed
that the rent of Rs.200/- is since about 14 years and, therefore, it
would be open to the Market Committee to consider issue of revision
of the monthly rent in accordance with law.
The
petition is partly allowed to the aforesaid extent. Rule made
absolute. No order as to costs.
10.2.2010
(Jayant Patel, J.)
vinod
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