REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7520-7523 OF 2011
(Arising out of S.L.P. (C) Nos.26197-26200 of 2008)
Rakesh Sharma & Ors. .... Appellant (s)
Versus
State of M.P. & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) These appeals are directed against the judgment and
final order dated 18.01.2008 passed by the High Court of
Judicature of Madhya Pradesh, Jabalpur, Bench at Gwalior in
Writ Petition Nos. 1873, 1878 and 2101 of 2003 and 310 of
1999 whereby the High Court disposed of the writ petitions
and issued various directions to the Municipal Corporation,
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Gwalior in paragraph 8 of the impugned order for construction
of a market complex known as "New Gandhi Market Building".
3) Brief facts:
(a) According to the appellants-shopkeepers, after the
partition of the country, in the year 1952, the Government
constructed Gandhi Market in Gwalior with 250 shops and
allotted them to the appellants herein, who were migrated to
India from Pakistan at the time of partition, as
tenants/licensees. Each shop covers 60 sq.ft. space + 30 sq.ft.
Verandah, in total 90 sq.ft. area and has in front a 5 ft. wide
footpath and then a public road. In the year 1975, notice was
issued by the Municipal Corporation of Gwalior to the
shopkeepers proposing to increase the rent from Rs.7/- to
Rs.220/- per month. However, on 18.03.1977, the State of
Madhya Pradesh as well as the Municipal Corporation,
Gwalior agreed to increase the rent only by 7% from the
original rent and also clarified that the enhanced rent would
cover area in front of the shops and no additional charges
were to be paid in that respect. On 24.05.1994, the Municipal
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Corporation passed Resolution No.40 by which, area of the
shop was treated as 90 sq. ft. including the verandah.
(b) On 28.02.1999, a public interest litigation petition, being
Writ Petition No. 310 of 1999 was filed by a lawyer, G.S.
Tomar, against encroachment and erection of wooden stalls by
the Municipal Corporation over the land of the Madhya
Pradesh Housing Board in Nazar Bagh Market, which is
described as "the heart of the city". By order dated
15.12.2000, the High Court directed that the said structures
erected by the Municipal Corporation would be removed. The
petition was listed before the Division Bench on various dates
and several directions were issued by the High Court.
Thereafter, on 04.02.2003, the High Court directed the
Municipal Corporation to furnish information regarding the
steps being taken to remove encroachments on public streets.
In May/June, 2003, the Municipal Corporation issued notices
to the appellants alleging that they were in illegal occupancy of
the front portion of their shops and directed them to remove
the alleged encroachments with the threat for demolition of
offending construction, if any. Consequently, the shopkeepers
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of Gandhi Market filed petitions before the High Court praying
that they have not made any encroachment of the Verandah.
The shopkeepers of various markets also filed writ petitions
before the High Court. All the petitions were directed to be
listed along with Writ Petition No. 310 of 1999.
(c) During the pendency of the writ petitions, the High
Court, by order dated 04.07.2003, appointed District Judge
(Vigilance) as a Local Commissioner in respect of the illegal
encroachments and constructions and directed the Municipal
Corporation to continue with the removal of encroachment
from the footpaths and public streets which were identified by
the District Judge (Vigilance). It further directed that
objections, if any, would be submitted to the District Judge.
(d) Against the order dated 04.07.2003, some of the
shopkeepers of other markets filed Special Leave Petition No.
12446 of 2003 before this Court wherein this Court issued
notice and stayed the demolition until further orders.
(e) On 25.08.2003, the Local Commissioner submitted his
report before the High Court and the High Court directed that
it may not be open to the parties to raise any further
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objections to the report. Against the said order, the appellants
herein filed S.L.Ps. before this Court which were directed to be
tagged with the earlier S.L.P.(C) No. 12446 of 2003. This
Court disposed of all the petitions on 25.10.2004 by directing
the High Court to dispose of the writ petitions as expeditiously
as possible after taking into consideration the objections of the
appellants and directed to maintain the status quo as on that
date till the disposal of the writ petitions.
(f) On 19.01.2005, the High Court directed the Municipal
Corporation to submit a plan and map for development of
Gandhi Market as a shopping complex having first and second
floor and a parking area. As the appellants agreed to pay Rs.1
lakh each in four instalments for construction of the first floor
shops, the High Court further directed that the amounts
deposited by the shopkeepers would be kept in a separate
fund by the Corporation and its use would be considered at
the time of final hearing.
(g) On 08.07.2005, the High Court directed that since the
shopkeepers have not deposited the remaining three
instalments, they shall pay the same and clarified that in
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default, the Municipal Corporation is at liberty to remove the
shopkeepers who are not willing to deposit their instalments.
On 24.03.2006, the High Court further directed that the
Municipal Corporation shall auction the shops excluding
verandah by an auction notice for the Court to know the
actual rental value and submit the price offered and the
valuation report of each shop. In pursuance of the said order,
the Municipal Corporation published notice but no one applied
for the same.
(h) Against the order dated 24.03.2006, the shopkeepers
filed applications before the High Court for recalling the order
and for refund of the amount deposited by them with interest
and the same were dismissed by the High Court on
05.05.2006. Since the shopkeepers were not willing for the
reconstruction of the market, the petitions were directed to be
listed along with W.P.(C) No. 310 of 1999. The Commissioner
was also required to give a proposal for reconstruction. By the
impugned order dated 18.01.2008, the High Court disposed of
all the writ petitions with various directions as found in
paragraph 8 of the impugned order.
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(i) Aggrieved by the said order, the appellants-shop keepers
have filed these appeals by way of special leave petitions before
this Court.
4) Heard Mr. Sunil Gupta, learned senior counsel for the
appellants, Mr. K.K. Venugopal and Dr. Rajiv Dhavan, learned
senior counsel for the Municipal Corporation, Gwalior and Mr.
Vikas Upadhyay, learned counsel for the State of M.P.
5) According to Mr. Sunil Gupta, learned senior counsel for
the appellants, several interim orders and the impugned final
order of the High Court are wholly outside the legitimate scope
and jurisdiction of PIL as stipulated in various decisions of
this Court. He further contended that the directions of the
High Court by which the appellants-shopkeepers have to
vacate their legally rented shops for construction of a new 7-
storey shopping complex in their place are opposed to and
outside the legitimate jurisdiction of a writ court under Article
226 of the Constitution. He also contended that the High
Court over-stepped its jurisdiction while continuing to pass
order after order constituting a Committee to supervise the
construction of shopping complex and requiring various
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authorities to facilitate by sanctioning necessary permission
and so on.
6) On the other hand, Mr. K.K. Venugopal and Dr. Rajiv
Dhavan, learned senior counsel for the Municipal Corporation
submitted that at every stage even at the time of passing
various directions, the appellants consented the same and
taking note of the interest of all the shopkeepers and for the
convenience of the general public making provision for parking
etc., the High Court issued various directions which are not
only consented by the shopkeepers but also in consonance
with the decisions of the Town and Country Planning
Department as well as the State Government. They also
submitted that by the impugned directions, the appellants-
shopkeepers are not going to loose anything, on the other
hand, the Municipal Corporation has assured that they will be
provided alternate accommodation till the completion of the
fresh construction and after new construction, they will be
provided convenient shops in the ground floor itself with more
facility for parking, accordingly, they prayed for dismissal of all
the above appeals as devoid of any merits.
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7) We have carefully considered the rival submissions,
impugned order of the High Court including various orders
passed, statutory provisions and all other relevant materials.
8) In order to consider the issues raised above, it is relevant
to note the ultimate directions issued by the High Court. It is
useful to mention that the High Court has considered the
issue not only in the PIL filed by an advocate of the local Bar
but also heard and decided three writ petitions filed by 252
shopkeepers having their business in the market in question.
9) The following directions in paragraph 8 of the impugned
order are relevant. They are as follows:
"8. As we have directed through interim orders and the
Town and Country Planning vide order dated 5.12.2007 has
granted permission for construction of new shopping
complex of seven storeys, with three underground storeys of
parking area, in the interest of all, this petition and
connected petitions are disposed of finally with the following
directions:
1. That now the respondent No.2 Municipal Corporation
shall construct new Gandhi Market Building as per the
permission granted by the Town and Country Planning
Department, Gwalior as well as by the State
Government.
2. That the aforesaid construction shall be supervised by
the Committee constituted by this Court vide interim
order dated 20.4.2007. Committee and Corporation will
ensure the construction of the new building for the
commercial market and will see that the tenders are
invited timely and agency is fixed for the purpose of
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construction. Whenever agency shall be fixed by the
Corporation for the purpose of construction, then after
entering into agreement with the agency but before
issuing the work order, the Committee will give notice to
the shopkeepers for vacating the shops and within a
period of two months, shopkeepers shall vacate the
shops. The shopkeepers will not raise any objection on
any alternative site granted by the Municipal
Corporation for running the business and will not delay
in vacating the shops. After taking over the possession,
the agency will start the work and see that the
construction upto ground floor level is completed within
a period of one year and thereafter shops are allotted to
the old shopkeepers positively within a period of 18
months on the outer limit.
3. That the ground floor shops shall be allotted to the
shopkeepers, those who will deposit the balance amount
of three instalments and shall also enter into an
agreement with the Corporation.
4. That the Corporation shall be free to allot the shops of
first, second and third floor on fair and auction basis
under the supervision of the Committee. Other terms
and conditions of the allotment shall be settled by the
Corporation and the Committee. So far as the
participation of the representatives of the shopkeepers
in the Committee, that shall be limited only for the
ground floor shop.
5. Municipal Corporation shall be free to fix the fresh
rent/licence fee of the new shops, which shall be
allotted to the existing shopkeepers. The Commissioner,
Municipal Corporation and Committee shall submit
quarterly progress report in the Court."
10) The whole controversy involved in these appeals is about
the order dated 18.01.2008 passed by the High Court in the
said writ petitions. The question for consideration before this
Court is whether the High Court overstepped in its legitimate
10
and legal jurisdiction while continuing to pass order after
order constituting a Committee to supervise the construction
of the shopping complex and any such directions can at all be
issued by the High Court while exercising its powers under
Article 226 of the Constitution of India.
11) The Municipal Corporation, Gwalior before the High
Court as well as in this Court furnished necessary details
about their stand. It is seen that a Writ Petition No. 310 of
1999 filed by Advocate G.S. Tomar was pending consideration
in which the encroachment caused on the public way
belonging to the M.P. Housing Board in Najar Bagh market
situated at Maharaj Bada where the Municipal Corporation
raised certain wooden stall pucca structure and was going to
auction the same but subsequently under the orders of the
Court in miscellaneous petitions, the petitioner confined the
issue only to the question relating to encroachment in Gandhi
Market, Gwalior. It was stated in the writ petition that the
shopkeepers of Gandhi Market have encroached upon the
verandah which was constructed in front of the shops for the
use of public and the prayer was made that the aforesaid
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verandah which has been encroached upon by the
shopkeepers may be removed. While so, in the other writ
petitions, all the shopkeepers have stated that they have not
made any encroachment of the verandah. When, on earlier
occasion, this Court was approached by the parties with
regard to certain interim directions, this Court requested the
High Court to dispose of the main writ petitions at an early
date. Pursuant to the same, all the writ petitions were heard
on several occasions and before passing a final order, several
interim orders/directions were issued.
12) At the foremost, Mr. Gupta submitted that they were not
parties in the writ petition filed as PIL, hence without affording
opportunity, various directions have been issued. Inasmuch
as almost all the shop keepers have filed three writ petitions
conveying their stand and admittedly all those writ petitions
were heard along PIL (Writ Petition No. 310 of 1999), the said
objection is liable to be rejected.
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Consent by the shop keepers:
13) Though Mr. Gupta, learned senior counsel for the
appellants vehemently contended that the High Court has
exceeded its jurisdiction while considering the writ petitions
filed under Article 226, Mr. K.K. Venugopal and Dr. Rajiv
Dhavan, learned senior counsel for the Municipal Corporation
while refuting the above contention pointed out that several
orders were passed by the High Court on the basis of the
consent given by the shopkeepers. On 09.01.2005, the High
Court passed the following order:
"During course of arguments, counsel for the petitioners
suggested that each shop keeper will deposit Rs. One Lac
with the Municipal Corporation, Gwalior in four monthly
installments, First Installment shall be paid next month and
thereafter other installments shall be paid every month in
the Municipal Corporation.
Counsel for the Municipal Corporation submits that they will
prepare a map for development of Gandhi Market and will
prepare a good shopping complex having first and second
floor. Plan shall also include parking area. It is also
suggested by the Municipal Corporation that the shopping
complex shall be prepared in such a manner that existing
shop keepers will not be dispossessed till first floor is
completed. However, exact plan will be submitted by them
within one month.
Petitioners have also agreed that they will not keep of their
goods on the footpath and the footpath will be kept clear.
They have further agreed that there shall be no
encroachment on the footpath including hangings on the
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footpath. Respondents shall ensure that no vehicles are
parked on the footpath.
Counsel for the petitioners also submitted that they will
move an application before the Apex Court for extension of
time for decision of the petition.
It is, therefore, directed that the amount so deposited by the
shopkeepers shall be kept in a separate fund by the
Municipal Corporation and its use shall be considered at the
time of final hearing."
14) Again on 19.01.2005, the High Court passed the
following order:
"Shopkeepers of Gandhi Market have discussed the matter
amongst themselves and have decided to deposit Rs. One
Lac each with Municipal Corporation which shall be
deposited by them in four equal monthly installments.
Similarly, shop keepers of Victoria Market and the market
nearby the Town Hall have agreed to deposit Rs. 50,000/-
each in two installments with Municipal Corporation,
Gwalior.
It is directed that the amount so deposited by the shop
keepers shall be kept in a separate fund by the Municipal
Corporation and its use shall be considered at the time of
final hearing.
Respondent- Municipal Corporation has submitted that they
will prepare a plan for development of these markets as a
shopping complex with the assistance of Town Planner and
ensure that there is no traffic congestion in the area and
shall also prepare parking place so that citizens have no
inconvenience on the public streets.
Shop keepers have assured that there will be no
encroachment on the footpath and the respondents will be at
liberty to remove the encroachment, if found on the footpath.
They shall also ensure that footpath is not obstructed by any
vehicle.
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Counsel for the petitioners before the Apex Court submit
they will be moving an application in the Apex Court for
extension of time for disposal of the petition.
As prayed, list this petition for further orders next month
alongwith other connected petitions."
15) Thereafter, the High Court, on 11.03.2005, passed the
following order:
"Shri Bhardwaj stated that as per undertaking given by the
shop keepers of Gandhi Market an amount of Rs.
62,27,000/- has been deposited with the Municipal
Corporation, Gwalior. Counsel for the shop keepers submits
that efforts are being made to pay future installments. He
further submits that if the map prepared by the Municipal
Corporation for development and beautification of the
market, as ordered earlier by this Court, is produced and
after going through the map, shop keepers will be in a
position to raise further funds and deposit other
installments as undertaken by them earlier. Shri Bidua,
counsel for the Municipal Corporation, Gwalior has informed
that the finalization of map is at the final stage and is likely
to be finalized by the end of next week. He submits that
plan for development will be ready within a week or ten days.
Since there is likelihood of amicable settlement in the
matter, we post this case after two weeks. On that date,
map approved by the Municipal Corporation for development
of Gandhi Market shall be produced in the Court for perusal.
Shri Bhardwaj has mentioned that in view of further
development in the case they have already approached the
Apex Court for extension of time for deciding the petitions as
the dispute is being settled between the Municipal
Corporation and the shop keepers. He has also stated that
there is every possibility that the application for extension of
time will be heard in the next week."
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16) From the above orders, it is clear that with the consent of
the parties, the order of construction of new market was
passed and maps were prepared.
17) Again, by order dated 06.05.2005, the High Court has
specifically mentioned "the scheme for development of the
market shall also be finalized in consultation with the
shopkeepers". The same reads as under:-
"Today counsel for Municipal Corporation intimated that
maps for Gandhi Market have been prepared by the
Architect and accepted by Municipal Corporation.
Said maps be shown to the shop keepers or representatives
of shop keepers. The scheme for development of the market
shall also be finalized in consultation with the shop keepers.
Counsel for the parties state that they will sit together and
negotiate the matter."
18) Thereafter, on 08.07.2005, the High Court passed the
following order:
"As agreed by the shopkeepers on 19.01.2005, that they will
deposit Rs. One lac with the Municipal Corporation, Gwalior
in four equal monthly instalments, they have deposited only
one instalment and remaining three instalments at the rate
of Rs.25,000/- per month have not been deposited. Maps
have been prepared by the Municipal Corporation which
have been shown to the representatives of the shopkeepers.
Now the shopkeepers state that all the shopkeepers want to
see the maps and CD prepared for construction of the
market. Municipal Corporation has no objection in showing
the entire plan to them. However, the shopkeepers are
directed to deposit the second instalment within fifteen days
and thereafter remaining instalments be paid in equal
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instalments every fifteen days and after deposit of second
instalment those shop keepers who have deposited the
second instalment will be entitled to see the maps CDs and,
the Municipal Corporation will be at liberty to remove those
shop keepers who are not willing to deposit their
instalments. However, before passing any order of removal,
Municipal Corporation shall examine their encroachments
and other factors and submit report before this Court."
19) The same order has been reiterated on 24.03.2006 which
is as follows:-
"Shopkeepers are not ready to honour their offer given before
this Court and they are not prepared to pay the amount of
premium as agreed by them on 19.01.2005. They have
deposited only one installment of Rs. 25,000/- and they have
not deposited the remaining three installments. Though,
vide order dated 08.07.2005, the shopkeepers were directed
to deposit the second installment, but they have not done so,
which shows that the shopkeepers are not willing to
cooperate and now they have applied for exemption.
In the circumstances, petition is required to be heard finally.
In the meantime, the Municipal Corporation shall auction
the shops, which shall not be finalized, so that the court will
be in a position to know the actual rental value of each shop.
The auction shall be for the area of shop only and the
encroached verandah shall not be auctioned which shall be
clarified in the auction notice and the Corporation will be at
liberty to remove the encroached area.
List the petition finally before appropriate Bench, as prayed
for by the counsel for the petitioners, in the week
commencing 1st May, 2006. It is directed that before the
date of hearing, Municipal Corporation shall submit the
price offered for each shop and the State shall also submit
the valuation report of each shop."
17
20) On 09.02.2007, the Court recorded that:
"Shri Bidua (counsel for Respondent No.2) prays for time to
submit verification report of the photographs filed by Shri
V.K. Bharadwaj counsel for intervenors and shopkeepers
and to submit report about closing of verandah against the
shops."
21) Again, on 02.03.2007, the High Court passed a brief
order which is as follows:
"With the consent of the parties, it is directed that Shri
Sharma, Commissioner, Municipal Corporation will complete
the inviting process of tenders for the construction of new
market building at the place of old Gandhi Market on or
before 09.03.2007."
22) The order dated 20.04.2007 is very relevant which reads
as under:-
"For the construction of new market building at the place of
old Gandhi Market, the shop keepers have consented."
"Today, the Municipal Corporation has filed a compliance
report". With a view to complete the project and to remove
the day to day hurdles with the consent of the parties, we
constitute a Committee comprising of ....."
23) The following noting in the order dated 04.05.2007 by the
High Court is also relevant which reads as under:-
"Shri Raja Sharma, learned counsel appearing for the shop
keepers submitted that the shop keepers will not raise any
objection before the Committee regarding the construction of
the market."
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24) It is abundantly clear that from time to time, on different
occasions with the consent of the parties, the construction of
new Gandhi Market was discussed and a Committee was
constituted after the order dated 20.04.2007.
25) The High Court, on different occasions, took into
consideration the objections and suggestions of the Director,
Town and Country Planning Department, the Commissioner,
Municipal Corporation, Principal Secretary, Housing
Development and passed an order on 18.05.2007 which is as
follows:-
"Today progress report along with minutes of the meeting of
the Committee dated 14.05.2007 has been filed, which is
taken on record and Corporation has also produced copy of
letter dated 15.05.2007 written by Joint Director, Town and
Country Planning Department to the Director for seeking
permission from the State. It is submitted that the Architect
has already submitted map as per advice of the Joint
Director, Town and Country Planning Department and the
matter has been referred to the Government for permission.
So far as the question of permission upto the height of 24
meter is concerned, that shall be obtained by the Municipal
Corporation and not by the Contractor. The Committee has
fixed the next date of meeting of 5th June, 2007. List this
case on 6th July, 2007. In the meantime, the State
Government shall take a decision on the permission and the
Committee shall also finalize the map and issue the tenders
for fixing the agency etc. During this period every effort
should be made to complete the formalities and process of
inviting tenders should also be started so that the
construction plan may be prepared. Next progress report
shall be submitted on 6th July, 2007.
19
The same order has been reiterated in the subsequent order
dated 20.07.2007. On 27.07.2007, the High Court passed the
following which reads thus:-
"It is directed that Shri Batham will continue to co-ordinate
between the authorities and will see that the inspection and
report is submitted by the School of Planning and
Architecture, New Delhi as early as possible and the consent
is obtained from the Department of Town and Country
Planning as well as the State Government. He will also
submit the reply of the queries and fulfill all the conditions
which are necessary for the approval of the project. The
Corporation is directed to submit the further progress report
on 10.08.2007.
26) If we analyze the above-mentioned and various other
orders, it would not be possible to conclude that the High
Court over stepped its limit while giving directions in para 8 of
the impugned order. As rightly observed by the High Court, it
is the duty and responsibility of the Public Department of the
State Government, Municipal Corporation to take all
endeavour to save the town of Gwalior from encroachments
and also easing the public utility system. The materials
placed by the Municipal Corporation clearly show that Gandhi
Market which is primarily a cloth market is established in the
year 1952 is now in a very haphazard condition causing
difficulty in the movement of public as well as of vehicles. It
20
was highlighted that in the day time as well as in the evening
busy time, it takes hours together for the vehicles to pass from
that area. Photographs were also shown to us. It is
impossible for the public to even walk on the street. The shop
keepers are dumping their products upon the street which is
not permissible. The public are prevented from using the foot
path/pavement meant for them. In such circumstances, a
decision was taken to construct a multi-level parking-cum-
commercial complex. In this process of construction, it was
planned to shift temporarily the present shop keepers to some
other nearby places.
27) It is further seen that the present commercial area of the
appellants/shop keepers is 60 sq. ft. which has been
converted by encroaching the area of verandah and converted
the same into 90 sq. ft area. The new shop of 60 sq. ft. size is
to be given to 252 present incumbents of Gandhi Market. It is
highlighted that to construct the building to the height of 12.5
metres having 3 layers of basement for parking, the ground
floor shall have 252 shops which shall be allotted to the
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present incumbents of Gandhi Market and other floors shall
be at the disposal of Municipal Corporation, Gwalior.
28) In view of the various orders passed by the High Court on
the basis of consensus of the parties, more particularly, with
the consent of the shop keepers, a Committee was appointed
and a direction was issued for providing alternate place to the
shop keepers till new construction being completed in the
existing place and all of them were assured of accommodation
in the ground floor of the new market complex, we are of the
view that the ultimate directions issued in the final order
dated 18.01.2008 by the High Court cannot be faulted with.
29) The next submission of Mr. Gupta relates to applications
filed by the appellants before the High Court for recalling the
order dated 24.03.2006 and also seeking clarification on the
same order as well as another application for refund of the
amount deposited. Admittedly, one application was rejected
on 05.05.2006 and it is not clear how the other applications
are kept pending even after disposal of main writ petitions.
About the amount deposited by the shop keepers, both the
senior counsel appearing for the Municipal Corporation
22
submitted that the said amount was not towards adjustment
of construction charges but the same would be adjusted
towards future licence fees. In the light of the same, there is
no substance in the contention relating to filing of applications
about various orders passed by the High Court. As rightly
pointed out by Dr. Rajiv Dhavan, learned senior counsel for
the Municipal Corporation even after the so-called
applications, the consent to the process of a new market place
continued and this is evident from the orders of the High
Court dated 02.03.2007, 20.04.2007 and 04.05.2007. It is
also brought to our notice that some applications that were
made in June/July to recall the order dated 04.05.2007 were
not pressed. In view of the same, we are unable to accept the
claim of the learned senior counsel for the appellants.
30) In view of our factual conclusion based on the materials
placed by both the parties as well as various orders of the High
Court, we feel that there is no need to advert to various
decisions relied on by the learned senior counsel for the
appellants.
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31) In the light of the above discussion, we are satisfied that
various directions in para 8 of the impugned order of the High
Court cannot be faulted with and according to us it safeguards
not only the interest of the Municipal Corporation, general
public but also all the 252 shop keepers who are running their
business in the Gandhi Market. Further, it was not disputed
before the High Court that Gandhi Market became quite old
and market is fully congested and there is no space for
parking. That was the reason the High Court specifically
recorded a finding in para 7 that:
"..... under changed circumstances that all the parties
including the shop keepers have agreed for construction of
new Gandhi Market building in the place of old Gandhi
Market building. This Court has already in the interest of all
the parties and the citizens of Gwalior City, directed through
interim orders for construction of a new market building and
has also constituted a Committee to see that new Gandhi
Market building is constructed and after construction, the
existing shop keepers were also settled therein. .... ...."
We fully endorse the above view. Though an argument was
advanced that the permission granted by Joint Director, Town
and Country Planning, Gwalior in his proceeding dated
05.12.2007 to the Commissioner, Municipal Corporation,
Gwalior regarding reconstruction of Gandhi Market, Gwalior
24
was objected to by the Director and further approval of the
State Government is required, inasmuch as the Joint Director
is the officer competent, we hope and trust that no fresh
construction would be carried out without the authority of the
person concerned and contrary to the statutory
provisions/regulations, accordingly, we reject the said
contention also.
32) Under these circumstances, we are unable to agree with
any one of the submissions made by the appellants, on the
other hand, we are in entire agreement with the stand of the
respondents and reasonings and conclusion arrived at by the
High Court. We direct the respondents, particularly, the
Municipal Corporation, Gwalior and the officers concerned to
implement the directions of the High Court within the
parameters of the statutory provisions considering the interest
of the general public as well all the shop keepers of the
existing market. In view of the disposal of the civil appeals,
Municipal Corporation is free to proceed with the construction
as directed in the impugned order of the High Court and in the
light of the above observations, as early as possible, and we
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also direct that all the directions of the High Court shall be
adhered to. It is further directed that as soon as construction
up to ground floor level is completed along with the required
parking facilities at the basement level those shops are to be
allotted to the old shop keepers in the Gandhi Market within a
period of six months after completion of such construction,
unless an individual shop keeper becomes ineligible for the
known reason.
33) Consequently, all the appeals fail and are accordingly
dismissed. In view of the same, interim stay granted by this
Court on 17.10.2008 shall stand vacated. No order as to costs.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
AUGUST 30, 2011.
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