Rakesh Sharma & Ors vs State Of M.P. & Ors

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,

1

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

2

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

3

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

4

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

5

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.

6 (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

7

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.

8 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

9

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

11

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.

12 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

13

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."

15

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

16

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."

18

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

21

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.

23 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

25

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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