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. 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.
(3.) 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.;