Gurjit Singh (Dead) Thr. Lrs. vs Union Territory Of Chandigarh & Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4826­4828 OF 2022

Gurjit Singh (D) Through LRs ...Appellant(s)

Versus

Union Territory, Chandigarh & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 23.10.2013 passed by the High

Court of Punjab and Haryana at Chandigarh in Letters

Patent Appeal Nos. 2130/2011 and 2131/2011 and the

subsequent order dated 17.12.2013 passed in CM No.

5249/2013 in LPA No. 2130/2011, by which, the Division

Bench of the High Court has dismissed the Said Letters

Patent Appeals thereby confirming the judgment and order

Signature Not Verified passed by the learned Single Judge dismissing the writ Digitally signed by R Natarajan Date: 2023.03.03 16:50:12 IST Reason: petitions, the original writ petitioner has preferred the

present appeals.

1

2. The facts leading to the present appeals in a nutshell are

as under: ­

2.1 That the appellant became the owner of Shop No. 27

situated in the Agricultural Produce Market, Chandigarh.

Respondent No. 5 herein was the tenant of the said shop.

Both the appellant as well as respondent No. 5 were

holding the requisite licences to do business in the market

area. Ejectment proceedings were initiated by the

appellant against respondent No. 5. The order of ejectment

came to be confirmed by the High Court. Therefore,

respondent No. 5 shifted as a tenant to Shop No. 12 in the

year 2007 and applied for change of address to the new

shop, however, the same was rejected and respondent No.

5 was asked to surrender his licence and apply for new

one. The appellant applied for licence for selling

fruits/vegetables and State Agricultural Marketing Board

issued the same. Since then, the appellant is running the

business from Shop No. 27 owned by him. Respondent No.

5 filed a writ petition before the High Court challenging the

order dated 05.07.2007 by which his application for

change of address to the new Shop No. 12 was rejected.

2 The order dated 05.07.2007 was stayed. The stay was

continued up to 31.03.2009 i.e., till the validity of licence

of respondent No. 5. That thereafter, the Market

Committee, Chandigarh rejected the application of

respondent No. 5 for renewal of licence. The same was the

subject matter of another writ petition before the High

Court being Writ Petition No. 5886/2009. That pursuant

to the order passed by the High Court, respondent No. 5

continued to function as per the old licence. That the

Licence Committee constituted under Licensing of Auction

Platform Rules, 1981 decided that the site in the platform

would be allotted on the basis of “One Site One Shop” and

the name of respondent No. 5 was shown as co­allottee

along with the appellant. Aggrieved with this, the appellant

filed a writ petition before the High Court, being Writ

Petition No. 12684/2009. The High Court by a common

judgment and order dated 26.09.2011 allowed Writ

Petition No. 5886/2009 filed by respondent No. 5 and

directed that the licence of respondent No. 5 be renewed.

The High Court also held that respondent No. 5 is entitled

to use the platform in front of Shop No. 27 till any

3 alternative policy comes by way of amendment in the Act

or the Rules, pertaining to the issue of rights to use the

platform. The learned Single Judge also held that right to

use the platform and to have the licence to do the business

in the market area both are distinct and different and the

two rights were not directly linked.

2.2 Feeling aggrieved and dissatisfied with the common

judgment and order passed by the learned Single Judge of

the High Court the appellant preferred the letters patent

appeals before the Division Bench of the High Court. By

the impugned common judgment and order the Division

Bench of the High Court has dismissed the said letters

patent appeals and has confirmed the order passed by the

learned Single Judge holding that right to use the shop

and/or having a licence and right to use the platform are

not directly related. The Division Bench of the High court

also observed that respondent No. 5 is using the platform

since 1970 i.e., much prior to the appellant getting the

licence and therefore, being a senior licencee, he gets the

right to use the platform allotted to him i.e., in front of

Shop No. 27.

4 2.3 Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the Division Bench

of the High Court the original writ petitioner – licence

holder and owner of Shop No. 27 who is also claiming the

right to use the platform in front of Shop No. 27 has

preferred the present appeals.

3. Shri P.S. Patwalia, learned Senior Advocate, appearing on

behalf of the appellant(s) has vehemently submitted that

the learned Single Judge as well as the Division Bench of

the High Court have materially erred in confirming the

allotment of the auction platform in question, in favour of

original respondent No. 5.

3.1 It is submitted that the appellant herein was granted the

licence in the year 2007, however, so far as respondent No.

5 is concerned, he applied for a fresh licence/renewal in

the year 2009 and he was issued a fresh licence in the

year 2010 and therefore, as per seniority the appellant

herein was entitled to priority.

3.2 It is further submitted that even at the time of submitting

the application for fresh licence/renewal in the year 2009,

5 respondent No. 5 submitted an affidavit dated 20.08.2009

deposing that he will not claim any right over the auction

platform. That in fact the licence was issued only after the

said affidavit.

3.3 It is next submitted that the High Court has materially

erred in observing and holding that carrying on the

business in the shop and on the auction platform both are

distinct and separate. That the right to use a particular

site in the platform is connected with the right to use the

particular corresponding shop in view of the clear policy of

the board i.e., “One Site One Shop”.

3.4 It is contended that the appellant herein is doing the

business, has the licence and he is allotted shop no. 27

and therefore, he is entitled to the allotment of the auction

platform adjacent to and/or in front of shop No. 27.

3.5 It is further contended that so far as respondent No. 5 is

concerned, he is doing business in shop No. 12 therefore,

not to permit the appellant(s) to do business on the

auction platform which is adjacent to shop No. 27 and

allotting auction platform to respondent No. 5 who is doing

6 business in shop no. 12, just adjacent to shop No. 27 is

unreasonable and arbitrary.

3.6 It is next contended that the appellant(s) herein

approached the learned Single Judge challenging the co­

allotment of the site to respondent No. 5. That in any case

the appellant(s) do not succeed in such challenge, they

cannot be worse of compared to the position which they

were in prior to filing of the writ petition.

4. Present appeals are vehemently opposed by Shri Vatsal

Joshi, learned counsel appearing on behalf of the

Chandigarh Market Committee. It is vehemently submitted

that after the interim order dated 05.08.2016 was passed

by this Court, the representation made by the appellant

herein has been dealt with and considered by the Market

Committee and a detailed reasoned order has been passed

by the Market Committee rejecting the representation of

the appellant.

4.1 It is further submitted that the allotment of auction

platform is to be made as per the policy. That it is rightly

observed and held by the High Court that to do business

in the shop and on the auction platform are different and

7 distinct. That as such there is no policy and/or rule

pointed out on behalf of the appellant that a licence holder

is entitled to carry on the business and/or allotment of the

auction platform just adjacent to and/or in front of shop

occupied by him.

4.2 It is next submitted that as respondent No. 5 was found to

be doing business since 1970 and thereafter, he applied

for renewal of the licence in the year 2009; he has been

allotted the platform in front of shop No. 27.

4.3 It is vehemently submitted that the appellant and/or any

other licence holder doing business in the respective shop

cannot as a matter of right claim allotment of the auction

platform at a particular place.

4.4 It is contended that as such, existing sheds in the Market

Committee collapsed on 10.06.2007 and thereafter, sheds

were reconstructed in the year 2009. That thereafter, the

Secretary Agriculture, U.T. Chandigarh laid down the

principles and guidelines at the first instance, all those

allottees, who were allotted sheds for working prior to

collapse of sheds on 10.06.2007 were entitled to be allotted

shed/space as they existed on the date when the shed

8 collapsed. That the appellant was issued the licence on

16.07.2007 whereas the sheds collapsed on 10.06.2007,

therefore, the appellant was not in possession of the shed

earlier to the collapse on 10.06.2007 and therefore, his

case is not covered under the aforesaid policy.

4.5 It is further contended that the action of the Market

Committee in allotting the sheds is absolutely in

consonance with the guidelines/policy laid down by the

Secretary, Agriculture Department, Chandigarh.

5. While opposing the present appeals, learned counsel

appearing on behalf of respondent No. 5 has argued that

as such respondent No. 5 was carrying on business on the

platform even at the time of the collapse of shed on

10.06.2007 and was having a valid licence since 1970.

However, at the time of allotment of newly constructed

sheds, licence of the firm was not valid due to non­renewal

and the case for grant of licence was pending for

consideration in the office of the Committee, and the same

was finally granted in the month of February, 2010. It is

submitted that thereafter on constitution of the Committee

the allotment of the shed was made to respondent No. 5,

9 being a licencee of the Committee and possession holder of

the shed prior to the collapse of the shed. Making the

above submissions it is prayed that the present appeals be

dismissed.

6. We have heard learned counsel appearing on behalf of the

respective parties at length. We have gone through the

impugned judgment(s) and order(s) passed by the learned

Single Judge as well as the Division Bench of the High

Court.

6.1 At the outset, it is required to be noted that the appellant

is claiming shed/auction platform which is just adjacent to

and/or in front of shop No. 27 and/or at any other place.

However, the appellant is unable to establish and/or show

any specific rules and/or regulations with respect to the

allotment of the shed/auction platform and that too, just

adjacent and/or in front of shop in which a particular

person is carrying on the business. Therefore, in the

absence of any specific right in his favour, the appellant

could not have prayed for the allotment of shed/auction

platform just adjacent to and/or in front of his shop No.

27.

10 6.2 At this stage, it is required to be noted that even other

persons are allotted the shops/auction platforms at

different places. It is also required to be noted that

number of persons doing business is more than the

availability of auction platforms.

6.3 At this stage, it is also required to be noted that as such

pursuant to orders passed by this Court on 06.05.2016

and 05.08.2016, petitioner – appellant made the

representation. The orders are as under: ­ “Mr. Patwalia, learned senior counsel states that there are certain other platforms which are available. If that is so, Respondent Nos. 2 to 4 may consider whether one such platform can be allotted to the petitioner or not.

Petitioner is entitled to make a representation in this behalf within one week.

List the matter in the month of August, 2016.”

xxx

“It is stated by Mr. P. S. Patwalia, learned senior counsel appearing for the petitioner, that platform No. 13 is available.

Learned counsel for the respondents submits that the matter is pending consideration and shall be decided within a period of four weeks.

We hope that the respondents shall consider it favourably.

List the petitions after four weeks.”

11 Even the representation was permitted to be made to

consider on the statement made by learned counsel

appearing on behalf of the appellant that there are certain

other platforms which are available and to that, this Court

observed that if that is so, respondent Nos. 2 to 4 may

consider whether one such platform can be allotted to the

appellant or not. That thereafter, a representation was

made by the appellant which has been dealt with and

rejected by the Committee by a detailed order which is self­

explanatory.

6.4 In the representation/order, it is specifically mentioned

that earlier the shed collapsed on 10.06.2007 and

thereafter, the shed was reconstructed in the year 2009

and a policy decision was taken pursuant to the directions

issued by the Secretary, Agriculture, that at the first

instance, all those allottees, who were allotted sheds for

working prior to collapse of sheds on 10.06.2007 were

entitled to be allotted shed/space as they existed on the

date when the shed collapsed. Thereafter, the allotment

has been made as per the principles and guidelines

12 regarding allotment of auction platforms as directed by the

Secretary. The guidelines are as under: ­ “1. At the first instance, all those allottees, who were allotted sheds for working prior to collapse of shed on 10.06.2007 will be allotted sheds/spaces as they exited as on the date when the shed collapsed.

2. In case after that, there are more spaces available, those spaces shall be advertised and fresh applications from the bonafide license holders as on the date of inviting the applications or those licensees whose licenses are due for renewal and are pending for renewal with the competent authority as on date of calling applications shall be called, after giving due notice of at least 20 days. Once that is done and in case legally bonafide applications are more than the number of available space, draw of lots will be held in the presence of Chairman, Market Committee, Joint Secretary, Agricultural Marketing Board and applicants who desire to be present. Based on draw of lots further allotment of sites/working spaces shall be made.

3. These directives shall be followed till such time the Government makes a new rule under the Act and gives new guidelines.

Further keeping in view my finding in this case, I am of the considered opinion that any allotment which has been made to other than the erstwhile allottees who were sitting and doing their business as on 10.06.2007 is not just and valid and needs to be set aside.

I direct the Market Committee to issue notice for cancellation of allotted site/shed to those allotees who were not allottees as on 10.06.2007 and after giving them due opportunity of being heard, may pass appropriate orders keeping in view the principle which I have laid down in this order."

13 6.5 That thereafter, the allotments have been made in

accordance with the guidelines/principles laid down by the

Secretary, Agriculture. Under the circumstances, the

appellant is not entitled to any preferential treatment

and/or allotment dehors observance of principles and

guidelines issued by the Secretary regarding allotment of

the auction platforms. The appellant is to be treated at par

and equally with other persons doing business in the

market and on the auction platform.

6.6 Even as rightly observed by the High Court, to do business

in the shop and to carry on business on the auction

platform, are both different and distinct. Merely because a

person is having a licence and doing business in a

particular shop, he is not entitled to the auction platform

as a matter of right and that too, in front of and/or

adjacent to his shop. No such rule and/or regulation

and/or guideline supporting such a claim has been

brought to the notice of the High Court or even this Court. 6.7 Now so far as the allotment of the auction platform in

favour of respondent No. 5 is concerned, it is required to

be noted that according to the Market Committee and

14 respondent No. 5, respondent No. 5 has been holding the

licence and doing business since 1970, whereas the

appellant herein got the licence on 16.07.2007. It appears

that at the relevant time when the allotment of the newly

constructed shed was made, the licence of respondent No.

5 was not renewed and/or not valid due to non­renewal

and the case for grant of licence was pending for

consideration in the office of the Committee, which was

granted in the month of February, 2010. Thereafter, the

shed has been allotted in favour of respondent No. 5 being

a licencee of the Market Committee and being in

possession of the shed prior to collapse of the shed. All

these aspects in detail have been considered by the Market

Committee while deciding the representation.

7. In view of the above and for the reasons stated above and

in absence of any specific rule/regulation to the contrary

and when the allotment of the sheds is made as per the

principles/guidelines of the Secretary, Agriculture,

reproduced hereinabove, and in absence of any specific

rule in favour of appellant(s), right to claim the allotment

just in front of his shop and/or adjacent to the same and

15 when the allotment in favour of respondent No. 5 is made

as per the policy and guidelines, both the learned Single

Judge and Division Bench of the High Court have rightly

held against the appellant and have rightly dismissed the

writ petition(s) and appeal(s). We are in complete

agreement with the view taken by the High Court.

8. In view of the above and for the reasons stated above, the

present appeals lack merit and the same deserve to be

dismissed and are accordingly dismissed. No costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. MARCH 03, 2023 [B.V. NAGARATHNA]

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