Full Judgment Text
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)
J U D G M E N T
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
passed by the learned Single Judge dismissing the writ
Signature Not Verified
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]
16