GURJIT SINGH (D) THROUGH LRS versus UNION TERRITORY, CHANDIGARH & ORS. on 3 March 2023

1. Feeling aggrieved and dissatisfied with the impugnedjudgment and order dated 23.10.2013 passed by the High Court ofPunjab and Haryana at Chandigarh in Letters Patent Appeal Nos.2130/2011 and 2131/2011 and the subsequent order dated 17.12.2013passed in CM No. 5249/2013 in LPA No. 2130/2011, by which, theDivision Bench of the High Court has dismissed the Said LettersPatent Appeals thereby confirming the judgment and order passedby the learned Single Judge dismissing the writ petitions, the originalwrit petitioner has preferred the present appeals.

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

2. The facts leading to the present appeals in a nutshell are asunder: - 2.1 That the appellant became the owner of Shop No. 27situated in the Agricultural Produce Market, Chandigarh. RespondentNo. 5 herein was the tenant of the said shop. Both the appellant aswell as respondent No. 5 were holding the requisite licences to dobusiness in the market area. Ejectment proceedings were initiatedby the appellant against respondent No. 5. The order of ejectmentcame 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 forchange of address to the new shop, however, the same was rejectedand respondent No. 5 was asked to surrender his licence and applyfor 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. 27owned by him. Respondent No. 5 filed a writ petition before theHigh Court challenging the order dated 05.07.2007 by which hisapplication for change of address to the new Shop No. 12 wasrejected. The order dated 05.07.2007 was stayed. The stay wascontinued up to 31.03.2009 i.e., till the validity of licence of respondentNo. 5. That thereafter, the Market Committee, Chandigarh rejectedthe application of respondent No. 5 for renewal of licence. The samewas the subject matter of another writ petition before the High Courtbeing Writ Petition No. 5886/2009. That pursuant to the order passedby the High Court, respondent No. 5 continued to function as per theold licence. That the Licence Committee constituted under Licensing A

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Aof Auction Platform Rules, 1981 decided that the site in the platformwould be allotted on the basis of “One Site One Shop” and the nameof respondent No. 5 was shown as co-allottee along with the appellant.Aggrieved with this, the appellant filed a writ petition before the HighCourt, being Writ Petition No. 12684/2009. The High Court by acommon judgment and order dated 26.09.2011 allowed Writ PetitionBNo. 5886/2009 filed by respondent No. 5 and directed that the licenceof respondent No. 5 be renewed. The High Court also held thatrespondent No. 5 is entitled to use the platform in front of Shop No.27 till any alternative policy comes by way of amendment in the Actor the Rules, pertaining to the issue of rights to use the platform. TheClearned Single Judge also held that right to use the platform and tohave the licence to do the business in the market area both are distinctand different and the two rights were not directly linked.

2.2 Feeling aggrieved and dissatisfied with the commonjudgment and order passed by the learned Single Judge of the HighDCourt the appellant preferred the letters patent appeals before theDivision Bench of the High Court. By the impugned common judgmentand order the Division Bench of the High Court has dismissed thesaid letters patent appeals and has confirmed the order passed bythe learned Single Judge holding that right to use the shop and/orhaving a licence and right to use the platform are not directly related.EThe Division Bench of the High court also observed that respondentNo. 5 is using the platform since 1970 i.e., much prior to the appellantgetting the licence and therefore, being a senior licencee, he gets theright to use the platform allotted to him i.e., in front of Shop No. 27.

2.3 Feeling aggrieved and dissatisfied with the impugnedFcommon judgment and order passed by the Division Bench of theHigh Court the original writ petitioner – licence holder and owner ofShop No. 27 who is also claiming the right to use the platform infront of Shop No. 27 has preferred the present appeals.

3. Shri P.S. Patwalia, learned Senior Advocate, appearing onGbehalf of the appellant(s) has vehemently submitted that the learnedSingle Judge as well as the Division Bench of the High Court havematerially erred in confirming the allotment of the auction platformin question, in favour of original respondent No. 5.

3.1 It is submitted that the appellant herein was granted theHlicence in the year 2007, however, so far as respondent No. 5 is concerned, he applied for a fresh licence/renewal in the year 2009and he was issued a fresh licence in the year 2010 and therefore, asper seniority the appellant herein was entitled to priority.

3.2 It is further submitted that even at the time of submittingthe application for fresh licence/renewal in the year 2009, respondentNo. 5 submitted an affidavit dated 20.08.2009 deposing that he willnot claim any right over the auction platform. That in fact the licencewas issued only after the said affidavit.

3.3 It is next submitted that the High Court has materially erredin observing and holding that carrying on the business in the shop andon the auction platform both are distinct and separate. That the rightto use a particular site in the platform is connected with the right touse the particular corresponding shop in view of the clear policy ofthe 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 isentitled to the allotment of the auction platform adjacent to and/or infront of shop No. 27.

3.5 It is further contended that so far as respondent No. 5 isconcerned, he is doing business in shop No. 12 therefore, not to permitthe appellant(s) to do business on the auction platform which isadjacent to shop No. 27 and allotting auction platform to respondentNo. 5 who is doing 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 approachedthe learned Single Judge challenging the co- allotment of the site torespondent No. 5. That in any case the appellant(s) do not succeedin such challenge, they cannot be worse of compared to the positionwhich 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 MarketCommittee. It is vehemently submitted that after the interim orderdated 05.08.2016 was passed by this Court, the representation madeby the appellant herein has been dealt with and considered by theMarket Committee and a detailed reasoned order has been passedby the Market Committee rejecting the representation of the appellant.

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A4.1 It is further submitted that the allotment of auction platformis to be made as per the policy. That it is rightly observed and held bythe High Court that to do business in the shop and on the auctionplatform are different and distinct. That as such there is no policyand/or rule pointed out on behalf of the appellant that a licence holderis entitled to carry on the business and/or allotment of the auctionBplatform just adjacent to and/or in front of shop occupied by him.

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4.2 It is next submitted that as respondent No. 5 was found tobe doing business since 1970 and thereafter, he applied for renewalof the licence in the year 2009; he has been allotted the platform infront of shop No. 27.C

4.3 It is vehemently submitted that the appellant and/or anyother licence holder doing business in the respective shop cannot asa matter of right claim allotment of the auction platform at a particularplace.D4.4 It is contended that as such, existing sheds in the MarketCommittee collapsed on 10.06.2007 and thereafter, sheds werereconstructed in the year 2009. That thereafter, the SecretaryAgriculture, U.T. Chandigarh laid down the principles and guidelinesat the first instance, all those allottees, who were allotted sheds forworking prior to collapse of sheds on 10.06.2007 were entitled to beEallotted shed/space as they existed on the date when the shedcollapsed. That the appellant was issued the licence on 16.07.2007whereas the sheds collapsed on 10.06.2007, therefore, the appellantwas not in possession of the shed earlier to the collapse on 10.06.2007and therefore, his case is not covered under the aforesaid policy.F4.5 It is further contended that the action of the MarketCommittee in allotting the sheds is absolutely in consonance with theguidelines/policy laid down by the Secretary, Agriculture Department,Chandigarh.

5. While opposing the present appeals, learned counselGappearing on behalf of respondent No. 5 has argued that as suchrespondent No. 5 was carrying on business on the platform even atthe time of the collapse of shed on 10.06.2007 and was having avalid licence since 1970. However, at the time of allotment of newlyconstructed sheds, licence of the firm was not valid due to non-renewaland the case for grant of licence was pending for consideration inH

the office of the Committee, and the same was finally granted in themonth of February, 2010. It is submitted that thereafter on constitutionof the Committee the allotment of the shed was made to respondentNo. 5, being a licencee of the Committee and possession holder ofthe shed prior to the collapse of the shed. Making the abovesubmissions it is prayed that the present appeals be dismissed.

6. We have heard learned counsel appearing on behalf of therespective parties at length. We have gone through the impugnedjudgment(s) and order(s) passed by the learned Single Judge as wellas the Division Bench of the High Court.

6.1 At the outset, it is required to be noted that the appellant isclaiming shed/auction platform which is just adjacent to and/or infront of shop No. 27 and/or at any other place. However, the appellantis unable to establish and/or show any specific rules and/or regulationswith respect to the allotment of the shed/auction platform and thattoo, just adjacent and/or in front of shop in which a particular personis carrying on the business. Therefore, in the absence of any specificright in his favour, the appellant could not have prayed for the allotmentof shed/auction platform just adjacent to and/or in front of his shopNo. 27.

6.2 At this stage, it is required to be noted that even otherpersons are allotted the shops/auction platforms at different places.It is also required to be noted that number of persons doing businessis more than the availability of auction platforms.

6.3 At this stage, it is also required to be noted that as suchpursuant to orders passed by this Court on 06.05.2016 and 05.08.2016,petitioner – appellant made the representation. The orders are asunder: - “Mr. Patwalia, learned senior counsel states that there arecertain other platforms which are available. If that is so,Respondent Nos. 2 to 4 may consider whether one suchplatform can be allotted to the petitioner or not.

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

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

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

Learned counsel for the respondents submits that the matter ispending consideration and shall be decided within a period offour weeks.

BWe hope that the respondents shall consider it favourably.

List the petitions after four weeks.”

Even the representation was permitted to be made to consideron the statement made by learned counsel appearing on behalf of theCappellant that there are certain other platforms which are availableand to that, this Court observed that if that is so, respondent Nos. 2to 4 may consider whether one such platform can be allotted to theappellant or not. That thereafter, a representation was made by theappellant which has been dealt with and rejected by the Committeeby a detailed order which is self- explanatory.D

6.4 In the representation/order, it is specifically mentioned thatearlier the shed collapsed on 10.06.2007 and thereafter, the shedwas reconstructed in the year 2009 and a policy decision was takenpursuant to the directions issued by the Secretary, Agriculture, thatat the first instance, all those allottees, who were allotted sheds forEworking prior to collapse of sheds on 10.06.2007 were entitled to beallotted shed/space as they existed on the date when the shedcollapsed. Thereafter, the allotment has been made as per theprinciples and guidelines regarding allotment of auction platforms asdirected by the Secretary. The guidelines are as under: -F“1.At the first instance, all those allottees, who were allottedsheds for working prior to collapse of shed on 10.06.2007will be allotted sheds/spaces as they exited as on thedate when the shed collapsed.

2. In case after that, there are more spaces available, thoseGspaces shall be advertised and fresh applications fromthe bonafide license holders as on the date of invitingthe applications or those licensees whose licenses aredue for renewal and are pending for renewal with thecompetent authority as on date of calling applicationsshall be called, after giving due notice of at least 20 days.H

Once that is done and in case legally bonafideapplications are more than the number of available space,draw of lots will be held in the presence of Chairman,Market Committee, Joint Secretary, AgriculturalMarketing Board and applicants who desire to be present.Based on draw of lots further allotment of sites/workingspaces shall be made.

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

Further keeping in view my finding in this case, I am ofthe considered opinion that any allotment which has beenmade to other than the erstwhile allottees who weresitting and doing their business as on 10.06.2007 is notjust and valid and needs to be set aside.

I direct the Market Committee to issue notice forcancellation of allotted site/shed to those allotees whowere not allottees as on 10.06.2007 and after giving themdue opportunity of being heard, may pass appropriateorders keeping in view the principle which I have laiddown in this order.”

6.5 That thereafter, the allotments have been made inaccordance with the guidelines/principles laid down by the Secretary,Agriculture. Under the circumstances, the appellant is not entitled toany preferential treatment and/or allotment dehors observance ofprinciples and guidelines issued by the Secretary regarding allotmentof the auction platforms. The appellant is to be treated at par andequally with other persons doing business in the market and on theauction platform.

6.6 Even as rightly observed by the High Court, to do businessin the shop and to carry on business on the auction platform, are bothdifferent and distinct. Merely because a person is having a licenceand doing business in a particular shop, he is not entitled to the auctionplatform as a matter of right and that too, in front of and/or adjacentto his shop. No such rule and/or regulation and/or guideline supportingsuch a claim has been brought to the notice of the High Court oreven this Court.

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A6.7 Now so far as the allotment of the auction platform infavour of respondent No. 5 is concerned, it is required to be notedthat according to the Market Committee and respondent No. 5,respondent No. 5 has been holding the licence and doing businesssince 1970, whereas the appellant herein got the licence on 16.07.2007.It appears that at the relevant time when the allotment of the newlyBconstructed shed was made, the licence of respondent No.5 was notrenewed and/or not valid due to non-renewal and the case for grantof licence was pending for consideration in the office of theCommittee, which was granted in the month of February, 2010.Thereafter, the shed has been allotted in favour of respondent No. 5Cbeing a licencee of the Market Committee and being in possession ofthe shed prior to collapse of the shed. All these aspects in detail havebeen considered by the Market Committee while deciding therepresentation.

7. In view of the above and for the reasons stated above andDin absence of any specific rule/regulation to the contrary and whenthe allotment of the sheds is made as per the principles/guidelines ofthe Secretary, Agriculture, reproduced hereinabove, and in absenceof any specific rule in favour of appellant(s), right to claim theallotment just in front of his shop and/or adjacent to the same andwhen the allotment in favour of respondent No. 5 is made as per theEpolicy and guidelines, both the learned Single Judge and DivisionBench of the High Court have rightly held against the appellant andhave rightly dismissed the writ petition(s) and appeal(s). We are incomplete agreement with the view taken by the High Court.

8. In view of the above and for the reasons stated above, theFpresent appeals lack merit and the same deserve to be dismissed andare accordingly dismissed. No costs.

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Divya Pandey

(Assisted by : Shevali Monga, LCRA)

Appeals dismissed.

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