Gurjit Singh (d) Through Lrs v. Union Territory, Chandigarh & Ors.

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impu gned judgment and order dated 23.10.2013 passed by the Hi gh Court of Punjab and Haryana at Chandigarh in Letters Patent Appeal Nos. 2130/2011 and 2131/2011 and the subsequent order dated 1 7.12.2013 passed in CM No. 5249/2013 in LPA No. 2130/2011, by which, the Division Bench of the High Court has dismissed the S aid Letters Patent Appeals thereby confirming the judgment and order passed by the learned Single Judge dismissing the writ petit ions, the original writ petitioner has preferred the present appeals. 2. The facts leading to the present appeals in a nutshe ll 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 orde r 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 200 7 and applied for change of address to the new shop, however, the same w as rejected and respondent No. 5 was asked to surrender his lic ence and apply for new one. The appellant applied for licence for selling fruits/ vegetables and State Agricultural Marketing Board iss ued the same. Since then, the appellant is running the business f rom Shop No. 27 owned by him. Respondent No. 5 filed a writ petitio n before the High Court challenging the order dated 05.07.2007 b y which his application for change of address to the new Shop N o. 12 was rejected. The order dated 05.07.2007 was stayed. Th e stay was continued up to 31.03.2009 i.e., till the validity of licence of respondent No. 5. That thereafter, the Market Committee, Chandi garh rejected the application of respondent No. 5 for renewal of licence. The same was the subject matter of another writ petition befo re the High Court being Writ Petition No. 5886/2009. That pursuant to t he order passed by the High Court, respondent No. 5 continued to fun ction as per the old licence. That the Licence Committee constituted under Licensing GURJIT SINGH (D) THROUGH LRS v. UNION TERRITORY , CHANDIGARH & ORS. of Auction Platform Rules, 1981 decided that the si te in the platform would be allotted on the basis of “One Site One Sho p” and the name of respondent No. 5 was shown as co-allottee 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 Wr it Petition No. 5886/2009 filed by respondent No. 5 and directed t hat 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 alternative policy comes by way of amend ment in the Act or the Rules, pertaining to the issue of rights to u se 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 li nked. 2.2 Feeling aggrieved and dissatisfied with the com mon judgment and order passed by the learned Single Judge of the High Court the appellant preferred the letters patent ap peals 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 o rder 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 no t 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 li cencee, he gets the right to use the platform allotted to him i.e., in front of Shop No. 27. 2.3 Feeling aggrieved and dissatisfied with the imp ugned common judgment and order passed by the Division Ben ch of the High Court the original writ petitioner – licence ho lder and owner of Shop No. 27 who is also claiming the right to use t he platform in front of Shop No. 27 has preferred the present appe als. 3. Shri P.S. Patwalia, learned Senior Advocate, appe aring on behalf of the appellant(s) has vehemently submitted that the learned Single Judge as well as the Division Bench of the H igh 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 g ranted the licence in the year 2007, however, so far as respon dent No. 5 is 1049 concerned, he applied for a fresh licence/renewal i n the year 2009 and he was issued a fresh licence in the year 2010 and t herefore, as per seniority the appellant herein was entitled to p riority. 3.2 It is further submitted that even at the time o f submitting the application for fresh licence/renewal in the year 2009, respondent No. 5 submitted an affidavit dated 20.08.2009 deposin g 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 mater ially erred in observing and holding that carrying on the business in the shop and on the auction platform both are distinct and separ ate. That the right to use a particular site in the platform is connected wit h the right to use the particular corresponding shop in view of the c lear 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 ad jacent to and/or in front of shop No. 27. 3.5 It is further contended that so far as responde nt 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 plat form which is adjacent to shop No. 27 and allotting auction platf orm to respondent No. 5 who is doing business in shop no. 12, just ad jacent to shop No. 27 is unreasonable and arbitrary. 3.6 It is next contended that the appellant(s) herei n approached the learned Single Judge challenging the co- allotme nt 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 peti tion. 4. Present appeals are vehemently opposed by Shri Vatsal Joshi, learned counsel appearing on behalf of the Chandiga rh Market Committee. It is vehemently submitted that after the interim order dated 05.08.2016 was passed by this Court, the repr esentation made by the appellant herein has been dealt with and con sidered by the Market Committee and a detailed reasoned order has been passed by the Market Committee rejecting the representation of the appellant. GURJIT SINGH (D) THROUGH LRS v. UNION TERRITORY , CHANDIGARH & ORS. [M. R. SHAH, J.] 4.1 It is further submitted that the allotment of aucti on 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 o n the auction platform are different and distinct. That as such t here is no policy and/or rule pointed out on behalf of the appellant tha t a licence holder is entitled to carry on the business and/or allotme nt of the auction platform just adjacent to and/or in front of shop o ccupied by him. 4.2 It is next submitted that as respondent No. 5 was fo und to be doing business since 1970 and thereafter, he applied fo r renewal of the licence in the year 2009; he has been allotte d the platform in front of shop No. 27. 4.3 It is vehemently submitted that the appellant a nd/or any other licence holder doing business in the respecti ve 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, s heds were reconstructed in the year 2009. That thereafter, th e Secretary Agriculture, U.T. Chandigarh laid down the principles a nd guidelines at the first instance, all those allottees, who wer e allotted sheds for working prior to collapse of sheds on 10.06.2007 we re entitled to be allotted shed/space as they existed on the date whe n the shed collapsed. That the appellant was issued the licenc e on 16.07.2007 whereas the sheds collapsed on 10.06.2007, therefor e, 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 afo resaid policy. 4.5 It is further contended that the action of the Market Committee in allotting the sheds is absolutely in c onsonance with the guidelines/policy laid down by the Secretary, Agriculture Department, Chandigarh. 5. While opposing the present appeals, learned counse l appearing on behalf of respondent No. 5 has argued t hat as such respondent No. 5 was carrying on business on the plat form 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 al lotment of newly constructed sheds, licence of the firm was not valid due to non-renewal and the case for grant of licence was pending for c onsideration in 1051 the office of the Committee, and the same was final ly 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 resp ondent No. 5, being a licencee of the Committee and posses sion holder of the shed prior to the collapse of the shed. Making the above submissions it is prayed that the present appeals b e dismissed. 6. We have heard learned counsel appearing on behal f of the respective parties at length. We have gone through the impugned judgment(s) and order(s) passed by the learned Sing le 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 adjacen t 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 p latform and that too, just adjacent and/or in front of shop in which a particular person is carrying on the business. Therefore, in the abse nce 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 fr ont of his shop No. 27. 6.2 At this stage, it is required to be noted that e ven other persons are allotted the shops/auction platforms at dif ferent places. It is also required to be noted that number of pers ons 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 t here are certain other platforms which are available. If tha t is so, Respondent Nos. 2 to 4 may consider whether one suc h 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 GURJIT SINGH (D) THROUGH LRS v. UNION TERRITORY , CHANDIGARH & ORS. [M. R. SHAH, J.] “It is stated by Mr. P. S. Patwalia, learned senior counsel appearing for the petitioner, that platform No. 13 i s available. Learned counsel for the respondents submits that th e matter is pending consideration and shall be decided within a period of four weeks. We hope that the respondents shall consider it favoura bly. List the petitions after four weeks.” Even the representation was permitted to be made to c onsider on the statement made by learned counsel appearing o n behalf of the appellant that there are certain other platforms wh ich 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 therea fter, 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 wer e allotted sheds for working prior to collapse of sheds on 10.06.2007 we re entitled to be allotted shed/space as they existed on the date whe n the shed collapsed. Thereafter, the allotment has been made as per the principles and guidelines regarding allotment of auc tion platforms as directed by the Secretary. The guidelines are as unde r: - “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 availab le, those spaces shall be advertised and fresh applications f rom the bonafide license holders as on the date of invi ting the applications or those licensees whose licenses are due for renewal and are pending for renewal with th e competent authority as on date of calling applicati ons shall be called, after giving due notice of at least 20 days. 1053 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 Chairm an, Market Committee, Joint Secretary, Agricultural Marketing Board and applicants who desire to be present. Based on draw of lots further allotment of sites/wo rking 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 a m 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 allotee s who were not allottees as on 10.06.2007 and after giving them due opportunity of being heard, may pass appropriat e orders keeping in view the principle which I have l aid down in this order.” 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 reg arding allotment of the auction platforms. The appellant is to be tr eated at par and equally with other persons doing business in the ma rket 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 fron t 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 H igh Court or even this Court. GURJIT SINGH (D) THROUGH LRS v. UNION TERRITORY , CHANDIGARH & ORS. [M. R. SHAH, J.] 6.7 Now so far as the allotment of the auction plat form in favour of respondent No. 5 is concerned, it is requ ired to be noted that according to the Market Committee and responde nt No. 5, respondent No. 5 has been holding the licence and d oing business since 1970, whereas the appellant herein got the licence on 16.07.2007. It appears that at the relevant time when the allot ment of the newly constructed shed was made, the licence of respondent No .5 was not renewed and/or not valid due to non-renewal and the case for grant of licence was pending for consideration in the off ice of the Committee, which was granted in the month of Februa ry, 2010. Thereafter, the shed has been allotted in favour of r espondent No. 5 being a licencee of the Market Committee and being in possession of the shed prior to collapse of the shed. All these a spects in detail have been considered by the Market Committee while decid ing the representation. 7. In view of the above and for the reasons stated above and in absence of any specific rule/regulation to the c ontrary and when the allotment of the sheds is made as per the princ iples/guidelines of the Secretary, Agriculture, reproduced hereinabove, a nd in absence of any specific rule in favour of appellant(s), righ t to claim the allotment just in front of his shop and/or adjacent to the same and when the allotment in favour of respondent No. 5 is m ade as per the policy and guidelines, both the learned Single Judg e and Division Bench of the High Court have rightly held against the appellant and have rightly dismissed the writ petition(s) and appe al(s). We are in complete agreement with the view taken by the High Co urt. 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. Divya Pandey Appeals dismissed. (Assisted by : Shevali Monga, LCRA)