Letters Patent appeal dismissed. Appellants challenged allotment of shops on 'first come first serve' basis as arbitrary. Court held criteria evolved with eligible holders who consented, no illegality found, and process was fair. Appeal dismissed.
Letters Patent Appeal against the order disposing of the writ petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF AUGUST, 2022 BEFORE
HON’BLE MS. JUSTICE SABINA
&
HON’BLE MR. JUSTICE SATYEN VAIDYA
LETTERS PATENT APPEAL No.50 of 2021
Between:-
1. PREM CHAND SON OF SHRI BOHRU RAM, AGED 79, RESIDENT OF HOUSE NO.E-302, WARD NO.7 HOUSING BOARD COLONY, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
2. RANJIT SINGH SON OF SHRI KISHORI LAL, RESIDENT OF VILLAGE DUNGNEHRI, PO HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
3. SUMNA DEVI WIFE OF LATE SHRI DHARAM PAL, RESIDENT OF VILLAGE DULERA, TEHSIL AND DISTRICT HAMIRPUR, HIMACHAL PRADESH.
……APPELLANTS
(BY MR. BIPIN C. NEGI, SENIOR ADVOCATE WITH MR. NITIN THAKUR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (URBAN DEVELOPMENT) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA171002.
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2. THE DIRECTOR URBAN DEVELOPMENT, HIMACHAL PRADESH, TALLAND, SHIMLA– 171002.
3. THE DEPUTY COMMISSIONER HAMIRPUR, DISTRICT HAMIRPUR, HIMACHAL PRADESH.
4. THE MEMBER SECRETARY FOR PROMOTION OF SPORTS, CULTURE, EDUCATION AND OTHER DEVELOPMENT ACTIVITIES-CUMSUB-DIVISIONAL OFFICER (CIVIL), HAMIRPUR, DISTRICT HAMIRPUR, HIMACHAL PRADESH.
5. MUNICIPAL COUNCIL HAMIRPUR, DISTRICT HAMIRPUR, HIMACHAL PRADESH THROUGH ITS EXECUTIVE OFFICER.
6. SHRI RANJIT KUMAR SON OF SHRI PURSHOTAM, SHOP NO 1 MAIN BUS STAND, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
7. SHRI ARUN KUMAR SON OF SHRI ASHOK KUMAR DHAMEJA, SHOP NO.2 MAIN BUS STAND, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
8. SHRI ASHOK KUMAR DHAMEJA SON OF SHRI SURAJ PARKASH, SHOP NO.3, MAIN BUS STAND, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
9. SHRI MAST RAM SHARMA SON OF SHRI PRABHU RAM, SHOP NO.4, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
10. SHRI KASHMIR SINGH SON OF SHRI UDHO RAM, SHOP NO.5, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
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11. SHRI KISHORI CHAND SHARMA SON OF LATE SHRI HARI CHAND. SHOPS NO.7 & 8, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL.
12. SMT SARLA DEVI WIFE OF SHRI SOHAN LAL, SHOP NO. 10, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
13. SHRI JAI RAM SON OF SHRI SUNKU RAM, SHOP NO.14, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
14. SHRI SURINDER KUMAR SON OF SHRI SHANKAR DASS, SHOP NO 28, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
15. SMT RAJESH KUMARI DAUGHTER IN LAW OF LATE SHRI SHANKAR DASS, SHOP NO.29, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
16. SMT SUMAN BANSAL WIFE OF SHRI SUDESH SWAROOP, SHOP NO.35, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
17. SHRI VIJAY PAL SINGH SON OF SHRI RANJEET SINGH, SHOP NO.38, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
18. SHRI BHAGAT RAM SON OF SHRI ROLU RAM, SHOP NO.39, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
19. SHRI SARVESH KUMAR SON OF SHRI BHAG LAL, SHOP NO. 41, MAIN BUS STAND HAMIRPUR, TEHSIL &
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DISTRICT HAMIRPUR, HIMACHAL PRADESH.
20. SHRI TULSI RAM SHARMA SON OF SHRI LACHHMAN DASS, SHOP NO. 42, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
21. SHRI AJAY & SANJEEV KUMAR SONS OF LATE SHRI GIAN CHAND, SHOP NO.43, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
22. SMT SUSHEELA SHARMA WIFE OF SHRI SITA RAM, SHOP NO.44, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
23. SMT KIRAN MEHTA WIFE OF LATE SHRI M P MEHTA, SHOP NO 45, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
24. SHRI DEEP KUMAR AND SURESH KUMAR SONS OF LATE SHRI GIRDHARI LAL, SHOP NO.46, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
25. SHRI NARENDER KUMAR SON OF SHRI MADAN LA!, SHOP NO.49, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
26. SHRI RAJEEV GUPTA SON OF SHRI NAMDHAR GUPTA, SHOP NO.50, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
27. SHRI JAGDISH THAKUR SON OF SHRI LACHHMAN DASS, SHOP NO. 51, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
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28. SHRI PRITAM CHAND SHARMA SON OF SHRI JAI RAM, SHOP NO.52. MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
29. SHRI PAWAN KUMAR SON OF SHRI SITA RAM, SHOP NO.53, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
30. SHRI KULDEEP BANSAL SON OF SHRI RAM DASS, SHOP NO. 54. MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH
31. SHRI KARTAR CHAND BEDI SON OF SHRI RAM CHAND, SHOP NO.55, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
32. SHRI DALBIR SINGH SON OF SHRI AMAR SINGH, SHOP NO. 56, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
33. SHRI ROOP LAL SON OF SHRI AMAR NATH, SHOP NO. 57, MAIN BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
34. SHRI REVATI RAMAN SHARMA SON OF SHRI NANAK CHAND, SHOP NO. 58, MAIN: BUS STAND HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH. 35. VARINDER MALHOTRA SON OF LATE SHRI BANARSI DASS MALHOTRA, RESIDENT OF WARD NO 4, HOUSE NO 166, SHIV NAGAR, MAIN BAZAR, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
36. DHANI RAM SON OF SHRI PARMA NAND, RESIDENT OF HOUSE NO 3,
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WARD NO 8. NEAR PETROL PUMP, NAYA NAGAR, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
37. VIJAY KUMARI DAUGHTER OF LATE SHRI PREM CHAND, RESIDENT OF VILLAGE BRAHAMANI PO ANU, NEAR NIT AMBIKA GIRLS HOSTEL, HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR, HIMACHAL PRADESH.
…...RESPONDENTS
(MR. ASHWANI SHARMA, ADDITIONAL ADVOCAE GENERAL, FOR R-1 TO R-4, MR. AVINASH JARYAL, ADVOCATE ON BEHALF OF MR. ANIL KUMAR GOD, ADVOCATE, FOR R-5. MR. J.L.BHARDWAJ, ADVOCATE, FOR R-35)
RRESERVED ON: 01.08.2022
DECIDED ON : 05.08.2022
This Appeal coming on for admission this day, Hon’ble Ms. Justice Sabina, delivered the following:
J U D G M E N T
Appellants have filed the Letters Patent Appeal,
challenging the order dated 08.04.2021, passed by the learned Single Judge, whereby writ petition filed by the appellants was disposed of.
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sustainable in law.
Mr. Nitin Thakur, learned counsel for the appellants, has submitted that the policy adopted by the official respondents for allotment of shops on the principle of ‘first come first serve basis’ cannot be held to be a fair, reasonable and transparent method. Merely because the appellants had participated in the allotment process, was no ground to uphold the principle of ‘first come first serve’ for allotment of shops in question. Learned Single Judge has, although, held that the method adopted by the official respondents at the time of allotment of shops could not be approved by the Court, but had erred in holding that the petitioners had been acquiescent to the process of allotment of shops.
(Formerly M/S. Anant Raj Industries Ltd.) Versus State of Haryana & ors., decided on October 27, 2021, alongwith connected matters, wherein it was held as under:-
“38. We find no difficulty in holding that in the first instance there is no such consistent practice as alleged of First Come First Serve basis for allotment of licence available under the entire Scheme placed
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on record and secondly, from where this principle has been borrowed is alien to the statute and also the policy pursuant to which the process was initiated for allotment of licences to the prospective applicants.”
“ 18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
19. The question of permissibility of giving weightage for ‘work experience’ in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge
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and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in notso-rich states like Bihar have the requisite exposure to challenges faced in those regions. ”
“16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by
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Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K (1995)3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.”
“20. The decision in Raj Kumar v. Shakti Raj (which was relied upon by the appellants) involved a case
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where the government was found to have committed glaring illegalities in the procedure. Hence, it was held that the principle of estoppel by conduct or acquiescence had no application. The decision is distinguishable.”
General, on the other hand, has submitted that the appellants had duly participated in the allotment process and have been allotted the shops. It is only because now the appellants are not happy with the shops allotted to them, they have challenged the process of the allotment of shops by alleging that correct procedure had not been followed. By now, the allottees of the shops are already running their business in the shops allotted to them. Moreover, it was not a case where the procedure followed had been adopted for any mala fide intentions.
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allotment of shops in the newly constructed Sports Complex in December, 2019. A meeting of the Committee was held under the Chairmanship of Deputy Commissioner, Hamirpur on 13th December, 2019 and the shops were sought to be allotted to the khokha holders. The last date for submission of applications for allotment of shops was fixed as 4th January, 2020. Appellants had also moved requisite applications for allotment of shops. A SubCommittee of the respondent-society convened a pre-allotment meeting on 29th January, 2020 and all the eligible khokha holders, including the appellants, participated in the meeting and the participants were informed that the allotment of shops in the Sports Complex would be done by applying the principle of ‘first come first serve’.
“Proceedings of the meeting held by the Subcommittee constituted on 13/12/2019 as per the directions of Deputy Commissioner, District Hamirpur (HP)-cum-Chairman, Society for Promotion of Sports /Cultural, Education and other Development Activities in Hamirpur town on 29/01/2020 with the other members of the committee formed for the allotment of shops opposite to the bus stand Hamirpur (HP).
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1. Dr. Chiranji Lal, Sub Divisional Officer (C)-cumSecretary, Society for Promotion of Sports /Cultural, Education and other Development Activities in Hamirpur Town,
2. Sh. Vivek Sharma, Executive Engineer, HPPWD Division, Hamirpur (HP)
3. Sh. K.L. Thakur, Executive Officer, Municipal Council, Hamirpur (HP)
4. Sh. Vivek Dogra, Law Officer O/o the Deputy Commissioner, Hamirpur (HP)
5. Sh. Puran Singh Katoch, Kabaddi Coach representative of District Sports Officer, Hamirpur (HP)
The house was apprised that meeting with the Khokha holders was held today i.e. 29.01.2020 at Hamir Bhawan and in the same all the eligible applicants/Khokha holders were present who were found eligible for the allotment of shops after the scrutiny. The terms of the agreement to be prepared between the society and allottee were forwarded to the Khokha holders. The Khokha holders were apprised that the term of the contract will be for five years and 800/- per month will be charged as rent for the allotted shop. The committee also stated that if Khokha holders/allottees want to exchange the allotted shops in between them then the same would be lowed subject to the filing of affidavit. It was made clear to Khokha holders that if they want to have the possession of the allotted shop then they have to
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move an application to the Committee and have to made agreement with the Chairman-cum-Deputy Commissioner Hamirpur. It was further decided by the subcommittee that if two khokha holders want to run the shops together then they have to move application and then permission for the same would be given by the worthy Chairman subject to the enhancement of the rent by 25% of the rent fixed. The Khokha Holders were also made clear that if they do not vacate the Khokha after the formation of the agreement then the agreement made between Khokha Holder and Committee will stand cancelled and committee will be free to allot the shop to another eligible person.
In the meeting, the Khokha holders were apprised that the allotment of shops is to be done on first come first serve basis. There are 107 shops lying vacant in the sports complex. The khokha holders in the meeting requested to start the allotment of shops from the ground floor and all of them requested to take shops in ground floor only and majority of the eligible khokha holders further requested to start the allotment process from shop No. G1. The sub committee took into consideration their request and agreed to start the allotment process from ground floor as 41 shops were present in ground floor and there were only 37 eligible khokha holders. The khokha holders further requested the sub committee that they want to take shops as per the internal
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arrangements made between them and further requested for the grant of two days for internal arrangements. They further stated if no internal arrangement is made between them then they are ready and willing to take shops on first come first serve basis as per the receipt no. of the application. Accordingly, two days were given to them by the sub committee and khokha holders were directed to submit the report of internal arrangement on the day fixed for the allotment process and they were further clarified that if they failed to reach on any consensus then the shops will be allotted as per the date of receipt of application. It was further decided that the allotment process will be initiated on 01/02/2020.
The matter of the said Civil Writ Petition No.10874/2012 was also discussed. It was brought to the notice of the committee that notices were issued to the petitioners of the above-mentioned writ petition and on 24.01.2020 meeting with these persons were held but they refused to take any shop in the complex.
Meeting ended with a vote of thanks to the chair and from the chair.”
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date. They also did not sign attendance register (Annexure R-8 to the writ petition), whereas, all the other eligible khokha holders, including appellants No.2 and 3, had signed the attendance register. Consequently, allotments in favour of appellant No.1 and Dhani Ram stood cancelled.
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shops was lottery system. Learned Single Judge has also held that the method for allotment of shops adopted by the official respondents could not be approved by the Court.
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arrangement and had also stated that they were ready and willing to take shops on ‘first come first serve basis’ in case no internal arrangement could be arrived between the khokha holders. Thereafter, process for allotment of shops was initiated on 1st February, 2020. Hence, it cannot be said that the appellants did not know what criteria was to be followed at the time of allotment of shops. Appellants had duly participated in the proceedings and knew the criteria to be followed for allotment of shops. 35 Eligible khokha holders had duly signed the proceedings, which took place at the time of allotment of shops. It is only the appellant No.1 and Dhani Ram who had not signed the proceedings on 1st February, 2020.
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( Sabina ) Judge
( Satyen Vaidya ) Judge
August 05, 2022 ( Himalvi)
3 issues framed by the court
Whether the methodology adopted by official respondents for allotment of shops based on 'first come first serve' principle can be said to be just, proper and sustainable in law.
Whether the appellants were estopped from challenging the legality of the allotment process after participating in it.
Whether the view taken by the learned Single Judge regarding the fairness of the allotment process calls for interference.
Colour shows how this judgement treated each authority
Anant Raj Ltd. (Formerly M/S. Anant Raj Industries Ltd.) Versus State of Haryana & ors.Referred¶70
Civil Appeal No(s).6471 of 2021, Anant Raj Ltd. (Formerly M/S. Anant Raj Industries Ltd.) Versus State of Haryana & ors.
Dr. (Major) Meeta Sahai Versus State of Bihar & ors.Referred¶75
Civil Appeal No.9482 of 2019, Dr. (Major) Meeta Sahai Versus State of Bihar & ors.
Raj Kumar and others Versus Shakti Raj and othersDistinguished¶80
Raj Kumar and others Versus Shakti Raj and others, (1997) 9 Supreme Court Cases 527
Ashok Kumar and another Versus State of Bihar and othersDistinguished¶84
Ashok Kumar and another Versus State of Bihar and others, (2017) 4 Supreme Court Cases 357
Madan Lal v. State of J&KReferred¶81
Madan Lal v. State of J&K (1995)3 SCC 486 · Who else cites this
PREM CHAND
RANJIT SINGH
SUMNA DEVI
STATE OF HIMACHAL PRADESH
DIRECTOR URBAN DEVELOPMENT, HIMACHAL PRADESH
DEPUTY COMMISSIONER HAMIRPUR
SABINA
SATYEN VAIDYA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
