Himachal Pradesh High Court
Poonam Thapa vs State Of West Bengal on 31 May, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
.
ON THE 31st DAY OF MAY, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION No. 3403/2022
BETWEEN:-
POONAM THAPA, D/O SH. PADAM THAPA,
VPO DARI (HABBAR), TEHSIL DHARAMSHALA,
DISTRICT KANGRA, (HP)
......PETITIONER
(BY MR. SANJAY DUTT VASUDEVA, ADVOCATE)
AND
1. MUNICIPAL CORPORATION THROUGH
ITS COMMISSIONER,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA (HP).
2. MUNICIPAL ENGINEER,
MUNICIPAL CORPORATION,
KANGRA AT DHARAMSHALA,
DISTRICT KANGRA (HP).
3. JAGAT RAM, S/O SH. BAHANVI RAM,
MAIN SQUARE MECLEODGANJ,
DHARAMSHALA, DISTRICT KANGRA, H.P.
......RESPONDENTS
(MR. AMIT SINGH CHANDEL, ADVOCATE, FOR
R-1 & R-2.)
____________________________________________________________
::: Downloaded on - 02/06/2022 20:03:09 :::CIS
2
This petition coming on for admission before notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
.
passed the following:
ORDER
Notice is confined to respondents No. 1 and 2. Mr. Amit Singh Chandel, Advocate, appears and waives service of notice on behalf of respondents No. 1 and 2.
2 It was more than four decades back that the Hon'ble Supreme Court had observed that "it must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesses, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesses including award of jobs, contracts quotas, licences etc., must be confined and structured by rational, relevant and non-
discriminatory standard or norm and if the government ::: Downloaded on - 02/06/2022 20:03:09 :::CIS 3 departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be .
struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory (Refer: Erusian Equipment and Chemicals Ltd. vs. State of West Bengal, AIR 1975 SC 26).
2The instant petition has been filed for grant of the following substantive relief:
"to direct the respondent corporation i.e. respondent No.1 to allot open/space shop measuring 10 x 10 sq. feet near rope way/Dalai Lama temple road, Mecleodganj, Dharamshala, District Kangra, H.P., to the petitioner immediately with further prayer directing the respondent corporation to take to remove the subletting of its shops in Dharamshala district Kangra, H.P., in the interest of justice and fair play."
3 It is averred by the petitioner that her father was an ex-serviceman, who had served the Indian Army. She is an unemployed graduate having no source of income. For the purpose of livelihood, she approached the then Irrigation and Public Health/Horticulture/Information Technology Minister, H.P. to allot her HPMC juice bar near temple of His Holiness ::: Downloaded on - 02/06/2022 20:03:09 :::CIS 4 Dalai Lama at Mecleodganj, Dharamshala in the year 2013.
The request was accepted and accordingly Managing Director, .
HPMC was directed vide recommendation letter dated 29.8.2013 to take necessary action for allotment of HPMC juice bar in favour of the petitioner on priority basis, who, in turn, requested the Executive Officer of erstwhile Municipal Council, Dharamshala to allot a space measuring 10x10 sq. 2 r to ft. to the petitioner for opening a juice bar. Having failed to do so, hence the instant petition.
It is vehemently argued by Mr. Sanjay Dutt Vasudeva, learned counsel for the petitioner that the petitioner being an unemployed educated youth has a preferential right of allotment under Rule 12 (VI) of the leasing out of stalls/shops constructed by municipalities in Himachal Pradesh Rules, 2001.
3 We have heard the learned counsel for the parties and have also gone through the records of the case carefully.
4 At the outset, it needs to be noticed that sole basis, on which the petitioner claims her preferential right of allotment, is recommendations made by the then I&PH/Hort./IT Minister, H.P. ::: Downloaded on - 02/06/2022 20:03:09 :::CIS 5 5 Now, the moot question is whether the petitioner can claim preferential right of allotment on the basis of .
aforesaid recommendations.
6 It is well established that a public body vested with statutory powers has to take care not to exceed or abuse its powers. It must act within the limits of authority committed to it. The respondent-Municipal Corporation is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largesses. For allotment of the properties, a transparent and objective criteria/procedure has to be evolved based on reason, fair play and non-arbitrariness. In such action, public interest has to be the prime guiding consideration.
7 In Ramana Dayaram Shetty vs. The International Airport Authority of India, AIR 1979 SC 1628, the Hon'ble Supreme Court has held that it must therefore be taken to be the law that even in the matter of grant of largesses including award of jobs, contracts, quotas, licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of land.
::: Downloaded on - 02/06/2022 20:03:09 :::CIS 68 In Shrilekha Vidyarthi (Kumari) Vs. State of U.P., (1991) 1 SCC 212, the Hon'ble Supreme Court has .
held that "every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good."
9 In Common Cause, A Registered Society v.
Union of India, (1996) 6 SCC 530, the Hon'ble Supreme Court has held as under:
"The Government today - in a welfare State - provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pumps, gas agencies, mineral leases in contracts, quotas and licences etc., Government distributes largesses in various forms."::: Downloaded on - 02/06/2022 20:03:09 :::CIS 7
It was further clarified and observed as under:-
"A Minister who is the executive head of the department .
concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people's property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people."
10 In Onkar Lal Bajaj and Ors. v. Union of India, (2003) 2 SCC 673, the Hon'ble Supreme Court has summarized the cardinal principles of governance, which read as under:-
"35. The expression "public interest" or "probity in governance" cannot be put in a straitjacket. "Public interest" takes into its fold several factors. There cannot be any hard and fast rule to determine what public interest is. The circumstances in each case would determine whether government action was taken in public interest or 02-12-2021 (Page 14 of 23) www.manupatra.com Hon'ble Mr. Justice M.R. Shah was taken to uphold probity in governance.
36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base a transparency but must create an impression that the decision making was motivated on the consideration of ::: Downloaded on - 02/06/2022 20:03:09 :::CIS 8 probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to be withstand the .
test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principles of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
11 Lastly, the Hon'ble Supreme Court, after referring to its decision in Common cause, a Registered Society' case (supra), observed that if a public servant abuses his office, whether by his act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can arrogate to himself powers in a manner, which are arbitrary.
12 In ICAI Vs. Shaunak H. Satya, (2011) 8 SCC 781, it was observed by the Hon'ble Supreme Court that "Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have ::: Downloaded on - 02/06/2022 20:03:09 :::CIS 9 no longer a place. Accountability and prevention of corruption is possible only through transparency."
.
13 Learned counsel for the petitioner has failed to bring to our notice the source of the power of recommendations, Annexure P-3.
14 It is the duty of the State to ensure that in distribution of such largesses, no arbitrariness or favouritism takes place. Even otherwise, it is more than settled that in matters of distribution of such largess, fair and equitable procedure by inviting all eligible persons has to be followed.
15 Having said so, we find no merit in the instant petitioner and the same is accordingly dismissed being mis-
conceived, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 31st May, 2022.
(Pankaj) ::: Downloaded on - 02/06/2022 20:03:09 :::CIS