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2020 Supreme(HP) 585
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sureshwar Thakur, Chander Bhusan Barowalia, JJ.
Ashwani Kumar & Ors. - Appellant
Versus
State of Himachal Pradesh - Respondent
Civil Writ Petition No. 3517 of 2020
Decided On : 13-10-2020
Suneel Awasthi, Advocate, Hemant Vaid, Advocate, Ashwani Sharma, Advocate, J.S. Guleria, Advocate
The main legal point established is the need for simplifying the process of obtaining certificates and providing alternative documents for establishing residency, in line with the principle of 'ubi jus ibi remedium' and the concept of a welfare state.
Headnote:
bonafide Himachali Certificate - Issuance of Bonafide Himachali Certificates - Chapter 28, Para 28.21 - The court discussed the arbitrary rejection of applications for bonafide Himachali Certificates and issued comprehensive guidelines for the issuance of various certificates, emphasizing the need for simplifying the process and providing alternative documents for establishing residency.
Fact of the Case:
The petitioners sought to quash the rejection of their applications for bonafide Himachali Certificates, which were required for admission to an Army School. The respondents contended that the applications were rejected due to missing documents and failure to appeal within the statutory period. The certificates were later issued to the petitioners.
Finding of the Court:
The court found that the rejection of the applications was arbitrary, but noted that the certificates were subsequently issued. It emphasized the larger public interest involved and the need to address the complexities in obtaining certificates from government offices.
Issues: The issues included the arbitrary rejection of the applications, the statutory appeal period, and the larger public interest in simplifying the process of obtaining certificates.
Ratio Decidendi: The court highlighted the need for comprehensive guidelines and alternative documents for establishing residency, emphasizing the principle of 'ubi jus ibi remedium' and the concept of a welfare state.
Final Decision: The court issued a writ of mandamus directing the Additional Secretary (Revenue) to issue appropriate directions for the issuance of certificates based on alternative documents, in addition to the existing conditions.
JUDGMENT
Chander Bhusan Barowalia, J. - The petitioners, by way of the extant writ petition, are seeking the following substantive reliefs:
"(i) Writ in the nature of certiorari may kindly be issued to quash the decision taken in regarding application No. BH2020825262446882 which was conveyed to the petitioners by S.M.S. dated 28.08.2020.
(ii) Writ in the nature of mandamus may kindly be issued directing the respondent's authorities to issue the bonafide Himachal certificate to the petitioners in a time bound manner."
2. Tersely, the facts, as per the petitioners, encapsulated in the petition, essential for adjudication of this petition, are that petitioner No. 1, Shri Ashwani Kumar, since his birth continuously residing in Village & Post Office Nerwa, Tehsil Nerwa, District Shimla, Himachal Pradesh and completed his education, upto Graduation, in the State of Himachal Pradesh. Petitioners No. 2 and 3 are sons of petitioner No. 1 and since their birth, they are also residing with petitioner No. 1 on the above address. Father of petitioner No. 1 served in Himachal Pradesh State Electricity Board, till his demise, and thereafter, sister of petitioner No. 1 was given compassionate employment in the above Board. Petitioner No. 1, with a hope to get admitted his sons, i.e., petitioners No. 2 and 3, in Army School, for the academic session 2021-22, approached the said School and came to know about requirement of 'bonafide Himachali Certificate', as one of the conditions, amongst others, for admission. Thus, petitioner No. 1, by medium of two different applications, alongwith apt documents, approached respondent No. 4 (Tehsildar, Nerwa (Chopal), Shimla, H.P.), for issuance of 'bonafide Himachali Certificates', but both the applications were rejected. Precisely, the petitioners, through the extant petition, are seeking indulgence of this Court upon the arbitrary rejection of the applications by respondent No. 4, for issuance of 'bonafide Himachali Certificates'. Lastly, it is prayed that the writ petition be allowed and respondents/State be directed to issue relevant 'bonafide Himachali Certificates' in favour of petitioners No. 2 & 3.
3. Conversely, respondents No. 2 to 4, by way of filing extensive and detailed reply to the extant petition, resisted and denied the claim of the petitioners. As per the respondents, the applications of petitioners No. 2 and 3 were rejected by respondent No. 4, as the same were received with Adhaar Card and copy of family register only and certificate of concerned Pradhan of Gram Panchayat or local authority was not attached with the applications, which eventually formed reason for rejection of the applications. The respondents also took doctrinaire stand that the petitioners, after rejection of their applications, did not, within statutory period of 30 days, as contemplated through amendment made in Chapter 28, Para No. 28.21 of the Himachal Pradesh Land Records Manual, 1992, by the Government, vide Notification No. Rev.B(3)-1/2004- vol1, dated 20.12.2010, make appeal to the concerned Sub Divisional Officer (Civil), so rejections have attained finality, being unchallenged. On this ground, respondents sought dismissal of the extant writ petition.
4. Respondents No. 2 to 4 further contend that upon re-filing of the applications alongwith apposite documents, 'bonafide Himachali Certificates' were issued in favour of petitioners No. 2 and 3 on 14.09.2020 and 15.09.2020, respectively.
5. We have heard the learned counsel for the parties and gone through the records.
6. The learned counsel for the petitioners has argued that action of respondent No. 4 in rejecting the applications for issuance of bonafide certificates to petitioners No. 2 and 3 is highly arbitrary, illegal, unconstitutional, discriminatory and violative of Articles 14 and 21 of the Constitution of India, so the writ petition be allowed. He has further argued that during the pendency of the present writ petition bonafide certificates were iss
