Amit Kumar Shukla vs Lucknow Nagar Nigam and Others

Devi Prasad Singh, J.—We have heard Dr. R.K. Srivastava, learned Counsel for the petitioner and Sri S.S. Chauhan, learned Counsel for the respondent Lucknow Nagar Nigam, Sri Shishir Chandra, learned Counsel for the private respondent and the learned standing counsel.

The dispute giving rise to the present writ petition under Article 226 of the Constitution of India, relates to allotment/regularisation of Shop No. 22 situate at Bhopal House in City of Lucknow belonging to Nagar Mahapalika, Lucknow, (now Lucknow Nagar Nigam, Lucknow.

It has been admitted at bar that the original allottee of the shop in question, was one Sri K.K. Sethi who left for abroad some time in the year 1991. However, it has been stated by the petitioner''s counsel that Sri K.K. Sethi paid rent of the premises in question, upto the year 1995. The husband of the private respondent No. 4, Sri Vindhyachal Pandey, an Inspector in U.P. Police, while fighting with the dacoits, was killed in the encounter. He was honoured by the State Government with posthumous award. On account of death of her husband, the respondent No. 4 moved an application for allotment of a shop. The application was moved on 28.7.1991 before the Nagar Mahapalika as it then was. The General Body of the Nagar Mahapalika on 20.6.1992, resolved that the shop in question, may be allotted in favour of the respondent No. 4 and since Sri K.K. Sethi had abandoned the shop, the allotment in his favour, may be cancelled. A show cause notice dated 17.8.2002 was sent to the original allottee Sri K.K. Sethi for cancelling the tenancy existing in favour of Sri K.K. Sethi. Thereafter, on account of non-reply to the show cause notice dated 17.8.2002, by the order dated 16.9.2002, contained in Annexure No. 8 to the writ petition, passed by the Mukhya Nagar Adhikari, Lucknow Nagar Nigam, the tenancy of Sri K.K. Sethi, was cancelled. On the same day, another order dated 16.9.2002(contained in Annexure No. A-3 to the affidavit in support of the application for impleadment moved on behalf of the respondent No. 4), was passed by the Mukhya Nagar Adhikari, in terms of the resolution of the General Body dated 20.6.2002, informing the respondent No. 4 that by the order dated 26.8.2002 passed by the Nagar Pramukh, the shop in question, was allotted in favour of the respondent No. 4.

The petitioner filed Writ Petition No. 5520 (M/B) of 2002 in this Court which was dismissed as prematured. However, the petitioner later on, filed Writ Petition No. 5703 (M/B) of 2002 against the allotment order passed in faovur of the respondent No. 4. The writ petition was heard by a Division Bench of this Court and the Division Bench directed the Mukhya Nagar Adhikari, to decide the controversy. The operative portion of the order dated 19.9.2002 passed by the Division Bench of this Court, is reproduced as under:

Considering the facts and circumstances of the case, we direct the opposite parties to consider the case of the petitioner for regularisation of his unauthorized possession in the shop in question as per the rules and the scheme after affording him opportunity. We do not quash the impugned order as it does not relate to the petitioner as the same is with respect to Sri K.K. Sethi, but direct that the impugned order shall not be implemented against the petitioner till his matter regarding regularization of tenancy is considered and finalized.

The petitioner shall appear before the Mukhya Nagar Adhikari alongwith the certified copy of the order within a period of 15 days from today. It would be appropriate for the Mukhya Nagar Adhikari that after receipt of the copy of this order to fix a date requiring the petitioner to appear for considering his case for regularisation of his unauthorized occupation after affording him an opportunity. On which date so fixed the petitioner will appear alongwith the entire documents, which he wants to rely. This entire process shall be done within a period of two months from the date of receipt of the certified copy of the order.

The writ petition stands disposed of accordingly.

In pursuance of the aforesaid directions issued by this Court, the Mukhya Nagar Adhikari has passed the impugned order and recorded finding that the petitioner is a trespasser and since the allotment existing in favour of Sri K.K. Sethi stands cancelled, he has no right to retain the possession of the premises in question and the shop in question may be allotted in favour of the respondent No. 4. Feeling aggrieved, the present writ petition has been preferred.

While assailing the impugned order, Dr. R.K. Srivastava, learned Counsel for the petitioner, submits that the petitioner is entitled for regularisation of the premises in question in terms of policy made by the Nagar Nigam, a copy of which is on record as enclosure to the application dated 12.11.2002 contained as Annexure No. 10 to the writ petition. It has been submitted that being public premises, the decision should have been taken under the Public Premises Act, 1972 and the Mukhya Nagar Adhikari has got no right to pass the impugned order in compliance of the judgment and order of this Court dated 19.9.2002.

Other submission of the learned Counsel for the petitioner is that while finally adjudicating the controversy, the Division Bench of this Court, directed the Mukhya Nagar Adhikari to decide the controversy but the opportunity of hearing was given by the Deputy Municipal Commissioner to the petitioner which amounts to violation of orders passed by this Court. Further submission is that the petitioner''s case is covered by the Regularisation Policy as enclosed to the application of the petitioner contained in Annexure No. 10 to the writ petition, and accordingly, he is entitled to be considered for regularisation in terms of regularisation policy.

It has also been stated that the regularisation policy shall cover the petitioner''s case retrospectively. Learned Counsel for the petitioner has further submitted that the impugned order has been passed on unfounded grounds and the petitioner is entitled to retain the premises in question.

On the other hand, Sri S.S. Chauhan, learned Counsel submits that the regularisation policy is only for the persons who have got blood relationship with the original allottee. It has also been submitted that the order in favour of the respondent No. 4 was originally, passed in the year 1991. Hence the petitioner has got no right to claim regularisation of the shop in question. Submission of the learned Counsel for the Lucknow Nagar Nigam is that the order has been passed by the Mukhya Nagar Adhikari by applying his own mind on the basis of material on record. Submission is that to collect evidence, the proceeding taken before the Deputy Municipal Commissioner does not seem to violate the order of this Court.

Submission of the learned Counsel for the respondent No. 4 who was impleaded later on, during the pendency of present writ petition, is that the State Government as well as Nagar Nigam has allotted the shop in question to the respondent No. 4 in pursuance of the resolution of the General Body of the Nagar Nigam, Lucknow. keeping in view the fact that the husband of the respondent No. 4 was killed during the course of encounter with the dacoits and the State Government has awarded posthumous for his act of bravery and service rendered by him to the society. Submission is that once Sri K.K. Sethi had abandoned the shop in question, the petitioner has no right to claim for regularisation.

It has also been stated that the petitioner''s mother entered into an unregistered agreement with Sri K.K. Sethi with regard to 5% share of the shop which was originally existing in the name of Sri K.K. Sethi. The submission does not make out a case of substantial partnership with Sri K.K. Sethi more so, when the agreement is unregistered. Hence the petitioner does not seem to be entitled for regularisation.

Learned Counsel for the petitioner relied upon the cases reported in Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, Gullapalli Nageswara Rao and Ors. v. Andhra pradesh State Road Transport Corporation and Anr.; Shir Amir Singh Vs. Government of India and Others, Shri Amir Singh. v. Government of India through the Secretary, Ministry of Finance (Dept. of Revenue) New Delhi and Ors.; A.A. Calton Vs. Director of Education and Another, ; K.I. Shephard and Others Vs. Union of India (UOI) and Others, (1989) 1 SCC 765 Hindustan Petroleum Corporation Ltd. v. H.L. Trehan and Ors.; R. Vijayakumar and Others Vs. Commissioner of Excise and Others, ; Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai and Another, Mahabir Vegetable Oils Pvt. Ltd. and Another Vs. State of Haryana and Others, and Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil,

The case of Gullapalli Nageswara Rao (supra) relates to claim under Motor Vehicles Act and seems to be not applicable under the facts and circumstances of the present case. Their lordsips of Hon''ble Supreme Court held that Legislature cannot overstep its field of competency. The Courts may scrutinise the law to ascertain whether the legislature is within its sphere, permissible under law.

In the case of A.A. Calton (supra), their lordships of Hon''ble Supreme Court held that existing right cannot be taken away by giving retrospective effect under the statutory provision unless it expressly or by necessary implication provides so. In the present case, not even for a shortest period, the petitioner was tenant in pursuance of some allotment order issued by the Nagar Nigam. He has been in possession without any allotment order passed by the Nagar Nigam.

In the case of Shri Amir Singh (supra), their lordships of Hon''ble Supreme Court held that order passing affecting civil right without providing opportunity to show cause, vitiates. The case does not seem to be applicable with regard to present controversy.

The case of Hindustan Petroleum Corporation (supra), relates to alteration of condition of service. Hon''ble Supreme Court held that post decisional hearing is not substantial compliance of natural justice. Adverse decision and consequent action involving civil consequence, may not be taken without affording opportunity of hearing. This case also seems to be not applicable as proper opportunity has been given to the petitioner while deciding the application in pursuance of the order passed by this Court.

The case of K.I. Shephard (supra), relates to scheme framed for amalgamation of Banking Company and consequential exclusion of some of the employees from the scheme. Hon''ble Supreme Court ruled that opportunity of hearing should be provided to employees without taking decision with regard to amalgamation of service.

The case of R. Vijay Kumar (supra), relates to renewal of excise license. Hon''ble Supreme Court ruled that refusal to renew license contrary to Rule, is not justified. However, in the present case, the controversy does not relate to renewal of tenancy. Rather, it relates to allotment of shop in question in pursuance of the application moved by the petitioner, more so, after allotment of the shop in question in favour of the respondent No. 4.

In the case of Jamshed Hormush Wadia (supra), their lordships of Hon''ble Supreme Court held that State or its instrumentalities falling under the definition of ''State'', under Article 12 of the Constitution of India, are governed by Article 14 of the Constitution of India.

In the case of Mahabir Vegetable Oils (P) Ltd. (supra), Hon''ble Supreme Court held that a subordinate legislation can be given retrospective effect if power in that behalf is contained in the main Act. A statute cannot be construed to have retrospective operation unless such construction appears very clearly in terms thereof or arises by necessary and distinct implication.

The case of Uttamrao Shivdas Jankar (supra), relates to the controversy of an election petition, where Hon''ble Supreme Court held that the decision making process as well as the merit of decision, should be considered by the Election Tribunals. The case seems to be not applicable in the present context.

Thus, the cases relied upon by the learned Counsel for the petitioner, does not seem to extend any help to validate the petitioner''s unlawful possession of the shop in question and does not create a ground of regularisation, affecting the right of the respondent No. 4.

Admittedly, the rent of the shop in question which was deposited by the petitioner, was in the name of Sri K.K. Sethi. It shows that the original allottee was Sri K.K. Sethi and after abandonment of the shop in question by Sri K.K. Sethi, the petitioner is not the lawful allottee. Accordingly, Nagar Nigam, Lucknow has rightly taken a decision to allot the shop in question in favour of the respondent No. 4.

Needless to say that a person who entered into a possession of the property in unauthorised manner without due allotment in accordance with law, shall always be trespasser and such person may be evicted after serving show cause notice.

So far as the provisions of Pubic Property Act is concerned, it shall be applicable only in case at the initial stage, the Government property is allotted to a person but later on, on account of non-extension of allotment order or cancellation order, the person retains possession of the property in question.

There is another view of the matter. From the entire evidence on record, the petitioner does not seem to be a person who has been handed over the possession of the premises in question by Nagar Nigam Lucknow.

The question has cropped up to entertain the writ petition under Article 226 of the Constitution of India against the impugned order. In the circumstances of the case, setting aside of the impugned order shall amount to restoration of illegal order. Accordingly, we are of the view that it is not a fit case where the jurisdiction of this Court be exercised under Article 226 of the Constitution of India.

In the case, reported in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, Hon''ble Supreme Court reiterated the settled proposition of law that the High Court while exercising power conferred by Article 226 of the Constitution of India should not restore another illegal order.

A Division Bench of this Court in a case, reported in (1992) 2 UPLBEC 960 Ashok Kumar Pandey and Ors. v. Basic Shiksha Adhikari and Ors. while reiterating the aforesaid proposition of law held that the power under Article 226 of the Constitution should not be exercised to quash an order which may amount to putting premium upon and giving judicial imprimatur to another wrong, namely conferment of a right upon certain persons who are not entitled to it. Relevant portion from the case of Ashok Kumar Pandey (Supra) is reproduced as under:

... We hasten to add that even if we had found that they were entitled to such an opportunity and failure on the part of the Adhikari to provide them with the same made the order under challenge bad, we would not have been justified in quashing the same for that would have amounted to putting premium upon and giving judicial imprimatur to another wrong, namely, conferment of a right upon certain persons who were not entitled to it. To put in differently, powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order.

This principle has been followed in other judgments reported in (1991) 1 UPLBEC 646 Committee of Management, Shri Krishna Inter College, Niwari District Ghaziabad and Anr. v. District Inspector of Schools, Ghaziabad and Ors. (1992) AC.J. 287 and 1988 UPLBEC 739 Shree Krishna Jotish Pathshala Kanya Inter College v. District Judge, Pilibhit and Ors.

In the case of A.M. Allison (supra), Hon''ble Supreme Court held that the proceedings by way of certiorari under Article 226 of the Constitution of India are "not of course". In appropriate case, the High Court may refuse to interfere. Relevant portion from the judgment of A.M. Allison (supra) is reproduced as under:

(17). ...Proceedings by way of certiorari are "not of course". (Vide Halsbury''s Laws of England'', Hailsham Edition, Vol. 9, paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Article 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favour of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere.

A Division Bench of this Court in the case of Om Prakash (supra) held that in case substantial justice has been done between the parties and interference under Article 226 of the Constitution of India may amount to restoration of an illegal order, then the Court may decline to exercise the power of judicial review conferred by Article 226 of the Constitution of India.

Similar proposition of law has been affirmed in the case of Bux Singh(supra).

A Constitution Bench of the Supreme Court in a case, reported in Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, while considering the power of judicial review, its limit, scope and applicability, held as under:

(7). ...The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary : it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations.

In AIR SC 2979 Common Cause a Registered Society v. Union of India and Ors., their Lordships of the Apex Court have reiterated the aforesaid principle with the observations that the power under Article 226 of the Constitution of India is to be exercised by applying cardinal principle of "self-imposed restriction". (para 62)

In the case of State of U.P. and Another Vs. Johri Mal, while dealing with the power of judicial review, their Lordships have held that the Court may not exercise its power unless the public law element is involved. The exercise of administrative authority should not be used like the appellate power. It has been further held by the Apex Court that mere wrong or illegal decision shall not be enough to attract the power of judicial review. Unless a decision causes miscarriage of justice, the Court should not ordinarily interfere with such decision.

In a famous treatise "Judicial Review of Administrative Action" by de Smith''s, revised by J.M. Evans, while considering the scope of judicial review, the learned author observed that the scope of judicial review may be conditioned by a variety of factors and while doing so, the Court may take into consideration as to whether judicial intervention shall be in public interest or not. To reproduce relevant portion:

The scope of review may be conditioned by a variety of factors : the wording of the discretionary power, the subject-matter to which it is related, the character of the authority to which it is entrusted, the purpose for which it is conferred, the particular circumstances in which it has in fact been exercised, the materials available to the court and, in the last analysis, whether a court is of the opinion that judicial intervention would be in the public interest.

Learned author further proceeded to observe as under:

Finally, a court may explain its unwillingness to review for error of law an inference drawn by an administrative tribunal from primary facts to a statutory standard when no uniquely correct answer is indicated by saying that the matter is one of fact, degree or opinion. Discretion, in other words, may be conferred implicitly as well as expressly.

Sir William Wade in his famous book "Administrative Law", Ninth Edition, has observed that the writ of certiorari is discretionary remedy and in appropriate case, the Court may be right to refuse the exercise of power under prerogative writ. Being discretionary remedy, refusal by Court to exercise such power in appropriate case keeping in view the related facts and circumstances shall not be improper.

Learned author (supra) has also while considering the grounds for refusal of relief under judicial review observed that an applicant may lose his claim to relief because his own conduct has been unmeritorious or unreasonable (page 701, Administrative Law, Ixth Edition).

Learned author further proceeded to observe as under:

The most active remedies of administrative law - declaration, injunction, certiorari, prohibition, mandamus - are discretionary and the court may therefore withhold them if it thinks fit. In other words, the court may find some act to be unlawful but may nevertheless decline to intervene.

It is settled law that even an illegal order in appropriate case may not call for interference by this Court under Article 226 of the Constitution of India, in case substantial justice has been done or interference with the order shall not be in public interest.

In any case, if the order impugned in the writ petition, is rescinded, it shall amount to put the seal of High Court over the illegal action of the petitioner for unauthorised occupation. The powers conferred under Article 226 of the Constitution of India, should not be exercised where setting aside of the order may amount to restoration of illegality on the part of the petitioner.

It has been brought to the notice of this Court by the learned Counsel for the Nagar Nigam that the petitioner''s father and mother are already in possession of the two shops in the same premises i.e., Bhopal House, Lalbagh, Lucknow and they are running their business in the said two premises.

In view of the above, we are not inclined to interfere in the impugned order. The writ petition deserves to be dismissed on this score alone.

The writ petition is accordingly dismissed. We direct the petitioner to handover the possession of the shop in question to the Nagar Nigam, Lucknow, within one month from today. In case the shop is not handed over within one month, it shall be open to the Nagar Nigam, Luckow, to repossess the shop in question within next one month with the aid of police force. The District administration shall provide the police assistance to the Nagar Nigam. It is further directed that Nagar Nigam, Lucknow shall deliver the possession of the the shop in in question in favour of the respondent No. 4 within next one month.

No costs.