C. Nagendra vs The Town Municipal Council, Hunsur and Others

The prayer in these writ petitions is to direct respondents 1 and 2 to grant two shops to the petitioner in the newly constructed commercial complex on Bangalore-Mangalore road.

The petitioner is seeking the relief on the basis that he was allotted two shops in B.M. Road/Karkhane Road in Hunsur Town in the year 1979 and he was in possession of the vacant site of the first respondent Town Municipal Council and he vacated them on 30-1-1998 in view of the decision taken by the first respondent Town Municipal Council to demolish the existing structures and proposed to put up a new commercial complex and to allot shops to the original allottees in the new complex. Copies of resolutions passed to this effect are also produced. The grievance of the petitioner is that inspite of submitting representations, the Municipal Council did not take any action to allot shops in the new shopping complex and hence he has filed this writ petition seeking the aforesaid prayer.

In the statement of objections filed on behalf of respondents 1 and 2 the claim of the petitioner is denied. It is stated that petitioner being the brother of previous President of Municipal Council, had unauthorisedly occupied some area and was running business, for which ground rent was levied. It is stated that construction of shopping complex was undertaken by the first respondent under I.D.S.M.T. programme by raising loan and the shops in the new complex were allotted in public auction. It is stated that the Municipal Council was not in a position to implement the resolution at Annexure-A, dated 31-3-1995 relied upon by the petitioner on account of the fact that it did not had sufficient funds.

The short point for consideration is, whether the petitioner is entitled for the direction sought for in these writ petitions. In the light of the right sought to be asserted and the denial made in the counter statement, this Court has no other option but to hold that petitioner is not entitled for the direction sought for in these writ petitions.

In the first place, the petitioner was not allottee of any shop premises as claimed by him. He has not produced any documents in proof of the allotment of shops. On the other hand, he was unauthorised occupant as per the statement in the counter filed on behalf of respondents. Thus, petitioner has no legal and valid right to claim allotment of shops.

Secondly, the petitioner is seeking to assert the alleged vested right on the basis of the resolutions at Annexures-A and B. In Annexure-A the resolution is passed to remove the temporary bunks and to lease to the existing persons, including the petitioner, subject to the condition of payment of interest free advance amount. In paragraph 7 of the counter statement it is stated that the persons mentioned in the said resolution, including the petitioner, have not paid the advance amount and the Municipal Council could not give effect to the same for want of funds. The petitioner cannot claim right on the basis of the said resolution without fulfilling the condition imposed therein, viz., without payment of advance amount. No doubt, in Annexure-B it has been resolved to take a decision to lease the shops after construction of the complex under I.D.S.M.T. Scheme. Petitioner has not produced any decision taken to that effect to assert right on the basis of Annexure-B. On the other hand, the resolution at Annexure-R2, dated 22-1-2000 has been produced along with the statement of objections, wherein it has been decided to dispose of the shops in the complex in public auction. This decision is taken with a view to clear the loan of one crore 82 lakhs borrowed from the State Government for the construction of the complex and keeping in view the financial position of the Municipal Council. That being the position, the petitioner cannot seek allotment of shops without paying advance amount. Even otherwise, the petitioner has no enforceable right on the basis of the two resolutions at Annexures-A and

The contention urged on behalf of the petitioner that petitioner is a displaced tenant and hence he is entitled for allotment of two shops in the new complex by relying upon the decision of this Court in Town Panchayat, Harapanahalli v State of Karnataka and Others, 2000(4) Kar. L.J. 232 (DB), is wholly untenable and the decision has no application to the facts and circumstances of the case. The petitioner cannot be termed as a "displaced tenant" as he was not at all a lawful tenant or lessee. No document is produced by him to show that he was in possession of the premises lawfully. The contention is devoid of merit and the decision relied upon will not render assistance to him. On the other hand, the decision of this Court in Mohan P. Sonu v State of Karnataka and Others, 1992(2) Kar. L.J. 245 (DB), is applicable to the case. In that decision it has been held that the Municipal Council should follow the procedure prescribed under the Act. That is what precisely did in this case by the Municipal Council by resolving to allot the shops in the new complex in public auction. If the petitioner intends to have shops in the new complex, it was open for him to participate in the public auction and secure the shops in highest bid. The petitioner does not want to secure the shops in public auction. Since he has no legal, valid or vested right to secure shops as claimed by him, the direction sought for cannot be issued.

Writ petitions are devoid of merits and they are accordingly dismissed.

The Municipal Council is directed to auction the shops in public auction within four weeks of date of receipt of a copy of this order.