Ikramuddin vs State Of Madhya Pradesh And Others

Deepak Khot, J

The petitioner has filed the present petition under Article 226 of the Constitution of India seeking following relief:-

7.1 To issue writ, direction, order in the nature of Mandamus directing the respondent No.6 to allot the petitioner an area of 7x7 square meters besides Block No.A Shop No.07, Itwara Bazar, Khandwa.

7.2 To issue writ, direction, order in the nature of Mandamus to the respondent No.6 to compensate the petitioner for the losses suffered by him.

7.3 To issue writ, direction, order in the nature of Mandamus to the respondent No.6 provided monitory help to the petitioner to reconstruct his shop.

7.4 To issue writ, direction, order in the nature of Mandamus for taking legal stern action against the persons who have committed the offence punishable in the eyes of law.

7.5 Any other appropriate writ, order or direction, which this Hon’ble Court deems just and proper, may also be passed in the interest of justice.

7.6 To award compensation to the petitioner as well as costs of the petition.

In short, the facts of the case are that the petitioner’s brother was initially allotted a shop on rent on 30.04.1977 through an open auction conducted by the Municipal Corporation, Khandwa. The allotment pertained to Block No. 16, Plot No. 332, measuring 7 × 7 square meters, situated at Mirchi Bazar Godam, Kallanganj, Khandwa, at a monthly rent of Rs. 255/-.

Subsequently, the petitioner, being brother of the original allottee, constructed a shop on the said plot and commenced his business, which he continued until 23.05.1988. Thereafter, the petitioner was evicted from the said premises as the land was allotted to Saraswati Shishu Bal Mandir, Khandwa. In lieu of the said land, the petitioner was allotted an alternative plot measuring 7 × 7 square meters at Sulabh Complex, Itwara Bazar, Khandwa, vide order dated 18.02.1988. A rent agreement was also executed between the petitioner and Respondent No. 6. Pursuant thereto, the petitioner constructed a shop on the newly allotted land and continued his business. However, following an incident involving collapse of an overhead water tank at Bhopal, directions were issued to remove encroachments in the vicinity of overhead water tanks, including those at Itwara Bazar, Khandwa. In compliance to the said directions, a notice dated 05.04.2013 (Annexure P/10) was issued to the petitioner requiring him to remove his shop from the said area. The petitioner submitted a reply dated 07.04.2013 asserting that he was not an encroacher on the land in question. Despite this, the respondents proceeded to remove the petitioner’s shop, treating it as an encroachment.

Thereafter, the petitioner was temporarily allotted an open piece of land measuring 8 × 8 square feet, adjacent to Block No. A, Shop No. 07, Itwara Bazar vide Annexure P/1. The petitioner made a representation stating that the newly allotted area was substantially smaller than the originally allotted area of 7 × 7 square meters. It is further submitted that although there were several other encroachments and shops in the vicinity, but the respondents have selectively removed only the petitioner’s construction, leaving others untouched. Being aggrieved by such arbitrary and discriminatory action, the petitioner has filed the present petition.

The respondents have filed their return submitting that the present petition is misconceived and liable to be dismissed. It is contended that the petitioner’s claim for allotment of land of the same area in lieu of the removed shop is untenable and deserves rejection.

It is submitted that the petitioner was allotted a temporary plot near overhead water tank at Itwara Bazar, Khandwa, and an agreement dated 25.02.1988 (Annexure R-6/1) was executed for a lease period of 2 years and 11 months. As per Clause 5 of the agreement, upon expiry of the lease period, no right, title, or interest would remain with the petitioner in respect of the allotted land. The said clause also stipulates that renewal of the lease, if any, would be at the discretion of the respondents.

The respondents have submitted that the petitioner never approached for renewal of the lease; hence, upon expiry of the lease period no right accrues in favour of the petitioner. Therefore, the claim for allotment of the same land or equivalent area is without any basis and not maintainable.

Further, as per Clause 6 of the agreement, the petitioner was required to hand over possession of the land whenever it was needed by the respondents. Since the agreement is no longer in existence, no enforceable right survives in favour of the petitioner.

It is further submitted that following a major accident involving an overhead water tank in Bhopal, the General Administration Department, vide order dated 26.11.2012 (Annexure R-6/2) issued safety directions prohibiting construction of shops and buildings within 1 to 1.5 meters area of the water tanks. In compliance with the said directions, the Mayor-in-Council passed a resolution (Annexure R-6/3) to remove such structures, including the petitioner’s shop at Itwara Bazar. Pursuant thereto, the respondents conducted verification and issued notices vide Annexure R-6/4 to all encroachers, including the petitioner, directing removal of their structures situated near water tank. The petitioner’s shop was accordingly removed in compliance with the said directives.

It is further submitted that, although no legal right exists in favour of the petitioner for allotment of land, but the respondents, considering that the petitioner had been carrying on business for a long period, allotted him an alternative plot measuring 8 × 8 square feet on a temporary basis. The said allotment was made subject to availability of land and the petitioner cannot claim allotment of land of the same size as a matter of right. In view of the aforesaid submissions, the respondents have prayed for dismissal of the petition.

In response to the reply submitted by the respondents, the petitioner has filed a rejoinder denying the contentions raised by the respondents in the reply. However, the petitioner has reiterated almost same facts and grounds as raised in the petition, however, it is submitted that after eviction of the petitioner, the land in question has been allotted to Vishwa Utility Pvt. Ltd. for running its office over an area of 10,000/- sq.ft., which is apparent from the Agreement dated 04.02.2014 (Annexure P/22). Hence, the action of the respondents is arbitrary and discriminatory.

It has been contended by the counsel for the petitioner that the petitioner was allotted a piece of land on temporary basis in the municipal area admeasuring area 7 x 7 meter at Itwari Bazar near Sulabh Complex and a lease agreement was also executed to that effect with the condition that the petitioner shall construct a godown on his own expenses and the same shall be the property of the Corporation after the term of the lease get over. It is also agreed that the lease period shall be of two years and 11 months and after completion of the said period, renewal shall be the discretion of the Commissioner/Administrator of the Corporation with the condition that no right shall accrue in favour the petitioner on the basis of the lease deed.

It is submitted that the petitioner was shifted to another place at Block-A, Shop No. 07 with an area admeasuring 8 x 8 sq.ft. vide Annexure P/1 dated 03.10.2013. It is submitted that as the petitioner was holding large piece of land, he was entitled for the same area of land after shifting and settlement and in absence of large area, compensation of proportionate amount. It is submitted that the petitioner has submitted representations Annexures P/2 dated 22.10.2013 and P/3 dated 01.11.2013, but of no avail and that remained pending with the respondent-Corporation.

Per contra, counsel for the respondents has submitted that as the land in question, which was allotted to the petitioner, under temporary lease, was only for two years and eleven months and after expiry of such period, although the petitioner became encroacher over the said land, but taking a pragmatic and sympathetic view, the petitioner has been allotted a piece of land in the market. It is submitted that the petitioner has no vested right to claim the land of the same area in lieu of the land, which has been taken over from the petitioner. It is further submitted that since the period of lease was expired, therefore, the petitioner became encroacher over the land and hence, the petitioner was given the option for shifting, which he accepted and consequently, the land in the market area has been given to him. The petitioner has never protested at the time of re-allotment/shifting, however, the same has been agitated at a later stage by filing representation as an after thought to take undue advantage from the respondent-Corporation.

From the perusal of Annexure P/22 filed alongwith the rejoinder, it is found that it has been resolved by the Corporation that the place from which the petitioner has been shifted is to be given for public interest under the UIDSSMT Scheme to a public private partnership firm for water preservation, therefore, the contention of the petitioner that the land from which the petitioner was removed was given to third party has got no merit as the land is being used for the larger interest of the public. Hence, the petitioner cannot claim as of right to have the same land after the allotment of the land for the public utility. It is also seen from the record that the petitioner has been given alternative place vide order dated 03.10.2013 (Annexure P/1) for which the petitioner has never made any protest of having similar area and when the term of the lease has been expired and it has not been renewed then the petitioner cannot claim as of right the same land at a particular place. The petitioner was given option to have alternative place, which he had accepted.

It is not the case of the petitioner that he has been removed without granting him an alternative place. The petitioner is not deprived of his fundamental right to do the business. In fact, the petitioner has been given a place in the market area. As per the availability, the petitioner has been given the place having lesser area in the market for which the petitioner as of right cannot claim any compensation or demand larger area. If the petitioner seeks any compensation or damages then that cannot be subject matter of the writ petition under Article 226 of the Constitution of India, as it involves disputed questions of facts.

The Hon'ble Apex Courtin the case of Smt. Shanti Devi vs. Amal Kumar Banerjee reported in (1981) 2 SCC 199 in para5 has held as under:-

"5. Undoubtedly, Section 111(a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section 116 of the Act. But in the present case there is no allegation by the the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiff's case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act."

Therefore, in the considered opinion of this Court, as the petitioner has been duly accommodated at an alternative place, for which at the time of re-allotment, no protest has been made by the petitioner and he accepted the proposal as well as taken over the possession, the petitioner cannot, at a later stage, claim larger area or compensation in lieu of that, more so when the term of lease of the petitioner has already expired and in absence of renewal, the petitioner was not holding legal possession. As per Section 111 (a) of the Transfer of Property Act, 1882, the possession of the petitioner was of a trespasser, therefore, the petitioner was not having any statutory or fundamental right to hold the land of the Corporation.

In view of the aforesaid analysis of fact and law, the petition of the petitioner sans merit and is hereby dismissed accordingly with no order as to costs.