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Judgment
Jawahar Lal Gupta, J.—Municipal Committee Dera Baba Nanak, constructed three shops in the year 1993. These shops have provided the cause for these two petitions. Civil Writ Petition No. 14234 of 1993 has been filed by Gopal Dass and another stating that the Committee is illegally wanting to allot these shops to Kashmiri Lal etc. and that these shops should be leased out only by open auction. As a counter blast, Kashmiri Lal etc. have filed Civil Writ Petition No. 15345 of 1993 praying that the shops should be leased out to them only as they were the tenants on the land on which the shops were constructed in the year 1993.
A few facts : Kashmiri Lal etc. have averred that they had set up three ''Khokhas'' (temporary structures of wood etc.) on the land belonging to the Municipal Committee in the main Bazar and were in occupation thereof for the last more than 50 years. They had executed regular lease deeds. During the recent rains which were followed by floods, the ''Khokhas'' got washed away. They approached the municipal authorities for construction of shops. These shops having been constructed, the committee passed a resolution on August 30, 1993 deciding to give these shops on rent at Rs. 100/- per month to each of these three petitioners. However, the operation of the resolution was suspended by the Deputy Director, Local Government on September 10, 1993. Thereafter, the committee passed another resolution on September 28, 1993. Even the operation of this resolution was suspended by the Deputy Director and orders for leasing out these shops by open auction were issued. It was directed that the auction shall be held on October 5, 1993. However, on account of one reason or the other, the auction was postponed. Averring that the action of the respondents is barred by the principles of promissory estoppel, these three petitioners pray that the respondents be directed not to auction or rent out the shops in question to any one except to them. On the other hand, the claim in Civil Writ Petition No. 14234 of 1993 is that the shops possess a great business potential and that the residents of the area including the petitioners are willing to pay much higher rent than the amount at which the committee is wanting to give them away to M/s Kashmiri Lat etc. This action has been challenged as being arbitrary, violative of Article 14 and against public interest. It has been thus prayed that the shops in question be leased out only by way of auction.
In reply to the writ petition No. 15345 of 1993, it has been pointed out that the petitioners have already filed a suit for perpetual injunction in the Civil Court and that in view of the pendency of the suit, the writ petition is wholly incompetent. The other averments in the petition have also been controverted. In particular, a copy of the letter written by the three petitioners to the executive officer of the committee has been produced as Annexure R-1. On this application, there is an endorsement dated September 2, 1993 by the Executive Officer to the effect that "the Tehabdari/rent is cancelled as per possession handed over by the applicant." Further more, reference has also been made to the written statement filed by the Committee in the civil suit in which it has been inter alia averred that "the petitioners had surrendered the possession on 30th August, 1993 and after that the plaintiff has got no connection with the property in dispute in any manner whatsoever." On these factual premises, it is prayed that the writ petition be dismissed.
I have heard learned counsel for the parties.
Sh. R. S. Ahluwalia, learned counsel for the petitioners in Civil Writ Petition No. 14234 of 1993, has contended that the three shops constitute public property and in the larger interest of all concerned and in accordance with law, this property should be leased out only to the highest bidder.
Shri Aftab Singh Bakshi, learned counsel for M/s Kashmiri Lal etc. has raised a three fold contention. Firstly, he has submitted that the resolution passed by the Committee constituted a completed contract, and conferred rights on the petitioners. Learned counsel has further submitted that the action of the Deputy Director in suspending the operation of the resolutions passed by the Committee was wholly beyond the provisions of Section 232 of the Punjab Municipal Act, 1911 and was violative of the principles of natural justice. Learned counsel submits that in view of the facts that no hearing was afforded to the petitioners, the suspension of the resolution by the Deputy Director was vitiated and that the petitioners being poor Harijans had a right to be given the shops on rent as resolved by the Committee.
Shri Rajiv Bhalla, appearing for the Municipal Committee has very fairly stated that the committee shall lease out the property in such manner as may be considered fair and appropriate by the Court.
Admittedly, the property in the present case vests in the committee. In accordance with the provisions of the Section 56 of the Act, the Committee has the control over this property and can apply it for the purposes enumerated in the Act. However, a perusal of this provision would show that control of the committee is subject to any special conditions that may be imposed by the State Government. Such conditions had been imposed by the Government by issuing a general circular vide letter dated December 12/19, 1977. While dealing with the subject of leasing of land vested in the Municipal Committee, it has been inter alia provided as under :-
"It is observed that all the Municipal Committees in the State of Punjab own substantial properties, including land in the Urban areas. Besides, after extension of Municipal limits, some of the Panchayat lands have also been vested in the concerned Municipal Committees and Government have also vested Nazul land, within the Municipal limits in the different Municipal Committees, u/s 56(f) of the Punjab Municipal Act, 1911.
No rules have, however, been framed for leasing out of such Municipal Properties and in the absence of detailed instructions on the subject, Municipal Committees have been making gross mis-use of these lands. Lands, which can be commercially exploited and thereby amount the resources of the Municipal Committee, have often been frittered away by leasing them out on nominal rates.
In order to ensure reasonable return from the Municipal property, it has been decided that in future, these properties may invariably be leased out/sold through open auction in the presence of concerned Deputy Director (Regional) or a representative of the Deputy Commissioner. However, in exceptional cases, Municipal Committees may lease out properties, with prior approval of the Government, without auction, subject to the condition that lease money shall be 10% of the prevalent market value of the land. The market value should be calculated after obtaining Collector''s rate from the District Collector, as provided for in Financial Commissioner''s Standing Order on the subject."
A perusal of the above instructions shows that the municipal committees were directed by the State to invariably lease out the properties for open auction in the presence of the concerned Deputy Directors. Exception cold be made only for good reason and with prior approval of the Government. Even this was subject to the condition that lease money was not less than 10% of the prevalent market value. It is the admitted position that the estimated cost of construction on the three shops was Rs. 99,000/-. The construction of each shop had cost at least Rs. 33,000/- besides the price of the land and yet the municipal committee was wanting to lease out these shops at a monthly rent of Rs. 100/- or Rs. 125/-. In this situation, it is apparent that the resolutions passed by the committee were not in conformity with the broad parameters contained in the instructions issued by the Government. The committee was not acting in accordance with clear indications contained in the memo dated December 12/19, 1977. That being so, the Deputy Director was prima facie entitled to take the view that the action of the committee was in excess of its powers. He could thus suspend the execution of the resolution in exercise of the powers conferred by Section 232 of the Act. This is precisely what he did. The action of the Committee being in derogation of the instructions, the resolution was rightly suspended by the Deputy Director. It cannot be said that the action of the Deputy Director was beyond his jurisdiction u/s 232 of the Act. Consequently, the contention raised by learned counsel for M/s. Kashmiri Lal etc. that the Deputy Director acted beyond his jurisdiction cannot be accepted.
Equally untenable is the plea that there was a completed contract. Firstly, no such plea has been raised in the petition. Even though a replication has been filed, the only claim is that the action of the committee is barred by principles of promissory estoppel. Secondly, the petitioners appear to have handed over the possession of the land which was in their possession before the committee undertook the construction work. Thereafter, there is nothing on record to indicate that a completed contract had been taken place between the petitioners and the committee. The petitioners filed a civil suit in the civil Court at Batala, for perpetual injunction restraining the Committee from leasing, making any auction for leasing or transferring the premises to any person "except the plaintiffs." Learned counsel has shown the copy of the plaint in the Court. Even in this plaint, it has not been averred that there was a completed contract. It is well settled that it is only the pleaded case that has to be proved. No such plea having been raised, counsel cannot be permitted to raise the contention. It is well settled that it is only the pleaded case that has to be proved. No such plea having been raised, counsel cannot be permitted to raise the contention. In any event, there is no evidence on the record of this case to show that there was a completed contract between the parties.
It was then contended that the orders passed by the Deputy Director are vitiated as no opportunity of hearing had been affored to the petitioners. Even this contention is wholly lacking in merit. Firstly, no such averment has been made in the petition. No factual basis has been laid in the petition. Secondly, it appears that the matter is strictly between the Committee and the Deputy Director. The respondent-committee had passed a resolution. The matter was considered by the Deputy Director. He suspended its operation. No rights had as yet accrued to the petitioners which may be said to have been affected by the order of the Deputy Director. However, a detailed examination of the matter is not necessary as even this contention has not been raised in the petition.
It is equally well to remember that the petitioners have already filed a civil suit seeking perpetual injunction and claiming the relief as prayed for in this writ petition. No person can be permitted to pursue two separate remedies for the same relief simultaneously. There is nothing on record that the suit filed by the petitioners had been withdrawn by them. However, since I have found no merit in the contentions raised on behalf of the petitioners, the pendency of the civil suit becomes irrelevant.
As for the claim made by the petitioners in Civil Writ Petition No. 14234 of 1993, it appears that in accordance with the instructions referred to above, the property has to be leased out by open auction. The claim made by the petitioners is in conformity with the instructions of the Government. Even the Deputy Director is said to have directed the committee to lease out the premises by open auction. At one stage, auction had been fixed for October 5, 1993. Even the Motion Bench while admitting the petition had directed that the Committee shall be entitled to lease out the premises by open auction. This seems to be the fairest decision. It ensures equality of opportunity for every one to compete and bid at the auction. It also protects public interest inasmuch as the Committee would be able to get the highest return for its property. This promotes the interest of all concerned. It may be that M/s. Kashmiri Lal etc. are poor. However, individual interest have to yield to the collective social interest. The prayer of the petitioners that the property should be leased out by open auction thus deserves to be granted.
Taking the totality of facts into consideration, it is held that there is no merit in the Civil Writ Petition No. 15345 of 1993. It is consequently dismissed. However, this would not preclude the respondent-committee from allotting any alternative, sites, if it so chooses, to the petitioners in this case.
Civil Writ Petition No. 14234 of 1993 is allowed. The Committee shall lease out the premises by open auction.
The writ petitions are, accordingly, decided. In the circumstances of the cases, there will be no order as to costs.