Mohammed Umar vs Pattan Panchayat, Haliyal

Aravind Kumar, J.—Heard Sri S.R. Hegde, learned counsel appearing for petitioner. Perused the impugned order dated 10.03.2014 passed by Senior Civil Judge in M.A. 13/2013 whereunder the order passed by trial court in O.S. 125/2013 on 19.10.2013 dismissing I.A. 2 filed by plaintiff under Order 39 Rules 1 and 2 of C.P.C. came to be confirmed.

Petitioner was running a Tea shop in the commercial building belonging to the respondent-Pattan Panchayat office. On account of the said building having become old and being in a dilapidated condition and respondent-panchayat having resolved to construct a new complex, possession of the shop in occupation of petitioner was taken over and on demolition of old structure a new complex came to be constructed and a resolution also came to be passed by Panchayat to give preference to the old occupants subject to certain conditions as stipulated therein.

Petitioner having handed over possession of his shop and on construction of new complex, he is said to have forcibly occupied shop No. 1 according to the respondent. Petitioner has filed a suit for declaration and injunction in O.S. 125/2013 against respondent herein for declaration to the effect that the auction conducted by respondent on 19.08.2013 is illegal and for consequential relief of injunction to restrain the defendant from dispossessing the plaintiff illegally and unauthorised. An application for temporary injunction also came to be filed in aid of the main relief. Said application was resisted to by defendant by filing statement of objections and after adjudication said application came to be dismissed by trial court. Being aggrieved by the said order an appeal came to be filed in M.A. 13/2013. Lower appellate court also dismissed appeal and affirmed the order passed by trial court. Trial court as well as lower appellate court has held that plaintiff had not participated in the auction and had only deposited the amount and stall No. 1 was not allotted to plaintiff. It is this order passed by lower Appellate Court which is questioned in the present writ petition.

It is the contention of Sri S.R. Hegde, learned counsel appearing for petitioner-plaintiff that defendant had issued a letter dated 02.08.2013 indicating thereunder that preference in allotment of shops will be given to the prior occupiers and pursuant to the same amount indicated by respondent-panchayat office came to be deposited by petitioner and possession of shop No. 1 also came to be delivered. Hence, it is contended respondent them selves having admitted that plaintiff is in settled possession of shop No. 1 he cannot be dispossessed without due process of law during pendency of suit inasmuch as any decree that may be obtained by plaintiff will only be a paper decree and purpose of seeking order of injunction would be defeated. Hence, he prays for allowing the writ petition.

At the outset it requires to be noticed that communication dated 02.08.2013 which is heavily relied upon by plaintiff before courts below and copy of which is made available by Sri S.R. Hegde, learned counsel appearing for petitioner during the course of his arguments would indicate that Pattan-Panchayat had passed a resolution on 03.11.2012 resolving to give preference to the occupiers of the shops after reconstruction of shopping complex. Said communication would also indicate that Panchayat office had proposed to conduct public auction of the shops through "Public Auction" on 19.08.2013. Petitioner did not produce iota of material before trial court, lower Appellate court as well as before this court establishing the fact of petitioner having participated in the auction. It is an undisputed fact that petitioner had not participated in the public auction held on 19.08.2013.

Be that as it may. Petitioner claims that he having deposited the amount on 16.08.2013 in a sum of Rs. 57,065/- he had occupied shop No. 1. However, no material was produced before the trial court, lower appellate court as well as before this court by petitioner-plaintiff to indicate that he was handed over possession of shop No. 1 by respondent panchayat Forcible occupation of said shop by petitioner would not vest any right in the plaintiff to seek equitable relief of temporary injunction. Plaintiff will have to establish prima facie case, irreparable loss and balance of convenience being in his favour for grant of an order of temporary injunction. Plaintiff has failed to demonstrate prima facie that he has been allotted shop No. 1. There is no balance of convenience in favour of plaintiff since he has not participated in the public auction conducted on 19.08.2013 in respect of shop in question. In the event of an order of temporary injunction is granted it would amount to illegality being perpetrated and as such it is the defendant who would be put to irreparable loss and injury. That apart, property of Panchayat being largess of the State it can be distributed only through public auction. As such the Panchayat has resolved to conduct public auction reserving liberty to the petitioner to participate in the said auction and also assuring that earlier tenants, licensors or occupiers of shops would be given preference. Petitioner having not participated in the auction conducted by Panchayat on 19.08.2013, he does not get any right to occupy said shop.

In that view of the matter order passed by courts below cannot be faulted with. Writ petition being devoid of merits, it stands dismissed.