Prem Chand And Others vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioners have prayed for the following substantive reliefs:­

"(i) That a writ in the nature of certiorari may kindly be issued for quashing the allotment of shops made on 01.02.2020 by respondents No. 3 to 5 in the Sports Complex, Hamirpur, H.P. in favour of respondents No. 6 to 34 and justice be done.

(ii) That a writ in the nature of mandamus may kindly be issued directing respondents No. 1 & 2 to make allotment of shop in Sports Complex, Hamirpur, H.P. in a transparent manner and justice be done."

The case of the petitioners is that respondent­ Society constructed shops near Hamirpur bus stand and the same was named as Sports Complex. Petitioners and other persons, who were allotted shops/khokhas earlier in the main Bus Stand, Hamirpur, were issued notices for allotment of the shops in the said newly constructed Sports Complex in the month of December, 2019. According to the petitioners, in terms of the decision taken in the meeting of the Committee held under the Chairmanship of respondent No. 3 on 13. 12.2019, shops were to be allotted to the beneficiaries and preference was to be given to 58 khoka holders having Khokas opposite to the bus stand. The last date to apply for allotment of shops was 04.01.2020 and each applicant was to submit his/her application alongwith an affidavit to the effect that he/she will vacate the khokha after the allotment of shop in his/her favour in the Sports Complex. The petitioners were the allottees of shops and khokhas by respondent No. 5 in Ward No. 9, main Bus Stand, Hamirpur, which shops were allotted to them in the year 1984 onwards and they were paying rent with regard to the said shops as fixed by respondent No. 5 from time to time. As per the averments made in the petition, the shops allotted to the six petitioners were as under:­

a) Petitioner No. 1: Shop No. 36

b) Petitioner No. 2: Shop No. 37

c) Petitioner No. 3: Shop No. 47

d) Petitioner No. 4: Shop No. 19

e) Petitioner No. 5: Shop No. 40

f) Petitioner No. 6: Shop No. 15.

It was in lieu of vacation of said shops/khokhas allotted to the petitioners that they, alongwith other similarly situated persons, were given an offer for allotment of the newly constructed shops in the Sports Complex. Annexure P­1, dated 24.12.2019, was a notice issued to petitioner No. 1 to the effect that the shops of Sports Complex were lying vacant since a long time and in terms of the meeting of Committee dated 13.12.2019, the shops were to be allotted to the beneficiaries and preference was to be given to 58 khokha holders opposite to bus stand. In terms of this notice, all khokha holders, which included the petitioners, were called upon to file applications for the allotment of shops till 04.01.2020 alongwith an affidavit to the effect that they will vacate the khokhas following the allotment of the shops in Sports Complex. Similar notices were issued to all the petitioners. Petitioners applied for allotment of the shops in response to notice dated 24.12.2019 and they also furnished their affidavits that they will vacate their khokhas except petitioner No. 3, who applied under protest for the reason that against vacation of shop allotted in his favour in the main bus stand, he had already filed a writ petition in the High Court of Himachal Pradesh, i.e CWP No. 3412 of 2019. The date fixed for receipt of the applications was extended from 04.01.2020 to 07.01.2020 and then to 10.01.2020. After scrutiny of the applications, all the petitioners as well as other persons who applied for allotment of shops in the Sports Complex, were issued letters on 28.01.2020 to remain present on 29.01.2020 at 11:45 a.m. at Hamir Bhawan before the Sub Committee for the purpose of allotment of the shops in question. A copy of one said communication issued by respondent No. 5 is appended with the petition as Annexure P­2. It is the case of the petitioners that they reached Hamir Bhawan, on 29.01.2020, at 11:45 a.m., however, nothing happened on the spot and petitioners and other persons were asked to shift as per their own willingness in the Sports Complex and the same was resisted by the petitioners. No shops were allotted by respondent No. 4 on said date, and the date of allotment of shops was postponed till 01.02.2020. It is further the case of the petitioners that on 01.02.2020, they were present at Hamir Bhawan and despite their objections qua the procedure adopted by respondents No. 4 and 5 with regard to allotment of shops, same were allotted by respondents No. 3 to 5 on the basis of first come first serve, i.e, first applicant was given the first choice to choose the first shop, though, this was not contemplated in communication dated 24.12.2019. Respondents No. 6 to 34 were allotted shops in this mode which was objected to by them vide written complaint dated 08.02.2020. Thereafter, respondent No. 4 issued a letter dated 15.02.2020 to petitioner No. 1 and also to other petitioners to the effect that they stood allotted shops in the meeting held on 01.02.2020 and despite direction given to them to execute the agreement, they had not done so. Respondent No. 4 gave an ultimatum to the petitioners that they should either sign the agreement by 5:00 p.m. on 17.02.2020, otherwise, shops allotted to them shall be cancelled. After the receipt of this communication Annexure P­4, some of the petitioners signed the agreement but petitioners No. 1 and 2 did not execute the same.

The grievance of the petitioners is that the allotment of the shops as done by respondents No. 3 to 5 on the basis of first applicant being given first choice to choose the first shop, is arbitrary and not sustainable in law as the same was done by the respondents­authorities by adopting a procedure completely unknown to law and the same was also done with an oblique motive and was a result of colourable exercise of power by the authorities to allot the shops in favour of private respondents. It is further the case of the petitioners that the criteria which was so adopted by the authorities for allotment of the shops was to favour a few persons. It is in this background that the petitioners have filed this petition praying for the reliefs already enumerated hereinabove.

Response to the petition has been filed by respondents No. 1 to 4. The stand of respondents No. 1 to 4 is that the Sub Committee of the respondent­Society had convened a pre­allotment meeting on 29.01.2020 vide Annexure P­6, in which, all 37 eligible khokha holders, including the petitioners participated and they were informed that allotment of shops in Sports Complex would be done by applying the criteria of 'First Come First Serve", i.e the applicant who applied first would be given an option to choose the shop first and such allotment would be for a period of five years and `800/­ per month will be charged as rent for each allotted shop. The Sub Committee of the society convened the final allotment meeting on 01.02.2020, in which, all 37 applicants, including the petitioners, whose names are reflected at serial numbers 25, 28, 29, 31, 32 and 36 of the attendance register Annexure R­8 participated. In the said meeting, allotment of the shops to all 37 eligible applicants was made, including the petitioners, by applying the criteria of first come first serve, starting from the applicant, who had applied prior in time vis­a­vis others. As petitioner No. 6 applied on 06.01.2020 and petitioners No. 1, 3, 4 and 5 applied on 07.01.2020 whereas petitioner No. 2 applied on 10.01.2020, consequently, after the allotment of the shops, petitioners No. 3, 4, 5 and 6 also executed agreement of allotment with the respondent­Society on 14.02.2020, vide Annexures R­9 to R­12, whereas petitioners No. 1 and 2 failed to execute the required agreement of allotment. In this background, notices were issued to said petitioners vide Annexures P­13 and P­14. It is further the stand of the respondents that as petitioners No. 1 and 2 did not execute the required agreement before the cut­off­date, therefore, their allotments stood cancelled. According to the respondents, a transparent and fair procedure was adopted for the allotment of the shops in question and the petitioners also participated in the pre­allotment process as also in the final allotment process without any demur. It stands denied by respondents that the allotment of the shops was done either in an arbitrary manner or same was a result of colourable exercise of power. According to them, allotment of the shops was done with consensus and in a fair manner, which was agreed upon by all, including the petitioners. It is also the stand of respondents No. 1 to 4 that petitioners No. 3 to 6 participated in the allotment process without raising any objections and they also signed the agreement of allotment of shops voluntarily, whereas petitioners No. 1 and 2 did not come forth for execution of the agreement within the stipulated time and even after the issuance of notice dated 15.02.2020, they failed to do so. On these bases, the claim of the petitioners have been denied by respondents No. 1 to 4.

The stand of the private respondents No. 6 to 33 is to the effect that they were running khokhas/shops opposite main bus stand, Hamirpur and on 01.12.2019, spot was demarcated in the presence of the petitioners, replying respondents as well as the officials of Public Works Department and Municipal Council and this demarcation demonstrated that the khokhas of the petitioners and the present respondents were on HPPWD land. Thereafter for the benefit of khokha holders, respondent No. 3 gave an option to the khokha holders for shifting to the shops subject matter of this writ petition. It was already one of the condition that after the allotment of the shops, they will have to vacate the khokhas. As per the replying respondents, the terms of allotment of the khokhas were prepared by the society and the allottees, and it was agreed that the khokha holders shall be charged rent at the rate of `800/­ per month for the shop. In the meeting, which took place between the stakeholders of Khokha holders, including the petitioners, all were apprised that shops were to be allotted on first come first serve basis or as per the settlement between the khokha holders. After detailed discussions, all eligible persons, which included the petitioners, requested the Sub­Committee to provide them with some time so that they could distribute the shops between themselves with consensus. Thereafter, it was decided that the khokha holders shall take the shops according to the serial number allotted to their applications and it was in this way that the shops were allotted. It has been denied in the reply that the shops were allotted in an arbitrary manner or that the mode adopted for allocation of the shops was arbitrary or with the intent of favouring someone.

Respondent No. 34 could not be served. Though an application has been filed for his substituted service, however no order is being passed on the same, in view of this judgment, as no adverse direction is being issued against the said respondent. Therefore, the petition is being decided without insisting upon the service of the said respondent.

In the rejoinder, which has been filed by the petitioners to the reply filed by respondents No. 1 to 4, it is averred that in the public notice dated 24.12.2019, it was nowhere stipulated that person, who files the application first, will be considered first for allotment of the shop and same was contrary to communication dated 24.12.2019. It is further mentioned in the rejoinder that the proposal of allotment of shops on the basis of application number, i.e. to say that first applicant shall be having the first right to choose the shop was never agreed upon by the petitioners and petitioners No. 3 to 6 executed agreement under fear that in case they did not execute the agreement, then, their allotment may be cancelled. It is further mentioned in the rejoinder that the criteria actually adopted for the allotment of the shops was not disclosed to anyone and persons who were having political patronage etc. though were privy to it.

I have heard learned Counsel for the parties and also gone through the pleadings as well as record of the case.

At the very outset, this Court may observe that the government largesse cannot be distributed in the mode and manner in which the same has been done in this case. Amongst the eligible candidates, some transparent criteria ought to have been adopted by the allotting agency so that the process was above board and there was no element of arbitrariness in the same. It goes without saying that the procedure which has been adopted by the allotting agency per se cannot be approved by the Court and the allotment of shops in the present case should have been done in a manner which, as already observed hereinabove, was more transparent and more fair.

Having made said observations, now this Court has to see as to whether in the peculiar facts and circumstances of this case, the petitioners can be granted the reliefs, which have been prayed for by them. The grievance of the petitioners is with regard to the allotment of the shops by respondents No. 3 to 5 on first come first serve basis, i.e. the person who had applied for the shop first, was given an option to choose the shops in issue first in priority to others. It is not in dispute that communication dated 24.12.2019 vide which applications were invited from khokha holders to apply for the shops in question, did not envisage such criteria for allotment of shops. However, the fact of the matter still remains that this notice did not envisage any criteria whatsoever for allotment of the shops. In this background, documents which have been appended with their reply by respondents No. 1 to 4 become important to infer as to whether process through which the shops were allotted was acquiescend by the petitioners or not. Annexure R­6 is the copy of the proceedings of the meeting held by the Sub­ Committee constituted on 13.12.2019 in terms of the directions of Deputy Commissioner, Hamirpur­cum­ Chairman of respondent No. 4­Society for the allotment of the shops in issue. These proceedings are dated 29th January, 2020. A perusal of the said proceedings demonstrates that a meeting of the stakeholders was held on 29.01.2020, in Hamir Bhawan, and in the said meeting, khokha holders, who were found eligible for the allotment of the shops after scrutiny, were present and they were apprised that the term of the contract will be for five years and `800 per month will be charged as rent for each of the allotted shop. As per said proceedings, the committee also stated that if any of the khokha holders wanted to exchange the allotted shops in between themselves, then the same could be allowed subject to the filing of affidavit by the khokha holder(s) concerned. It was also made clear to khokha holders that if they want to have the possession of the allotted shop, then, they had to move an application to the Committee so that an agreement can be entered into with said party. Proceedings further mention that it was also decided by the Sub Committee that if two khokha holders wanted to run shops together, they shall have to move an application to the Chairman seeking such permission which shall be subject to enhancement of rent by 25%. Khokha holders were also made clear that if they do not vacate the khokhas after entering the agreement, then, the allotment of the shop shall be cancelled and the Committee will be free to allot the shop to some other eligible persons. The khokha holders were also apprised that allotment of the shops was to be done on first come first serve basis. There were 107 shops lying vacant in the Sports Complex and the khokha holders, in the meeting, requested to start the allotment of shops from the ground floor, and all of them requested for allotment of shops in the ground floor only and majority of eligible khokha holders also requested to start allotment process from shop No. G1. The Sub Committee took into consideration their requests and agreed to start allotment from ground floor as 41 shops were there in the ground floor and there were only 37 eligible khokha holders. The khokha holders requested that they wanted to have shops as per internal arrangement which may be arrived between them and prayed for grant of two days' time. They also stated that if no internal arrangement was worked out then they were ready and willing to take shops on first come first serve basis as per the receipt number of the application. Proceedings further record that two days were given to the khokha holders by the Sub Committee and khokha holders were directed to submit report of internal arrangement on the day fixed for the allotment of the shops. It was made clear that if they failed to reach on any consensus, then the shops were to be allotted as per the date of receipt of the applications.

There is also appended with the reply Annexure R­ 8, which is the relevant extract from Register for allotment of shops, subject matter of this petition­cum­attendance register dated 01.02.2020. A perusal thereof demonstrates that the petitioners were present in the meeting which was convened on the said date. Incidentally, this document reflects the details of shops which were allotted to the respective applicants on first come first serve basis. The names of the petitioners in this Annexure are at serial number 29, 36, 28, 31, 32 and 25 respectively. Against their names, shops allotted to them were also mentioned. This annexure further demonstrates that petitioners Vijay Kumari, Virender Malhotra, Sumna Devi and Ranjit Singh appended their signatures in acknowledgment thereof without protest. In this view of the matter, in the considered view of this Court, as said four petitioners had duly participated in the process without any objection, they do not have any locus­standi to file and maintain the present writ petition. Also, it is a matter of record that agreements were entered into by these four above named petitioners with the respondent­Society qua the shops allotted to them vide Annexure R­8 and their contention in this petition that this was done out of fear that in case they did not enter the agreement, allotment in their favour may be cancelled, is not substantiated from any other material on record. Thus, as said petitioners acquiscned to the process of allotment of shops, therefore, the present writ petition is not maintainable on their behalf as the said petitioners cannot be permitted to blow hot and cold in the same breath and the same is accordingly dismissed qua them.

Coming to the remaining two petitioners, namely, Prem Chand and Dhani Ram, though, it is matter of record that they had not appended their signatures to Annexure R­8 in acknowledgment of them having been allotted the shops, yet it remains a fact that on account of their not entering into the agreement with the respondent­society, the shops which were allotted to them have been later on cancelled, as is the stand of respondents No. 1 to 4 in their reply. Incidentally, in the writ petition, no prayer has been made by said two petitioners for setting aside the cancellation of the shops allotted to them by the respondent­society. Though, this Court has, in principle, disapproved the mode and manner in which the shops in issue were allotted to the private respondents by the respondent­society, yet it remains a fact that the petitioners have not been able to demonstrate through the pleadings or from the documents appended therewith that the mode and manner in which the shops were allotted to some of the petitioners as well as to the private respondents was on account of a malafide intention or with the intent of conferring favour upon some of the allottees. The stand of the authorities as well as the private respondents is that, as agreed, the shops were allotted on the basis of receipt of the applications from the applicants. In other words, the first applicant was given the opportunity to opt for any shop and thereafter, each applicant on his turn got an opportunity to choose from the left out shops. During the course of arguments, the petitioners could not demonstrate that the allotment of shops was not done by strictly following this criteria. In fact, the petitioners were also called upon to opt for the shops on the basis of number of submission of their application form with the society. All the allottees are petty shopkeepers who were earlier running khokhas which were found to be situated on HPPWD land and who now stand rehabilitated in the newly constructed shops on the condition of their willing to vacate the khokhas. It is reiterated that the petitioners have not been able to demonstrate that the allotment of shops was done with some ulterior motive of conferring undue benefit upon the private respondents. This demonstrates that the mode of allotment, which otherwise may not be strictly desirable while distributing government largesse, yet was bonafide and not an act of malafides on behalf of respondents No. 2 to 4. In these circumstances, this Court is of the view that the prayer of the petitioners of setting aside the allotment cannot be granted to them as the same will unsettle the private respondents who are occupying the shops and running their business from the same for some time now. This Court can also not loose sight of the fact that due to COVID­19 pandemic, otherwise also, commercial activities are at their nadir and in these peculiar circumstances, in case, allotment of shops is ordered to be set aside, it will undoubtedly create undue hardship to the private respondents, who are petty shopkeepers.

Accordingly, this writ petition is disposed of by directing that the cancellation of the shops of the petitioners, namely, Prem Chand and Dhani Ram by the authorities is quashed and the shops, which stand allotted to the said petitioners, be handed over to them in the event of their entering into agreement with the respondent­Society within a period of 30 days from today. In addition, in case, these two petitioners are interested in having any other shop other than allotted to them vide Annexure R­8, then, they shall be free to do so as per procedure out of the left out shops. As this Court is of the view that respondents­authorities have not performed their duty of allotment of the shops in the manner which is expected from the State, it is ordered that as from the date of entering into the agreement qua the allotment of shops in favour of petitioners, currency of which in terms of standard contract shall be five years, petitioners Prem Chand and Dhani Ram shall not be liable to pay any rent to the respondent­Society initially for a period of 12 months.

With these observations, the writ petition stands disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly. Interim orders, if any, stand vacated.