Sachin vs Malay Shrivastava Ji

These contempt petitions have been filed for non compliance of order dated 08.11.2016 passed in Writ Appeal No.220/2016 and 268/2017. Relevant

portion of the order dated 08.11.2016 is reproduced below:

“ 16. It is not in dispute that the resolution dated 23.7.2005 was passed by the Municipal Council Committee, Barwani, for construction of shops

after removing the 'Gumtis' of the encroachers and assurance to them that if they remove their 'Gumtis' and handover the vacant possession to the

Municipal Council then, after construction of the shopping complex, one shop will be allotted to each of the encroacher on actual cost of construction

on lease at the rent of Rs.500/- per month. The Municipal Council provided document to the appellants under the Right to Information Act, 2005. From

the aforesaid document, it is not in dispute that list was prepared by the Municipal Council and as per list, names of all the appellants are there and

each of them have deposited Rs.25,000/- before the Municipal Council for allotment of shops, but Municipal Council contrary to the resolution instead

of allotting the shops to the appellants who are ward of the encroachers decided to allot the shops through public auction. This action of the Municipal

Council is contrary to their own resolution. It is also not in dispute that on the basis of same resolution some of the encroachers have already been

allotted the shops and they are running their shops over the complex in question and, therefore, the appellants are also entitled for the same treatment.

There is no illegality or fraud if we extend the benefit or asked the Municipal Council to extend the same benefit to the appellants. It is not the case of

the Municipal Council that they have committed any illegality for allotting the shops to the encroachers because on the basis of assurance given by the

Municipal Council, the encroachers have removed their 'Gumtis' and handed over the vacant possession of the 'Gumti' to the Municipal Council and if

this promise would have not been given by the Municipal Council in the year 2005, then they could not have removed their 'Gumtis' nor they could

have handed over the possession of the land in question and vacant possession to the Municipal Council, in that situation, the Municipal Council has to

take appropriate legal action against them. Now it would not be open to the Municipal Corporation, Barwani to contend that allotment would be illegal.

The respondents No.2 and 3 are estopped from same that the resolution dated 23.7.2005 cannot be given effect to. Undisputedly, the resolution has

been acted upon, number of encroachers have been allotted the shops after depositing the actual construction cost of shops on lease. The respondents

No.2 and 3 proceeded on the basis that the said resolution were binding on them, it, therefore, does not lie in mouth of the respondent Municipal

Council. Now at this stage, to contend that the same cannot be given effect to. The appellants having a right to get similar treatment and benefits. The

Municipal Council cannot approbate or reprobate at the same time. The resolution dated 23.7.2005 is binding on them.

17 For these reasons, we are inclined to allow the writ appeals and set aside the order passed by the writ court. Accordingly, order dated 6.5.2015

passed in W.P.No.8174/2014, is set aside and the appeals filed by the appellants are allowed.

The Collector, Barwani before whom number of representations were made by the appellants on public hearing is directed to examine the original

record of the Municipal Council, Barwani regarding the list prepared by the Municipal Council and deposits made by the appellants and after

identification of the appellants, the shops be allotted to them by the Municipal Council on lease in accordance with the policy framed by the Municipal

Council, Barwani and after allotting the shops to the appellants rest of the shops be disposed of by public auction, so that Municipal Council may fetch

market value of the shops. Out of Rs.1,40,000/- only Rs.25,000/- has been deposited by each of the appellant and, therefore, Municipal Council is

entitled for simple interest @ 7% till the appellants deposit the rest of the amount.

The grievance of the present petitioners are that they were having their “Gumtis' over the land where the Municipal Council has constructed 36

shops after removing their 'Gumits'. They applied for allotment of shops (Gumits) and also deposited the amount. The petitioners had preferred writ

petitions, which were dismissed. Against the aforesaid order they filed two writ appeal in which the Division Bench of this Court has very

categorically directed to the Collector Barwani to examine the original records of the Municipal Council, Barwani and take appropriate steps regarding

allotment of shops to the present petitioners. As no shops were allotted to them, therefore, they filed present contempt petitions.

After issuance of notice, reply has been filed on behalf of the Collector, Barwani as well as Chief Municipal Officer, who at that relevant point of time

was posted at Barwani. As per the reply, it is not disputed that petitioners were also applied for grant of shops, out of total 36 shops constructed by the

Municipal Council only 24 shops were allotted and present petitioners have not been allotted shops.

Learned counsel for the petitioners submitted that petitioners have applied for relevant documents under Right to information Act. As per documents

obtained under Right to Information, petitioners 'Gumtis' were also demolished and thereafter shops were constructed. Petitioners applied for grant of

shops but they have not been allotted.

On due consideration of the aforesaid so also the fact the order passed in writ appeal has attained finality and as no special leave petition has been

filed by the respondent before the Hon'ble Supreme Court and therefore we direct the Collector, Barwani to consider the applications of petitioners for

allotment of shops and allot the shops to the petitioners within a period of 6 weeks from the date of filing certified copy of the order, failing which each

of the petitioners will get cost of Rs. 25,000/- and same shall be paid by Collector, Barwani and Chief Municipal Officer, Barwani.

Compliance report alongwith affidavit regarding allotment of shops to the petitioners be filed before Principal Registrar of this Court, within a period of

6 weeks from today.

With the aforesaid direction the contempt Case No.443/2017 and 467/2017 stand disposed of.