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Judgment
Petitioner has filed the present petition being aggrieved by the action of the respondents by which they have not allotted one of the shop to her despite resolution dated 22.05.2012.
According to the petitioner, she purchased half area of the shop admeasuring 7 x 14=98 sq. ft. from Gopal Jadhav by way of agreement dated 25.04.2011. Later on, the Municipal Council has decided to demolish the entire market in which 14 shops are situated with the condition that the existing occupants shall be allotted new shops on a construction price in the newly constructed shopping complex. A resolution to that effect was passed on 29.03.2012 in the case of 13 shop owners. When the petitioner did not find her name in the said resolution, she submitted a representation to the Municipal Council. The case of the petitioner was individually considered in the meeting dated 22.05.2012 and a resolution was passed that the shop be allotted to her on a construction cost of Rs.1,75,000/-. Thereafter, petitioner deposited the amount of Rs.1,75,000/- on 07.08.2012. Vide letter dated 29.08.2012 the CMO, Nagar Palika Parishad, Biaora sought instructions from the Commissioner, Directorate of Urban Administration and thereafter the petitioner approached this Court.
Despite service, respondent No.3 has not filed any return. After imposition of cost, respondents No.1 & 2 filed the return. The respondents No.1 & 2 came up with the plea that the resolution dated 22.05.2012 has been quashed by the State Govt. vide order dated 24.12.2012 in exercise of powers under section 323(2) of the Municipalities Act. It is further submitted that resolution dated 22.05.2012 has been passed in violation of rule 3 of the M.P Nagar Palika (Achal Sampati Ka Antaran) Niyam, 1996 (for short 'the Rules of 1996') , therefore, the petitioner is not entitled for allotment of the shop.
Shri Nimgaonkar, learned counsel for the petitioner submits that the petitioner has purchased half portion of the shop by agreement dated 25.04.2011 from Gopal Jadhav. Thereafter, she applied for mutation of her name in the municipal record. The Municipal Council though initially did not consider her name for allotment of the shop but later on a resolution has been passed in her favour and she deposited the amount of Rs.1,75,000/-, therefore, she is entitled for one shop in the new shopping complex.
Learned Panel Advocate appearing for the State submits that the Municipal Council cannot be compelled to allot the shop in violation of the Rules of 1996 especially when the resolution dated 22.05.2012 has been quashed by the Govt.
It is not in dispute that there was no allotment of shop in favour of the petitioner by the Municipal Council. She purchased the shop by way of an agreement from a person who was also not an allottee of the shop. She has purchased only half of the area of the shop. Even the seller i.e. Gopal Jadhav was not the original allottee. He purchased the said shop from Usman Baig. Even the Municipal Council did not recognize Gopal Jadahv as the allottee of the shop. In the resolution dated 29.03.2012, the name of widow of Usman Baig is at serial No.2 i.e. Jareena Bee. As per the municipal record, Jareena Bee is the successor of the original allottee and she has been held entitled for allotment of the shop in the new shopping complex. The name of Gopal Jadhav is also not there in the resolution dated 29.03.2012. Since the petitioner is not the original allottee, therefore, she cannot claim parity with other 13 shop owners who have allotted shops by the Municipal Council by virtue of their earlier allotment. Hence, no writ can be issued in favour of the petitioner for allotment of shop.
Shri Nimgaonkar, learned counsel submits that the petitioner has deposited an amount of Rs.1,75,000/- in compliance of the resolution passed by the Municipal Council. The State Govt. has quashed the resolution but no information was given to the petitioner. The Municipal Council ought to have returned the said amount at the relevant point of time, therefore, she is entitled for refund of the said amount with interest at the rate payable by the bank.
It is not in dispute that the petitioner has deposited an amount of Rs.1,75,000/- after passing of the resolution. The order dated 24.12.2012 was not communicated to the petitioner by the State Govt. as well as by the Municipal Council. The State Govt. filed the return on 01.03.2019 when the Court has imposed cost, therefore, the petitioner is entitled for refund of Rs.1,75,000/- along with interest at the rate of 8% per annum. In addition to above, a cost of Rs.10,000/- is also imposed on the Municipal Council for not filing the return since 2012 and not returning the amount to the petitioner.
The writ petition is dismissed with limited direction.