Suresh Kumar Moolchandani vs Municipal Council

Sanjay Yadav, J.—Heard. Petitioner seeks direction for refund of Rs. 1,30,000/- with interest @ 12% per annum from 30.12.2012, as also refund of Rs. 1,704/- charged towards occupation charges.

The background facts are that in pursuance to a unanimous decision taken in a meeting held on 28.07.2011 between the shopkeepers of the Sarni and the Chief Executive Officer, Nagar Parishad Bhamani Banjar, that the shopkeepers shall vacate the premises to facilitate construction of new shopping complex in Nagar Parishad, the shopkeepers on entering into with agreement will each be allotted the shops for which they will have to deposit Rs. 60,000/- for bigger shop and Rs. 30,000/- for small shop towards their share. However, no agreement to that effect was entered into.

That, on completion of the new shopping complex petitioner, one of the old shopkeeper, entered in correspondence with Nagar Parishad for allotment of shops as per decision taken on 28.07.2011, whereon vide communication dated 18.05.2012 he was informed that on completion of work steps would be taken for allotment.

Thereafter, Nagar Parishad vide resolution No. 7 passed in general body meeting held on 18.10.2012 decided to allot shops to eleven shopkeepers, including the petitioner, by charging the construction cost (excluding the cost of land) after entering into agreement. The petitioner was informed vide communication dated 26.10.2012 to deposit Rs. 1,90,000/- in lieu of shop No. 21 allotted to him. The petitioner deposited the amount on 30.10.2012. However, he also raised the objection and called upon the Nagar Parishad to charge only Rs. 60,000/- as was decided in the meeting held on 28.07.2011. Finding no solace present petition is preferred for direction for refund of Rs. 1,30,000/- being the amount of difference alongwith interest. Refund of Rs. 1740/- is also being sought as for the period from 28.07.2011 till allotment of shop he was charged towards occupation charges of the space permitted to be occupied to carry out trade.

The respondent on being noticed has denied the claim. It is stated that there was no concluded contract as to the rate on which the shop in question could be allotted. It is urged that since the petitioner and the shopkeepers were old occupants and had facilitated the construction of a new shopping complex, they were accommodated by only charging the amount towards cost of construction, excluding the price of land. It is urged that there is no illegality committed by the Nagar Parishad.

Considered the rival submissions.

The issue is whether in absence of a concluded contract regarding rate/cost the Nagar Parishad, a body corporate can be bound by the alleged settlement arrived at between the petitioner and the Chief Executive Officer as to the rate/cost on which the shops are to be allotted.

That, being a body corporate constituted under the M.P. Municipalities Act, 1961, the respondent is bound by the provisions of the Act. Section 109 whereof lays down the provisions of governing the disposal of Municipal property vesting in or under the management of council. Sub-section (1) whereof stipulates that no streets, lands, public places, drains or irrigation channels shall be sold, leased or otherwise alienated, same in accordance with such rules as may be made in this behalf. The Rules which are framed in this count are the Madhya Pradesh Municipalities (Transfer of Immovable Property) Rules, 1996, by the State Government in exercise of powers conferred by Section 355 read with Section 109 of 1961 Act.

Rule 3 of Rules, 1996 prohibit transfer of immovable property by sale or lease or otherwise conveyed except to the highest bidder at a public auction or offer in a sealed cover. The Rules nowhere provide that the transfer of the immovable property which yields or is capable of yielding an income could be by a private treaty as in the instant case, however the Rules lays down the procedure as to reservation of shops in favour of Scheduled Castes and Scheduled Tribes, Other Backward Classes, for widows and abandoned women, handicapped persons with preference to visually challenged, for retired members of defence services, for freedom fighters, for educated unemployed and for ladies.

Furthermore, detail procedure has been laid down as to the manner in which the shop could be allotted.

In the case at hand, since no procedure as laid down in the statute has been shown to have been adhered to, no right has accrued in favour of person like petitioner as would lead this Court to acknowledge the petitioner and the like as lawful occupier of the shop in question as would lead to an issuance of mandamus in favour of the petitioner. In view whereof, petition fails and is dismissed. No costs.