Tilak Raj vs Municipal Council, Hamirpur And Another

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has sought a direction that the respondents be directed to allot one shop to him in the Complex constructed around the Stadium, Hamirpur, on receipt of assessed amount of Rs.85,000/-.

The case of the petitioner is that he was running the business of selling tea, eatables etc. from a stall/rehri near the boundary wall of Taxi Stand-cum-Stadium in Ward No. 6, Hamirpur, for the last many years. The petitioner was duly authorized to hold the stall at the location from where he was running his business and he was paying an amount of Rs.200/- in this regard to the Municipal Council, Hamirpur. Alongwith the petition, he has appended as Annexure P-2 the Tehbazari tickets to demonstrate that he was paying an amount of Rs.200/- per month to the Municipal Council, Hamirpur. As per the petitioner, in the month of July, 2011, respondents requested him to remove his stall/rehri for the purpose of construction of shops around the Stadium at Hamirpur. In lieu thereof, it was agreed that respondents shall allot one of the shops proposed to be constructed around the Stadium to the petitioner. He was to be rehabilitated/relocated in the said shop on payment of construction cost of Rs.85,000/-. It is further the case of the petitioner that he deposited the said amount vide receipt dated 27.07.2011 (Annexure P-3). As per him, respondent-Council passed resolution No. 7/2011 on 14.06.2011, whereby the shops proposed to be constructed around the Stadium were to be allotted to the existing stall/rehri holders. In the month of February, 2012, petitioner came to know that the respondent-Council was not intending to make allotment of the shop to him as was agreed to by the Council earlier. The petitioner thereafter made a representation to the Sub Divisional Magistrate, Hamirpur, for allotment of one shop to him, who in turn marked his request to the Chief Executive Officer of respondent No. 1. However, vide letter dated 18.02.2012, respondent intimated the petitioner that the list of the beneficiaries stood finalized and it was not possible to accommodate the petitioner. According to the petitioner, spot verification of the stalls/rehris was done to finalize the list of allottees of the shops proposed to be constructed around the Stadium, however, as the petitioner was not present at the spot on the date of spot inspection due to illness of his mother, the amount earlier deposited by him was returned to him vide cheque No. 025306, dated 27.09.2011, after a lapse of about two months. The petitioner again represented to the Sub Divisional Magistrate, Hamirpur, vide annexure P-5. He also approached the Executive Officer of respondent No. 1, but he was informed that as the list of beneficiaries stood finalized, the petitioner could not be accommodated. Thereafter, the petitioner also made a representation to the Deputy Commissioner (Annexure P-6), but he was again informed vide Annexure P-7 dated 03.05.2012 that as the list of beneficiaries stood finalized, the petitioner could not be accommodated. The petitioner filed a civil suit bearing No. 48 of 2012 in the Court of learned Civil Judge (Senior Division), Court No. 1, Hamirpur, for a decree of permanent prohibitory injunction restraining the respondents from making allotment of shops around the Stadium, and in case, the allotment stood made, then, for a decree of mandatory injunction directing the respondents to make allotment of one shop in his favour also. Alongwith the civil suit, an application for interim relief was also filed. Though initially, interim relief was granted in favour of the petitioner, however, the suit was subsequently withdrawn by the petitioner, with liberty to seek appropriate remedy for the redressal of his grievance. It is in this background that the present petition stood filed by the petitioner praying for the relief already mentioned hereinabove. As per the petitioners, denial of the shop to him by respondents is bad in law as the stall/rehri was vacated by him in lieu of the clear understanding that one shop was to be allotted to the petitioner on the payment of construction cost of Rs.85,000/- and despite the fact that he duly deposited the said amount, no shop was allotted to him and money was also subsequently returned to him, which act of the respondent-Council, according to the petitioner, is arbitrary as other persons similarly situated as the petitioner were accommodated and the petitioner has been wrongly denied the allotment of the shop.

The petition is opposed by the respondent-Council inter alia on the ground that the sole authority for the purpose of shop allotment was with the Committee of the Society for Promotion of Sports, Culture, Education and other Developmental Activities, which was a society registered under Himachal Pradesh Societies Registration Act 2006 to be headed by Deputy Commissioner, Hamirpur. It is further the case of said respondent that the allotment of the shops was the sole prerogative of the society and the replying respondent had no major role in the allotment of the shops. As per said respondent, meeting of the society was held on 17.09.2012 to finalize the criteria of allotment of shops, and it was unanimously decided that allotments were to be made to the persons who had been displaced from the places where the shops stood constructed. This was subject to the condition that allotments were to be made to the bonafide residents of Himachal Pradesh and only to one person of a family and not to both husband and wife simultaneously. The shopping complex was constructed by Himachal Pradesh Public Works Department, Hamirpur, and replying respondent was only a member of the society and it was the society, which was having the authority to take decisions for allotment of the shops. On the directions of the Deputy Commissioner, Sub Divisional Magistrate alongwith revenue officials had visited the spot where shopping complex was to be constructed to finalize the list of beneficiaries. The petitioner was not found carrying out any business on the spot and the Sub Divisional Magistrate verbally directed the replying respondent to remove his name from the list of beneficiaries. The name of the petitioner was initially added in the list on account of his depositing a sum of Rs.85,000/-, which was thereafter refunded to him. As per the said respondent, at the time of spot inspection, neither the petitioner nor any rehri was found in the planning area, i.e. Taxi Stand-cum-Stadium to be run by the petitioner and as the petitioner was not found eligible to be included in the list of beneficiaries, his name was therefore rightly ordered to be removed from the said list.

During the pendency of this petition, an application under Order 1, Rule 10 of the Code of Civil Procedure was moved by the petitioner for impleadment of Committee of the Society for Promotion of Sports, Culture, Education and other Developmental Activities, through Deputy Commissioner, Hamirpur, as respondent No. 2, which was allowed by this Court vide order dated 24.12.2019.

The stand of respondent No. 2 before this Court is that the meeting of the Committee was held on 23.05.2018 in compliance to the order passed by this Court dated 10.05.2018 in CWP No. 10874 of 2012, titled as Balbir Chand & others vs. State of HP and others, for an amicable settlement. In this meeting, the petitioner outrightly declined the offer for allotment of one shop on the top floor of the complex and further a second round of deliberation was held, wherein the petitioner came forth with a written demand to settle the dispute if he was allotted two shops on the ground floor. Another attempt was made wherein it was proposed that the spot be visited alongwith the petitioner to settle the dispute by allotting him a single shop, but in spite of that, the petitioner remained adamant for allotment of two shops. It is further the stand of the said respondent that as the petitioner was not found eligible for allotment of shop in the new complex as he was not running any business within the planning area, nor he was displaced on account of construction of the shops, therefore, his name was rightly removed from the list of beneficiaries and simply because the petitioner deposited some amount, the same could not entitle him for the allotment of the shop. It is further the stand of respondent No. 2 that the construction of the shops was done in the larger interest of public and the process of allotment was done by following due process of law in terms of the eligibility criteria.

By way of rejoinder, which has been filed by the petitioner to the replies filed by the respondents, he has reiterated his case and denied the stand of the respondents.

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

The case of the petitioner in a nutshell is that he was running a stall/rehri at a place whereupon respondents proposed to construct a Sports Complex and the petitioner was called upon to vacate the spot alongwith other such persons so that the place could be utilized for the construction of the sports complex. It is further the case of the petitioner that he was assured that in lieu of vacation of the place, he will be allotted a shop in the complex proposed to be constructed on his depositing a sum of Rs.85,000/-, which amount was duly paid by him but despite this, his name was arbitrarily removed from the list of beneficiaries and the said amount was returned to him despite the fact that he was eligible for allotment of the shops.

The case of the petitioner that he was eligible for allotment of the shop has been denied by both the respondents. In my considered view, the onus to prove that the petitioner was entitled for allotment of the shop was upon him, who failed to rebut, by placing any cogent material on record, the stand of the respondents, that the petitioner was not found running any business in the planning area. Incidentally, it is the admitted case of the parties that the planning area was visited by Sub Divisional Magistrate alongwith other revenue officers/officials on the direction of the Deputy Commissioner, Hamirpur and during the site inspection, the petitioner was not found running any business at the spot. Though, the petitioner has tried to explain it by saying that he was not present at the spot on the relevant date on account of illness of his mother but except bald assertions so made in the petition, no material has been placed on record by the petitioner to prove this fact. In this background, it is difficult to believe that the petitioner was in fact eligible for the allotment of the shop and that his name was arbitrarily removed from the list of beneficiaries. The Court concurs with the stand taken by the respondents that as the petitioner was not eligible for allotment of the shop, therefore, by simply paying the amount of Rs.85,000/-, no indefeasible right has accrued upon him for allotment of the shop. As far as placing on record the Tehbazari receipts is concerned, in my considered view, this will also not improve the case of the petitioner for the simple reason that from the said receipts, it is not clear that the petitioner was running any business/stall etc. in the planning area.

Incidentally, in the reply which has been filed by respondent No. 2, said respondent has taken a specific stand that the petitioner was offered a shop on the top floor, which he refused to take despite repeated endeavours made in this regard by the said respondent. According to respondent No. 2, the petitioner was insisting upon for allotment of two shops on the ground floor. Be that as it may, though this Court does not finds any merit in the present petition so as to issue a writ of mandamus directing the respondents to offer a shop to the petitioner by holding that the petitioner was wrongly excluded from the list of beneficiaries, yet, keeping in view the stand taken by respondent No. 2, this writ petition is disposed of with the observation that in the event of some shops being still vacant with respondent No. 2, one of the shops be offered to the petitioner within 15 days from today, on same terms on which shops were offered to other persons, and in case the petitioner accepts such offer within 15 days of the receipt of offer, then, appropriate agreement etc. in this regard be entered into with him. It is further clarified that in case the petitioner does not agrees to the offer of allotment of the shop, then, respondent No. 2 shall be at liberty to deal with the vacant shop(s) in such manner as it deems fit.

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