Umesh Kumar vs State Of Chhattisgarh

Heard Mr. Rajeev Shrivastava, learned senior counsel assisted by Mr. Sourabh Sahu, learned counsel for the appellants. Also heard Ms. Astha Shukla, learned Government Advocate, appearing for respondent Nos. 1 & 2, Dr. Sudeep Agrawal, learned counsel, appearing for respondent No. 3 and Mr. F.S. Khare, learned counsel, appearing for respondent No.4 & 6. Note of the Registry indicates that respondent No.5 is served. None appears for respondent No.5, who was one of the writ petitioners along with present respondent Nos. 4 & 6.

I.A. No. 02 of 2022 is an application for condonation of delay of 39 days in preferring the connected appeal against the order dated 04.07.2022 passed by the learned Single Judge in WP(C) No. 143 of 2021.

This application is not opposed by the learned counsel, appearing for the respondents.

Delay is condoned. I.A. No. 02 of 2022 is allowed and disposed of.

I.A. No. 03 of 2022 is an application seeking leave to appeal against the order dated 04.07.2022.

In the order dated 30.09.2022 of this Court, it was observed as follows :

“………….. Mr. Shrivastava submits that Nagar Panchayat, Pandariya had allotted 9 shops to the appellants as well as their predecessors-in- interest. In WPC No. 2192 of 2012, the orders of allotment were set aside and the Nagar Panchayat, Pandariya was left at liberty to seek post-facto approval for grant of such allotment. The Nagar Panchayat, Pandariya forwarded proposal to the State Government for grant of post-facto approval, which is still pending consideration and as the same was under consideration, the appellants continue to remain in possession of the shops.

While the matter rested at that, the writ petition, out of which present appeal arises, was filed without arraying the appellants as party respondents.

It is submitted by Mr. Shrivastava that by the order impugned, the learned Single Judge, taking a view that the shops are lying vacant, though materials on record demonstrated that the appellants are in possession, directed to re-do the entire exercise of allotment of shops to the detriment of the appellants. It is submitted by him that the appellants are necessary parties, and therefore, on the ground of violation of principles of natural justice alone, the impugned order is liable to be set aside………..”

On that date, this Court had also passed an interim order providing that till the next dated fixed i.e. 23.11.2022, the order of learned Single Judge shall remain suspended and status quo with regard to the shops in question as on that date would be maintained. The interim order was continued on 23.11.2022, while directing listing of the case today.

Having regard to the submissions recorded in the order dated 30.09.2022, which are reiterated by Mr. Shrivastava, I.A. No. 03 of 2022 is allowed. Leave to appeal is granted.

We have also heard the learned counsel for the parties on admission of the writ appeal.

The present appellants either themselves or through their predecessors-in-interest, were respondent Nos. 4 to 12 in the WP(C) No. 2192 of 2012, which was allowed by an order dated 25.06.2014. The petitioners therein made prayer for quashing of the decision and allotment made by the Nagar Panchayat, Pandariya on 22.05.2012 in favour of the said respondent Nos. 4 to 12 and for re-consideration of the application for allotment made by the writ petitioners.

The learned Single Judge, in the order dated 25.06.2014, opined that the matter of allotment of shops in favour of the said respondent Nos. 4 to 12 have been made in utter violation of mandatory provision contained in Rule 3 of the Chhattisgarh Municipalities (Transfer of Immovable Property) Rules, 1996, hereinafter referred to as “the Rules of 1996”. The learned Single Judge observed that the procedure for allotment adopted by the Nagar Panchayat could neither be said to be by way of public auction nor by way of invitation of offers in sealed covers. It was also observed that proviso to Rule 3 of the Rules of 1996 carves out an exception to the effect that where the Panchayat proceeds to transfer property without holding public auction or inviting offers in sealed covers, then that is permissible only with the previous sanction of the State Government. A finding was recorded that there was no material on record to establish that the respondent Nagar Panchayat obtained previous sanction of the State Government before issuing orders of allotment in favour of the said respondent Nos. 4 to 12. Accordingly, at paragraph 17, it was observed as follows :

“17. In the result, the petition is allowed. The decision taken by respondent-Nagar Panchayat and allotment made on 22.5.2012 in favour of respondents No. 4 to 12 are declared illegal and hereby set aside. Though liberty is reserved to the Nagar Panchayat to send the proposal for sanction to the State Govt., whereupon the State Govt. shall examine the proposal on all aspects of requirement of procedure laid down under the law including other aspects referred to hereinabove. If the State Govt. approves the proposal, it would be open for the petitioners to challenge the decision in accordance with law. No orders as to costs.

The learned Single, in the order dated 04.07.2022 passed in WP(C) No. 143 of 2021, at paragraphs 6 and 7 had observed as follows:

“6. Undoubtedly, the petitioners herein in terms of the policy at the relevant point of time were to be given a preferential treatment so far as the allotment of shop is concerned. From the time of the earlier allotment, which has been quashed by the High Court, till now it is more than 10 years time. The shops have already been constructed and it is lying unused and the respondent No.3 also have not been able to rip the fruits of the said shop after they were to be given on rent. Now more than a decades time has since elapsed and down the line the market value of that property also has risen up considerable.

Given the entire facts and circumstances of the case to put an end to the dispute in the present writ petition, this Court in the interest of justice is of the opinion and view that ends of justice would meet if the respondent No.3 is directed to re-do the whole proceedings so far as the allotment of shops on the Kawardha road is concerned afresh at today's market value/rate as the case may be. While deciding the same, it would be left for the respondent No.3 to ensure that the petitioners who were displaced at one point of time from the place where the shopping complex has been constructed, as to how they can be provided with the preferential treatment and by providing the same the entire proceedings be concluded at the earliest within an outer limit of 3 months from the date of receipt of the copy of this order.”

Though it is contended by Mr. Shrivastava that as in the order dated 26.06.2014 passed in WPC No. 2192 of 2012 liberty was reserved to the Nagar Panchayat to send the proposal for grant of sanction to the State Government, the present appellants (respondent Nos. 4 to 12 in WPC No.2192 of 2012) continued to remain in possession, we are surprised as to how the present appellants or the predecessors-in-interest could have been allowed to continue to occupy the shops in question. In clear terms, in the order dated 25.06.2014 passed in WPC No. 2192 of 2012, it was held that the allotments made in favour of the present appellants (respondent Nos. 4 to 12 therein) are illegal and consequently, such allotments were set aside. There was no existing allotment permitting the present appellants to continue to occupy the shops in question. What is further intriguing is that Nagar Panchayat, Pandariya submitted the proposal after remaining in deep slumber for seven years as the proposal was submitted on 11.02.2021. There appears to be some complicity of the authorities of the Nagar Panchayat, Pandariya. The illegality cannot be perpetuated. Therefore, the appellants are directed to vacate the premises within a period of 30 days from today. However, after such vacation, the said shops shall not be allotted till a decision is rendered by the State Government in terms of the order dated 25.06.2014 passed in WP(C) No. 2192 of 2012.

The learned Single Judge had an erroneous impression that the shops are lying unused. It is another matter that occupation of such shops by the present appellants is wholly unauthorized having regard to the order dated 25.06.2014 passed in WP(C) No. 2192 of 2012. But, what cannot be brushed aside is the fact that there was an order in WP(C) No. 2192 of 2012 giving liberty to the Nagar Panchayat to move a proposal for grant of approval for the allotments made on 22.05.2012. The said order having not been set aside in any forum, it would be impermissible, at this juncture, to permit the Nagar Panchayat to re-do the exercise as ordered by the learned Single Judge by the order dated 04.07.2022 passed in WP(C) No. 143 of 2021.

Considering the matter in its entirety, the order dated 04.07.2022 passed in WP(C) No. 143 of 2021 is set aside. The State authorities, to whom the proposal is sent by the Nagar Panchayat, shall take a decision within a period of six weeks from today in the light of the order dated 25.06.2014 passed in WP(C) No. 2192 of 2012 and pass appropriate orders. Thereafter, the authorities will take such further consequential steps as may be considered necessary.

The writ appeal is allowed to the extent indicated above.