1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) D.B. Civil Special Appeal No.988/07 Vijay Kumar vs. Municipal Council, Sriganganagar against the order dated 1.10.2007 passed in S.B. Civil Review Petition No.623/2007 (2) D.B. Civil Special Appeal No.989/07 Kamal Kumar vs. Municipal Council, Sriganganagar against the order dated 1.10.2007 passed in S.B. Civil Review Petition No.656/2007,under Rule 134 of the Rajasthan High Court Rules, 1951 read with Article 225 of the Constitution of India, both arising from the order dated 13.10.2006 passed by the learned Single Judge in S.B.Civil Writ Petitions N0s.5190/93 and 5264/93. Date of Judgment: March 5th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr. Vinit Kumar Mathur for the appellant. Mr. Yaswant Mehta for the respondent.. ... BY THE COURT( Per Hon'ble Mr.Tatia,J): Two Writ Petition Nos. 5190/93 and 5264/93 were decided by the learned Single Judge of this Court vide order dated 13.10.2006. So far as the claim of the petitioners that they 2 purchased the shops of Municipal Council, Sriganganagar in public auction in the year 1976 and respondent Municipal Council could not give possession of those shops to the petitioners and further did not give other shops in lieu of those shops inspite of Municipal Council's resolution dated 22.12.1992, therefore, the petitioners in above two writ petitions are entitled to direction for giving other shops to the petitioners, is concerned, that was found just and legal by the learned Single Judge after holding that the petitioners who are victims of the mistake committed by the Municipal Council cannot be penalized. However, while granting relief to the petitioner of giving alternate property of the same size, i.e. 450 sq.ft. (in each writ petition), the learned Single Judge directed the Municipal Council, Sriganganagar to allot the petitioners one shop each of size 10ft. x 15ft. out of available shops near the Maternity Hospital, Sriganganagar in lieu of the shops which were purchased by the petitioners and that too on payment of difference amount of market price of two properties. The grievance of the petitioners is that the area of the shops which this Court directed to allot to the petitioners, is much less than the area of the shops which were purchased by the petitioners as back as in the year 1976 and the petitioners paid the 3 full cost for the shops of the size of 450 sq.ft.. The petitioners' other grievance is that the respondent Municipal Council is allowed to charge the difference of market price of shops to be allotted to the petitioners and the present market price of old shops. The contention of the learned counsel for the petitioners is that the petitioners cannot be saddled with higher cost of the property when the entire cost of the property has already been taken by the Municipal Council from the petitioners in the year 1976, that too, without giving property. Then Municipal property remained the property of Municipal Council and full market value of the said property was also remained with the Municipal Council and the petitioners were deprived from their money equivalent to price of property and property both, by now, for more than thirty years. The learned counsel for the petitioners relied upon the two judgments of this Court reported in the cases of Hanuman Prasad v. Rajasthan Housing Board (1994(1) WLC (Raj.) 255) and Dungar Das v. State of Rajasthan & ors. ( 2005(7) RDD 2617(Raj.). The learned counsel for the respondent-Municipal Council, Sriganganagar vehemently submitted that it is not in dispute that the shops were purchased by the petitioners in public auction in the year 1976 but they purchased the shops with open eyes and, 4 therefore, the petitioners were knowing the nature of the property which was put to auction. The learned counsel for the respondent Municipal Council further submitted that the petitioners approached this Court by filing the writ petitions in the year 1993 and, therefore, the petitioners are also guilty of pursuing their remedy after delay. We considered the submissions of the learned counsel for the parties and perused the facts of the case. There is no dispute with respect to this fact that the petitioners gave highest bid for purchasing the shops in the public auction conducted by the Municipal Council, Sriganganagar as back as in the year 1976.The auction was for setting up of the shops in the new Sabji Mandi, Old Abadi, Sriganganagar. The petitioners paid the entire auction amount by the year 1976-1977 but admittedly, the possession of the shops were not delivered to the petitioners by the Municipal Council-respondent. The petitioners were pursuing their remedy and ultimately the Municipal Council itself passed the resolution dated 22.12.1992 to give three shops having nos. 1,2 and 3 to the petitioner of Writ Petition No.5264/93 and shops nos. 8,9 and 10 each measuring 10ft. X 15 ft. Therefore, upto 1992 the Municipal Council itself was ready to 5 give the petitioners the shops having total 450 sq.ft.,i.e. equal to the petitioners' original purchased shops' area. Then how the Municipal Council can now reduce the size of the shops ? Once it has been held in the impugned judgment passed by the learned Single Judge that the petitioner is entitled to get different shops as the Municipal Council failed to give the original shop because of their fault and the petitioners cannot be penalized for the fault of the Municipal Council, then depriving the petitioners from 300 sq.ft. of area of commercial property (shops) in each writ petition amounts to penalizing the petitioner for none of their fault. Therefore, it is held that the petitioners are entitled to get shops of total size 450 sq.ft. We may again reiterate that the petitioners' claim was never denied by the Municipal Council and till 22.12.1992 the Municipal Council was ready to accept the claim of the petitioners but could not accept the claim of the petitioners only because of the reason that the State Government did not approve the resolution of the Municipal Council, rather say, the State Government set aside the resolution of the Municipal Council. We do not find any lawful reason on the basis of which the petitioners could have been denied the alternate shops if the property which was put to 6 auction by the Municipal Council and for which the petitioners were found successful bidders and the Municipal Council accepted the entire cost of the property auctioned in the year 1976-77 and accepted the petitioners' claim till 1992, i.e. upto December, 1992. Thereafter, the petitioners writ petitions have been allowed by this Court by impugned order and no appeal has been preferred against the impugned judgment by the Municipal Council and by now, more than an year has already passed, therefore, now the respondent cannot take a plea that the petitioners did not challenge the order of the State Government for setting aside resolution dated 22.12.1992, as respondents in the appeal. The change of location is not due to demand of the petitioners but it is due to compulsion and that was due to fact that the respondent Municipal Council sold the property which could not have been sold and that fact was in the knowledge of respondent. Further, there is no material available on record by which it can be found that an area which was found fit for establishing Sabji Mandi in the year 1976, can be an area of less importance than the area in which the new shops are to be given to the petitioners. If we see any equity in favour of the Municipal Council due to rise in price of the property then we virtually 7 ignoring the true facts of deprivation to the petitioners of not only of their property for 30 years but of the profits arising out from that property including loss of their business or at least loss of mesne profits which they could have earned in 30 years. What the Municipal Council looses in this transaction ? They got the cost of the land in total as well as their property with them for thirty years. Further, the petitioners paid the market value of the shops as they purchased the original shops in public auction. Meaning thereby that they paid the cost of clear property, without having defect ( under wrong presumption). Admittedly, there was defect in property then today also if the market value of the property at New Sabji Mandi area is less then it is due to some defect in the property and, therefore, fetching of less amount in open market of those property cannot be actual market value of the clear property and, consequently cannot be the price equivalent to the value which petitioners paid for the properties. The Division Bench of this Court had occasion to consider some what similar controversy in the case of Urban Improvement Trust, Jodhpur v. Laxmi Chand Bhandari ( AIR 1992 Raj. 153). In that case the Division Bench of this Court directed the Urban 8 Improvement Trust, Jodhpur to allot the plot in another scheme of the Urban Improvement Trust of the same size to the petitioner and permitted the Urban Improvement Trust to charge prevalent market price for the excess area of the plot. In the present case, the petitioners are not asking for allotment of any excess land and they are not being asked to pay the difference in the market price of two properties on this count. The petitioners are entitled to be alloted the shops as directed in the impugned judgments out of the shops available near the Maternity Hospital, Sriganganagar without charging any extra amount and further the Municipal Council may allot the land or other shops to the petitioners of equal importance to make total area equal to originally allotted shops at another place if shops are not available near the Maternity Hospital, Sriganganagar. Both the appeals of the appellants are allowed, accordingly and the impugned judgments are modified to the extent mentioned above. No order as to costs. ( BHANWAROO KHAN) ,J. (PRAKASH TATIA),J. mlt.