: .:•."" <S>1 ^ ^' ry-T^^G ctji-d, AMSNDED PETITION IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR W.P. N0. 5999/2005 PETITIONERS :1, ^ 3^/{^ ^p,.<i»....;......----f^^!>, bytNi—^^^i^ J[) R.toA-B.^ 11^^7^ 4r/^$ ^ i ^xo ^EO•9°^ \r '^ ^.G 'B^SPU" Hasan Khan S/o. Late Rashid Khan, aged about 35 years, R/o. Maszid Para, Ward No. 9, Gandai, Distrct- Rajnandgaon (C.G.) Jahid Khan, S/o. Late Rashid Khan, aged about 28 years, R/o. Maszid Para, Ward No. 9, Gandai, Distrct Rajnandgaon (C.G.) Jagendra Soni, S/o. Late Dhanush Soni, aged about 45 years, R/o. Devkinagar, Ward No. 7, Gandai, District Rajnandgaon (C.G.) Vijay Kumar Bajaj, S/o. Dula Ram Bajaj S/o. Dula Ram Bajaj, aged about 38 years, R/o. Panka Para, Ward No. 10, Gandai, District- Rajnandgaon Rafiq Khan S/o. Late Bahal Khan, aged about 42 years, R/o. Maszid Para, Ward No. 10, Gandai, District Rajnandgaon. Imamuddin Khan S/o. Late Gafur Khan, aged about 50 years, R/o. Kopebhata, Ward No. 7, Gandai, District- Rajnandgaon. SSES^SW —^~ J ( ^ 4 AMENDED PETITION 7. Basant Kumar S/o. Late Daya Ram, aged about 50 years, R/o. Panka Para, Ward No. 10, Gandai, District- Rajnandgaon. 8. Ashok Kumar S/o. Nanak Ram, aged about 38 years, R/o. Panka Para, Ward No. 10, Gandai, District Rajnandgaon. 9. Niyazuddin S/o. Late Ali Baksh, aged about 48 years, R/o. Mahara Para, Ward No. 7, Gandai, District- Rajnandgaon. 10. Umar Daraj Khan S/o. Late Lal Khan, aged about 65 years, Maszid Para, Ward No. 10, Gandai, District Rajnandgaon. 11. Inayat Khan S/o. Umar Daraj Khan, aged about 35 years, R/o. Maszid Para, Ward No. 10, Gandai, District- Rajnandgaon. 12. Shiv Kumar Dewangan S/o. Jagdish Dewangan, aged about 30 years, R/o. Tikri Para, Ward No. 13, Gandai, District- Rajnandgaon. 13. Ibrahim Khan S/o. Umar Daraj Khan, aged about 45 years, R/o. Maszid Para, Ward No. 10, Gandai, District- Rajnandgaon. ^ ^—•-.s:&-^^-v:^!- AMENDED PETITION Ko RESPQNDENTS 14. Kalumal S/o. Late Mal, aged about 30 years, R/o. Panka Para, Ward No. 10, Gandai, District Rajnandgaon. (The shop in question was allotted to the father of the Petitioner Shri Rijhu Mal, but as he has expired, the Petitioner being a son is occupation of the shop and is filing the present petition). VERSUS : 1. State of Chhattisgarh, through the Secretary, Panchayat Evam Gramin Vikas Vibhag, DKS Bhawan, Raipur (C.G.) 2. The Nagar Panchayat Gandai, District Rajnandgaon, through it's Chief Executive Officer, Nagar Panchayat, Gandai, District- Rajnandgaon (C.G.) 3. State of Chhattisgarh Through- Secretary, Urban Administration & Welfare Department, D.K.S. Bhawan, Raipur WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. W. P.NO.5999/2005 Petitioners Respondents Hasan Khan and Others Versus State of Chhattisgarh and Others (Writ Petition under Article 226/227 of the Constitution of India) Present: - Shri Anup Majumdar, counsel for the petitioners. Shri V. V. S. Murthy, Deputy Advocate General along with Shri Surya Kant ^VIishra, Panel Lawyer for the State/respondents No.1 & 3. Shri RahulJha,counsel for respondent No.2. ORAL ORDER (Passedon 07-03-2011) The petitioners h&ve approached this Court by filing the present petition under Article 226 of the Constitution of India aggrieved by notice dated 05-11- 2005 (Annexure P-8) issued by the second respondent, by which, the newly constructed shops of Hasan lane have been put to auction. The petitioners have also sought quashing of order dated 21-09-2005 (Annexure R-2/6) passed by the State Government. 2. The facts, which are relevant for decision of the controversy involved in the petition, are that the petitioners were operating small shops/Gumtis and running their business on the land belonging to the then existing Gram Panchayat, which has now become Nagar Panchayat, Gandai. Case of the petitioners is that the petitioners were carrying out their business in those Gumtis for the last 20 years. In the year 2003-2004, the Nagar Panchayat, Gandai resolved to construct permanent shops in place of Gumtis and it also resolved to settle the petitioners in the newly constructed shops. The petitioners were given notice vide Annexure P-1 to vacate the Gumtis, which they were occupying and •\ •% '^ '%^..!sy ^K. also the space to pave way for construction of shops. Acting on the representations so made by the Nagar Panchayat that upon construction of newly constructed shops, the petitioners would be allotted those shops, they vacated their respective spaces, where they were running their business in order to facilitate the construction of shops. After shops were constructed, the petitioners were issued individual notices collectively filed as Annexure P-5, by which, they were informed that the Nagar Panchayat has resolved to settle the petitioners and upon deposit of the balance amount of premium, to facilitate registration of shop in their favour. It is also the case of the petitioners that against the fixed price worked out on account of cost incurred in construction of shops, a part of the amount was already deposited by each of them as indicated in the respective notice (Annexure P-5) issued to the petitioners. The petitioners were required to deposit the balance amount of premium and get the registration of shops done in their favour. The petitioners have placed on record some ofthe receipts showing deposit of the amount by the petitioners in favour of the Nagar Panchayat. The same has been indicated in a detailed chart showing the amount of premium deposited by each of the petitioners in respect of the shops. Further case of the petitioners is that after shops were constructed, they were also given possession of their shops. However, when the petitioners approached the office of the respondent- Nagar Panchayat to deposit the balance amount, then they were informed that the balance deposit shall not be taken and information given to the petitioners vide letter dated 11-11-2004 (Annexure P-6) indicated that the further proceedings pursuant to letter dated 08-11-2004 have been stayed. Thereafter, the impugned notice dated 05-11-2005 (Annexure P-8) has been issued, by which, the Nagar Panchayat has proceeded to auction the newly constructed shops. After the return was filed by the respondent- Nagar Panchayat, the petitioners came to know that such a decision to cancel earlier Y> ^\ i. proceedings of settlement of the petitioners and to auction the shop was taken in view of the order passed by the State Government on 21-09-2005. The petitioners have also assailed the correctness and validity of order dated 21-09- 2005 passed by the State Government. 3. Assailing the correctness and validity of the action of the respondents in resiling from their promise and representation to settle the petitioners in the newly constructed shops and the action of cancellation of allotment by the State Government, and further action of the Nagar Panchayat proceeding to auction the shops, learned counsel for the petitioner argued that the petitioners were 4 running their business and earning their livelihood for two decades. It was only an attempt on the part of the Nagar Panchayat to modernize the market area by constructing shops in places where the petitioners were already running their business in small Gumtis. The petitioners vacated those premises on account of new resolution, which was passed by the Nagar Panchayat that the petitioners would be settled in the newly constructed shops. hle further submitted that the Nagar Panchayat not only resolved to allot newly constructed shops as a matter of settlement to those, who were displaced from their respective places, where new shops have come up, but also the cost of construction were also taken from 1 the petitioners by way of premium. A part amount was paid whereas for balance amount of premium, a letter was issued on 08-11-2004 to the petitioners informing them that the Nagar Panchayat has resolved to allot the newly constructed shops to each of the petitioners by paying the balance amount of premium and they may get the shops registered in their name. It is the contention of learned counsel for the petitioners that in this manner, the Nagar Panchayat was duty bound to act in a just andfair manner and allot the shops to them as assured. .\K: 4. The other submission of learned counsel for the petitioners that even though the Nagar Panchayat had sent its proposal to the State Government through the Deputy Director vide letter dated 04-02-2005, placed on record by the respondent- Nagar Panchayat as Annexure R-2/3, the State did not take any decision on such a proposal and taking cognizance of the material placed before the Government in reply to a assembly question, the government, arbitrarily and without due application of mind, cancelled the allotments vide impugned order dated 21-09-2005, disclosed to the petitioners for the first time, in the return filed by the Nagar Panchayat. In support of his submission, learned counsel for the petitioners placed reliance in the case of M/s Labha Ram & Sons and others v. State of Punjab and others, AIR 1998 S.C. 2086, Gursharan Singh and others etc. v. New Delhi MunicipalCommittee and others, AIR 1996 SC 1175 and K. K. Bhalla Versus State ofM.P. and others, (2006) 3 SCC 581. 5. Though, no return has been filed by the State in spite of last opportunity granted by this Court, learned counsel for the State submitted that the action of the State in cancelling the allotment vide letter dated 21-09-2005 was fully justified and otherwise in accordance with law, because every shop, which constitutes immovable property, is required to be disposed off, lease out and otherwise conveyed strictly in accordance with the provisions contained in Section 109 of the Chhattisgarh Municipalities Act, 1961 read with Chhattisgarh Municipalities (Transfer of immovable property) Rules, 1996(ln short "the Rules of 1996"). He urged that theNagar Panchayat could not have proceeded to allot the shops to the petitioners, may be the displaced persons, without adhering to the procedure prescribed under the law. In his submission, the petitioners have no right to claim allotment unless they compete in the open market pursuant to auction notice. He further submits that the decision of the State Government based on material available with the State Government in the form of reply to a ^ assembly question placed on record as Annexure R-2/4 is perfectly validand in accordance with the law. 6. Submission of learned counsel for the respondent- Nagar Panchayat is that though the Nagar Panchayat had earlier taken a policy decision to settle the petitioners and other displaced persons by constructing new shops on the same land on which they were earlier running their business and earning their source of livelihood, though sanction was sought from the State Government vide their letter dated 04-02-2005 (Annexure R-2/3), but in view of the order of the State Government passed on 21-09-2005, the Nagar Panchayat was left with no other option but to comply with the order of the State Government and to proceed to hold auction which is the mode prescribed under Rule-3 ofthe Rules of 1996. 7. The facts which have been pleaded in the petition with regard to petitioners continuing for long time as small dwellers and stall holders and running their business for the last 20 years, has not been seriously disputed by the respondent- Nagar Panchayat. Other assertions made by the petitioners that pursuant to notices given for the purpose of beautification, the petitioners vacated the space and later on, they deposited certain amount has also not been disputedby the respondent- Nagar Panchayat. 8. From the pleadings of the parties and the documents which have been placed on record, it is born out that the Nagar Panchayat intended to develop the market area on the initiation of the petitioners and other dwellers. In the return itself, respondent No.2 has stated that they received application from the petitioners that they have been carrying out their business with temporary structure for the past 20 years and facing difficulty, and therefore, requested the Nagar Panchayat to construct permanent structure and allot them by submitting that they are willing to pay the cost of construction, which has been placed on ^ K record as Annexure R-2/1. In the return, the Nagar Panchayat has also stated that on such request being made, the matter was considered and resolution was passed to the effect that in order to beautify the town, it is appropriate to construct permanent shops on various locations including the place where the petitioners were running their business in the Gumtis and stalls and to settle them in the newly constructed shops on payment of desired amount as premium. Annexure R-2/2 is the resolution, which has been passed by the Nagar Panchayat. It resolves under resolution No.2 with regard to construction of shops and settlement to affected persons. Another resolution was passed by the Nagar Panchayat on 31-05-2004 in continuation of the earlier decision of construction of shop and to settle the businessmen, who were affected. Annexure R-2/3 filed by the Nagar Panchayat shows that the Nagar Panchayat had sent a proposal seeking previous sanction of the State Government through the Deputy Director, Urban Administration, Raipur. In that memo, it has been clearly stated that the Nagar Panchayat resolved to settle the affected businessmen in the shops constructed on the land, from which, the affected businessmen have been displaced. Letter was accompanied by resolution dated 27-05-2003, 31-05-2004 as also decision dated 20-02-2004 ofthe President-in-Council. 9. It appears that in order to submit reply to an assembly question, the Nagar Panchayat sent certain information by way of its reply to the Deputy Director, Urban Administration, Raipur along with its covering letter dated 16-02-2005 (Annexure R-2/4) in which the Nagar Panchayat has stated that certain shops were constructed by way of encroachment, which was obstructing traffic and in order to remove the encroachment and to beautify the town with the co-operation of the businessmen and on the term of settlement, it was resolved on 27-05- 2003, 31-05-2004 and on 20-02-2004 by the President-in-Council to settle the enlisted businessmen. It was further stated that the settlement would be done % ^' after the approval of the State Government and in accordance with law. The information so received by the State Government was made a basis to pass order dated 21-09-2005. The order dated 21-09-2005 refers to the Assembly Question No.970 and on that basis, the allotment made by way of settlement was cancelled by the State Government with immediate effect with a direction to make allotment of shops as per rules. 10. Order dated 21-09-2005 of the State Government (Annexure R-2/6) by the State Government does not refer to the proposal which was made by the Nagar Panchayat vide its letter dated 04-02-2005 addressed to the Deputy Director, Urban Administration. Order of the State Government does not show that there was application of mind to the effect that the settlement was proposed by the Nagar Panchayat in the circumstances that the petitioners were continuing with their business for last 20 years on the land, from which, they were displaced and on which new shops were constructed. The detailed proposal sent by the Nagar Panchayat along with resolution passed by them on 27-05-2003, 31-05-2004 along with President-ln-Council dated 20-02-2004, for previous sanction of the State Government to make allotment by way of settlement was also not considered. Such a sanction was sought in terms of provisions contained in Rule 3 of the Rules of 1996. The State was under an obligation to consider the proposal sent by the Nagar Panchayat in its proper perspective and take apprtfpriate decision in accordance with law. 11. It is not a case where the petitioners were seeking allotment for the first time. The petitioners undisputedly were those, who were running their business, since two decades. The return of Nagar Panchayat shows that it was the application made by the petitioners and other dwellers that the steps were taken, which culminated in passing various resolutions for construction of shops and < I: \ settlement of petitioners in those shops and other displaced persons, who were running their business since long. It is the case of the Nagar Panchayat that the cost of construction was to be recovered from the petitioners and the petitioners had already paid a part of that amount and the remaining amount was also to be collected from the petitioners, forwhich, the notices were issued on 08-11-2004. Thus, it clearly appears that in the peculiar background, the Nagar Panchayat had sought the sanction of the higher authority to make settlement without holding any public auction or inviting others in sealed covers. The matter therefore required due and proper consideration by the State Government in the light of the aforesaid factual scenario. However, a perusal of order dated 21-09- 2005 of the State Government shows that none of those materials were taken into consideration by the State Government. tn fact, the order goes to show that the State Government proceeded to cancel allotment taking cognizance of the Assemble Question No.970 and Assurance No.47. There is no reference to the proposal sent to the State Government by the Nagar Panchayat vide its memo dated 04-02-2005 (Annexure R-2/3). The memo was submitted by the Nagar Panchayat to the Deputy Director. The respondents have not placed on record any material as to whether the Deputy Director forwarded the proposal to the State Government or itself decided the matter. The order of the State Government passed on 21-09-2005 was thus passed in complete ignorance of the resolution passed by the Nagar Panchayat wherein a decision was taken to settle the petitioners by allotting them newly constructed shops, which were constructed on the land, from which, the petitioners were displaced on the assurance that they will be settled and in respect of which the Nagar Panchayat had recovered a part ofthe amount from the petitioners as premium. 12. There is yet another aspect of the matter. If the State Government was of the view that the decision which has been taken by the Nagar Panchayat and the \\ proceedings drawn for allotment are required to be cancelled, the fairness demanded that the State Government ought to have given a notice to the Nggar Panchayat. Even that was not done. Therefore, viewed from any angle, the order ofthe State Government is clearly arbitrary, irrational and without due application of mind. In the present case, the State has failed to satisfy this Court that the State has not placed on record any material to justify their action. 13. In view of the discussion made hereinabove, the order dated 21-09-2005 passed by the State Government as well as auction notice issued by the Nagar Panchayat which was issued in compliance of the order of the State Government, are illegal and therefore quashed. It will be open for the State Govemment to take decision with regard to the proposal which was sent by the Nagar Panchayat vide its memo dated 04-02-2005 (Annexure R-2/3). The State Government shall take appropriate decision on such proposal in the light of the observations which have been made by this Court, taking into consideration that the petitioners were running their business since long and the shops have been constructed on the site on which the petitioners were carrying on their business and that the sites were got vacated and further that the decision was taken to construct new shops by recovering the cost of the construction as premium from the petitioners. 14. In view offoregoing, the petition is allowed. No orders as to cost. SdJ- Manindra Mohan Shrivastava Jude Tumane