IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1600 of 2009 Judgment reserved on: 28.7.2010 Date of decision: 10.8.2010 Narotam Sharma ..Petitioner Vs State of H.P. and others ..Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. Rakesh Jaswal, Advocate. For the Respondents : Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, Dy. Advocate General, for respondents No.1 & 2. Mr. A.K.Vashista, Advocate for respondent No.3. Mr. M.S.Guleria, Advocate for respondent No.4. Justice Kuldip Singh, Judge This petition has been filed for quashing order dated 5.10.2008 (sic 15.10.2008) Annexure P-8 issued by the 3rd respondent allotting shop No. 19 to respondent No.4 with further direction to allot said shop to petitioner. 2. The case of the petitioner is that the 3rd respondent issued notice to lease out newly built shops at Chowgan – 3, Chamba for 25 years. The shops were to be allotted on lease only to registered tehbazari permit holders. The price of application form was Rs.1000/-. The applicants were required to deposit Rs.1,00,000/- in the shape of 2 Bank Draft in the office of 3rd respondent. The purpose of allotment of shops to registered tehbazari holders was to rehabilitate them. 3. The petitioner was tehbazari permit holder of 3rd respondent. The petitioner is bonafide Himachali. The petitioner after paying requisite fee applied for allotment of shop No. 19 to 3rd respondent. He also furnished bank draft in the sum of Rs.1,00,000/- as security deposit as per condition No. 4 of advertisement. The 4th respondent also applied for the allotment of shop No. 19, but he was not eligible for allotment as he was not registered tehbazari holder. 4. The shops were not allotted, the petitioner issued notice for leasing out the shop as he was only eligible applicant for allotment of shop. The petitioner was surprised to receive letter dated 2.1.2008 of 3rd respondent informing him that the shops allotment committee had decided that petitioner was not eligible for allotment of shop. The petitioner filed suit against communication dated 2.1.2008 of 3rd respondent alongwith application for interim injunction. It appears interim order was passed by the learned Civil Judge (Sr. Division) but in appeal, the learned District Judge vacated the interim order passed by the learned Civil Judge. The suit in these circumstances was withdrawn by the petitioner on 30.12.2008 with liberty to file afresh suit in respect of same subject matter and on same cause of action. The petitioner instead of filing a suit has filed writ petition under Article 226 of the Constitution of India. 5. The further case of the petitioner is that he received letter dated 13/15.10.2008 from the office of 3rd respondent informing him that shop No. 19 had been allotted to 4th respondent. The communication dated 13/15.10.2008 Annexure P-8 has been assailed in the writ petition 3 on the ground that only petitioner was eligible for allotment of shop No. 19 whereas said shop has been wrongly allotted to 4th respondent who was not eligible as per notice Annexure P-1 alongwith terms and conditions for allotment. 6. The petition has been contested by 3rd respondent by filing reply in which preliminary objections of maintainability, concealment of material facts have been taken. It has also been stated that petitioner had earlier filed Civil Suit No. 17 of 2008 in the court of learned Senior Sub Judge, Chamba. The 4th respondent was impleaded party in that suit. The petitioner could not secure order from Civil Court and he withdrew the suit and has filed the present petition which is not maintainable. The condition No. 11 provides preference will be given to local people residing within limits of Municipal Council, Chamba. The petitioner is not a permanent resident of local limits of Municipal Council, Chamba, hence was not allotted the shop on lease. The 4th respondent is local resident of Municipal Council, Chamba and was registered tehbazari permit holder of Municipal Council, Chamba w.e.f. the year 1986. Therefore, it cannot be said that the allotment of shop was wrongly made by 3rd respondent to 4th respondent. 7. On merits, it has been stated that 4th respondent had also applied for allotment of shop No. 19 along with petitioner and had deposited a sum of Rs.1,00,000/-. The maintainability of the writ petition again has been questioned on merits on the ground that petitioner had earlier filed Civil Suit which he lateron withdrew. The allotment of shop No. 19 was considered by the shop allotment committee after considering all relevant factors and terms and conditions mentioned in Annexure P-1. The 3rd respondent has prayed for dismissal of the writ petition. The 4 other respondents have not filed any reply. At the time of hearing of the petition, the learned counsel appearing on behalf of 4th respondent has stated that 4th respondent has adopted the reply of 3rd respondent. There is nothing on record to show that 4th respondent has adopted the reply of 3rd respondent. 8. We have heard the learned counsel for the parties. On 7.7.2010 the 3rd respondent was directed to produce the record which was produced on 28.7.2010. We have perused such record. The notice Annexure P-1 indicates that newly constructed shops in Chowgan – 3 were to be allotted for 25 years on lease to authorized tehbazari holders. The conditions attached with notice Annexure P-1 further provide that the allotment was to be made by draw of lots. The application was to be submitted on prescribed form. The applicant was required to deposit Rs.1,00,000/- as earnest money. The condition No. 11 provides that preference shall be given to local people (means residents within the limits of Municipal Council). The petitioner has not annexed conditions No.26 to 30 alongwith Annexure P-1 but those conditions are available in the record produced by the 3rd respondent. The condition No. 28 provides that only authorized tehbazari holders shall be eligible. The last tehbazari permit was to be annexed with the application form as per condition No. 29. After the allotment of shops to tehbazari holders if eligible persons were not available then the shops would be allotted to other applicants. The allotment of shops were to be made in accordance with terms and conditions dated 26.9.2007 available in the record of 3rd respondent. 9. The case of the petitioner is that he was only eligible person for allotment of shop No. 19 as per terms and conditions of allotment. The 4th respondent had also applied for shop No. 19 but he was not eligible 5 for allotment. It is not the case of the 3rd respondent that any other person other than the petitioner and 4th respondent was also applicant for allotment of shop No. 19. The 4th respondent was not eligible for allotment of shop No. 19, petitioner being sole eligible applicant as per terms and conditions for allotment, he was entitled to allotment of shop No. 19 and none else. The short question left for determination is whether 4th respondent was eligible for allotment as per the terms and conditions. The connected question is whether the petitioner is entitled for allotment of shop No. 19. 10. The 4th respondent has not filed any reply. The reply of 3rd respondent is also of no help to 4th respondent. A copy of proceedings of general meeting dated 24.9.2008 of Municipal Council, Chamba is in the record of the 3rd respondent. The item No. 153 of the proceedings which is in Hindi, is as follows:- “As Sh. Narotam Sharma has filed a court case that he is an eligible applicant and he be allotted Kiosk No.19 and the matter is pending before the Court. On the contrary he has withdrawn the stay order which he had taken regarding Kiosk No.19, Chowgan – 3. Gopal Singh is a local applicant, his tehbazari is upto the year 1999 and for that reason the matter was kept for consideration. Therefore, after due consideration, it has been unanimously resolved that on payment of Rs.5,00,000/- security Kiosk No.19 be allotted to Sh. Gopal Singh.” 11. The petitioner in the petition has specifically stated that 4th respondent was not registered tehbazari holder of 3rd respondent. The notice for allotment of shops specifically provides that shops would be allotted to authorized tehbazari holders. The condition No. 28 also provides that only authorized tehbazari holders would be entitled to 6 allotment. The item No. 153 of the proceedings dated 24.9.2008 of 3rd respondent makes it clear that Gopal Singh was tehbazari holder only upto the year 1999. The allotment of shops was notified in the year 2007. It is not the case of the 3rd respondent that immediately before the notice for allotment, 4th respondent was tehbazari holder. The condition No. 28 makes it clear that the applicant must be existing tehbazari holder but insofar as 4th respondent is concerned, both 3rd and 4th respondents are silent whether 4th respondent was tehbazari holder after the year 1999. The only inference which emerges from the record is that 4th respondent was not tehbazari holder after the year 1999 and, therefore, he was ineligible for allotment of shop No. 19 as per the notice and terms and conditions of allotment. The 3rd respondent has erred in allotting the shop No.19 to 4th respondent. 12. The only question raised with respect to eligibility of the petitioner is that he was not resident within the limits of Municipal Council, Chamba. The petitioner has controverted this stand of the 3rd respondent in para 1 of the petition. The petitioner has given his address presently resident of Mohalla Charpat, Chamba Town, Tehsil and District, Chamba, H.P. This has not been denied by 3rd respondent in corresponding para 1 of the reply. Therefore, it can be safely inferred that the petitioner is resident of Chamba town. In any case condition No.11 only provides preference to the local people and local people have been further explained who reside within the limits of Municipal Council. The combined reading of conditions No.11 and 30 further indicates that the allotment of shops was not confined only to the persons residing within the limits of Municipal Council, Chamba. The petitioner has filed the writ 7 petition after withdrawing the suit. Therefore, objection of respondent No.3 regarding maintainability of writ petition is not tenable. 13. We are satisfied from the record that there was no other eligible applicant for allotment of shop No. 19; petitioner being sole applicant for allotment of shop No. 19 was entitled to allotment of shop No.19. 14. In view of above discussion, it is held that 3rd respondent has wrongly, illegally allotted shop No. 19 to 4th respondent; hence allotment of shop No. 19 in favour of 4th respondent by 3rd respondent is quashed. In the light of above observations the 3rd respondent is directed to allot the shop No. 19 to the petitioner on terms and conditions applicable for allotment within a period of two months from the date of production of a copy of this judgment by the petitioner to 3rd respondent and 3rd respondent shall put the petitioner in vacant possession of shop No. 19, Chowgan – 3, Chamba within the same period. No costs. (Justice Kurian Joseph), Chief Justice. August 10, 2010 (Justice Kuldip Singh), (GRS) Judge.