.^. -^3S£; ^ 4^ / ^. L^ HIGH,GOURTQF,CHHATT.ISGARH^_BSLASPUR Writ Petition No. 535 of 2004 Dr. Hemant Kumar Dande / Versus State of Ghhattisgarh & Others Post for pronoyncement of order on ,,./27^day of Aygust, 2009 Sd/- SatishK.Agnihotri Judge •^ HlGHCOURTQFGHHATT|SGARH:,BiLASPUR Writ Petition No. 53S of 200.4 PETITiONER Or. Hemant Kumar Dande, S/o.Late Dewanjj Dande, about 39 years, R/o New Indystriai Area, Gogaon, Raipur (CG), Secretar^ Chhattisgarh Vikiang , Prashlkshan E'A'am Anusandhan Sansthan Raipur (CG), HtG .11 Swaml Aatmanand Raipur (CG). iVIarg, Tatlbandh, Versus RESPQNDENTS 2 3 4. State of Chhattjsgarh, Secretary, through ths Addl. Secretary, Envlronment & Town Plannlng Dspartment, DKS Bhawan, Mantraiaya, Ralpur (00). The Commissioner, Municipa! CorporatJan, Raipur (CG), Asstt. Commissioner, Municipal Co-rporatlon, Ralpur (CG)/ The Secretary, Municlpaf Corporatlon, Ralpur (CG). 0/Vrit petstion under Artlcie 226/227 ofthe Constttution of india) Singie Bench : Hon'bSe Shri Satish K. Agnthotri, J Present: IVIs Fouzia Msrza, counseS forthe petittoner. Shri Arun Sao, Govt. Advocate for the State. Shri Kashlf Shakeel, counsef for respondents No<2, 3 & 4. ORDER (Passed on this J2^ctay of August, 2QOS) Heard learned counse! for the partles» Chalienge in tSiis petition is to the Segatlty and vaSidity of the notice aated 16 February, 2004 (Annexure - P/2) vs/hereby the Deputy Commisssoner (Revenue), Municipai Corporation, Raipur, directed the petitioner to vacate the premlses in question wherein the petitloner Js running the Bachelor of Physiotherapy r:::i:._::_ ^,.^-w:,.f^^ Colleae and Hospltai for physicaliy and mentaiiy handicapped chiidren, withln a.period ofseven days- .3. The facts, In nutshejl, as projected by the petitioner, are that the petltioner •- Dr. Hemant Kumar Dande is a Secretary of the Chhattisgarh Vikiang Prashikshan Ewam Anusandhan Sansthan •(for sftorf 'T^e petitloner/SBnBtfiant?) a registered society under the provlslons of the Chhattisgarh Societles Registratio'n A.ct, 1973. The petltioner/Sansthan entered into an agreement v^ith the Commissioner, Municipal Corporatlon, Raipur, on the 27t1'1 June, 2002 (Annexure - P/3) for aJSotment of premises-in- question admeasuring 4600 sq» ft. sltuated at EVIadhavrao Sapre Shaia, Raipur, on rent for running Physiotherapy College. The rent flxed was Rs.1,110/- per month for a period of one year, subject to renewal thereafter. 4» Clause 8 of the sald agreernent provides that the Municipal 'Corporation In case of bona fide necesslty of the Corporation can take over the vacant possesslon of the premises-in-question by glving thr'ee rnonths advance notlce. Accordlngly, notices were jssued and by the Impugned notice dated 16th February, 2004 (Annexure - P/2), the petitioner/Sansthan was asked to vacate the premlses-in-question on the ground that the resoiution No.90 dated 17 May, 2002 passed by the Mayor-ln-Counci! (for short "the MSC") for aitotment of the premises-in-question in favour of the petltloner/Sansthan vvas cancelled subsequently vide resolutjon s^o.11 dated 27th February, 2003 of the General Assembly of the Municipa! Corporation. Thus, this petition» r^-<y^ 't. '^ '^ ^1 '^y ^o 5^ Ms. Fouzia Mirza, iearned counsei appearing for the petitioner/Sansthan, wouid submlt that the impugned notice dated 16 February, 2004 Is bad m iaw cn the ground that clause 8 ofthe agreement provides for t.hree months nptice and the same was not given to the petitioner/Sansthan. Further by supplementary agreement executed on the 30th August, 2002 (Annexure - P./5) the rent of the premises-tn-question was Increased to Rs.9,180/- per month. Ms. Fouzia Mlrza wouid further submlt that the Generai Assembly of the Municipai Corporation cannot cancei the resolution passed by the MSC. The precondition to issue notice under ciause 8 of the agreement is that the premises-in-question must be required for the Municipai Corporation, not for any other purpose. 6. Ms. Fouzia wouid next submit that the Under Secretary to the Govemment of Chhattisgarh, Department of'.Envlronment and Urban Development vide ietter dated 22" September, 2003 (Annexure - P/10) has dlrected the Municipai Corporation to resoiution for extenslon' of time of the agreement. The petitioner/Sansthan Sias afready-admitted severat handicapped students, therefore, the rehabiiitatlon ofthe disabled children and vacatlon of premises-in-question. before cornpjetion of the academic session l.e- in 2010 Vv'ouJd be ven/ difficuit. The Deputy Commlssioner (Revenue), EVIunicipai Corporation, Ralpur, Is not competent to issue notsce to vacate the premises- in-question, as the agreement was signed by the Commissioner. w.^^&^^&&w.^-»^^s: /"^'^. "•'ss^. 'A /:' .^. i~-.' .••^' 7. On the other hand, Shri Kashif Shakeel, Seamed counsel appearing for the re.spondents No.2, 3 and 4, wouSd submlt the petitloner/Sansthan was sewed with three notices. The flrst notlGe was seryed on 20 Noyember, 2002 (Annexure - R2/2). Thereafter, after completion of three months, second notice was sen/ed on 28th February, 2003 (Annexure - R2/3). Sn the meanwhile, the State Government in exerclse of Its power stayed the aforesaid notlces tlll 30th August, 2003 by its order dated 2nd June, 2003. Aftsr expiry of the sald period, the flnai and thlrd notlce dated 16 Fsbruary, 2004 (Annexure - P/2) was served. Shri Kashif Shakeei wouid further submit that, in fact, the Impugned order (16th February, 2004) aileged Is not the flnai order, but It is a notice. The petltioner/Sansthan v^ithout fiSing any reply to the notace has approached thls Court misieadirsg that the ttnal order has been passed^ 8. ' Shri Kashlf Shakeet would next submit the Cornmissloner, Mynldpal Corporation, Raipur, has the power to deiegate hls function to any of the Offlcer of the Corporation under Section 69 (4) of the Chhattisgarh yunlcipal' Corporation Act, 1956. Thus, ths Deputy Commissioner was fully authonzed by the Commlssjoner to Issue the Impugned notice dated 16 February, 2004. Even otheiwise, the agreement 'was initially for a perlod of one year and the term has aiready come to an end. Thus, this vvTlt petltion has become infructuous. 9. After hearing Searned counsel appearing for the parties, perusing the pieadings and the documents appended thereto, It Is evident ;...^ ••--...-; .,.^-~.^ •^.-^ 5 ^^ ^ that the impugned notice was in the nature of finaf order, as the petitioner/Sansthan was not granted time to file repjy to the notice, however, the requirernent is compiete, as the petitioner/Sansthan lwas served with two notlces eariier. Admlttedly, the notice dated 15 February, 2004 was not a show cause notice enabllng the petitJoner/Sansthan to fiie repfy. The contention of the learned counsei for the petitloner/Sansthan that the Deputy Municipaf Commlssioner (Revenue), Munjcipal Corporatjon, Raipur, is not competent to 'issue notice, Is not tenabie In view of the provjsjons of Section 69 (4) of the Chhattlsgarh Municipa! Corporatlon Act, 1956.. 10. For th@ reasons mentloned hereinabcve, ! have not found that the clause 8 of the agreement was not complied with, as the petitioner/Sansthan was given notice two tirnes eariler. The requirernent of clause 8 of the agreement has been fuliy satisfied. The petitioner/Sansthan is in continuoys possession pursuant to the interim order dated 25 February, 2004 passed by this Court. Even after compfetion of the terrn of the agreement, the petitioner/Sansthan has continued in possession tiii date. 11. Having regard to the facts sltuatlon of the case, the petitioner/ Sansthan Is not entltied to any reiiei However, since the dlsabSed persons are already admitted. and course has aiready commenced, the petltioner/Sansthan is grantsd tjme tili 31 December, 2009 to vacate.premises free from ati encumbrances, subject to fjJing of an undertaking "within a • periocl of -'^ . -,^ 6 four Tweeks from the date of recelpt of a copy of this order and to make necessary arrangements for aiternatlve accommodatlon, In the meantlme. Liberty is further reserved to the petitioner/ Sansthan to make proper representatlon to the Municlpai Corporatlon, Raipur, for further extension oftime or entering Into a new agreement, if so advlsed« 12. The writ petition Is accordingSy dismissed with the' above-stated observatlons. Ho order asto costs^ -—- Gowri Sd/- Satish K. Agnihotri Judge