CW 6774/99 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.6774/99 Champa Lal Jain Versus State & Ors. DATE OF ORDER : 02/07/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. V.K. Jain, for petitioner Ms. Ashish Joshi, for respondent No.4 *** Instant petition has been filed by petitioner assailing resolution of Municipal Board, Malpura, District Tonk dt.22nd September, 1999 [Ann.3] & so also order of the State Government dt.18th November, 1999 [Ann.4] accepting their resolution for allotment of Shop No.1 & A measuring 14X9½ sq.ft. on lease for a period of 99 yrs. on the commercial rate of the year 1986. The Municipal Board as alleged in the petition had constructed 6 shops opposite Government Referal Hospital, Malpura and these shops were put to public auction for letting out on rent on 14th August, 1986. Petitioner & respondent No.4 along with others participated in the auction proceedings which took place on 28th August, 1986 to 30th August, 1986. Respondent No.4 being highest bidder, was allotted Shop No.1 & A on monthly rent of Rs.1205/-. At the same time, CW 6774/99 [2] the petitioner, who was also auction bidder, his bid for Shop No.2 was accepted and shop was allotted to him on monthly rent, but he committed default in depositing amount of rent, as such his allotment was cancelled and Shop No.2 was later on allotted to one Heman Das on monthly rent of Rs.1461/-. As regards respondent No.4 Om Prakash Jain, who was in possession of Shop No.1 & A allotted to him in auction proceedings which took place in August, 1986, earlier submitted application for allotment of shop in question which was in his possession on lease at one point of time which was rejected by the Board on 4th January, 1991 and thereafter, notice was served upon respondent No.4 for increase of rent by 10% on 22nd January, 1991 and a demand notice was issued to him to deposit the due rent of Rs.41,082/- on 27th March, 1993. However, he earlier challenged the demand notice on the pleas available to him under law which was rejected by the Additional Collector and so also by revisional Court which he challenged in Civil Writ Petition No.3497/98 which was dismissed as withdrawn on 18th December, 1998 and after dismissal of writ petition, the respondent No.4 deposited the due rent on 25th CW 6774/99 [3] December, 1998 and filed application for allotment of Shop No.1 & A to him on lease for 99 years. Taking note of application of respondent No.4 and so also Concessional Scheme introduced for such persons who needs shops for self- employment. The Municipal Board vide its Resolution No.84(II) finally recommended that Shop No.1 & A be allotted to respondent No.4 on 99 years lease w.e.f. 1.1.999 and sent its resolution to the State Government for approval on 22nd September, 1999 [Ann.3]. Resolution of the Municipal Board was accepted by the State Government vide its order dt.18th November, 1999 [Ann.4] and shop was allotted to the petitioner on the commercial rate of the year 1986 on lease for 99 years. Obviously, this fact would have been taken note of that shop was initially allotted to respondent No.4 in the year 1986 and he being in possession and making payment of rent, which was taken note of by the State Government to fix the lease rent also as per commercial rate of the year 1986. Petitioner being aggrieved by the resolution of the Municipal Board [Ann.3] and so also acceptance made by the Government vide Ann.4, approached this Court by filing instant petition. CW 6774/99 [4] Main thrust of the submission of counsel for petitioner is that twice the application submitted by respondent No.4 was rejected by the Board and he approached this Court by filing writ petition and in such circumstances, subsequent application which was entertained by the Board and resolution was passed in his favour recommending for allotment on lease for 99 years, was colourable exercise of power by the authority. Counsel further submits that State Government was kind enough to respondent No.4 in fixing the lease rent as per commercial rate, but given him a favour in fixing the commercial rate of the year 1986 to be charged from him and this action of the respondents was in violation of Art.14 of the Constitution of India and abuse of power vested with the authority. Counsel further submits that under Rajasthan Municipalities [Disposal of Urban Land] Rules, 1974 [“Rules, 1974”], land could be sold on lease hold basis under R.3, but on the determination of premium as provided under R.6 of the Rules and without determining the premium as provided under R.6 of the Rules, the State Government was not justified in charging commercial rates of 1986 from respondent No.4 and their action was not in CW 6774/99 [5] consonance with the Scheme of Rules, 1974 and in such circumstances, order impugned deserves to be set aside. No reply has been filed on behalf of State Government or by Municipal Board, but contesting respondent, who was affected by the relief claimed for, has filed reply and submits that petitioner has no locus standi in questioning the action of the authorities in the instant petition and his bid in regard to Shop No.1 & A was never accepted and was allotted to respondent No.4 and unless the petitioner could satisfy that the Board or State Government were not within their competence to allot the shop to respondent No.4 on lease hold basis on the terms & conditions enumerated therein, he could not be said to be person aggrieved to question the action of the authority. It has also been averred that petitioner himself was bidder and participated in the same auction proceedings and Shop No.2 was allotted at one point of time being highest bidder, but he being defaulter, his allotment was cancelled and Shop No.2 was later on allotted to one Heman Das on rent of Rs.1461/- per month and he never challenged the action of the authority in cancelling his allotment. Counsel further CW 6774/99 [6] submits that Scheme was introduced by the Central Government for providing facilities to unemployed youths under Self Employment Scheme and he being unemployed youth for grant of allotment of shop under Self Employment Scheme which certainly could be considered on concessional rates as referred to under R.3 of the Rules and in such circumstances, action of the authority in allotting the same very shop on lease hold basis on commercial rate of 1986, in no manner can be said to be arbitrary and in such circumstances, the action of authority was in consonance with the Scheme of Rules. I have heard counsel for parties and perused the material on record. Respondent No.4 was allotted Shop No.1 & A in question on the basis of auction proceedings which took place on 28th August, 1986 on monthly rent of Rs.1205/- per month and at the same time, the petitioner's bid was accepted for Shop No.2. On the basis of material on record, he being defaulter, his allotment was cancelled and very shop no.2 allotted to him on the basis of auction proceedings which took place in August, 1986 was allotted to one Heman Das on rent of Rs.1461/- CW 6774/99 [7] per month. Cancellation of his shop No.2 was never questioned at any point of time at a later stage. At the same time, so far as respondent No.4 is concerned, he was in possession of shop No.1 & A since August, 1986 and paid rent continuously as agreed between the parties and initially assailed those proceedings, but finally he paid the entire due rent in December, 1998, thereafter, submitted application to consider for allotment on lease hold basis. Taking note of the entire material on record, Municipal Board examined the matter afresh taking note of the Scheme introduced by the Central Government under Self Employment Scheme and the fact that respondent No.4 had deposited due rent in December, 1998, considered appropriate to allot the same very shop to him on lease hold basis for a period of 99 years and those recommendations were accepted by the Government with slight modification on commercial rates of 1986 vide Ann.4. It is not the case of the petitioner that recommendations made by the Municipal Board in CW 6774/99 [8] favour of respondent N.4 and final acceptance made by the Government in eitherway is not under its competence, but what has been stressed by the petitioner is that it was not covered in terms of R.3 read with R.6 of the Rules, 1974. Suffice it to say that the authority can sold the property on lease hold basis even at the concessional rate referred to U/r.3 of the Rules and nothing has been placed on record to show that it was not the case for which concessional rates could not have been fixed by the authority and which has been noticed by the Municipal Board also while making its recommendations for allotment of shop to the respondent No.4 on lease hold basis under Self Employment Scheme. Taking note thereof, in opinion of this Court, the authority has not committed any error in taking decision which was considered to be in violation of Scheme of Rules. Consequently, this Court find no substance in the writ petition, the same stands dismissed. [AJAY RASTOGI], J. FRBOHRA6774CW99 02-07.doc