IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 3574 of 2009. Date of Decision: 2.8.2011 Roshan Lal Sharma …Petitioner. Versus. Agriculture Produce Marketing Committee … Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Petitioner: Mr. M.L.Sharma, Advocate. For the Respondent: Mr. S.C.Sharma, Advocate. Deepak Gupta, J.(oral). 1. The petitioner by means of this writ petition has prayed for the following amongst other reliefs:- 1. To issue a writ of mandamus directing the respondent to hand over vacant possession of Shop No.2 in the Marketing Complex, Dhalli to the petitioner on payment of balance amount of Rs.2,05,000/-. 2. To quash letter dated 24.4.2009 Annexure – P/18 being illegal and arbitrary. 2. Briefly stated the facts of the case are that in the year 1986 the petitioner applied to the committee that he may be given shop-cum-office in 2nd floor of type-2 2 measuring 4x10 mtrs i.e. 80 sq. meters in all, at the Marketing Complex, Dhalli. It appears that this application of the petitioner was favourably considered. In the year 1990 the Secretary of the Market Committee wrote a letter to the petitioner that one shop-cum-office of 4 x 6 mtrs is available and in case the petitioner is interested in this shop he may be allotted that shop for a consideration of Rs.2,20,000/- out of which Rs.15,000/- already paid in advance would be adjusted. He was also informed that in case he did not accept this offer his priority would stand in the list of the accommodation applied for by him. 3. Thereafter, respondent wrote another letter to the applicant in November, 1990 that the petitioner should deposit the balance amount of Rs.2,05,000/- before 31st January, 1991 and then he would be allotted the said shop. He was also informed that as and when the office of the Committee was shifted then shop No.2 would be allotted to him. Similar letter was again written to the petitioner on 27th December, 1990. The petitioner sent a reply some time in March, 1991 asking the committee to shift its office and to handover vacant possession of shop- cum-office No.2. He stated that he would deposit the balance amount only thereafter. The petitioner was again informed by the Committee that he had been allotted shop No. 11 on temporary basis and in case he is willing to pay 3 the amount as indicated he can take possession of the shop. It appears that the petitioner then paid a sum of Rs.1,00,000/- and took possession of Shop No.11 by depositing a sum of Rs.1,00,000/- on 15th March, 1991. He, however, did not deposit the balance amount and notice was issued to him on 8th April, 1991 asking him to deposit the balance amount of Rs.1,05,000/-. Similar notice was again issued to him on 20th November, 1991. Thereafter, the petitioner sent a letter on 24th March, 1992 stating that he is only interested in possession of Shop No.2 and no business can be carried out in the shop allotted to him and therefore, the amount of Rs.1,00,000/- be refunded to him. It appears that this amount of Rs.1,00,000/- was actually refunded to the petitioner. The petitioner thereafter gave up the possession of Shop No.11, which had been allotted to him in the year 1990. 4. Again in the year 1994 the respondent-committee made an offer to the petitioner that he can take a shop- cum-office in another block but he did not accept the offer. No action was taken by the petitioner by filing a suit or other proceedings. In the year 2009 the respondent passed a resolution whereby they proposed to refund a sum of Rs.15,000/- deposited by the petitioner and the other applicants alongwith interest. It is thereafter the petitioner has filed the present petition claiming that the 4 respondent be directed to handover shop No.2. The stand of the respondent is that the construction could not be carried out as per the original approved plan and therefore, now fresh construction is being carried out according to the new plan, as such virtually impossible to comply with the earlier allotment. Without going into this dispute as to whether the petitioner was right or wrong it is obvious that the petitioner for many long years did not take any action till the committee decided to refund the amount of Rs.15,000/- in the year 2009. 5. Be that as it may, I am of the considered opinion that the writ petition is not the proper remedy in this case since various disputed questions of law and fact are involved. This matter squarely falls in the realm of contract and the appropriate remedy, if any, available to the petitioner is of filing a civil suit. Accordingly, the writ petition is rejected with liberty reserved to the petitioner to file a civil suit. No costs. 2nd August, 2011. ( Deepak Gupta ) ™ Judge.