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2004 DIGILAW 292 (PAT)

Sushma Rani Sinha v. State Of Bihar

2004-03-11

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of mandamus commanding the respondents, particularly, respondent no. 2 to restore to the petitioner the possession of Shop Nos. 37 and 38 situated in Kedar Nath Market in the town of Gaya. Further prayer made by her is to hand over the articles seized from the aforesaid shops and pay compensation. 2. According to the petitioner, by order dated 10th of June, 1990 the Administrator of Gaya Municipal Corporation, hereinafter referred to as the Corporation allotted two shops bearing nos. 37 and 38 in Kedar Nath Market to her. Thereafter, separate agreements were entered between the parties on 16th of June, 1993 (Annexure-3) in respect of the two shops and one of the terms of the settlement was that the petitioner shall not settle or give on rent the shops to another person and in case she does so, the Corporation shall have the right to resume possession of the same and settle to any other person. Lateron, by letter dated 6.1.1995, a show cause notice was issued to the petitioner, inter alia, stating that in breach of the agreement, she is not carrying on any business but has let out the shops to other persons. Accordingly, she was asked to show cause as to why legal action including the decision to cancel the settlement be not taken. Petitioner submitted her reply dated 10.1.1995 and denied the allegation made in the show cause notice that she had let out the shops to another person. She had specifically stated that she was doing her business in the shops. On consideration of the reply of the petitioner, the Administrator, by its order dated 16.1.1995, cancelled the petitioners allotment and directed that the office of the Corporation shall start functioning in those shops from 21.1.1995. In the said order, it has been stated that allotment was made to her illegally as her father-in-law happened to be the Head Assistant in the Corporation. It has been further observed that the petitioner had illegally given on rent the shops to other persons. 3. It is the stand of the petitioner that against the aforesaid order, she filed representation dated 19.1.1995 and being satisfied with the same, no step was taken to evict her but proceeding for eviction of other persons from the shops was initiated. 3. It is the stand of the petitioner that against the aforesaid order, she filed representation dated 19.1.1995 and being satisfied with the same, no step was taken to evict her but proceeding for eviction of other persons from the shops was initiated. Lateron, by notice dated 22.7.1998, the occupiers of the shops were asked to vacate the shops and in pursuance thereof, the respondent Corporation had taken possession of the shops on 24.7.1998. It is the further stand of the petitioner that at one point of time, the Corporation sought for eviction of the petitioner on the ground that the same is needed for the office of the Corporation but both the shops have been allocated to other persons which clearly shows that the action of the respondents Corporation is malafide. 4. Counter affidavit has been filed on behalf of respondent nos. 2 and 3 in which the stand of the respondents Corporation is that after the cancellation of the settlement, possession of the shops were taken by the Corporation in the year 1995 and after three years of the said cancellation of the shops, it was found in the year 1998 that some unknown persons have unauthorisedly taken the possession of the shops and as such, public notice dated 22.7.1998 was issued and the shops were taken in possession on 24.7.1998. 5. As stated earlier, it is the stand of the petitioner that after cancellation of her allotment, by order dated 16.1.1995, she made representation and the respondent Corporation being satisfied, did not proceed against her and allowed her to continue in possession whereas according to the respondent Corporation, possession was taken and after three years, it was found that somebody had taken the possession of the shops unauthorisedly and therefore, after a public notice dated 22.7.1998, possession was taken on 24.7.1998. 6. Mr. Anjan Chakraborty, appearing on behalf of the petitioner submits that even if the petitioner is held to be a trespasser, she could not have been dispossessed from the shops in question in the manner done by the Corporation but the Corporation ought to have taken recourse to the remedy available in law. He submits that the action of the respondents in dispossessing the petitioner without taking recourse to the remedy available to it in law, is absolutely arbitrary. He submits that the action of the respondents in dispossessing the petitioner without taking recourse to the remedy available to it in law, is absolutely arbitrary. In support of his submission, he has placed reliance on judgments of the Supreme Court in the case of Bishan Das & ors vs. State of Punjab & ors, AIR 1961 SC 1570 , The State of U.P. & ors vs. Maharja Dharmandar Prasad Singh & ors AIR 1989 SC 997 , and Samar Sobhan Sanyal vs. Tracks Trade Private Limited & ors. (1996) 4 SCC 144 as also the decision of this court in the case of M/s Hindustan Petroleum Corporation & ors vs. The State of Bihar & ors, 1996 (2) PUR 621. 7. There is no difficulty in accepting the broad submission of Mr. Chakraborty that a trespasser can be dispossessed only by taking recourse to the remedy available in law and this court, in exercise of its writ jurisdiction, may, in the facts of a given case, direct restoration of possession. But in the facts of the present case, I am of the opinion that the petitioner is not entitled for the relief claimed in exercise of power under Articles 226 and 227 of the Constitution of India. As stated earlier, the allotment of the petitioner was cancelled by order dated 16.1.1995. Excepting her assertion that she had filed representation against that, she had not taken recourse to any other remedy available to her in law. The respondents have stated that in fact, the Corporation had taken the possession in the year 1995 and after three years, it was found that somebody else had taken possession and on account thereof, a public notice was given and the possession was taken on 24.7.1998. Petitioner has chosen to file this writ application on 4.9.1999. Therefore, there is serious controversy in regard to the date on which, for the first time, the possession was taken. Petitioner contends that it was taken on 24.7.1998 whereas the respondents plea is that it was taken in the year 1995. In order to demonstrate that in fact possession was resumed on 24.7.1998, petitioner had filed a supplementary affidavit and reply to the counter affidavit and in that placed letter dated 15.7.1998 (Annexure-15) to show that the petitioner was in possession of the shops. This letter in no way supports the case of the petitioner. In order to demonstrate that in fact possession was resumed on 24.7.1998, petitioner had filed a supplementary affidavit and reply to the counter affidavit and in that placed letter dated 15.7.1998 (Annexure-15) to show that the petitioner was in possession of the shops. This letter in no way supports the case of the petitioner. In the said letter one Md. Zainul had stated about the allotment of two shops to the petitioners father in law and its cancellation and nowhere in the said letter, it has been stated that the petitioner is in possession. In fact, in the letter he has stated that it is vacant. Petitioners assertion is that she was carrying on her business in the shops when the Corporation resumed its possession but the articles which were recovered (Annexure-8/2), clearly go to show that no business was being carried out in the two shops. 8. As stated earlier, the order of cancellation of allotment was passed on 16.1.1995 and the petitioner was asked to vacate the shops by 21.1.1995. Petitioner slept over the matter and as such, at such a distance of time, l am of the opinion that the prerogative writ for restoration of possession is not fit to be granted. However, it shall not preclude the petitioner from taking recourse to any other remedy available to her in law. 9. Application stands dismissed with the liberty aforesaid.