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2012 DIGILAW 1017 (HP)

Gopal Singh v. State of Himachal Pradesh

2012-12-20

KULDIP SINGH, KURIAN JOSEPH

body2012
JUDGMENT Kuldip Singh, Judge The petitioner has filed the petition for reviewing /modification of judgment dated 10.8.2010 in Civil Writ Petition No. 1600 of 2009 with a direction to allot the shop in favour of the petitioner. 2. The facts, in brief, are that respondent No.4 had filed CWP No. 1600 of 2009 in which petitioner was impleaded respondent No.4, State of H.P., Collector, Chamba and Municipal Council, Chamba were respondents No. 1 to 3 respectively in that petition. On 10.8.2010 CWP No. 1600 of 2009 was allowed, the operative part of the judgment is as follows:- “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.” 3. The petitioner filed Special Leave to Appeal (Civil) No. 31840/2010 in the Supreme Court against the judgment dated 10.8.2010. The petitioner withdrew Special Leave to Appeal (Civil) No. 31840/2010 with liberty to move the High Court. Thereafter the petitioner has filed the present Review Petition. 4. It has been stated that petitioner was eligible and entitled to the allotment of the shop. The action of respondent No.3 was illegal and based upon the concealment of facts that respondent No.4 was only eligible for allotment of shop. The petitioner was eligible for allotment of shop. There was mis-representation of facts by respondent No.4 in the Court. The petitioner was registered Tehbazari permit holder since long. The respondent No.4 was not the resident of local limits of Municipal Council, Chamba. The petitioner was resident of within the local limits of Municipal Council, Chamba. This fact was concealed by respondent No.4. The respondent No.4 did not fulfill the condition No.11 and was not entitled to allotment of shop. The petitioner was registered Tehbazari permit holder since long. The respondent No.4 was not the resident of local limits of Municipal Council, Chamba. The petitioner was resident of within the local limits of Municipal Council, Chamba. This fact was concealed by respondent No.4. The respondent No.4 did not fulfill the condition No.11 and was not entitled to allotment of shop. The respondent No.4 earlier filed Civil Suit which was withdrawn by him with liberty to file afresh suit, but instead of suit he filed the writ petition. The issue raised by respondent No.4 could be decided only by Civil Court and not by the High Court in the writ jurisdiction. 5. The Municipal Council, Chamba had issued receipt of Tehbazari till 1999, thereafter respondent No.3 had not issued the receipt as the process of allotment was already going on and orally submitted that the same will be issued after completion of 10 years. The petitioner is Tehbazari holder since 1986 and is local resident within the local limits of Municipal Council, Chamba. 6. The petitioner had not filed the reply, he remained dependent upon the State, but the State as per the information of the petitioner was influenced and indirectly helped the respondent No.4. It has been stated that respondent No.4 obtained the order from the High Court by misrepresentation of the facts. 7. The respondent No.3 filed reply in the Review Petition. It has been admitted that petitioner was doing the business on Tehbazari basis. The petitioner had remained permit holder only upto 26.5.1999 and after this period his name was not entered in Tehbazari register. The petitioner had applied for shop No. 19 on payment of requisite fee. The shop was allotted to petitioner by shop allotment committee. It has been denied that the licence is renewed after 10 years and receipts were not issued to the petitioner. The petitioner had not deposited fee with respondent No.3, his name was not in Tehbazari register since 26.5.1999. 8. The petitioner filed rejoinder to the reply of respondent No.3. He has placed on record photocopy of receipt dated 18.1.2011 from June 1999 to December, 2007 showing deposit of Rs.9,000/- on account of Tehbazari fee with respondent No.3. On the basis of receipt dated 18.1.2011, it has been contended by learned counsel for the petitioner that petitioner was very much Tehbazari permit holder and was entitled to allotment of Shop No.19. On the basis of receipt dated 18.1.2011, it has been contended by learned counsel for the petitioner that petitioner was very much Tehbazari permit holder and was entitled to allotment of Shop No.19. This aspect has not been considered in the judgment dated 10.8.2010. 9. In judgment dated 10.8.2010 it has been held as follows:- “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 P1 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.” In para – 11 it has been held as follows:- “The petitioner in the petition has specifically stated that the 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 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 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.” In para 12 it has been held further: “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 petition after withdrawing the suit. Therefore, objection of respondent No.3 regarding maintainability of writ petition is not tenable.” 10. The record was called from Municipal Council, Chamba. The record shows that on 14.1.2011 the petitioner moved an application to Executive Officer of respondent No.3 stating that he was Tehbazari holder of Municipal Council, Chamba, he is entitled to deposit rent from 1999 to 2008. The request was made permitting the petitioner to deposit Tehbazari amount. The record was called from Municipal Council, Chamba. The record shows that on 14.1.2011 the petitioner moved an application to Executive Officer of respondent No.3 stating that he was Tehbazari holder of Municipal Council, Chamba, he is entitled to deposit rent from 1999 to 2008. The request was made permitting the petitioner to deposit Tehbazari amount. On the basis of the application dated 14.1.2011 Victor an employee of respondent No.3 issued the receipt dated 18.1.2011 showing deposit of `9,000/- by the petitioner from June 1999 to December, 2007 on account of Tehbazari fee. 11. Victor appeared in the Court on 3.12.2012 and stated that he received the payment and issued the receipt dated 18.1.2011 on the direction of the then Incharge, Executive Officer. On 3.12.2012 the direction was given for the presence of Executive Officer, office of respondent No.3 as well as of petitioner and respondent No.4. Thereupon the petitioner and respondent No.4 appeared in the Court on 12.12.2012. The Executive Officer of respondent No.3 was also present on 12.12.2012, he stated that on 18.1.2011 one Vinay Kaushal, Tehsildar was Incharge of the office of Executive Officer, Municipal Council, Chamba but he has been selected in Indian Revenue Service and was not posted at Chamba. In these circumstances, it could not be ascertained under what circumstances the direction for receipt of money was issued in favour of the petitioner showing him Tehbazari holder from June 1999 to December, 2007, despite judgment dated 10.8.2010. It is clear that on the basis of receipt dated 18.1.2011 the respondent No.3 and petitioner tried to over-reach the judgment dated 10.8.2010 wherein it has been held by this Court that ‘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’. 12. The scope of review is very limited. There is no error apparent on the face of record. The petitioner has tried to build up his case on the basis of receipt dated 18.1.2011 which was issued after CWP No. 1600 of 2009 was decided on 10.8.2010 against the petitioner. The receipt dated 18.1.2011 has been issued in favour of the petitioner in highly suspicious manner. The petitioner cannot be permitted to take benefit of receipt dated 18.1.2011 to nullify the effect of judgment dated 10.8.2010. The receipt dated 18.1.2011 has been issued in favour of the petitioner in highly suspicious manner. The petitioner cannot be permitted to take benefit of receipt dated 18.1.2011 to nullify the effect of judgment dated 10.8.2010. There is no merit in the Review Petition. 13. The respondent No.4 has stated that presently he is operating from Municipal Council space opposite Shop No. 19. It has been stated on behalf of respondent No.3 that in near future the respondent No.3 would construct new Kiosks/shops in Chamba town. In case the allotment rules permit, it will be open to the petitioner to apply for allotment of a new such Kiosk/shop, in which case, all other things being equal, the petitioner be given preference for allotment of a kiosk/ new shop to be constructed by respondent No.3. Shop No. 19 shall be forthwith delivered to the fourth respondent. After delivering possession of the shop No.19 to respondent No.4, it will be open to the petitioner to apply to the Municipality for use of the space opposite shop No.19 presently being used by respondent No.4 within one month from today, in which case the application will be considered as per the rules on allotment of such space as on today. 14. In view of above discussion, interim order dated 10.3.2011 and extended from time to time is vacated and the Review Petition is dismissed with the above directions.