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2015 DIGILAW 215 (JK)

Aijaz Ahmad Khan v. State of J & K

2015-04-29

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioners claim to have been tenants of shops located in the shopping complex of the Srinagar Municipal Corporation situated at Hari Singh High Street, Srinagar, for the last seventeen years. The shopping complex in question is said to have come under the fly-over project and, therefore, is required to be partly dismantled involving, apart from the petitioners, 13 other shopkeepers. The authorities concerned decided to rehabilitate these shopkeepers and accommodate them in the new shopping complex constructed in the Exhibition Ground. The grievance of the petitioners is that by the impugned notification published by the Srinagar Municipal Corporation in a Local daily in its issue dated 26.03.2013 they are being discriminated in as much as they are being provided a lesser space than what they held in the erstwhile complex and, that too, on the backside of the basement of the new shopping complex. The petitioners have prayed for writ of mandamus to command the respondent to give equal treatment to the petitioners vis-à-vis. the 13 other shopkeepers and to allot to the petitioners shops numbered as G-9, G-10 and B-1, or any other shops in the ground floor facing the main road as the other 13 other shopkeepers. 2. Counter-affidavit has been filed only on behalf of Respondents 2 and 3, viz., Srinagar Municipal Corporation through its Commissioner and Joint Commissioner, Administration, SMC, Srinagar, In paragraph 2 of the para-wise reply it is admitted therein that the petitioners are conducting the business in municipal building at Hari Singh High Street which is to be dismantled in connection with the construction of flyover. It is, however, denied that the petitioners have been allotted any shop by the answering respondents. As regards the Rent Receipt Book covered under Plat No. 30682-30/B and 26293/3B, relied upon by the petitioners to demonstrate that they are tenants of the municipal building at Hari Singh High Street, Respondents in the above reply have averred that it is being examined how the receipt book has been issued to the petitioners when no allotment orders have been issued in their favour by them. The Respondents have further stated that the petitioners are illegal occupants as there is no formal allotment order in their favour. As regards the existence of the name of the petitioners figuring at serial Nos. The Respondents have further stated that the petitioners are illegal occupants as there is no formal allotment order in their favour. As regards the existence of the name of the petitioners figuring at serial Nos. 10 and 25 of annexure P3 to the petition, which is the rent arrears statement of Khoka Holders/God owns at Municipal Building Hari Singh High Street, Srinagar, it is stated that it is being enquired into as to how their names have been shown in the said list, when there is no such record available in the office. In this connection, it is averred that the Corporation allotted shops and Godowns in the ground floor and first floor of Municipal Building at Hari Singh High Street after conducting an open action, the record whereof is with them. However, there is no record with respect to the petitioners, and they have not taken part in the auction proceedings conducted with respect to the shops in the above stated building. It is further averred that as per the decision of the high level committee, 13 shops facing the road side in the ground floor of the new complex are not at par with the godown holders located in the inner side of the building; the shopkeepers of the ground floor facing the road side have been given shops by draw of lots. As to the communications addressed by Joint Commissioner (Adm.), SMC, to Director ERA, to extend same treatment to the petitioners as has been given to other shopkeepers, it is averred that the said communications have been issued without seeking report from the lower staff on the basis of the record available. The answering Respondents are responsible for rehabilitating only those allottees who have been issued valid allotment orders and are under no duty to rehabilitate unauthorised occupants. 3. The petitioners have also filed their rejoinder affidavit. 4. I have heard learned counsel for the parties, perused the material brought on record and considered the matter. 5. The documents placed by the petitioners on record of the petition reveal that whereas petitioner No. 1, Aijaz Ahmad Khan, has been shown to be in possession of "space under stair" of the building, petitioner No. 2 is shown to be holder of Khoka No. 13. 5. The documents placed by the petitioners on record of the petition reveal that whereas petitioner No. 1, Aijaz Ahmad Khan, has been shown to be in possession of "space under stair" of the building, petitioner No. 2 is shown to be holder of Khoka No. 13. The document, annexure P/3, namely, rent arrears statement of Khoka holders/godowns at Municipal building H.S. High Street Srinagar, which indicates the above position, does not make mention of the dimensions of the space under stair occupied by petitioner No. 1 or the Khoka held by petitioner No. 2. Document, annexure P/4, is a document titled Details of Commercial Enterprises, Sector A (Jehangir Chowk to Iqbal Park). The name of petitioner No. 1 figures at serial No. 23 thereof; whereas name of petitioner No. 2 figures at serial No. 22 thereof in the column 'name of shop', against the name of petitioner No. 1, the name of his shop is shown to be "K.H. Electronics (under Stair)" and against the name of petitioner No. 2 "K.B. Combines" is written. The genuineness of these statements is not disputed by the respondents. 6. The petitioners have also placed on record a photocopy of their respective Account Book of Municipal Corporation (Recoveries). These two documents indicate the location of the accommodation under their occupation and the Plate No. issued to them by the Corporation. Petitioner No. 1 is shown to have been allotted Plate No. 30682-30/B (space under stair) and petitioner No. 2 has been allotted Plate No. 26293/3B, Khoka No. 13 inner side. The petitioners have also produced photocopies of two receipts dated 21.04.2015 whereby the Srinagar Municipal Corporation has received the tax for the year 2015-16 from both of them against Demand Nos. 30682/W30 and 26293/W30, respectively, giving the type of accommodation etc. as indicated above. 7. It is true that the petitioners have not brought any document on record to show that they have been allotted the respective accommodations pursuant to any auction or under any formal allotment order or deed, but the fact remains that they have equally not been declared as unauthorised occupants by the Respondents at any stage, nor have the Respondents ever taken any step to evict them. The Respondents, instead, have been charging rent/tax from them and have, in fact, been accepted as tenants insofar as their names figure in the list prepared by them for allotment in the new shopping complex. That being the position, the stand sought to be taken by the Respondents contrary to the above, is inconsequential, being belied by their own records. It may be noted here that the Respondents in their reply, while denying the tenancy of the petitioners, have stated that the matter as to how the Receipt Books were issued to the petitioners or how their names were brought on the statements/list of commercial enterprises (Appendix 4), was being looked into, but till date they have not brought anything on record to show that any enquiry was held by them or that such enquiry had led to the conclusion that petitioners had managed the Receipt Books, receipts for payment and their entry into the statements/list in question by exercising any fraud or by entering into connivance with any municipal employee. 8. Now, coming to the crucial question whether this Court can issue the command sought by the petitioners, the records produced by none other than the petitioners consistently establish that whereas petitioner No. 1 is the occupant of a space under the stair, petitioner No. 2 is occupant of Khoka No. 13 on the inner side. The dimensions and/or the area of the space-occupied by the petitioners are not established. True that Joint Commissioner (Adm.) Srinagar Municipal Corporation and its other officer, have written to Respondent No. 4, the Director, ERA, Kashmir, that the petitioners may be provided shops under the rehabilitation scheme in the ground floor on front side and of the measure of equal treatment as given to other 13 shopkeepers, but this is merely a recommendation. A recommendation of the nature made herein, without laying any foundation therein, does not create a right, muchless a legal or fundamental right in favour of a person to what is recommended. 9. It be noticed that the same authorities, who have made the communications and recommendations, relied upon by the petitioners, are impleaded as Respondents 3 and 5 in the present writ petition. The reply affidavit is shown to have been filed on behalf of Respondent No. 3 as well. And therein the petitioners' claim has out rightly been denied. 10. 9. It be noticed that the same authorities, who have made the communications and recommendations, relied upon by the petitioners, are impleaded as Respondents 3 and 5 in the present writ petition. The reply affidavit is shown to have been filed on behalf of Respondent No. 3 as well. And therein the petitioners' claim has out rightly been denied. 10. It is also not understandable how the petitioners can claim three shops in lieu of what they state to have been occupying, and of their choice and liking. They, at best, would be entitled to rehabilitation commensurate with what they occupied. Rehabilitation, in the peculiar facts and circumstances of the case, would mean physical replacement in lieu of what the petitioners held, their re-adjustment and re-establishment; not their enrichment by providing spacious accommodation and at a site of their choice and liking. 11. Curiously, the notification published by the Srinagar Municipal Corporation in a local daily in its issue dated 26.03.2013 of which the petitioners are aggrieved, has not been challenged by them in this writ petition. 12. This Court, in the facts and circumstances of the case, is of the view that the petitioners are not entitled to the reliefs prayed for by them. Consequently, this petition merits dismissal. 13. The petition is, accordingly, dismissed alongwith the connected CMP. Interim direction, if any, subsisting, shall stand vacated. It is, however, provided here that dismissal of this petition vis-à-vis. the reliefs prayed for by the petitioners would not disentitle them from what the respondents might have already allotted to them in replacement of their occupation in the complex proposed to be dismantled. No order as to costs.