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2017 DIGILAW 1126 (ORI)

Matangini Sahu v. Collector, Baripada

2017-10-10

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is against the order dated 10.10.2005 passed by the opposite party no.2-Executive Officer, Baripada Municipality whereby and where under the petitioner has been allotted a shop room in the 1st floor of the shopping complex in question while the case of the petitioner is that in initial process of selection, she has been allotted a shop room situated in the ground floor of the shopping complex. 2. The ground raised by the petitioner in assailing the subsequent decision of the authority in allotting the shop room in the 1st floor of the shopping complex is that on earlier occasion by virtue of due process having been followed by the Selecting Body, she has been allotted a shop room in the ground floor. She has deposited the required money and also ready to deposit the excess amount, if she would have been allotted a shop room in the ground floor in the subsequent selection process. But without taking into consideration this aspect of the matter, the earlier decision taken by the Selecting Body, has been reversed by the subsequent Selecting Body that to without any rhyme and reason. Hence, the decision is highly arbitrary and illegal. The further ground taken by the petitioner is that when the Selecting Body, in course of his tenure, has taken a decision, the subsequent Selecting Body cannot reverse the decision already taken that to which is detrimental to the interest of the petitioner. 3. The Baripada Municipality has appeared and filed counter affidavit inter alia stating therein that there is no illegality in the allotment of a shop room in favour of the petitioner vide order dated 10.10.2005 (Annexure-2) in the 1st floor instead of allotting the same as proposed earlier in the market complex in the ground floor because of the reason that the decision taken for allotment of shop rooms vide Resolution dated 28.06.2002 of the Space Committee of erstwhile Baripada Municipal Council was never been acted upon and no allotment order was issued to anyone including the petitioner as per the said resolution. Further contention is that the said Municipal Council was dissolved on expiry of its term on 16.7.2002. Further contention is that the said Municipal Council was dissolved on expiry of its term on 16.7.2002. Subsequently during the interim period prior to election, the Collector and District Magistrate, Mayurbhanj remained in the charge of the administrator, who has passed the order to distribute the shop rooms by way of auction. But after taking over the charge by the newly elected/constituted Council and Chairperson of Baripada Municipality on 1.10.2003, the new Space Committee cancelled the previous Resolution of the previous Council which was never been implemented on the ground that the decision of the previous Council for distribution and allotment of shop rooms was taken hurriedly just before expiry of its terms and much before the completion of shopping complex without assessing the total cost of construction which would be realized from the allottees and also the Collector and District Magistrate, Mayurbhanj, while remaining in charge of the Municipality, had passed adverse remarks over the issue. Accordingly, fresh allotment was made through the lottery vide Resolution dated 7.10.2005 and the petitioner was allotted shop room No.1 in the 1st floor in the same location. It has been contended on the strength of this statement that no illegality has been conducted by the Baripada Municipality. Further contention is that the petitioner, who is seeking for allotment of shop room No.9 has already been allotted in favour of Shri Birendra Nath Sahu, who has deposited the required amount in Municipal funds vide M.R. No.18651 dated 21.10.2005 and has taken possession of the said shop room prior to the order dated 25.10.2005 passed by this Court in Misc. Case No.13066 of 2005 arising out of the instant writ petition. 4. Heard the learned counsel for the parties and perused the documents available on record. 5. The fact which led the petitioner to approach this Court is that she claims to be an allottee of shop room No.9 situated in the ground floor of the market complex and subsequently she has been allotted shop room No.1 in the 1st floor of the said market complex. Being aggrieved due to change in the location of the shop room from ground floor to 1st floor, she is before this Court by way of this instant writ petition. 6. Being aggrieved due to change in the location of the shop room from ground floor to 1st floor, she is before this Court by way of this instant writ petition. 6. It is evident from the material available in the counter affidavit, which has not been responded to by the petitioner, that the petitioner has been allotted the shop room in the ground floor by the Space Committee of the Baripada Municipal Council before the completion of the shopping complex without assessing the total cost of construction. It is also evident from the pleadings of the counter affidavit that the resolution was taken for allotment of the shop rooms on 28.06.2002 while the said Council was itself been dissolved on expiry of its term on 16.7.2002. Hence, it is very peculiar and astonishing that the outgoing body before completion of the shopping complex has allotted the shop room in favour of one or other by virtue of it, the petitioner has been allotted shop room No.9 in the ground floor which has been depreciated by the Collector, who during the intervening period, has become the administrator of the Baripada Municipal Council and subsequently when the new body has taken the charge of the office has rectified the irregularities by taking decision of cancelling the decision taken by the erstwhile Council Body on 28.06.2002. The new Council Body has also taken decision to go for fresh allotment by way of lottery and in course thereof, the petitioner has been allotted a shop room in the 1st floor of the market complex and the opposite party no.4, namely, Birendra Nath Sahu has been allotted a shop being shop room No.9 in the ground floor. 7. The petitioner has not made out a case of discrimination or arbitrariness on the part of the authority, rather it is clear from the pleadings and the material available on record that the decision taken by the erstwhile Council Body on 28.06.2002 has been canceled uniformly and thereafter a decision was taken to go for fresh allotment by way of lottery reason being that when the resolution was taken on 28.06.2002, the market complex was not completed and as such, the proper cost could not have been assessed and realized from the allottees. Hence, the decision has been taken to go for fresh selection by cancelling the decision taken by the erstwhile Council Body. 8. Hence, the decision has been taken to go for fresh selection by cancelling the decision taken by the erstwhile Council Body. 8. It is also contended by the opposite party-Baripada Municipality that the resolution dated 28.06.2002 has never been given effect to meaning thereby the possession of the shop room in question for which the petitioner is claiming, has never been given possession in her favour. 9. Keeping these facts into consideration and reason mentioned in the counter affidavit, in which, specific stand is that the decision of the allotment has been taken while the shopping complex was under construction, the outgoing body, who expiry of its term on 16.7.2002, has taken a decision on 28.06.2002, led to take a fresh decision and accordingly, the said has adopted the fair and transparent process by way of lottery system. 10. Hence, according to the considered view of this Court, there is no illegality in the decision taken by the authority. Moreover the allotment of shop room is not a fundamental right of the petitioner unless any arbitrariness or pick and choose policy would have been pointed out. But nothing to that effect has been pleaded. In view of these facts, since the authorities have chosen fair and transparent allotment system, in which, the petitioner has been allotted the shop room in the 1st floor of the market complex. Hence, there is no illegality in the decision taken by the authority. 11. In view thereof, I find no reason to interfere with the decision of the authority. Accordingly, the writ petition is dismissed.