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2017 DIGILAW 696 (JK)

Mohd. Yousuf Khan v. S. M. C.

2017-08-19

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. Aggrieved by the non-inclusion in the list of persons approved for allotment of shops in the ground floor of Block "E" of S.M.C. Complex at Hazoori Bagh, Srinagar, the petitioners have filed this petition under section 103 of the Constitution of the State for issuance of appropriate writ/direction or order on the grounds, inter-alia, that they are entitled to the allotment of shops as they have been included in the list of T.G. Rent holders at Sr. No. 1.8 and 19. The petitioners have proceeded to state that they have initially deposited Rs. 20,000/- each followed by a deposit of Rs. 1.00 lac each. In this manner, they have deposited an amount of Rs. 1.20 lac each. The only requirement for the allotment was to deposit the amount before the actual allotment of the shops. Despite receipt of the payment by the respondents, the non-inclusion of the petitioners name in Order No. 1933 of 2011, dated 10.10.2011 is patently illegal. They were constrained to approach this Court despite the pendency of the contempt petition in respect of the non-compliance with the order passed in the earlier Writ Petition filed by them because they have reason to believe that the respondent corporation may again exclude them from the list of allottees of the shops. The respondents need to be directed to allot two shops to the petitioners in the ground floor of Block "E" situate at Hazoori Bagh. The petitioners' further state that the action of the respondents in not including them in the order dated 10.10.2011 needs to be judicially reviewed as they have satisfied all the terms and conditions of the order. After the issuance of order No. 1933 of 2011, dated 10.10.2011, the respondent Corporation has issued another order bearing No. 1955 of 2011, dated 12.10.2011, copy whereof is attached as Annexure "H" to this petition. In terms of the said order, two more persons were allotted shops in the same manner as was done under the earlier order dated 10.10.2011. No reason has been communicated by the respondents for not allotting the shops to them. It is reiterated that they are bona-fide claimants of the shops. They have furnished the requisite undertakings and have also deposited an amount of Rs. 1.20 lacs each. They were previously holding the shops which were gutted in fire. No reason has been communicated by the respondents for not allotting the shops to them. It is reiterated that they are bona-fide claimants of the shops. They have furnished the requisite undertakings and have also deposited an amount of Rs. 1.20 lacs each. They were previously holding the shops which were gutted in fire. They were not allowed to rebuild the said shops but they were included in the list of the persons who had to be allotted shops in the ground floor. 2. The respondents have pleaded in their objections that respondent Corporation has under the rehabilitation scheme constructed a two storeyed shopping complex, having 90 shops (45 in ground floor and 45 in first floor), at Hazoori Bagh, popularly known as Block-E,. In the year 2006 out of the said 90 shops, five shops in the ground floor were handed over to five displaced shopkeepers/stakeholders pursuant to the Hon'ble Court orders passed in OWP No. 05/2006 titled "Abdul Aziz Parray and others v. State and Others". Thereafter, one shop was put to open auction and the same was allotted against a premium of Rs. 15.50 lakhs in the year 2011 and at a rent of Rs. 10/- per sft. per month. 3. The respondent Corporation proposed to allot the shops to various stakeholders on the basis of draw of lots, strictly in accordance with the terms and conditions of order No. 437 of 2011, dated 10.03.2011. In light of order No. 437 of 2011, dated 10.03.2011, the claimants of said shops were required to submit the documents and deposit an amount of Rs. 2.00 lakhs per head with the respondent Corporation on account of payment towards the premium of a shop in connection with the allotment of shops at the aforementioned shopping complex at Hazoori Bagh, till such time that the final premium is decided in terms of the order dated 10.04.2006 passed in OWP No. 05/2006 titled "Abdul Aziz Parray and Others v. State and Others". 4. However, before the respondent Corporation could conduct the draw of lots, a majority of the stakeholders without any authority whatsoever broke into the shops themselves and occupied the same illegally. 4. However, before the respondent Corporation could conduct the draw of lots, a majority of the stakeholders without any authority whatsoever broke into the shops themselves and occupied the same illegally. Immediately after illegally occupying the shops, which otherwise were required to be allotted on the basis of draw of lots, many of the stakeholders approached this Court through the medium of various writ petitions, seeking directions that their possession vis-à-vis the shops illegally occupied by them be protected and the respondent Corporation be directed to issue formal allotment orders in their favour. 5. OWP No. 493/2014 titled "Mohammad Yaseen Khan and Others v. State and Others" came up for consideration on 07.04.2014 and this Hon'ble Court was pleased to direct the respondents to examine and consider the case of the petitioners for allotment of shops and make a decision in light of the averments made in the writ petition within a period of one month from the date the said order was passed. Another writ petition bearing No. 198/2011 along with contempt petition No. 743/2014 titled "Ashiq Hussain Dar and others v. State" pertaining to the same subject matter came up for consideration before this Hon'ble Court on 20.05.2013 and this Hon'ble Court was pleased to dispose of the matter with the direction to the respondents to consider the representation of the petitioner and take a decision strictly in accordance with rules within a period of two months from the date the copy of the order was received by them. In addition, it was also made clear in the order "supra" that any observation made shall not prejudice the rights of the parties and influence the mind of the respondent in any way in the consideration order to be passed by them. 6. The respondents further submit that following the series of above mentioned writ petitions, another writ petition bearing No. 269/2012, alongwith OWP No. 18/2012 titled "Abdul Gani Dar and Other v. State" had come up for consideration before this Hon'ble Court and this Hon'ble Court was pleased to pass an order directing the respondents that they shall not interfere with petitioners' legitimate and rightful possession over the subject matter, if any, except in accordance with law. The 71 stakeholders who had illegally occupied the aforementioned Municipal shops themselves conducted draw of lots at their own level and subsequently made representations before the respondent Corporation for the rectification of their illegal action and issuance of allotment orders in their favour. On the other hand some of the stakeholders objected to the action of draw of lots by the shopkeepers themselves. They submitted representations stating that the allotment of the shops by the respondent Corporation be made strictly in accordance with the terms and conditions of the order No. 437, dated 10.03.2011. It is pertinent to mention here that the representations made by the shopkeepers interested in allotment of shops to be made in accordance with the terms and conditions laid down in the order No. 437/2011, dated 10.03.2011 have categorically and in unequivocal terms mentioned that the allotment of shops be made by respondent Corporation through draw of lots only. 7. The respondent Corporation filed an FIR against the illegal occupants of aforementioned Municipal shops before the Police Station, Shergari, Srinagar vide No. SMS/Rec/4096-5002, dated 23.01.2012 on the ground that the shopkeepers had opened the locks of the shops belonging to the SMS in violation of the various orders referred to hereinabove. 8. The respondents submit that the matter pertaining to the aforementioned allotment of shops has been discussed several times and all the records have been perused and considered and a detailed consideration order was passed by the Commissioner, SMC vide order No. 1712, of 2015 dated 07.12.2015. In terms of the said order, it has been found that the action of holding draw of lots by the shopkeepers at their own level followed by the subsequent occupation of these Municipal shops is bereft of any legal sanctity and is contrary to the provisions of rule of law and the terms and conditions as envisaged in order No. 437, dated 10.03.2011 and more so, in view of the fact that orders pertaining to the same subject matter passed by this Court have been violated. Further, in terms of the said order, it has been observed that these illegal occupants of Municipal shops shall vacate the illegal possession of the said shops within 7 days, failing which they shall forfeit their rights over the said shops. A photocopy of the said order dated 07.12.2015 is appended hereto as Annexure "R". Further, in terms of the said order, it has been observed that these illegal occupants of Municipal shops shall vacate the illegal possession of the said shops within 7 days, failing which they shall forfeit their rights over the said shops. A photocopy of the said order dated 07.12.2015 is appended hereto as Annexure "R". After passing of the said order dated 07.12.2015, the respondent Corporation directed all the stakeholders to vacate the shops held by them. However, the said shopkeepers have failed to vacate the said shops in terms of the order dated 07.12.2015. Infact, the various stakeholders resorted to violence in the aforesaid shopping complex as well as in the office premises of the respondent Corporation against the proposed draw of lots by the respondent Corporation. However, the respondent Corporation in order to amicably settle the issue called all the stakeholders and held a meeting with them in order to settle the issue once for all. The petitioners in the instant writ petition form a class with such persons. They are genuine stakeholder in the matter. However, it is reiterated that due to the non-cooperation of the majority of the shopkeepers, the respondent Corporation has not been able to allot the shops formally. The respondent Corporation is facing a lot of revenue loss in the hands of the shopkeepers who have occupied the shops since 2011 and have failed to pay the rent to the respondents. 9. In the end the respondents have stated that the respondent Corporation admits that the petitioners are entitled to the allotment of shops in the aforesaid shopping complex which could not be done for the afore stated reasons. 10. Heard and considered. 11. This case reflects a sad and sordid state of affairs. It pains one to see and hear that the respondent Corporation is so cripple and weak that it has failed to implement its own decision. The respondent Corporation has not only expressed its inability but has also lost the will to conduct the draw of lots in respect of the allotment of the shops in block "E", Srinagar Municipal Corporation Complex at Hazoori Bagh, Srinagar. The respondent Corporation has contended that the majority of the stakeholders without any authority barged into the shops themselves and occupied the same illegally. They have not been paying any rent to the Corporation since the year 2011. The respondent Corporation has contended that the majority of the stakeholders without any authority barged into the shops themselves and occupied the same illegally. They have not been paying any rent to the Corporation since the year 2011. The Corporation which otherwise is always on its toes has utterly failed to seek the eviction of the unauthorized occupants as a consequence of which the Corporation might have suffered a huge loss in term of revenue that could have been utilized for some constructive purposes. Anarchy has been allowed to prevail and the laws and the rules have not only been given a go by but they have been allowed to be sacrificed at the altar of justice. 12. The Corporation took a decision vide Order No. 1712 of 2015, dated 07.12.2015, whereby it was found that the action of these shopkeepers in holding the shops is bereft of any legal sanctity and is contrary to the provisions of the law as well and the terms and conditions laid down in order No. 437 of 2011, dated 10.03.2011. The relevant excerpts of Order No. 437, of 2011 dated 10.03.2011 are as under: "1. Whereas, having regard to these facts and as an interim measure to safeguard the interests of the SMC as also the genuine beneficiaries and to remove the public nuisance, the Corporation has decided to allot rest of the shops in the complex to the genuine beneficiaries figuring in the list prepared by the Corporation, in the spirit of the observations/directions of the Hon'ble High Court on the following conditions:- That each one of the beneficiaries shall deposit an amount of Rs. 2.00 lacs (two lacs) towards the premium and rentals @ Rs. 10/- (ten) per sft. And this arrangement shall be subject to the final outcome of the writ petition No. 05/2006 and other matter sub-judice before various Hon'ble Courts, with regard to premium that may ultimately be found suitable by the Hon'ble High Court for payment to the Corporation. The allotment shall also be subject to the final outcome of the investigation by the Vigilance Organization Kashmir regarding genuineness of the beneficiaries. The allotment shall also be subject to the final outcome of the investigation by the Vigilance Organization Kashmir regarding genuineness of the beneficiaries. In case any allottees not found a genuine beneficiary and thus not entitled to the allotment, the Corporation shall in that event be at liberty to evict him from the shop without notice, impose penalty on him and prosecute him in the Court of Law; 2. Whereas, the allottee shall also be liable to pay the monthly rentals to the Corporation from the date the possession is delivered to him; 3. Whereas, keeping in view the huge number of beneficiaries, allotment with regard to location of the shops shall be made by draw of lots; 4. Whereas, each one of the genuine beneficiary shall be asked to deposit an amount of Rs. 2.00 lacs in the Municipal Chest in lieu of the proposed allotment being made to him in the said Complex subject to the condition that he will pay the balance amount of premium as would ultimately be found to be payable by him to the Corporation. 5. Whereas, each one of the beneficiary shall have to furnish as undertaking duly attested by a judicial Magistrate to the effect that this allotment would be subject to final outcome of the writ petition No. 05/2006 and other cases sub-judice in the Hon'ble High Court and other Hon'ble Courts and shall be bound to pay the premium which would be found suitable/appropriate payable to the SMC; Now therefore, in light of the above details, the allotment orders shall be issued accordingly in favour of the beneficiaries on fulfilment of the conditions indicated hereinbefore". 13. The respondent Corporation has failed to implement the aforesaid order with impunity although the respondent Corporation has stated that the petitioners are genuine stakeholders in the matter. 14. Order No. 1933 of 2011, dated 10.10.2011 issued by the Chief Revenue Officer, Srinagar Municipal Corporation provides that the allotment of shops in Block "E" situated at Hazooribagh, Srinagar shall be made in favour of the beneficiaries, who are found to be genuine after scrutiny of papers and on furnishing of an undertaking and payment of Rs. 2.00 lacs subject to the final outcome of any court case pending in the Hon'ble High Court of J&K/Hon'ble Court subordinate to it and also subject to final outcome of investigation by the Vigilance Organization. 2.00 lacs subject to the final outcome of any court case pending in the Hon'ble High Court of J&K/Hon'ble Court subordinate to it and also subject to final outcome of investigation by the Vigilance Organization. A format was circulated among the people claiming to be beneficiaries for furnishing various details pertaining to the deposit of initial payment TG rent etc. and the proof of entitlement. After the verification of the papers, 22 (twenty two) persons were found to be genuine beneficiaries in the first phase of scrutiny. They have deposited the initial payment as prescribed and also R. 1.00 lac as decided vide order No. 437 of 2011, dated 10.03.2011. These 22 beneficiaries were found entitled to the allotment of shops on conditions of removal of their KHOKHAs existing in front of the Complex called Block "E" situate at Hazooribagh, Srinagar. 15. By another order bearing No. 1955 of 2011, dated 12.10.2011, shops were provided to Ghulam Mohammad Laway and Mohammad Yaseen Khan in Block "E" on the terms and conditions laid down in order No. 437/2011, dated 10.03.2011 subject to the removal of their KHOKHAs which were existing in front of Block "E". 16. From the above, what gets revealed is that those who barged into the shops without any authority of law and are rank trespassers enjoy the fruits without the payment of any rent or fee for the last six years approximately by now and the genuine stakeholders, which the petitioners have been admitted to be, run from pillar to post to seek the allotment of shops although the benefit of the allotment of shops has been accorded to the similarly circumstanced persons vide Order No. 1955 of 2011, dated 12.10.2011. Therefore, it is directed that the respondent Corporation shall consider the allotment of shops, one each in favour of the petitioners in the ground floor of Block "E" of Srinagar Municipal Corporation Complex at Hazooribagh, Srinagar for being the genuine stakeholders within a period of four weeks from the date the copy of this order is made available to them on the same analogy and on the same terms and conditions as have been evolved in the case of others in terms of order No. 1933 of 2011, dated 10.10.2011 and the order No. 1955 of 2011, dated 12.10.2011 referred to herein before. The writ petition is disposed of accordingly along with the connected MP(s).