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2018 DIGILAW 716 (JK)

Amina v. Union of India

2018-09-19

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Dhiraj Singh Thakur, J. 1. Petitioner inter alia seeks issuance of a writ of mandamus commanding the respondents to allot and deliver the possession of one shop to the petitioner out of a new shopping complex, for which tender notice was issued by the respondent No. 4 i.e., Executive Officer, Badamibagh Cantonment Board, Badamibagh, Srinagar, published on 06.02.2007 in a daily local newspaper. 2. Briefly stated material facts are as under:- 3. The petitioner claims that he was allotted a shop by the Cantonment Board way back in the year 1960 on lease basis, which was extended from time to time. The last extension appears to have been granted in favour of the petitioner on 13.02.1967 whereby the lease in regard to shop No. 2 in possession of the petitioner was extended for a period of three years with effect from 01.04.1967 on the monthly rental of Rs. 10/- subject to certain conditions. The petitioner claims that he was running a Bakery business and was earning his livelihood out of the said business. It is stated that in the building in which the petitioner's shop was situated, there were three other shopkeepers also in whose favour the Cantonment Board had similarly allotted shops on lease basis. It is stated that in the year 1989 the Cantonment Board proposed to repair the building in which the shops were existing and for that reason petitioner along-with other lessees were told to vacate the building in question, with a promise that the Board would re-deliver the building after necessary repairs were affected. It is also stated that based upon the said bona-fide belief that the possession would be re-delivered to the petitioner, vacated the shop in question, but same could not happen. A notice dated 17.02.1989 also appeared to have been issued subsequently by the petitioner on the Executive Officer, Badamibagh, informing the authorities that since the repairs have been affected upon the shopping complex consisting of nine shops in all respects, the possession of the shop, earlier vacated by the petitioner, be re-delivered to him. Various representations and applications are claimed to have been submitted before the Cantonment Board reiterating the said demand. 4. It appears that in February 2007, a tender notice came to be issued by the Cantonment Board inviting offers from the prospective lessees in regard to proposed construction of shops of various sizes on lease basis. Various representations and applications are claimed to have been submitted before the Cantonment Board reiterating the said demand. 4. It appears that in February 2007, a tender notice came to be issued by the Cantonment Board inviting offers from the prospective lessees in regard to proposed construction of shops of various sizes on lease basis. The date of submission of bids was subsequently extended. A legal notice was then served by the petitioner through his counsel upon the Executive Officer of the Cantonment Board seeking allotment of one shop in favour of the petitioner out of the newly proposed shopping complex, as reflected in the tender notice dated 06.02.2007. In response to the said notice, reply notice was served upon the petitioner dated 14.03.2007, wherein the Cantonment Board clarified its stand and accordingly rejected the prayer of the petitioner. In the reply submitted by the Cantonment Board, the stand has been taken that the building in which the shop, earlier allotted to the petitioner being old and in extremely dilapidated condition, was demolished and new shopping complex was re-constructed under the Self Financing Scheme. It is stated that three other occupants of the shops which were earlier allotted to them in the old demolished building were allotted shops in the new shopping complex only after they participated in the tender process. It is further stated that the petitioner never applied for re-allotment of shop in the new shopping complex nor did he participated in the tender process or paid any development costs for re-allotment of the shop to him. As against the other tenants, who had deposited the development costs pursuant to which the shops stood allotted to them in the new shopping complex. 5. Heard learned counsel for the parties. 6. Admittedly the last extension granted in favour of the petitioner in regard to shop No. 2 situated at Sonwar Bagh, Srinagar, was for a period of three years which was expired in April 1970. Thereafter, there appears to have no extension of lease in favour of the petitioner, although petitioner might have been depositing the rental, fixed earlier in terms of the various clauses of the lease-deed as extended from time to time. The lease of the petitioner therefore, had expired by the efflux of time. 7. Thereafter, there appears to have no extension of lease in favour of the petitioner, although petitioner might have been depositing the rental, fixed earlier in terms of the various clauses of the lease-deed as extended from time to time. The lease of the petitioner therefore, had expired by the efflux of time. 7. Mere deposition of rent by the lessee would not amount to renewal of the lease as has been held by the Hon'ble Apex Court in the case titled Delhi Development Authority v. Anant Raj Agencies Private Limited, (2016) 11 SCC 406 . In the said judgment the Hon'ble Apex Court held that in absence of the status of renewal of the original lease in respect to the property in question is that of the unauthorized occupant. 8. Testing the facts of the case on the touchstone of the aforementioned judgment, it can be seen that after expiry of the lease in the year 1970, there was no obligation on the part of the Cantonment authorities to handover possession of the shop to the petitioner in the newly constructed building. The petitioner ought to have fulfilled the various terms and conditions prescribed for allotment as were notified in the tender notice dated 06.02.2007. The stand of the Cantonment authorities is very clear. According to them, the shops were to be re-constructed on the basis of the Self Financing Scheme pursuant to the bidding process. It is stated that the other three tenants of the old building had participated in the bidding process and having been found successful and having deposited the development charges, were allotted the shops. 9. In the present case it appears that the petitioner without participating in the tender process and without depositing the development charges under the Self Financing Scheme was insisting on taking possession of the shop in the newly constructed shopping complex on the basis of the fact that he was earlier in possession of the shop in the old building as lessee. However, in view of the fact that his lease period has already expired, his status was that of an unauthorized occupant and, therefore, there was no corresponding obligation on the Cantonment authority to rehabilitate the petitioner in the newly constructed building. 10. For the reasons mentioned above, the petition has no merit and is accordingly dismissed.