SHASHI KUCHHWAHA Vs. MUNICIPAL CORPORATION SATNA

JUDGEMENT

(1.) This petition has been preferred by the petitioner aggrieved by an order (P-4) dated 24-8-2005 cancelling the allotment of the shop which was made in favour of the petitioner.

(2.) It is averred in the petition that petitioner is carrying on wholesale and retail business of vegetable in the name and style of "Shiv Sabji Bhandar". Petitioner is proprietor of the same. Petitioner applied for allotment of shop in Vishwas Rao Sabji Mandi. The Mayor-in-Council considered application of the petitioner and passed a resolution dated 18-6-2005 to allot a shop on monthly rent of Rs. 500/-. Pursuant to resolution, an order (P-1) was issued on 23-7-2005. It was subject to the condition that allotment permission would be liable to cancel in the event of departmental dispute, on the basis of allotment/permission no right in respect of the shop would accrue, lastly allotment/permission was liable to be cancelled at any time. Petitioner was placed in possession and paid rent as per receipt (P-2) for month of August, 2005. She started the business as apparent from photographs (P-3). A complaint of Fruit and Vegetable Merchants Association was received by Mayor-in-Council, which passed a resolution No. 56/1, dated 11-8-2005. Before passing the resolution copy of complaint was not given nor any opportunity of hearing was afforded to petitioner. Resolution 56/1, dated 11-8-2005 was thus violative of principles of natural justice, arbitrary and malafide. Pursuant to the resolution an order (P-4) was issued on 24-8-2004 cancelling the allotment. The shop was sealed early morning on 26-8-2005. Petitioner made report against high handed action to the Commissioner, Municipal Corporation, Satna and to the SHO, City Kotwali, Satna. Complaint/report (P-5, P-6) were filed. Goods worth Rs. 25,000/- were kept in the shop. In case goods were not taken out, petitioner would suffer loss of Rs. 25,000/-, hence petition has been filed.

(3.) In the return filed by the Corporation, it is contended that an appeal lies against the order under Section 403 (2) (b) of the Municipal Corporation Act, 1956, hence this writ petition is not maintainable. As against resolution, representation lies before the State Government under Section 421 of the Municipal Corporation Act, 1956. Permission was granted earlier on temporary basis till further order. It could be cancelled at any time, the same did not create any right upon the petitioner. General Council of the Corporation was competent to grant such permission to allot the shop in view of clause (b) of sub-section (2) of Section 80 of the Act. The Mayor-in-Council was not competent. Without inviting tender as per Rule 3 of M.P. Municipalities (Achal Sampatti Ka Antaran) Niyam, 1994 (hereinafter referred to as 'Rules of 1994'), the shop in question was permitted to be used by the petitioner, the same could not have been transferred or allotted/permission granted for its use without inviting tenders. It could have been auctioned on the maximum bid. In view of the complaints, the Mayor-in-Council reconsidered the matter and revoked the permission which was granted earlier, subject to sub-rule (3) of Rule 12 of Madhya Pradesh Nagar Palika (Mayor-in-Council) Ke Kam Kaj Ke Sanchalan Niyam, 1998. A representation by Vindhya Fal- Sabzi Vikreta Sangh was submitted to the Corporation alleging that the shop in question is worth Rs. 5 to 6 lacs and has been allotted without holding the public auction. It was in fact an office room (Pump House) of sanitary department of the Municipal Corporation, Satna, was very old and remained generally closed. Sanction from Competent Authority for commercial purpose was to be obtained. Rent was also required to be determined. Matter was not placed before the General Body. Shri N.P. Namdeo, the then Commissioner has now been transferred to Municipal Corporation, Ratlam, who gave the concurrence for commercial use whereas the matter was required to be considered by the Corporation. The permission was not in accordance with law, hence resolution (R-1) was rightly passed on 11-8-2005. Permission has been rightly withdrawn in terms of the conditions no right was created or accrued to the petitioner.