SADAR-UD-DIN SHACHDHAR Vs. MUNICIPAL COUNCIL, SRINAGAR

JUDGEMENT

(1.) THIS is an application for issue of a writ of Mandamus to the respondents in order to put the petitioners in possession of the shops in dispute.

(2.) THIRTEEN petitioners have filed this petition on the allegations that they were the tenants of the shops as far back as 1945. The shops were let out by the Municipality Srinagar to various persons including some of the petitioners as far back as 1945 on the condition that the allottees were to construct their wooden sheds thereon. Subsequently the plots were re -allotted to the same people but through an open bid and this practice continued for some time. This practice was, however, discontinued. Later on, in the year 1962, the respondent Municipality erected a Pucca building on the land and some of the petitioners who were dislocated by the erection of the new building were suitably adjusted in an alternative accommodation near Gandhi Park, Srinagar, where they set up temporary wooden shops to carry on their business till the building was complete. The building was complete in the year 1963 -64 when the Municipality respecting its earlier assurance given to the allottees leased out various shops to the petitioners at varying rentals. At the time when the shops were allotted to the petitioners a lease deed was executed by them a sample of which has been annexed to the petition being Annexure (I). In the year 1965 notices for the enhancement of rents from Rs. 100/ -to 15% of the capital cost were served on the petitioners in order to provide a uniform rate of rent. The lessees filed suits of injunctions in the courts which were ultimately compromised on 21 -12 -1967 by which the Municipality withdrew the notices. Two weeks after this" date i.e. on 4 -1 -1968 the respondents called upon the petitioners and other occupants of the shops to appear in the office of the Municipality to finalize the rent cases. A copy of the notice is Annexure (II) to the petition. On the evening of 5 -1 -1968 the entire building was gutted damaging the shops occupied by the petitioners and rendered them unfit for use. The petitioners then approached the respondents Municipality for reconstruction of the shops and the respondent and its officers assured the petitioners that when the shops were reconstructed the petitioners would be put in possession thereof. We might state here that from this allegation made in Para 7 of the petition, the petitioners impliedly admitted that they had delivered possession of the shops to the Municipality in the hope of getting it back after new shops were constructed. It is further alleged by the petitioners that the entire building is now complete and the shops which had been occupied by the petitioners are now ready for occupation. The petitioners further alleged that instead of honouring the assurance given by the respondent, the Municipality decided to hold a public auction for allotting the shops to the highest bidder. This action of the Municipality amounted to interference of the petitioners fundamental right to the possession of the shops and carrying on their business there. Hence the present writ petition has been filed for an appropriate writ in order to protect the rights of the petitioners.

(3.) THE petition has been resisted by the respondent Municipality on several grounds. The respondents have first of all pleaded that the petitioners were not lessees at all but were persons holding over after the expiry of the period of lease and were liable to pay damages for use and occupation. It was further alleged that the petitioners have suppressed the material facts and, therefore, were not entitled to any indulgence by this Court. It was further averred that the petitioners had not paid the rents and, therefore, the tenancy stood determined under the terms and conditions of the lease executed by the petitioners and they had, therefore, no right to maintain this petition. The respondents vehemently denied that any assurance was given by the respondents or any person duly authorised by them. Finally the respondents took the stand that after the building was gutted, the petitioners voluntarily surrendered possession to the Municipality and there was no question of re -allotting the shops to them. The Municipality had spent huge amounts of money on the construction of new building and the shops could only be leased by an open auction in which the petitioners could also pvicipate but they were not entitled to any preferential treatment. The respondents denied that there was any violation of fundamental right.