CW/2207/1986 of BHANWAR LAL Vs STATE and ORS on 19 December 2005

ORDER

S.B. Civil Writ Petition No.2207/1986

Bhanwarlal

vs. The State of Raj. & ors.

Under Article 226 of the Constitution of India.

Date of Judgment: December 19, 2005.

PRESENTHON'BLE MR. PRAKASH TATIA,J.

Mr. M.C. Bhoot for the petitioner.

Mr. O.P. Rathi, Deputy Govt. Advocate for the State.

Mr. A.K. Rajvanshy for respondent no.2.

Mr. R.K. Soni for respondent no.3.Mr. K.N. Joshi for respondents no.5 and 6.

BY THE COURT:

This writ petition is pending since 1986 before this Court. Thepetitioner's case is that the petitioner was having a shop known as'Peddy' bearing no.19. In the year 1950 it was decided by the MunicipalCouncil, Udaipur that certain structure is required to be removed sothat the area of Ghantaghar, which is the important market area of theUdaipur may be developed properly. According to the petitioner, hispeddy fell in that area which was proposed to be removed. Thepetitioner filed a regular civil suit for injunction against the MunicipalCouncil, Udaipur seeking injunction against them from interfering in the peaceful enjoyment of the said Peddy of the petitioner. The said suitwas decreed by the trial court and appeal against the said decree wasdismissed on 31.1.1953 and according to the petitioner, the secondappeals preferred by the said Municipal Council were decided by thisCourt vide judgment dated 21.1.1958. This Court modified the decreeand the operative part of the judgment of this Court delivered in the civil regular second appeals No.153,154 and 155/1953 is as under:- “In view of the conclusions at which I have arrivedabove, I partly allow these appeals and modify the decreesgranted by the courts below in favour of the plaintiffsrespondents by adding a rider that the appellantCorporation, in the event of its still requiring theproperties in question for the purpose of winding any publicstreet or for any other lawful purpose, shall be within itsrights in obtaining them on payment of reasonablecompensation in accordance with law. As the appeals havefailed in substance, the respondents will be entitled totheir costs in this Court. Leave to appeal is refused.”

The petitioner further submitted that in the year 1975, thematter was settled between Municipal Council, Udaipur and thepetitioner Bhanwarlal and a deed was executed , copy of which Annx.1.It was agreed between the parties that the petitioner will surrender hispeddy of 3 ft. x 5 ft. and in lieu of that, the Municipal Council, Udaipurwill allot a shop to the petitioner in the Sarafa Bazar area. It wasdecided that in case the allotted shop shall have more area then thecost of the said shop shall be paid by the petitioner. It appears that saidagreement was not executed and another agreement was executed on 12.4.1976 ('Annx.2). By this agreement, it was decided that thepetitioner will surrender the shop and the respondents shall give theland to the petitioner and shall charge the cost of the land which maybe in excess to the land of the petitioner, as mentioned in theagreement dated 12.4.1976(Annx.2). According to the petitioner, on19.9.1976(Annx.3), plot no.7 measuring 150 sq.ft. was allotted to thepetitioner but in fact, this plot was not handed over to the petitioner.The petitioner went on submitting the representations, upon which theMunicipal Council, Udaipur again recommended the petitioner's case tothe Urban Improvement Trust, Udaipur, as by that time, the trust wasformed. After some correspondence, ultimately the Urban ImprovementTrust, Udaipur vide communication dated 28.1.1985 (Annx.8) informedpetitioner Bhanwarlal that the petitioner may propose other commercialplot so that the matter may be examined and the land may be allotted.The petitioner proposed plots no.11 and 40C in Hathipol Delhi GateScheme.

In the backdrop of these facts, the petitioner when failed to getthe plot, preferred this writ petition. The reply has been filed by therespondent-Urban Improvement Trust, Udaipur and the respondent-Urban Improvement Trust contested the claim of the petitioner bysubmitting that in fact the petitioner occupied 3 ft. Space only on theplatform of the clock-tower and he has mixed up his claim with the claim of the persons who had constructed shops with them. It issubmitted that the petitioner was in occupation of small piece of landonly.

It appears from the facts that respondents no.5 and 6 raised aclaim that they purchased plot no.24G situated in Hathipol Delhi GateScheme of Udaipur from respondent no.3 in public auction on 17.5.1976but the Urban Improvement Trust, Udaipur allotted plot no.40E in lieuof plot no.24G to the them vide order dated 9.7.1976. According torespondents no.5 and 6, the trust failed to hand over possession of theland to respondents no.5 and 6, upon which respondents no.5 and 6approached the Chairman, U.I.T., Udaipur, who on 20.3.1985 directedthe Secretary, U.I.T., Udaipur to allot plot no.40B to respondents no.5and 6 but that plot was also not given to respondents no.5 and 6 and,therefore, respondents no.5 and 6 filed a suit against the UrbanImprovement Trust, Udaipur in which the appellate court granted ad-interim injunction order in favour of respondents no.5 and 6 in relationto plot no.40C. According to respondents no.5 and 6 because an stayorder was granted by this Court, the plot no.40C was not given torespondents no.5 and 6. According to the petitioner, when thepetitioner came to know that without mentioning about any claim forplot no.40C, respondents no.5 and 6 got the injunction order in relationto plot no.40C from the appellate court, therefore, respondents no.5

and 6 became necessary party in the present writ petition and,therefore, petitioner submitted application to implead respondents no.5and 6 as party in the present writ petition, upon which they impleadedas party.

It appears that the matter was taken up by this Court and duringthe course of arguments, efforts were made for settlement, upon whicha proposal dated 21.2.2002 was submitted by the Municipal Council,Udaipur. The Municipal Council, Udaipur offered that the MunicipalCouncil is prepared to pay compensation to the petitioner for his peddyand in alternate prepared to give one shop which the Municipal Council,Udaipur is proposing to construct over plot no.40C. The proposed mapwas also annexed by the Municipal Council, Udaipur along with theproposal dated 21.2.2002( Annx.R/2) and the third alternate suggestionwas that the Municipal Council, Udaipur will recommend for allotmentof a plot to the petitioner to the Urban Improvement Trust, Udaipur.This proposal as such was not accepted by the petitioner as submittedby the learned counsel for the petitioner today because according to thepetitioner, as per the agreement he was entitled to take the plot and incase the plot has excess land, he is ready to pay the market price of theplot as existing today and there is no reason for accepting the one ofthe shops on the plot no.40C. The learned counsel for the petitioneralso pointed out that though in the year 2002, there was proposal for construction of the shops as suggested by the Municipal Council,Udaipur in their proposal dated 21.2.2002 but now there is no plan ofthe Municipal Council, Udaipur or the Urban Improvement Trust,Udaipur of raising constructions of the shops as proposed in the mapannexed with the proposal dated 21.2.2002, therefore, the petitioner isstill willing to have the entire plot no.40C on condition that 1/3[rd] of theplot be allotted to the petitioner free of cost and the petitioner shallpay the market value of the plot as available today to the respondentsUrban Improvement Trust, Udaipur or the Municipal Council, Udaipur,as may be decided by them.

The learned counsel Mr. R.K.Soni appearing for the UrbanImprovement Trust, Udaipur submitted that plot no.40C is not vested inthe Urban Improvement Trust, Udaipur and is now vesting in theMunicipal Council, Udaipur. However, the Urban Improvement Trust,Udaipur submitted that the Urban Improvement Trust, Udaipur isprepared to give a piece of land to the petitioner on market price of theland as existing today. By this the Urban Improvement Trust, Udaipur isaccepting the recommendation of the Municipal Council, Udaipur only.

The learned counsel Mr. A.K. Rajvanshy appearing for theMunicipal Council, Udaipur submitted that today factual position is notavailable about plot no.40-C but as far as his knowledge the MunicipalCouncil, Udaipur is still prepared to give one of the shops which may be constructed by the Municipal Council, Udaipur, if the Municipal Councilintends to raise construction there and the land of plot no.40C isavailable for that purpose and in case the Municipal Council, Udaipur isnot proposing to raise construction of the shops as proposed in the mapannexed with proposal dated 21.2.2002 then the Municipal Council,Udaipur is prepared to give land of one shop as shown in the mapannexed with the proposal.

The learned counsel for the petitioner at this juncture furthersubmitted that in case only the plot of one shop is given by theMunicipal Council, Udaipur then that will be made available to thepetitioner free of cost in lieu of his claim.

In view of the above facts which are substantially not in dispute,it will be just and proper to direct the Secretary, UDH to look into thematter because interests of the Municipal Council, Udaipur as well asthe Urban Improvement Trust, Udaipur are involved and he may take anappropriate decision on this aspect of the matter. The petitioner begiven full opportunity of hearing to put forward his claim and the mattermay be examined after going through the entire record and thecontentions of the Municipal Council, Udaipur as well as of the UrbanImprovement Trust, Udaipur so that such an old matter may be amicablysettled. This order is being passed because of the reason that even inthe year 2002, the proposal was submitted by the Municipal Council, Udaipur through this Court for settlement between the parties admittingthe claim of the petitioner.

At this juncture, it may be pointed out that the petitioner's firstallotment letter Annx.1 described the property to be on 3 ft. X 5 ft.,whereas in the allotment letter dated 19.9.1976(Annx.3), the UrbanImprovement Trust, Udaipur allotted the land measuring 150 sq.ft. Inthe allotment letters Annxs.1,2 and 3, there is no mention of rate alsobut now the petitioner is reconciling and prepared to pay the marketcost of the land, therefore, any land if allotted to the petitioner inexcess to his claim, then that shall be on the market rate as prevailingtoday,i.e. 19.12.2005.

In case any fresh allotment order is passed in favour of thepetitioner and he feels aggrieved, he shall be free to challenge the saidorder of the Secretary, UDH and in case no dispute survives then theproper recommendations may be made by the competent authorities onbehalf of the respondents, in favour of the petitioners.

Though it is a petition filed by the petitioner but it appears thatrespondents no.5 and 6 have also purchased the plot in public auction inthe year 1976 and interim order was passed in favour of respondentsno.5 and 6, therefore, it will be just and proper to permit respondentno.5 and 6 to submit their claim before the Secretary, UDH who mayexamine the matter and may pass appropriate order of allotment of plot in the light of the facts that the respondent no.5 and 6 purchased theplot in public auction in the year 1976 and they deposited the entireamount with the Urban Improvement Trust, Udaipur. It is made clearthat respondents no.5 and 6 shall not have any claim on plot no.40C asproposed in Annx. R.2/1 dated 21.2.2002.

The Secretary, UDH shall pass the appropriate order within aperiod of three months from the date of submitting certified copy ofthis order by the petitioner and by respondents no.5 and 6 for theirrespective claims.

The writ petition of the petitioner is, therefore, disposed of asindicated above.

( PRAKASH TATIA ),J.

mlt.