Item No.7
THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
W.A.No.353 of 2020
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. The present appeal is directed against an order dated 31.08.2020
passed by the learned Single Judge dismissing a writ petition filed by
the appellant/writ petitioner for declaring the action of the respondents
No.2 and 3/Corporation in permitting alleged illegal occupation of open space in the RTC complex between shop No.17 allotted to the appellant/writ petitioner and shop No.18 allotted to the private respondent No.5, as illegal and issue directions to remove the said encroachment.
2. By the impugned order, the learned Single Judge has dismissed the writ petition on the ground that just as the appellant/writ petitioner had availed of the benefit of regularisation for the extra space occupied by him in terms of the Letter dated 23.05.2015 whereby, notices were issued to all the 58 DOT stalls for regularisation of the additional space occupied by the licensees unauthorisedly on payment of additional licence fee, the private respondent No.5 had also availed of the said benefit by requesting the competent authority to regularise the additional space occupied by her. Thereafter, the respondent No.5 had executed a Supplementary Agreement dated 06.07.2020 with the respondents No.2 and 3/Corporation on paying the amounts as W.A.No.353 of 2020 Page 1 of 5 demanded. The court noticed that the Deed of Licence executed in favour of allottees like the appellant herein clearly stated that the Corporation had the right to allot shops for similar business under the scheme for "NON EXCLUSIVE BASIS" in a particular bus-stand. As a result, though the appellant/writ petitioner was initially allotted the shop for purposes of running fancy and kirana business, the same was subsequently changed to medical and general store. Similarly, permission was granted to the respondent No.5 to change the business to a medical and general store. Thus, there was a business rivalry between the appellant/writ petitioner and the respondent No.5. Not finding any merit in the writ petition, the same was dismissed.
3. Mr. P. Rama Sharana Sharma, learned counsel for the appellant/writ petitioner states that the learned Single Judge has failed to deal with the main concern of the appellant/writ petitioner i.e., regularisation of illegal encroachment of the open space by the respondent No.5; that the respondents No.2 and 3/Corporation could not have regularised the open space in favour of the respondent No.5; and that regularisation of the space adjoining the shop of the appellant/writ petitioner had to be treated on a different footing vis-a-vis regularisation of the open space in favour of the respondent No.5, as it cannot be treated as 'adjoining space'.
4. Mr. Mayur Reddy, learned counsel for the respondents No.2 and 3/Corporation opposes the present appeal and supports the impugned judgment. He states that the appellant/writ petitioner has W.A.No.353 of 2020 Page 2 of 5 approached the court with unclean hands and deliberately withheld material information. He refers to the Notice dated 17.08.2015 addressed by the respondents No.2 and 3 to the appellant/writ petitioner informing him that notices had been issued by the authority to all the DOT stalls, Sathupally Bus Station, vide Letter dated 23.05.2015 for payment of additional licence fee for regularisation of additional space occupied by the licensees unauthorisedly. Based on the said decision, the appellant/writ petitioner had applied for regularisation of which permission was duly granted to him. As a result, the appellant/writ petitioner was permitted to pay a sum of Rs.1,68,518/- for the additional space occupied by him at stall No.17. It is stated that the aforesaid letter was suppressed by the appellant/writ petitioner and he is no better placed than the respondent No.5 who had also requested for a similar regularisation, which was granted in her favour. There was no discrimination by the respondents No.2 and 3/Corporation against the appellant/writ petitioner. Once the open space was regularised in favour of the appellant/writ petitioner, there was no good reason not to do so on a request made by the respondent No.5 and other similarly placed stallholders. Learned counsel states that this is only a case of business rivalry, as both the appellant/writ petitioner and the respondent No.5 are in the same line of trade.
W.A.No.353 of 2020 Page 3 of 5
5. Heard the arguments advanced by learned counsel for the parties and perused the impugned judgment wherein, the learned Single Judge has made the following observations:-
"9. From the above pleadings, it is not in dispute that both the petitioner and the 5th respondent have participated in the tender issued by the respondent corporation for allotment of shops under DOT scheme. The petitioner was successful bidder in respect of Shop No.17 and the 5th respondent was successful bidder in Shop No. 18. It is also not in dispute that the petitioner and the 5th respondent have availed the benefit of change of their business from the competent authority i.e. Tender Committee consisting of the Regional Manager, Khammam, DVM, Khammam and AO, Khammam. It is a1so not in dispute that the petitioner has occupied open space and requested the Tender Committee to regularize the same. The 2nd respondent vide proceedings dated 17.08.2015 regularizing the additional space occupied by the petitioner. Thus, the petitioner has also availed the benefit of regularization for the space occupied by the petitioner.
10. The 5th respondent has also requested the competent authority to regularize additional space of 204.75 sq. ft occupied by her. On consideration of the same, the competent authority i.e. Tender Committee has accorded permission for regularization of the said open space. Accordingly, the 2nd respondent has informed about the same to the 3rd respondent and requested the 3rd respondent to take action accordingly and direct the 5th respondent for execution of supplementary agreement by collecting a1l dues upto date etc. Accordingly, a supplementary agreement dated 06.O7.2O2O was entered by the respondent corporation with the 5th respondent on the specific terms and conditions mentioned therein.
11. In the Deed of License, there is a clause for change of business and the Tender Committee has right to accord the said permission. There is also a clause in the Deed of License that the corporation has right to allot shops are for similar business W.A.No.353 of 2020 Page 4 of 5 under the scheme for 'NON EXCLUSIVE BASIS' in a particular bus-stand. It is also contended by the petitioner that the respondent corporation has accorded permission for change of business to the 5th respondent i.e. Medical and General Stores. The petitioner is also running Medical and General Stores, as such there would be competition from the 5th respondent to the petitioner since both of them are in the very same business."
6. We find sound logic in the aforesaid reasoning given by the learned Single Judge for dismissing the writ petition filed by the appellant/writ petitioner. The respondents No.2 and 3/Corporation took a policy decision to regularise the open spaces adjoining the stalls. Having done so when it came to the appellant/writ petitioner, who applied under the scheme, he cannot raise a grievance that the same benefit should be denied to the respondent No.5, who is similarly placed. The dispute raised by the appellant/writ petitioner is an outcome of a business rivalry between the parties, both of whom are in the same trade.
7. The present appeal is found to be devoid of merits and is accordingly dismissed along with the pending applications, if any.
______________________________ HIMA KOHLI, CJ ______________________________ B. VIJAYSEN REDDY, J 17.08.2021 JSU W.A.No.353 of 2020 Page 5 of 5