Allahabad High Court
Shyam Kumar vs State Of U.P. And Another on 10 June, 2021
Bench: Sanjay Yadav, Acting Chief Justice, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- WRIT - C No. - 8580 of 2021
Petitioner :- Shyam Kumar
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Rajendra Prasad Mishra,Ajay Kumar Giri
Counsel for Respondent :- C.S.C.,Manoj Kumar Singh
Hon'ble Sanjay Yadav,Acting Chief Justice
Hon'ble Prakash Padia,J.
Matter taken up through video conferencing.
Heard Sri R.P. Mishra, learned counsel for the petitioner.
Shri Manoj Kumar Singh, learned counsel appears for the respondent no.2 and Learned Standing Counsel appears for the respondent no.1.
Challenge is to an order dated 15.9.2020 passed by the Commissioner, Municipal Corporation, Prayagraj; whereby the petitioner is allotted a shop no. 9 at Main Market Jhunsi.
The order as evident therefrom emanates from the direction in Writ C No. 9977 of 2019 (Shyam Kumar V. Union of India and 3 others) decided on 22.10.2019. The writ petition was disposed of in terms of the decision in Writ C No. 43642 of 2018 and connected writ petitions decided on 12.4.2019.
In Writ C No. 43642 of 2018, the controversy was whether Municipal Commissioner, Municipal Corporation was within his authority to nullify the Government conveyance executed by Government of India and demolish the shops constructed thereover on the assumption of it being unauthorisedly constructed. The issue was determined in the following terms by order dated 12.04.2019:
"12. In our view, factum that Deeds of Conveyance executed by Government of India allotting shops to predecessors from whom the same stood transferred to petitioners on various dates under the provisions of Act, 1954 is not in dispute. Petitioners being transferees from initial allotees (owners of shops) are ostensible owners of shops in dispute, which were allotted by Government of India under the Deed of Conveyance, detailed hereinabove. The aforesaid Deeds of Conveyance, whether valid or not, could not have been decided by Municipal Commissioner since title dispute could have been settled only by a Court of law and Municipal Commissioner is not competent to declare Deeds of Conveyance transferring title to original transferees to be illegal and bad.
13. Once existence and execution of Deeds of Conveyance and that too executed by Government of India were not in dispute, Municipal Commissioner had no option but to proceed to consider whether persons coming before him in respect of shops in dispute, derive their title from such Deeds of Conveyance or any subsequently executed Deed of Conveyance or Instruments or documents of title and thereafter ought to have passed order for payment of compensation or to make an alternative site or shop available. But that has not been done. Therefore, in our view, impugned orders in all the writ petitions are patently illegal and without jurisdiction as Municipal Commissioner has traveled beyond its authority by declaring Deeds of Conveyance executed by Government of India, duly registered under the provisions of Registration Act, 1908 (hereinafter referred to as "Act, 1908") with the Competent Authority, after almost sixty more years, illegal and in passing order denying any right of compensation to petitioners.
14. Moreover, here is not a question of ownership of land. When shops were allotted to petitioners, they were entitled for compensation in respect of shops provided all the petitioners substantiated their right flowing from initial Deeds of Conveyance, executed by Government of India or subsequent sale deed or instruments executed by erstwhile allottees or their transferees.
15. In the result, writ petitions are allowed with costs. We quantify cost of Rs.5,000/- to each set of petition, against respondents 3 and 4 of Petition 1. The impugned orders are hereby set aside. Municipal Commissioner now shall proceed to determine compensation payable to petitioners after examining whether petitioners, coming before him, are valid owners/transferees of shops in dispute and derive their right from allottees under initial Deed of Conveyance executed by Government of India or any subsequent document of transfer executed by vendees/purchasers under Deed of Conveyance executed by Government of India, and have legal right to claim compensation. It is also provided, as also already directed by this Court vide judgment dated 21.3.2018 that instead of compensation it will also be open to respondents 3 and 4 to allot any other shop/site to petitioners, if it is suitable and agreeable to petitioners and that will settle all other claims with regard to disputed shops, which have been demolished by respondents."
Evidently, besides finding fault with the action of Municipal Corporation in demolishing authorised construction directed the remedial measure by giving option to the respondent Corporation that instead of compensation it will be open for it to allot any other shop/site if it is suitable and agreeable to petitioners.
Grievance raised by the petitioner is that though he is held entitled for a shop at a suitable place, akin to the place from where he was displaced, yet a shop in the undeveloped suburbs of the District at Jhunsi has been offered which is not agreeable to the petitioner. It is urged that despite him not agreeing for the said shop his claim for compensation is not settled. The petitioner accordingly seeks direction to either pay compensation or to allot the shop at a place as par with the value of demolished shop in terms of the order in Writ C No. 43642 of 2018.
Though learned counsel for the respondent Corporation who appear on advance notice take exception to the relief sought; however, he does not dispute about the order passed in Writ C No. 43640 of 2018 which was made applicable to the petitioner in Writ C No. 10001 of 2019 and that these orders have attained finality. Since the impugned allotment order is not in consonance with the directions in Writ C No. 43642 of 2018, the same is set aside.
The Corporation is under an obligation, if they are not inclined to allot a shop at a place akin to the place from where the petitioner's shop was demolished, then shall settle the compensation in lieu thereof. Let the steps be taken within ninety days from the date of communication ff this order.
The petition is disposed of finally on above terms. No Costs.
Order Date :- 10.6.2021
Kirti
(Prakash Padia, J) (Sanjay Yadav, ACJ)
