Narendra Singh vs Jharkhand State Tourism ...
2021 Latest Caselaw 4309 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Writ Jurisdiction)
                W.P. (C) No. 6857 of 2007
                        ........

Narendra Singh                        ....   ..... Petitioner
                             Versus
Jharkhand State Tourism Development
Corporation Limited & Others          ....   ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                          ............
For the Petitioner             : Mr. Pandey Neeraj Rai, Advocate.

For the Respondent Nos. 1 to 3 : Mr. Sumeet Gadodia, Advocate. For the Respondent No. 4 : Mr. Saurav Arun, Advocate.

Mr. Ujjwal Sinha, Advocate.

........

10/22.11.2021.

Heard, learned counsel for the petitioner, Mr. Pandey Neeraj Rai, learned counsel for the respondent nos. 1 to 3, Mr. Sumeet Gadodia and learned counsel for the respondent no. 4, Mr. Saurav Arun assisted by learned counsel, Mr. Ujjwal Sinha.

Learned counsel for the petitioner has submitted that writ petition has been filed for a direction upon the respondents to restore the petitioner to his original position by allotting Shop No. 3, Tourist Complex, Hotel Birsa Vihar, Ranchi, whose possession has been taken by the respondent by breaking the lock behind his back and forcibly dispossessing the petitioner and removed his articles partly and leaving the remaining articles for use of the private respondent no. 4. The allotment made in favour of private respondent no. 4 without auction or public notice and despite existence of license of said shop in favour of the petitioner vide letter dated 11.09.2007 (Annexure-13) passed by the Managing Director, Jharkhand State Tourism Development Corporation, Ranchi be quashed as the respondent authorities have illegally demanded dues such as Ground Rent, Maintenance Charge and Municipal Tax vide Letter No. 406/2001 dated 15.03.2001 (Annexure-7), Letter No. 13/2001 dated 30.04.2001 and Letter No. 986/2001 dated 21.07.2001 and without serving copy of Memo No. 1266/2001/Patna dated 07.09.2001 and Memo No. 396/02 dated 17.04.2002 issued by the Accounts Officer, which have been brought on record as Annexure-10 & 11.

Learned counsel for the petitioner has further submitted that only after the shop of the petitioner was illegally taken by the respondent authorities, the petitioner has filed an application on 22.08.2007 raising objection and requesting to restrict possession of third party and also pleaded about his grievances relating to deprivation from basic infrastructure including water supply and thereafter, the respondents have passed an order on 11.09.2007, which has been assailed by the petitioner before this Court.

Learned counsel for the petitioner has further submitted that as per the terms and conditions of allotment, which has been brought on record in the writ petition by mentioning the same at para-9, relevant portion at page-19, 20 & 21 of the writ petition, the demand made by the respondent authority regarding ground rent in the year 2001 Rs. 5280/-, Maintenance Charge (April, 2000 to April, 2001) Rs. 5720/- and Municipal Corporation Tax (1999-2002) Rs. 924/-, total dues amount Rs. 11,924/- was erroneous, misconceived, exorbitant and not applicable on the ground that ground rent for one year, upon being calculated @ Rs. 5/- per sq. ft. for 220 sq. ft. of area would come to only Rs. 1100/-. Even if penalty of the same amount is levied it would come to total Rs. 2200/-. Therefore apparently at a higher rate unilaterally fixed by the respondents ground rent was being charged as has been done in many other cases. Further, maintenance charge was levied which is not applicable as per clause-17 of the terms and conditions of the allotment in view of the fact that firstly maintenance was being taken care of by the petitioner in co-operative effort with other allottees, and secondly no maintenance was being done by the respondents even otherwise, and thirdly neither the respondents had expressly discarded the co-operative arrangement made by the petitioner and others, nor the petitioner and others had ever conveyed to the respondents that they do not intend to have any such co- operative arrangement or that they want the BSTDC to make such arrangement. Question of Municipal Corporation's tax was also tainted with uncertainty because of lack of disclosure regarding basis of calculation, ground rent's calculation was ex facie exorbitant and

incorrect, and further because the same was being asked to be deposited in the BSTDC's Office instead of Municipal Corporation.

Further, a letter dated 21.07.2001 was given by the BSTDC to the petitioner intimating alleged dues of Rs. 11924/- as the sum total of ground rent amounting to Rs. 3960/-, maintenance charge amounting to Rs. 7040/- and municipal corporation tax amounting to Rs. 924/- coupled with a notice to take action under the rules in the event of default. Conspicuously in the said notice reference was made only to Clause 13 and 17 of the terms and conditions, which relate only to ground rent and maintenance charge and not the Municipal Corporation tax or otherwise. Thus till then no proper notice was given to the petitioner which fulfilled all the essential criteria of a valid notice.

Learned counsel for the petitioner has submitted that this Court may grant relief to the petitioner under Article 226 of the Constitution of India as the act of the respondent authorities is arbitrary in view of the judgment passed by the Apex Court in the case of ADL International Limited Vs. Export Credit Guarantee Corporation of India Limited, reported in 2004 (3) SCC 553.

Learned counsel for the petitioner has thus submitted that the impugned order may be set aside and this Court may allow the writ petition by restoring the Shop in favour of the petitioner, who has been dispossessed illegally by the respondent authorities, as the illegal demand was made by the respondent authorities, which was objected by the petitioner and also Memo No. 1266/2001/Patna dated 07.09.2001 (Annexure-10) and Memo No. 396/02 dated 17.04.2002 (Annexure-11) have never been communicated to the petitioner.

Learned counsel for the respondent nos. 1 to 3, Mr. Sumeet Gadodia has submitted, that admittedly the petitioner has violated the terms of the allotment of Shop No. 3, for which he was noticed and no reply whatsoever has been filed, which is apparent from the pleadings of the petitioner itself, rather Annexure-2 to the writ petition dated 26.02.1999 has been served upon the petitioner for his consent within a week for allotment of Shop at price of Rs. 93,000/-. The same was

reiterated vide notice dated 22.03.1999 fixing the date till 05.04.1999 to deposit the amount of Rs. 93,000/- for agreement to allot the Shop. Thereafter, some of amount was paid by the petitioner and notices have been served upon the petitioner vide Annexure-7 dated 15.03.2001, Annexure-8 dated 30.04.2001 and Annexure-9 dated 21.07.2001, which were never been acted upon by the petitioner, rather from pleadings of the petitioner, it is apparent that Annexure-10 & 11 have been served upon the petitioner, but the petitioner deliberately suppressed this fact in his writ application and has not disclosed the source of information, that from where Annexure-10 i.e. Memo No. 1266/2001/Patna dated 07.09.2001 and Annexure-11 i.e. Memo No. 396/02 dated 17.04.2002 were made available to the petitioner as such, the peadings which the petitioner has placed before this Court shows that petitioner is not coming up with clean hand.

In reply, learned counsel for the petitioner has submitted that the copy of letter contained in Memo No.1266 of 2001/ Patna dated 07.09.2001 and Memo No.396/2002 dated 17.04.2002 (Annenxure-10 & 11), have been sent to the Manager, Hotal Birsa Vihar and petitioner obtained the same from there, thus those have been brought on record as stated in para-18 of the writ petition.

Learned counsel for the respondent nos. 1 to 3 has further submitted that as per the case of the petitioner, he was allotted Shop No. 3 for 10 years vide Allotment dated 22.03.1999 and said period has already been elapsed.

Learned counsel for the respondent nos. 1 to 3 has submitted that such allotment was made on the condition of " ;Fkkor fLFkfr" "AS IT WHERE IT" and as such any subsequent demand made by the petitioner is contrary to the terms and conditions of the allotment, as such, petitioner cannot take shelter of his illegal prayer made before the respondent authorities and petitioner has not acted upon the demand made by the respondent authorities, as such petitioner has rightly been removed from the premises after due notice. Since the petitioner did not cooperate in the removal of the articles, it was incumbent upon the respondent nos. 1 to 3 that after following due

process by deputing Magistrate as stated in para-13 of the counter- affidavit, the possession has been taken by the respondent authorities, as such, even after considering the case as on today, 10 years have already been elapsed for which petitioner was allotted shop, but he did not comply the terms and conditions of allotment. Now, the right has already been accrued in favour of respondent no. 4, this Court may not interfere under Article 226 of the Constitution of India.

Learned counsel for the respondent no. 4, Mr. Saurav Arun assisted by learned counsel, Mr. Ujjwal Sinha has submitted that shop no. 3 has been allotted to respondent no. 4 after following due process of law and as such, his allotment cannot be challenged in such a manner where writ petitioner has himself liable for eviction, as he has not complied the conditions of the allotment, as he has been allotted the shop on condition "AS IT WHERE IT" and thus, demand made by the petitioner has rightly not been considered by the Managing Director.

Considering the rival submissions and looking into facts and circumstances of the case, it appears that dues notice has been served upon the petitioner by the respondent nos. 1, 2 & 3. The petitioner instead of paying the amount has filed an objection. The respondent authorities have evicted the petitioner on the ground that such demand was not justified in view of terms and conditions of allotment, which has been brought on record as Annexure-1 (Page-39) and any demand made by the petitioner is not subject to reply by the respondent authorities, if the petitioner is not complying the condition of the allotment. Since the petitioner has not deposited the amount and respondents have already issued notice vide Annexure-7, 8 and 9 as service of notice of Annexure-10 & 11 are disputed, this Court consider that even such notice was issued upon the petitioner vide Annexure-7, 8 & 9, but instead of complying the condition on protest, the petitioner sit tight over the matter and thus after elapse of 10 years, when the shop was vacated after following due process of law, which was allotted to the petitioner for only 10 years in terms of Allotment Letter, which has been brought on record as Annexure-4 dated

22.03.1999 and the said period has already elapsed by now, as such, this Court is not inclined to interfere with such writ petition, where right of third party has accrued after due process of law.

Accordingly, this writ petition is dismissed.

(Kailash Prasad Deo, J.) Sunil/-