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High CourtsDivision Bench(2022) 09 SHI CK 0040

Kapil Raj vs State Of H.P And Others

High Court Of Himachal Pradesh · Decided on 12 September 2022

HON’BLE JUDGES
Tarlok Singh Chauhan, J · Virender Singh, J
RESULT
Dismissed
CASE NUMBER
Civil Writ Petition No.6253 Of 2022

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Judgment

11 paragraphs · 378 words

Tarlok Singh Chauhan, J

1.

Notice. Mr. Vinod Thakur, learned Additional Advocate General appears and waives service of notice on behalf of respondents.

2.

The instant petition has been filed for the grant of following substantive reliefs:

“i) That writ nature of certiorari be issued by directing the respondent No. 4 to quash the auction notices issued on 2nd and 3rd September, 2022 (Annexure P­7)

ii) That writ of mandamus be issued by directing respondents No. 3 and 4 to decide the representations made by the petitioner on 28.5.2014 and 27.7.2018, respectively in time bound manner.”

3.

The only basis on which the reliefs in the instant petition have been claimed is that the petitioner has been paying the Teh Bazari fees and the Trade Tax since the year 1989 and therefore, the shop in question should be alloted to him without resorting to auction notice.

4.

It is not in dispute that the allotment or sale of shops is regulated by the Rules known as ‘the Rules for leasing out of stalls/shops constructed by the Municipalities in Himachal Pradesh Rules, 2001 and under the aforesaid Rules, the shops are to be allotted only by way of auction, as is evident from Rule­8, which reads as under:

“Conduct of Auction­8:­ The auction shall be conducted by the Executive Officer or the Secretary of Municipality and the same will be confirmed by the Municipal Council or Nagar Panchayat through a proper resolution.”

5.

Therefore, the plea raised by the petitioner claiming preferential right, that too solely on the basis of payment of Teh Bazari fees and Trade Tax is clearly misconceived.

6.

Learned counsel for the petitioner would further argue that his client is entitled to preferentiality on equity, as he had been squatting on the land in question since the year 1989. Again, this plea of the petitioner is totally misconceived as it is more than settled that the equity can be claimed only when there are no Rules. Once there exist Rules, the petitioner cannot claim the equity.

7.

Accordingly we find no merit in the petition and the same is accordingly dismissed. However, it shall be open to the petitioner to participate in the auction proceedings. The pending application(s), if any, shall also stand disposed of.