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Judgment
By this petition under Article 226 of the Constitution of India filed in public interest, the petitioner/Society is seeking quashing and setting aside the allotment of stalls/shops in the newly constructed building, opposite Mapusa Kadamba Bus Stand in favour of the respondent Nos.3 to 6, and alternatively a writ of mandamus against the respondent Nos.1 and 2 to take steps to withdraw and cancel the said allotment. The petitioner claims to be a Society registered under the Societies Registration Act, 1960 and formed for the purpose of espousing the cause of the residents within the municipal limits of Mapusa.
The petitioner filed this petition authorizing one Jawaharlal Tukaram Shetye, the Secretary to file it.
An allegation is made that in the recent past Rehabilitation
Schemes by Mapusa Municipal Council have been implemented in such a manner that trespassers and illegal occupants have been inducted in public properties. The action of the Mapusa Municipal Council is most arbitrary and highhanded and there are serious irregularities, corruption and illegalities in the allotment of stalls in the various buildings constructed. It is alleged that there were encroachers on the footpaths belonging to the Mapusa Municipal Council and the Mapusa Municipal Council floated a Scheme to rehabilitate the encroachers and in furtherance of the Scheme got allotted a land belonging to the Kadamba Transport Corporation on the northern side of the Mapusa bus stand. We are not concerned with the allegations with regards to location of the building.
It is the case of the petitioner that after the Right to Information Act, 2005 came to be enacted they got information that there were only 16 persons within the Mapusa bus stand who were paying License fees to the Kadamba Transport Corporation. However, the Kadamba Transport Corporation and the Mapusa Municipal Council have allotted four additional stalls/shops and particularly to the respondent Nos.3 to 6 illegally without they being entitled to do so. 5. Shri D. Pangam, learned Counsel appearing on behalf of the petitioner in support of this petition invited our attention to the annexures to the petition and it is submitted that the Mapusa Municipal Council called upon the Managing Director of the Kadamba Transport Corporation to submit a list of shop-keepers to rehabilitate them in the construction of new shops. In response to this, it is stated that the list of shop-keepers came to be forwarded by the Managing Director. At that point of time, the list dated 9-3-2001 did not include the names of the respondent Nos.3 to 6. However, on 25-4-2001, four more applications came to be forwarded by the Kadamba Transport Corporation to the Chief Officer of the Council. These four persons are the respondent Nos.3 to 6. However, on further cross checking being made, the Kadamba Transport Corporation informed the Council that these persons are claiming that they are running their business at the bus stand for the last five years, but that is not true. On 7-2-2002, a list came to be forwarded rather styled as a "No Objection Certificate" in which names at serial nos.16 to 20 have been inserted in ink and signed by the then Managing Director of the Kadamba Transport Corporation. This Managing Director is stated to have said that persons at serial nos.16 to 20 have not paid their License fees to the Kadamba Transport Corporation.
Inviting our attention to the affidavit filed by the present Managing Director of the Kadamba Transport Corporation, it is contended by Shri Pangam that the Scheme was that out of 20 stalls, 15 stalls were to be reserved in favour of the existing stall owners and 5 were to be reserved for allotment to Kadamba Transport Corporation. While it is true that some letters were addressed by the respondent Nos.3 to 6 to the Kadamba Transport Corporation but the Kadamba Transport Corporation has confirmed that the names of the respondent Nos.3 to 6 were included for the first time in the list furnished by the respondent No. 2. It is therefore contended that in para 24 of the affidavit, the Kadamba Transport Corporation has pointed out that it has not recommended allotment of stalls to the respondent Nos.3 to 6. Once, they have so confirmed, then, relying on some handwritten notes of the then Managing Director, the Mapusa Municipal Council could not have taken a decision to allot these gadas to the respondent Nos.3 to 6.
Our attention is also invited by Shri Pangam to the fact that the Mapusa Municipal Council way back in 2007 had stated that only 15 names were received from the Kadamba Transport Corporation, and yet it proceeded to execute these lease agreements with the respondent Nos.3 to 6. For all these reasons, it is submitted that the allotments are illegal and this is a fit case where the unauthorized persons should be evicted from the stalls in question.
As far as the aspect of delay is concerned, it is contended that the Right to Information Act came to be enacted only in 2005 and prior to that, it was not possible for the petitioner to obtain any information. Further, it is clear from the stand of the Council that to favour the respondent Nos.3 to 6, it took up the matter with the earlier Managing Director of the Kadamba Transport Corporation who confirmed that the handwritten portion in ink is inserted by him. There was no reason why such a communication should be addressed to a public officer. For all these reasons and when the said Managing Director was related to one of the allottees, namely, the respondent No. 3, the delay should not influence the Court in issuing appropriate directions. This Court in arriving at a proper decision and in public interest should condone the delay, if any.
We have heard Shri Shivan Dessai, the learned Counsel appearing for the respondent No. 1, Shri S. D. Padiyar, learned Counsel appearing for the respondent No. 2 and Shri A. N. S. Nadkarni, the learned Senior Counsel appearing for the respondent Nos. 4 and 5. We have been taken through their affidavits. We are of the view that there is delay in approaching this Court because the events date back to the year 2001. In fact, it is not disputed that by letter dated 7-2-2002 the list came to be forwarded. The construction of the market/premises may have taken some time and the allotment is of 2007-2008 but the fact that the persons in question have been requesting for allotment of the premises/gadas to them from 2001 is clear from the correspondence relied upon by the petitioner. Once, the communication is dated 7-2-2002, and that is the basis for the allotment and all other letters are seeking clarifications by one public authority from another, then, we cannot accept the contention that it is only because of the Right to Information Act being enacted that the information became available and was in public domain. The allotment of 2001-2002 cannot be questioned and set at naught merely because the allottees were put in physical possession and execution of the lease is in 2007. Therefore, on the ground of delay itself the petition is liable to be dismissed. Particularly because the petitioner has not given any explanation as to what steps were taken from 2001 to 2007-2008.
Even otherwise, we do not find that the premises have been allotted to the respondent Nos.3 to 6 in a manner contrary to law. The premises have not been allotted to a trespasser as claimed by the petitioner. The Council has filed an affidavit in which it has been pointed out that the lease agreement with the respondent Nos.3, 4 and 6 are dated 15-11-2007 and 8-5-2008. The allotment is under the self financing scheme and the installments have been paid by each one of them. The Council has undertaken the project for construction of stalls of Mapusa Municpal Council at plot bearing No. 501(Part I) P.T. Sheet No. 756 of City Survey Mapusa for rehabilitation of those who had their stalls/gadas. Out of the 80 stalls to be constructed, 20 were reserved for the respondent No. 1 as per their quota. The allottees had paid construction cost of Rs. 1,06,871/-. The names of the respondent Nos.3 to 6 were found included in the list submitted by the Kadamba Transport Corporation by letter dated 7-2-2002. Though, these names were not there in the earlier list submitted on 9-3-2001, the correspondence by the Council in 2006 resulted in a clarification from the Managing Director as all throughout the Kadamba Transport Corporation, according to the Mapusa Municipal Council, did not clarify as to whether the list submitted by it under the signature of its Managing Director dated 7-2-2002 was authentic nor not. The Council had proceeded on the basis that this list is certified and correct, and, therefore the allotments were made in pursuance thereof. In para 8 of the affidavit of the Council, it is stated that since no clarification was received from the Kadamba Transport Corporation, the Council proceeded on the basis that the letter dated 7-2-2002 is an authentic list and after seeking clarification from the Managing Director who had signed the letter dated 7-2-2002. It is in such circumstances and whilst denying any allegations of mala fides, illegality and highhandedness, the Council stated that it acted bonafide in allotting the premises.
Thus, this is not a case of complete illegality or breach of the Rules and Regulations. The public property has been disposed of in this case in favour of persons who are carrying on small businesses and were to be rehabilitated by the Council. The concerned authorities have taken steps and scrutinized the list of eligible persons. In our view, this cannot be said to be a case of total illegality or a usurpation of public property for which drastic action of evidence is called for. In the result and for the reasons afore stated, the petition fails and is dismissed with no orders as to costs.