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Judgment
Sharad Kumar Sharma, J
The petitioner has filed the Writ Petition for the following reliefs :-
"i) Issue a writ order or direction in the nature of mandamus directing the respondents to restore the possession of the petitioner over auction stand (Chabutara) situated at mandi samiti Ramnagar district Nainital whose boundary mentioned in representation dated 13.12.2014 (Annexure no.3) to the petition.
ii) Issue a writ order or direction in the nature of mandamus directing the respondents to allot auction stand (Chabutara) to the petitioner at mandi samiti Ramnagar district Nainital and for allotting the auction stand made a proper procedure in mandi samiti.
iii) Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
To award the cost of the petition in favour of the petitioner."
Particularly, in reference to the relief No. (i), the same has been modulated in a fashion as if the possession over the auctioned stand i.e. (chabutara) situated at Mandi Samiti premise of Ramnagar was allocated to him earlier and the possession of which was to be "restored back to the petitioner". The use of the word "restoration of possession', itself, implies that there is a prior legal allotment made in favour of the petitioner under the provisions of the Act or bye-laws framed thereunder. In the absence of there being any prior allotment made as per law, there cannot be a restoration of possession as restoration would literally mean placing back the petitioner in the same position, which he legally enjoyed earlier.
The second relief, if it is read along with the first relief, it runs contrary to each other. As on one hand, in the relief No. 1, the petitioner is praying for a 'restoration of the possession', of the chabutara, whereas, in the second relief, he has prayed for that respondents may be directed 'to allot the stand (chabutara)' to him. The two reliefs cannot run together, since being contradictions to one another. For the purposes of enforcement of rights legally created under the Statute or a fundamental rights, a writ of mandamus can be issued. But, there are certain principles which are to be adhered to for issuing a writ of mandamus, namely,
(a) there has to be a statutory right in favour of the petitioner seeking its enforcement by way of writ of mandamus. Secondly,
(b) the petitioner has approached to the Authorities legally competent to adhere to the provisions and had declined to do it; and (c) or the authority or an individual has failed to perform a public duty vested to be performed by him under law.
In the entire body of the writ petition, it is the case of the petitioner that he was only allotted shop No. 38-C in the year 1993. It is also a specific pleading of the petitioner that apart from the shop built by Mandi Samiti, there were 22 independent Chabutaras, which were also built by the Mandi Samiti, separately-each having an area of 40 x 60 feet, which was to be auctioned to different persons in accordance with the allotment proceedings contemplated under the Act and the rules framed thereunder.
There is nothing on record brought by way of any document of allotment by the petitioner to show that apart from Shop No. 38-C, he was ever allotted any of the shop along with the so called chabutaras, mentioned in para 3 of his writ petition, which as per the respondents case "Shop" and "Chabutara" are distinct and separate and are separately allotted under different terms and conditions altogether.
If there is no allotment made in his favour nor it is proved so by the petitioner by any document of allotment, in that eventuality, he cannot pray for the restoration of the possession by way of invoking a writ of mandamus.
During the course of argument and also as per the averments made in the writ petition, ultimately, the petitioner has attempted to convince the court by arguing that the act of interference in the use of chabutara, allegedly claimed to be allotted to him, was by the private respondents. The act of alleged interference was not alleged against any public authority, but rather to the private persons.
There is an absolute confusion in the pleadings whether there was ever any allotment was made and was standing in favour of the petitioner of the alleged chabutara and secondly, a bald assertion pertaining to the interference in his possession by the private respondent No. 4 is concerned, if he, at all, has any grievance, the remedy would lie before the regular Civil Court and not by way of writ of invoking a writ of mandamus under Article 226 of the Constitution of India.
After hearing the learned counsel for the respondents, the respondents had specifically come up with the case in the counter affidavit that at no point of time ever any chabutara, which was independent to the shops, was ever allotted to the petitioner nor there is any document on record brought by the petitioner to show that the shop was allotted to him. In that eventuality, no writ of mandamus could be issued in his favour.
Consequently, this Court finds that the Writ Petition lacks merits and is accordingly dismissed.