Sri D.K. Appachchu vs The Chief Officer, Somwarpet Town Panchayat and The State of Karnataka

A.S. Bopanna, J.—The petitioner is before this Court seeking for issue of mandamus to direct the first respondent to construct RCC roof shop in the space measuring 15 ft X 15 ft in Sy. No. 194/13 near private bus stand in Somwarpet town as per the boundaries indicated in the prayer.

Heard Sri L.S. Chikkanagoudar, learned Counsel for the petitioner and Sri D.C. Jagadish, learned Counsel for the first respondent and the learned Government Advocate appearing for the second respondent.

The brief facts are that the petitioner claims to have sought for allotment of a shop premises measuring 15 ft X 15 ft in the year 1987-88 from the first respondent. In this regard the petitioner has also deposited a sum of Rs. 15,000/- on 22.12.1987. The petitioner refers to a resolution dated 6.5.1988 as at Annexure-B to contend that the panchayat had taken a decision to construct and allot a shop premises to the petitioner. Subsequently resolutions were also passed on 7.1.1988 and 29.2.1992. The grievance of the petitioner is that despite lapse of sufficient time, the resolution was not put into action and the property in question was not allotted to the petitioner. While noticing this aspect of the matter, one more aspect which is not in dispute is that the petitioner is also a lessee in respect of one other shop premises bearing No. 16 wherein he is carrying on liquor business being a CL2 licence holder. Since in respect of the present premises which according to the petitioner there was resolution and the same had not been allotted, the petitioner got issued a legal notice and also made representation. But since the same was not implemented, the petitioner is before this Court seeking issue of mandamus.

The learned Counsel for the respondent however would contend that the very resolution passed in favour of the petitioner cannot be sustained at the outset since it is contrary to the provisions of the Karnataka Municipalities Act and the property belonging to the municipality cannot be allotted in such fashion. Even otherwise, in respect of the other premises which is already in occupation of the petitioner, the petitioner had not diligently paid the rents. Since the said amount was due, by the subsequent resolution of the panchayat it had been made clear that only after the said amount is paid, further action would be initiated in the matter. Therefore, under any one of the grounds, the petitioner cannot make out grievance before this Court. Above all it is contended by the learned Counsel for the respondent that the nature of the prayer as made in this petition cannot be granted by this Court.

In the light of the rival contentions, it is no doubt seen that vide Annexure-A a receipt which has been produced, the petitioner has deposited a sum of Rs. 15,000/- on 22.12.1987. The resolution dated 6.5.1988 refers to the request of the petitioner wherein he has sought for allotment of a shop premises in addition to the one which is already in his possession. The subsequent resolution dated 7.1.1988 is also to the said effect. In this regard a perusal of the provision contained in Section 72 of the KMC Act would indicate the manner in which the property belonging to the municipality is to be allotted. By the resolution, there is no clear indication about the period for which allotment was to be made and the nature in which it was to be granted to the petitioner. Therefore, at this stage, it is premature to bring it strictly in conformity with the provision contained in Section 72 of the KMC Act, since in such situation whether the prior approval of the Government was required in the instant case or not, is an issue which will still remain at large. Be that as it may. The issue for consideration in this petition is, in the nature of the resolution relied on by the petitioner whether a mandamus could be issued by this Court by exercise of power under Article 226 of the Constitution of India. In this regard the law is well settled, for issue of mandamus, a person before this Court would not only have to make out a right, but would also have to point out that such legally enforceable right has been denied to him.

In that background, even assuming for a moment that the resolutions dated 6.5.1988 and 7.1.1988 would indicate that the panchayat had resolved to construct and allot the premises to the petitioner, immediately thereafter on 29.2.1992, the same panchayat has passed a resolution referring to the claim made by the petitioner for allotment of the premises and stating that the further action would be taken only after dues in respect of the other premises is paid. From the date of the said resolution nearly 16 years have lapsed to the point when this writ petition was filed. Though the petitioner in the meantime had got issued a legal notice dated 13.3.2000 and thereafter a representation was made on 12.12.2007, the same would not enure to the benefit of the petitioner to enforce the earlier resolution by way of issue of mandamus, more particularly when there was a subsequent resolution imposing certain conditions on the petitioner. Hence at the outset there is laches. Further the very prayer made would indicate that the mandamus sought is to direct the respondents to put up a construction and thereafter to allot the premises. When nearly 16 years had lapsed and several dispensations had taken over the panchayat this Court at this stage cannot direct the panchayat to act In a particular manner since the manner in which the property belonging to the first respondent is to be put to use should be best left to the wisdom and discretion of the panchayat. Therefore in so far as the prayer made in the petition, in my view that the same cannot be granted in this petition.

Having come to the said conclusion, the alternate contention put forth by the learned Counsel for the petitioner requires to be noticed. In this regard, learned Counsel for the petitioner would contend that if at this stage, the premises is not granted to the petitioner, the fact which cannot be lost sight of is that a sum of Rs. 15,000/- has been deposited with the first respondent as far back as on 22.12.1987 and as such at least the said amount should be directed to be refunded to the petitioner with interest to compensate the loss made to the petitioner. In this regard though the said contention is noticed and placed on record, I am of the view that even with regard to this aspect of the matter, the same cannot be granted by issue of direction in this petition. However, it is to be clarified that the petitioner would have the liberty to seek for recovery of the said amount with interest or seek for appropriation in accordance with law by calculating interest, if the said amount has been retained by the first respondent. In such claim if adjudication becomes imperative, both the parties will have the liberty to urge their respective contention. In that regard, the petitioner would have to work out his remedy before the appropriate form.

With the above observation, the petition stands disposed of. No order as to costs.