Himachal Pradesh High Court
Dina Lal vs State Of H.P. And Ors on 4 January, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.6803/2014 Reserved on: 2.1.2018 Decided on: 4.1.2018 .
Dina Lal ...... Petitioner
Vs.
State of H.P. and ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the petitioner: Mr. Sanjeev Bhushan, Senior
Advocate with Ms. Abhilasha
r Kaundal, Advocate.
For the respondents: Mr. J.S. Guleria, Asstt. A.G. for
respondents No. 1 and 2.
Mr. V.D. Khidtta and Mr. Daleep
Sharma, Advocates for respondent
No.3.
Tarlok Singh Chauhan
This writ petition has been filed for the following substantive relief:
"That an appropriate writ, order or directions may kindly be issued, thereby directing the respondents to allow the petitioner to continue running his tailoring shop in IRDP shed or in the alternative, to provide any other suitable shop for running his tailoring shop to earn his livelihood in the interest of justice."
Whether the reporters of the local papersmay be a l l o wed t o see the Judgment ? Yes ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...2...
2 The Gram Panchayat, Todsa, had constructed a temporary IRDP shed near Shiv Mandir, Todsa, belonging to the .
Mandir Committee, Shiv Mandir Jirnodhar Society, Todsa, which was given to the petitioner on monthly rental of Rs. 120/ -. An agreement to this effect was executed on 13.4.2006 between Gram Panchay at Todsa and the petitioner for a term of 5 years from 1.8.2006 to 31.7.2011.
3 After 1.8.2011, the Gram Panchayat Todsa repeatedly issued notices asking the petitioner to vacate the shed in question and one of such notices dated 25.1.2012 has been annexed as Annexure P-2, whereby the petitioner has been asked to vacate the shed in question on the ground that the Gram Panchayat, Todsa, wants to reconstruct the same. It was also mentioned in the aforesaid notice that after reconstruction, the petitioner can again take the shed in question, however the petitioner vide his reply dated 11.7 .2014 (Annexure P-3) has clearly refused the offer extended by the Gram Panchayat, Todsa.
Not only this, on 19.7.2014 he in fact complained to the Deputy Commissioner, Shimla, against the office bearers of the Gram Panchayat, Todsa, as also members of the Temple Committee regarding atrocities having been committed against him in violation of the Scheduled Castes and the Scheduled Tribes ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...3...
(Prevention of Atrocities) Act, 1989. It was thereafter that the Gram Panchayat Todsa got served a legal notice dated 26.8.2014 .
(Annexure P-5) calling upon the petitioner to vacate the shed in question on the ground that the same being in a dilapidated condition was not fit for human habitation and likely to collapse at any time. Aggrieved by the action of the respondents, the petitioner has filed the instant petition.
4 The factual matrix has not been disputed by respondents No.1 and 2 in the reply filed to the petition, wherein it has been again reiterated that it only is on account of the shed being in dilapidated condition that the eviction has been sought for by the Gram Panchayat Todsa.
5 As regards the Gram Panchayat Todsa, which has been arrayed as respondent No.3, in the reply so submitted on its behalf it has been reiterated that the shed in question allotted to the petitioner had been declared unsafe after inspection having been carried out by the Assistant Engineer B&R, Sub Division HP PWD Chirgaon vide his letter dated 3.6.2014.
6 I have heard learned counsel for the parties and have also gone through the record of the case .
7 It is not in dispute that the name of the petitioner no longer figures in IRDP list and was in fact included more than 17 ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...4...
years back. However, this Court , taking into consideration the fact that the petitioner belonged to a weak and marginal section .
of the society, directed the SDM Rohroo to visit the spot and submit his report, as would be evident from the order dated 30.8.2017, which reads thus:
"The dispute in the instant petition pertains to a small shop that was allotted to the petitioner about two decades back. The Court is informed that the shop in question is in a dilapidated condition and is likely to collapse.
In this view of the matter, I deem it appropriate to direct the SDM, Rohroo to visit the spot and report not only about condition of the shop in question, but also to suggest as to how best the dispute can be resolved. Needless to say that the inquiry conducted by the SDM, Rohroo shall be initiated only after associating the necessary parties and affording them an opportunity of being heard. Report in this regard be submitted within four weeks.
Let a copy of this order be sent by FAX to the SDM, Rohroo, within two days, for compliance.
List on 11.10.2017."
8 In compliance to the above direction, the SDM Rohroo submitted his report, relevant portion whereof reads thus:
"There exists a temple Lord Shiv approximately 1 K.M. far from main village Todsa. The Mandir has its own land measuring 0-00-90 hectares. On this land in addition ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...5...
to the temple there exists one Bhandar Grih, one store and one shop. The said shop has been constructed by Gram Panchayat Todsa as IRDP shop and has rented out to Sh.
.
Dina Lal. The shop is in dilapidated condition, which has been declared unsafe by a committee and can prove fatal to human lives if it is not being dismantled. During religious functions lots of people get together at Shiv temple and the dilpaidaetd shop can prove dangerous to lives of many people. Mr. Dina Lal has occupied this shop during year 2006 and do not want to vacate it. He runs a tailoring shop in it.
Neither the Gram Panchayat Todsa nor the Shiv Mandi Committee has any other alternate shop which could be allotted to Dina Lal for his rehabilitation. However there are approximately 15 shops on the road side lying vacant in the main village Todsa and Sh. Dina Lal can take any of these shops on rent between Rs. 800/- to Rs.1000/-
per month.
Sh. Dina Lal is also a resident of the main village Todsa. His house is approximately 80 mtrs from the main road. The tailor shop which he is running in the temple complex can also be run either at his own village Todsa.
As the nature of tailor shop is such that the customers of a tailor are almost fixed and unlike grocery shop they hardly get deflected due to change in location of shop, particularly in a remote area. "
9 The conclusion drawn by the SDM Rohroo has been separately enumerated, which reads thus:-
"Conclusion:- Based on the above findings it has been concluded that the tailoring shop which Dina Lal is running ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...6...
in complex of Shiv Temple Todsa is in dilapidated condition and is not safe, hence it is required to be dismantled.
.
Sh. Dina Lal can either shit his shop at his house or hire a shop at road as both the options are available in the main village Todsa."
10 Having perused the report and conclusion so arrived at, this Court has no doubt in its mind that the eviction of the petitioner by the Gram Panchayat, Todsa, is only on account of the shed being in dilapidated condition. After all, the SDM Rohroo, who had conducted the inquiry, has no axe to grind with the petitioner.
11 That apart, the shed in question was granted to the petitioner only for a period of 5 years and obviously, the term thereof could not have been extended unilaterally by the petitioner himself and could at best be mutually extended.
Therefore, in absence of any such extension having been granted by the respondents, the petitioner is otherwise liable to vacate the premises in question.
12 It is more than settled that the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. The petitioner has failed to point out any ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...7...
such right or corresponding duty upon the respondents, and therefore, this Court cannot simply on the basis of sympathy .
issue directions to the respondents that may otherwise be against the mandate of law.
13 The Hon'ble Supreme Court in Kerala Solvent Extractions Ltd., Vs. A.Unnikrishnan and another, reported in (2006) 13 SCC 619 has held that the Court should not tend to degenerate into misplaced sympathy, generosity and private benevolence. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law. It was further observed that expansive judicial mood of mistaken or misplaced compassion at the expense of the legitimacy of the process would eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
14 In view of aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.
15 However, before parting it needs to be noticed that respondent No.3, i.e. Gram Panchayat Todsa in its reply has categorically stated that the candidature of the petitioner can be considered for allotment of newly constructed IRDP shed as per law afresh. Therefore, it is made clear that in case the shed that ::: Downloaded on - 05/01/2018 23:03:02 :::HCHP ...8...
has now been proposed to be re-constructed is eventually constructed then the petitioner alone shall have a preferential .
right of re -entry in the same.
16 Pending application(s) if any also stands dismissed.
Parties are left to bear their own costs.
4 th January, 2018 (Tarlok Singh Chauhan)
(pankaj ) Judge
r to
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