Heard counsel for the petitioner.
The petitioner has preferred the present petition inter-alia with the prayer to set-aside the order dated 26.03.2016 passed by Civil Judge (Junior Division), Bareilly in Original Suit No. 51 of 2016 (Amit Kumar Vs. Nagar Nigam Bareilly). A further prayer has been made to direct the defendant namely Municipal Corporation, Bareilly through Municipal Commissioner to maintain status quo in respect of the shop in question.
It is stated in the present petition that the petitioner was given the highest bid in auction proceeding dated 03.12.2005 held by the Municipal Commissioner, Bareilly. He deposited the amount as demanded by the aforesaid respondent. Subsequently the shop in question was allotted in favour of the petitioner and the petitioner is continuously deposited the rent in respect of the shop in question. It is further argued that when the respondent is tried to interfere in the peaceful possession of the petitioner, the petitioner has filed an Original Suit being Suit No. 51 of 2016 (Amit Kumar Vs. Nagar Nigam Bareilly). The aforesaid suit is still pending though no interim injunction was granted in his favour.
Now an advertisement was issued by the respondent no. 2 dated 16.02.2021 by which shop in question was auctioned again.
Aggrieved against the aforesaid, the petitioner has preferred the present petition.
Counsel for the petitioner also relied upon an order dated 18.02.2021 passed in Writ C No. 2121 of 2021 (Sushit Kumar Vs. State of U.P. and 2 Others). It is argued that in the aforesaid case further proceedings in respect of the shop in question was stayed. The Order dated 18.02.2021 is reproduced herein-below:-
"List again on 22.3.2021 in the additional cause list in order to enable Sri Hemant Kumar to obtain complete instructions as desired for under order dated 2.2.2021, else the Municipal Commissioner, Bareilly Municipal Corporation shall ensure his physical presence.
Till then no further action shall be taken pursuant to the advertisement for allotment of the shop in question, as contention of the petitioner is that the amount in question was credited into the account of the Municipal Corporation on 28.2.2015, which is sought to be controverted by Sri Hemant Kumar."
Counsel for the petitioner also relied upon a Judgment of the Apex Court passed in the case of A. Subramanian & ANR. vs. R. Pannerselvam (Civil Appeal No. 9472 of 2010) dated 08.02.2021.
Heard counsel for the petitioner and perused the record.
From the perusal of the record it is clear that the petitioner is in peaceful possession over the shop in question since 2005 though no interim injunctions was granted in his favour by the trial court.
In view of the same prima facie case has been made out in favour of the petitioner. It transpires from perusal of the order in which interim order was granted by the Division Bench of this Court which is quoted above that Sri Hemant Kumar put up his appearance on behalf of respondent.
In view of the same, counsel for the petitioner is directed to serve the notice of the present petition upon the counsel appearing on behalf of Municipal Corporation, Bareilly namely Sri Hemant Kumar within three days from today. Sri Hemant Kumar, counsel for the respondent is further directed to seek the instructions from the respondent within a week thereafter.
Put up as fresh on 15.03.2021.
Till the next date of listing, status quo as on today shall be maintained between the parties.
Order Date :- 26.2.2021 Swati