Calcutta High Court (Appellete Side)
In Re: Bapi Saha & Ors vs Cooch Behar Municipality & Ors on 12 April, 2011
Author: Soumitra Pal
Bench: Soumitra Pal
2.4.2011
W.P. 6354 (W) of 2008
In re: Bapi Saha & Ors. ... Petitioners
Vs.
Cooch Behar Municipality & Ors. ... Respondents
Mr. Mukul Lahiri, Senior Advocate, Mr. Anindya Lahiri Ms. Sulagna Dawn ... for the petitioners Mr. Jakir Hossain Mr. Md. Sarwar Jahan ... for the Cooch Behar Municipality Mr. Fazlul Haque Ms. Ashima Das ... for the State Leave is granted to the petitioners to file supplementary affidavit. Let the supplementary affidavit filed in Court today be kept on record. Since copies of the supplementary affidavit have already been furnished on the learned advocates for the respondents, no further copy need be served.
In the writ petition, the petitioners stated to be the stall-holders in the Bhabaniganj market run by the Cooch Behar Municipality , have prayed for a direction upon the respondents, particularly on the Cooch Behar Municipality and its Chairman, the respondent nos. 1 and 2 respectively, to desist from dealing with the stalls held by them in the said market for which rents have been paid and to keep the same out of the ambit of the lottery stated to be held on 18th September, 2007.
It appears that the predecessors of the petitioners and the petitioners use to sell products from the stalls in the market in question after depositing rent with the respondent no.1 being the owner of the market. On 25th November, 2003 a devastating fire gutted the said market. Thereafter, an endeavour was made by the respondent no.1 to rebuild the same. It has been stated that the petitioners were assured by the Municipality that after rebuilding, the stall-
2holders would be given same space and position as existed before the fire broke out. While rebuilding was carried out, in the year 2004 the petitioners deposited a sum of Rs.9000/- per stall with the respondent no.1 for construction of the market and for mutating their names against the stalls which would be allotted. It is submitted that it appears from the receipts, being annexure-P/1 to the writ petition, that serial numbers were allotted to the petitioners for their identification as a stall-holder in the register of the Municipal authority. After the construction proceeded to some extent and the stalls could be distinguished, the Municipality started to collect rents. The petitioners deposited the rents against the respective stalls held by and allotted to them. It has been stated that the petitioners upon being satisfied that the stalls allotted to them being identical in position and size of the stalls which they held before the outbreak of the fire, they deposited rent for their respective stalls and the Municipality collected rents from the petitioners. After the market was rebuilt, respondent no.2 by an intimation dated 20th February, 2007 requested the petitioners to be present on 24th February, 2007 for taking over the physical possession of the stalls which were based on the provisional allotments. On 24th February, 2007 the possession of the stalls, covered by the rent receipts were handed over to the petitioners who took possession and started running their respective stalls. However, it has been alleged that the District Magistrate, Cooch Behar, the respondent no.6, by an intimation dated 14th September, 2007, informed the petitioners that a lottery for distributing the unallotted stalls would be held on 18th September, 2007 and the petitioners were requested to be present. However, the petitioners objected to such lottery. Thereafter, it has been alleged, the authorities started creating hindrance to the petitioners in running their day to day business activities from their stalls. According to the petitioners, the exercise of holding of lottery is nothing but to oust them from their respective stalls which is located in the prime position of the market. Thereafter, the petitioners received an intimation dated 19th September, 2007 containing the result of the lottery whereby they were informed that certain stalls, not the stalls under their occupation, had been allotted to them. Aggrieved the petitioners furnished a representation to the respondent no.2 and to the Board of Councillors, Cooch Behar Municipality, the respondent no.3. However, as no reply was forthcoming, this writ petition was moved.
3Learned advocate appearing on behalf of the Cooch Behar Municipality on a query has submitted that after the intimation dated 20th February, 2007, issued by the respondent no.2, the petitioners took possession of the stalls, as mentioned in the rent receipts, on 24th February, 2007 and they are still in possession.
Learned advocate for the State justifying the action of the respondent no.6 and referring to section 429 of the West Bengal Municipal Act, 1993, has submitted that the State Government may after giving the Board of Councillors a reasonable opportunity of being heard has the power to annul any proceedings, resolution or order which is considered to be not in conformity with the provisions of the Act or the Rules made thereunder and may do all things necessary to secure such conformity. However, on a query, the learned advocate for the State could not furnish any document showing that the action of Cooch Behar Municipality was in violation of the provisions contained in the Act.
I find that the writ petition was moved on 18th April, 2008 when directions were issued for filing affidavits. However, I find that the Municipal Authorities and the State have not filed their affidavits. In the absence of affidavits by the respondents, statements made in the writ petition are deemed to be correct.
From the facts I find that after the devastating fire on 25th November, 2003, the respondent no.1 had rebuilt the market. The respondent no.2 by the intimation dated 20th February, 2007, had intimated the petitioners to take possession of the stalls on 24th February, 2007. Accordingly, on the appointed day, the petitioners took possession and admittedly, till this day, they are in possession of their respective stalls. Therefore, the question which arises for consideration is whether the respondent no.6 was justified in holding the lottery for reallotment of the stalls including the stalls of the petitioners. It is to be noted, under Section 274 (3) of the Act, a Municipal market shall be under the control of the Chairman of the Municipality. Under Section 276 (c) of the Act, it is the Board of Councillors, who may put up for public auction or dispose of by private sale any stall, shop, stand, shed or pen in a Municipal market for such 4 period and on such conditions as it may think fit. Therefore, in view of sections 274 (3) and 276 (c) of the Act, the District Magistrate, Cooch Behar has no authority to hold a meeting for distribution of the stalls in a municipal market by way of lottery, as has been done in the instant case. The provisions contained in Section 429 cannot be stretched to include the impugned action of the respondent no.6 in holding lottery for distribution of the stalls in the market as nothing has been furnished to demonstrate that the action of the respondent nos. 1 and 2 in issuing the intimation dated 20th February, 2007 and in distributing the stalls on 24th February, 2007 was in violation of the provisions of the Act. Hence, in my view, the action of the respondent no.6 in holding a lottery for re-distributing the stalls is without jurisdiction, arbitrary, malafide and illegal. Therefore, the intimations dated 14th September, 2007 being annexure-P/4 to the writ petition and the intimations dated 19th September, 2007 being annexure-P/5 to the writ petition and the resolution adopted on 19th March, 2007, as evident from the impugned intimation dated 14th September, 2007 are without jurisdiction and illegal and cannot be sustained and are, thus, set aside and quashed. The writ petition is allowed. Since the petitioners are holding the stalls as mentioned in the rent receipts, they are at liberty to enjoy the same in accordance with law. Since it has been alleged that impediments are being created in conducting their day to day business activities, the Superintendent of Police, Cooch Behar and the Officer-in-Charge, Kotwali Police Station, Cooch Behar, the respondent nos. 7 and 8 respectively, are directed to ensure that the petitioners are allowed to conduct their business smoothly from their respective stalls as mentioned in the rent receipts.
There will be no order as to costs.
Let urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
( Soumitra Pal, J.) 5