Gauhati High Court
Dharmendra Choudhury & Anr vs The Guwahati Municipal Corporation & ... on 5 April, 2012
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 1703/2012
1. Sri Dharmendra Choudhury, General Secretary,
M/s. machkhowa Vegetable Retailers Association,
Machkhowa, Guwahati, Kamrup(M), Assam.
2. M/s. Machkhowa Vegetable Retailers
Development Association - a registered
association having its Registered Office at
Machkhowa, Guwahati in the district of
Kamrup(M), Assam - represented by its General
Secretary viz. Sri Dharmendra Choudhury.
...........Petitioners
-Vs-
1. The Guwahati Municipal Corporation, Guwahati, Kamrup
(Metro), Assam - represented by the Commissioner.
2. The Commissioner, Guwahati Municipal Corporation
Guwahati, Kamrup (Metro), Assam.
..........Respondents.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the petitioner : Mr. P. Pathak, Sr. Adv.
Mr. S. Kataki, Adv.
For the respondents : Mr. K.N. Choudhury, Sr. AAG.
Mr. S. Bora, SC, GMC.
Date of hearing : 05.04.2012.
Date of judgement : 05.04.2012.
WP(C) 1703 of 2012 Page 1 of 10
JUDGEMENT AND ORDER (ORAL)
The petitioner M/s. Machkhowa Vegetable Retailers Association, represented by its General Secretary, is aggrieved by the Annexure-D order dated 31.3.2012, issued by the Commissioner, Guwahati Municipal Corporation, in terms of which the members of the petitioner Association are required to shift their business within 24 hours to the newly developed whole sellers market belonging to the Agricultural Marketing Board at Garchuk, Pamohi. For a ready reference, the prayer made in the writ petition is quoted below :-
"In the premises aforesaid it is, therefore, respectfully prayed that Your Lordships would be pleased to admit this petition, call for the records of the case, issue a Rule calling upon the respondents to show cause as to why a Writ in the nature of Mandamus and / or certiorari and / or any other appropriate Writ, order or Direction of like nature should not be issued.
(A) declaring the impugned Order No. GCS/O/2/09-
10/Part/11 dtd. 31.03.2012 (Annexure-D), issued by the Commissioner, Guwahati Municipal Corporation, Guwahati i.e. the respondent No.2 as arbitrary, illegal bad in the eye of law and violative of the Order dated 07.06.2010 passed by this Hon'ble Court in PIL No. 26 of 2004 ;
(B) setting aside and quashing the impugned Order No. GCS/O/2/09-10/Part/11 dtd. 31.03.2012 (Annexure-D), issued by the Commissioner, Guwahati Municipal Corporation, Guwahati i.e. the respondent No.2 ;
(C) directing and commanding the respondents to provide an alternative place within the city area of Guwahati to establish a retail vegetable market ;
WP(C) 1703 of 2012 Page 2 of 10Upon cause or causes that may be shown and after hearing the parties as well as perusal of the records be pleased to make the Rule absolute and / or pass such other further Order/Orders as to Your Lordship's may deem fit and proper in the interest of justice."
2. For convenience, the Annexure-D impugned order dated 31.3.2012 is also quoted below :-
"Office of the Guwahati Municipal corporation :: Guwahati Panbazar :: Guwahati -781 001 No. GCS/O/2/09-10/Part/11 Dated, Guwahati, the 31st March 2012.
ORDER Whereas Hon'ble High Court of Guwahati had passed order dated 07.6.2010 in PIL No. 26 of 2004 thereby directing the Guwahati Municipal Corporation to clear the Tarun Ram Phookan Road of the encroachment by various vegetable vendors. The order passed by the Hon'ble High Court was challenged by the traders in the Hon'ble Supreme Court of India in terms of the Special Leave Petition (Civil) No (s) 31914/2010, which was dismissed by the Hon'ble Supreme Court on 23.3.2012. Thus, the order has merged in the Supreme Court order.
Therefore by virtue of the order passed by the Hon'ble Supreme Court, the traders who have encroached upon TRP Road are called upon to vacate the same within 24 (twenty four) hours from the receipt of this order, and shift to the newly developed wholesellers market belonging to Agricultural Marketing Board at Garchuk, Pamohi, immediately, failing which they shall be liable to be evicted with the help of the Police in compliance with the Supreme Court orders.
Sd/-
Commissioner Guwahati Municipal Corporation, Guwahati."
3. I have heard Mr. P. Pathak, learned Sr. counsel assisted by Mr. S. Kataki, learned counsel appearing for the petitioners as well as Mr. K.N. Choudhury, learned Senior Additional Advocate General, Assam assisted by Mr. S. Bora, learned Standing Counsel, GMC, representing WP(C) 1703 of 2012 Page 3 of 10 the respondents. Learned counsel for the parties have argued extensively in reference to the checkered history of the case as reflected in various orders passed by this Court which eventually came to an end with the dismissal of the SLP preferred by the present petitions against the final order of this Court passed on 7.6.2010 in case No. PIL 26 of 2004.
4. In terms of the impugned order which was preceded by the aforesaid Division Bench Order dated 7.6.2010 and the Apex Court order dated 23.3.2012, the Vegetable Vendors, who are members of the petitioner association, are now require to shift their business to the newly constructed wholesale market belonging to the agricultural Marketing Board at Garchuk.
5. According to the petitioners, although the SLP filed by them against the final order of this Court dated 7.6.2010 has been dismissed but in view of the fact that such dismissal is without assigning any reason, the respondents are bound to carry out the directions contained in the order of this court dated 7.6.2010 and in case of any deviation from the said directions, they are entitled to invoke the writ jurisdiction of this Court. It will be appropriate at this stage to refer to the directions contained in the order dated 7.6.2010 passed by this Court in the aforementioned PIL, which are as follows :-
"(i) The State Government would provide an alternative site to the petitioners at Paschim Boragaon on the Southern side of National Highway Bye pass at Garchuk. It is undisputed before us that the State Government has drawn appropriate requisition proceeding under the Assam Requisition and Acquisition Act, 1964 and after issuance of the order by the Deputy Commissioner, Kamrup, Guwahati, possession of the said land has already been taken.
It is also contended by the learned counsel for the State that after taking possession of the property, the land for the purpose of maintenance and development has already been handed over to the Municipal Corporation, Guwahati.
WP(C) 1703 of 2012 Page 4 of 10(ii) That within 30 days from today, the land would be developed so that the vegetable vendors, wholesalers / retailers, are in a position to occupy the land and sell vegetables to the retailers.
(iii) That after the land is developed appropriate infrastructure would be provided by the concerned authorities after taking everybody into confidence. If the vegetable vendors propose to develop the area at their own cost with the same willingness which they have proposed to develop Sonaram High School area, then they would be entitled to place their programme / project before the State Government and the Municipal Corporation, Guwahati. If such programme / project is found to be valid and feasible, then appropriate required sanction would be given by the State Government and the Municipal Corporation, Guwahati.
In case, the vegetable vendors Association or the Fish vendors find that the place earmarked for their settlement has not been properly developed, then they would be entitled to submit their objections to the Government claiming basic minimum facilities. The parties agree that the place where as on today the vending is taking place there are no basic infrastructure nor any facilities are provided to the vegetable vendors or to the fist vendors. Everything is sold on the road and therefore, to that extent the liability would be on the State Government and on the Municipal Corporation to provide an appropriate area so that open vegetable / fish market is properly run / managed and operated.
(iv) The State Government after the above referred development shall either through the Deputy Commissioner or through the Municipal Corporation, Guwahati issue appropriate notices to the President and the Secretary of Ms/. Machkhowa Vegetable Retailers Association for their shifting and within one week of receipt of such notices all the vendors, who are represented by the petitioner Association, shall shift from the TR Phookan Road to Paschim Boragaon on the Southern side of National Highway Bye pass at Garchuk. After receipt of such notices, if the vegetable retailers do not shift from TR Phookan Road to the place earmarked for them, then the State Government so also the Municipal Corporation WP(C) 1703 of 2012 Page 5 of 10 would be entitled to take appropriate action to close the market activities and to take appropriate measures and to place proper force for shifting of the vegetable and fish market from TR Phookan Road to Paschim Boragaon on the Southern side of NH Highway Bye pass at Garchuk."
6. Referring to the aforesaid direction, Mr. P. Pathak, learned counsel for the petitioners submits that the respondents have deviated from their own undertaking as reflected in direction No.(i), inasmuch as, the market has now been constructed by the Agricultural Marketing Board and not by the Guwahati Municipal Corporation. Countering the said argument, Mr. K.N. Choudhury, learned Sr. AAG, Assam, submits that the said direction got diluted in the proceeding before the Apex Court. In this connection, he has referred to the orders passed in the SLP proceeding by the Apex Court.
7. One important aspect of the matter is that although in terms of the direction No. (i) quoted above, certain land was requisitioned as per the provisions of Assam Requisition and Acquisition Act, 1964 for accommodating the petitioners in a market to be constructed over the said land, but there was some objection pertaining to the procedure adopted in requisitioning the land. Such objection was raised by 3 (three) persons in respect of the area of their land that was requisitioned. It so happened that the said three persons invoked the writ jurisdiction of this Court by filling a writ petition alleging procedural irregularity in requisitioning their land. The writ petition was allowed making a grievance against the State Govt. preferred a writ appeal.
8. As submitted by Mr. K.N. Choudhury, learned Sr. AAG, Assam, the said appeal was allowed along with disposal of the PIL by the aforesaid order dated 7.6.2010. Against the order passed in the appeal, the said three persons also approached the Apex Court by filling two SLPs, namely, SLP No. 17131/2010 and SLP No. WP(C) 1703 of 2012 Page 6 of 10 17132/2010 taken up together along with the SLP preferred by the petitioners.
9. During the course of the proceeding before the Apex Court, on being queried by the Apex Court, a submission was made on behalf of the State that it would not initiate any requisition proceeding to requisition the land owned by the said three persons. In view of such submission, the apex Court passed the order dated 16.3.2012 observing that in view of such a submission, the matter need not be gone into appreciating the correctness or otherwise of the orders passed by this Court in PIL No. 26 of 2004 and WP(C) No. 2794/2010 dated 7.6.2010.
10. On the same date i.e. 16.3.3012, the learned AAG, Assam was directed to furnish the details of the land which the State had identified for the purpose of shifting of the members of the petitioner association. The matter was against fixed on 23.3.2012, on which date the SLP filed by the petitioners was dismissed.
11. As per the aforesaid direction of the Apex Court, an additional affidavit was filed on behalf of the State of Assam, in which a categorical statement was made that the State had decided to shift the Machkhowa Vegetable Market to the newly constructed market under Assam State Agricultural Marketing Board. Mr. K.N. Choudhury, learned Sr. AAG, Assam, has produced the copy of the said additional affidavit filed by the State Government. For a ready reference, paragraph 2, 3 & 4 of the said additional affidavit are quoted below :-
"2. That during the course of hearing of the instant petition on 16.03.2012, this Hon'ble Court desired to know from the respondent, State of Assam, as to the place / land to which the State Government has proposed / decided to shift the Machkhowa Vegetable Market. With due deference to the observations made by this Hon'ble Court on 16.03.2012, the present affidavit has been filed.WP(C) 1703 of 2012 Page 7 of 10
3. That it is most respectfully submitted by the Deponent therein that the parcels of land situated at Paschim Boragaon which was requisitioned for shifting of Machkhowa Vegetable Market and which was subject matter of challenge in SLP(C) Nos. 17131/2010 and 17132/2010, which have since been disposed on 16.03.2012, is no longer required as Assam State Agriculture Marketing Board has already opened a whole sale vegetable market at Garchuk area under Jalukbari Mouza. Therefore, the Guwahati Municipal Corporation has identified the site for shifting of wholesale vegetable market to the land of Assam State Agriculture Marketing Board at Garchuk area which is within the limits of city of Guwahati. The proposed site, which is at a distance of about 15 kms. from the present site, is a fast developing area and all the wholesale markets including the Machkhowa Vegetable market is proposed to be accommodated in the said area. The said land belongs to one Shri Baputi Rangchal s/o. Late Bhola Rangchal and Dipen Rangchal s/o. Late Moti Ram Rangchal of village Pamohi under Ramcharani mouza covered by dag No. 458, 455 and 459 of K.P. Patta No. 18 and 93 measuring an area of 8B-03K-13LS. A lease deed was executed on September 2, 2010 in between the above-mentioned Pattadars and the Guwahati Sub-Divisional Market Committee for construction of a whole sale market.
4. That it is most respectfully submitted by the Deponent herein that the above-mentioned whole sale vegetable market needs to be shifted from Tarun Ram Phukan Road, Machkhowa, Guwahati to the Garchuk area of Guwahati City due to the following reasons :- (a) existence of such a market which attracts both vendors and consumers has led to traffic congestion and snarls, which in turn cause immense inconvenience to the citizens of the area. The said market caters to the vegetable requirement of entire city of Guwahati. (c) in view of security reasons also, the market warrants immediate shifting from such congested area as it entails risk of security hazards like bomb blast and (c) T.R. Phukan Road at Machkhowa, Guwahati being primarily a road, the authority is keen to restore its status to regulate the traffic in the area. In any case, the existing road is not sufficient to accommodate the volume of business which is being transacted from Machkhowa Vegetable market."WP(C) 1703 of 2012 Page 8 of 10
12. From the above, what has transpired is that the Apex Court was apprised of the decision of the State Govt. to shift the Vegetable market from Machkhowa to the newly constructed wholesale market of the Assam State Agricultural Marketing Board. It was upon noticing such stand of the State Government pursuant to the proceeding before the Apex Court, the SLP filed by the petitioners came to be dismissed.
13. The above aspect of the matter finds mention in paragraph 13 and 14 of the writ petition in which the petitioners have categorically stated about the identification of the site for establishing the wholesale vegetable market to the newly constructed wholesale market of Assam State Agricultural Marketing Board at Garchuk area. It has also been stated that on appraisal of the said decision by the State respondents through the additional affidavit, referred to above, the petitioners also filed their counter affidavit in which it was stated that the members of the petitioner association being retailer vegetable vendors, it would not be possible for them to shift the retail business to the newly constructed market established by the Assam State Agricultural Marketing Board.
14. The SLP came to be dismissed by order dated 23.3.2012 upon noticing of the aforesaid facts as disclosed by the parties involved in the proceeding.
15. After the aforesaid finality arrived at in the proceeding that was initiated before this Court and the Apex Court, I am of the considered view that the matter and the issue involved cannot be reopened by another writ proceeding. Although, by Annexure-D impugned order dated 31.3.2012 quoted above, the members of the petitioner association were directed to vacate the market in question within 24 hours, but by Annexure-F notice of the same date, they were given 7(seven) days time to vacate the same. This is in WP(C) 1703 of 2012 Page 9 of 10 conformity with the direction No. (iv) of the order dated 7.6.2010 passed in PIL No. 26 of 2004.
16. In view of the above, I do not find any merit in the writ petition and accordingly it is dismissed, leaving the parties to bear their won costs.
JUDGE Sukhamay WP(C) 1703 of 2012 Page 10 of 10