Calcutta High Court (Appellete Side)
Abdul Golam & Ors vs Coochbehar Municipality & Ors on 13 April, 2011
Author: Soumitra Pal
Bench: Soumitra Pal
1
13.4.2011. W.P. 25420 (W) of 2007
Abdul Golam & Ors.
Vs.
Coochbehar Municipality & Ors.
Mr. Mukul Lahiri. Senior Advocate.
Mr. Anindya Lahiri,
Ms. Sulagna Dawn.
... For Petitioners
Mr. Jakir Hossain.
... For Municipality
Mr. Bhudeb Bhattacharya. Senior Advocate.
Ms. Sohini Bhattacharya.
... For Added Respondents
In the writ petition, the petitioners have prayed for a direction upon the respondents particularly on the Cooch Behar Municipality and its Chairman, the respondent nos. 1 and 2 to desist from dealing with the stalls held by them at Bhabanigunje Market, Cooch Behar, which were covered by the rent receipts issued to them, being annexure P-2 to the writ petition, and to keep the same out of the ambit of the lottery held by the authorities.
In the writ petition, it has been stated that from the stalls in question the ancestors of the petitioners used to sell their products. Later they became the allottee stall holders under the municipality. On 25th November, 2003, a devastating fire destroyed the said market. Thereafter, an endeavour was made by the respondent no. 1 to rebuild the market and the 2 municipality promised that new stalls would be built having the same space and occupying the same position and possession of stalls would be restored to the allottees and/or the stall holders. In the year 2004, for such purpose a sum of Rs. 9000/- was deposited with the municipality by each of the parties. According to the petitioners, it would appear from the receipts that a number was allotted to them for their identification as an allotted stall holder in the register of the municipality. In the meantime, as the construction proceeded and the stalls could be distinguished, the municipality started collecting the stall rents. It has been stated that during the process of rebuilding, the municipality collected rent from the petitioners. After the market was rebuilt, by an intimation dated 20th February, 2007 the respondent no. 2 requested the petitioners to remain present on 24th February, 2007 for taking physical possession of the stalls. Accordingly, on 24th February, 2007, possession of the stalls was handed over to the petitioners. According to petitioners, after they took possession of their respective stalls, the District Magistrate, Cooch Behar, the respondent no. 6 by a letter dated 14th September, 2007 intimated that pursuant to a resolution adopted on 19th March, 2007 the newly built stalls would be distributed by a lottery which would be held on 18th September, 2007. According to the petitioners, as the respondent no. 1 is the owner of the market, such distribution of stalls by way of lottery is contrary to Sections 274(3) and 276© 3 of the West Bengal Municipal Act, 1993. Submission is since the petitioners are in possession of their respective stalls, which were allotted to them on 24th February, 2007, appropriate directions may be issued so that they are not disturbed, which is being done, by the authorities.
It appears from the records that the matter was moved on 11th December, 2007 when an interim order was passed restraining the municipal authorities from disturbing the petitioners in their day to day carrying on business from the stalls in question. The matter came up for hearing on 30th January, 2008, when directions were issued to file affidavits and an interim order passed which was extended till the disposal of the writ petition.
It requires to be mentioned that though directions were issued to file affidavits, no affidavit in opposition has been filed by the respondents. In the absence of affidavits, statements made in the writ petition are deemed to be correct.
Subsequently, an application for addition of party being C.A.N. 150 of 2008 was filed, which by an order dated 19th March, 2010 was allowed. Pursuant to the said order, the applicant nos. 1 and 2 were added as respondent nos. 8 and 9 to the writ petition. During argument, on a query, learned advocate appearing on behalf of the municipality has submitted that after the 4 respective stalls were allotted to the petitioners, they are in possession of their respective stalls.
Now coming to the facts of the writ petition, I find that admittedly an intimation dated 20th February, 2007 was issued by the respondent no. 2 intimating the petitioners to take over physical possession of the stalls based on the basis of provisional allotment. On 24th February, 2007 stalls were allotted and admittedly the petitioners are in possession and depositing rent which is accepted by the Municipality. Now, the question is whether the District Magistrate, Cooch Behar, the respondent no. 6, was justified in holding the lottery pursuant to the resolution adopted on 19th March, 2007. On a reading of Section 274 (3) of the Act it is evident that a Municipal market is under the control of the Chairman of the Municipality. According to Section 276 (C) of the Act, the Board of Councillors may put up for public auction or dispose of by private sale any stall in a Municipal market for such period and on such conditions as it may think fit Therefore, in the instant case, in view of the statutory provisions in the Act, the respondent no. 6 had no authority to hold such lottery. Though Section 429 of the Act provides that the State Government may after giving the Board of Councillors a reasonable opportunity of being heard has the power to annul any proceeding or resolution or order which is considered to be not in conformity of the Act or Rules made therein, however, in the instant case nothing has been furnished either on behalf of the State or on behalf 5 of the municipality that the allotment of stalls carried out on 24th February, 2007 by the respondent no. 2 was illegal. Therefore, the action of the respondent no. 6 in adopting the resolution on 19th March, 2007 to hold lottery and, pursuant thereto, in holding lottery on 18th September, 2007 were without jurisdiction, arbitrary, malafide and illegal. Hence, the intimation dated 14th September, 2007 and also the lottery held and all proceedings relating thereto cannot be sustained and are, thus, set aside and quashed. The interim order passed on 11th December, 2007 is confirmed. Accordingly, the respondent nos. 1, 2 and 3 are directed to desist from dealing with the stalls held by the petitioners at Bhabanigunje Market, Cooch Behar in any manner whatsoever. Since it has been alleged that the petitioners are being prevented from carrying on business from their respective stalls, the Officer-in-Charge, Kotwali Police Station, the respondent no. 7 is directed to ensure that the petitioners are in no way prevented from carrying on their business from their respective stalls for which rent receipts are being issued. The writ petition is allowed.
After judgment is delivered, Mr. Bhudeb Bhattacharya, learned senior advocate appearing on behalf of the added respondents, appears and files the affidavit in opposition on behalf of the added respondent nos. 8 and 9. Let it be kept with the record. Submission is made that the resolution adopted on 19th March, 2007 was for the purpose of planning and 6 development of the market as postulated under Section 432 of the Act. In my view, as neither the State authorities nor the municipal authorities have filed affidavits nor has made submission that the market was rebuilt keeping in view the provisions contained in Section 432 of the Act, such submission cannot be accepted.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocates for the parties on priority basis.
(SOUMITRA PAL, J.)