IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (EXTRAORDINARY WRIT JURISDICTION) WP(C) No.2171 of 2017 Moizuddin Ahmed.. Petitioner -Versus- The State of Assam & 7 others. Respondents BEFORE HON BLE MR. JUSTICE SUMAN SHYAM For the petitioner : Mr. S. Islam, Advocate. For the respondents : Mr. D. Nath, Addl. Senior Govt. Advocate, Assam. Mr. B. Kaushik, Advocate. Date of hearing : Date of Judgment : JUDGMENT AND ORDER (Oral) 1. Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Govt. Advocate, Assam, appearing for respondent Nos.1 to 3 as well as Mr. B. Kaushik, learned counsel for respondent No.4. None appears for the remaining respondents. WP(C) No.2171/2017 Page 1 of 10

2 2. The present writ petition has been filed with a prayer to permit the petitioner to run the Lalpul Weekly Livestock Market as per Government notification dated on temporary basis till regular settlement is made by the concerned authorities. 3. The case of the petitioner, in brief, is that he was the lessee of the Lalpul Weekly Livestock Market under the Bechimari Anchalik Panchayat in the district of Darrang, Assam for the year The petitioner had operated the market without any blemish to his reputation. Towards the end of the period of settlement the Anchalik Panchayat had issued an NIT dated putting up the markets, bus stands etc. for sale for the year by incorporating a clause at Clause No.9 to the effect that the tenderers and guarantors should be the adult residents within the jurisdiction of the Anchalik Panchayat. Clause 9 of the NIT dated was challenged by an intending tenderer by filing a civil suit before the Court of learned Civil Judge, Darrang, Mangaldai along with an application for temporary injunction numbered and registered as Misc.(J) Case No.25/2016 whereby the learned civil court had passed an order of injunction dated staying the operation of the NIT dated It is the case of the writ petitioner that as per the Government notification dated , whenever any interim arrangement for WP(C) No.2171/2017 Page 2 of 10

3 management of Hats/Ghats etc. is required to be made pending formal settlement due to stay order of the Court or for any other reason, the concerned Zilla Parishad/Anchalik Panchayat is required to make temporary settlement with the lessee of the previous financial year, at an enhanced rate of 25% over the previous year s settled value proportionately for the period of interim/ temporary settlement. In view of the aforesaid notification issued by the Government and considering the interim injunction dated the concerned Zilla Parishad was under a legal obligation to settle the Lalpul Weekly Livestock Market in favour of the petitioner, he being the lessee for the previous financial year for the Weekly Market. However, instead of doing so, the authorities had awarded interim settlement of the market in favour of one Md. Channaulla on the basis of a resolution dated adopted by the Darrang Zilla Parishad whereby a decision was taken not to award temporary settlement in favour of the writ petitioner in his capacity as the previous year s lessee. Aggrieved by the resolution dated , the petitioner along with two other similarly situated sitting lessees had jointly approached this Court by filing WP(C) No.4092/2016. Taking note of the case of the petitioner s this Court had passed an order dated directing the authorities to allow the petitioners therein to operate their respective markets etc. till the next date fixed at an enhanced rate of 25% over the previous year s settled value proportionately for the period of temporary settlement. WP(C) No.2171/2017 Page 3 of 10

4 5. Taking note of the interim order dated passed by this Court, the Chief Executive Officer of Darrang Zilla Parishad, Mangaldai had issued an Office Order dated permitting the petitioner to operate the aforementioned market.during the pendency of the said writ petition, on , another resolution was adopted in the meeting of the General Standing Committee of the Darrang Zilla Parishad, Mangaldai deciding to run the markets under the supervision of the employees of the office and accordingly the name of the employees and the assisting personnel for each of the five parking/bazaar/market coming under the Darrang Zilla Parishad was finalized. By the resolution dated the earlier resolution dated deciding to temporarily settling the market in favour of Md. Channaulla was also cancelled. 6. Taking note of the resolution dated this Court had passed an order dated disposing of WP(C) No.4092/2016 holding the writ petition as infructuous thereby vacating the interim order dated Liberty was, however, granted to the writ petitioners to file appropriate proceeding challenging the resolution dated Hence, this writ petition. 7. The respondent No.4 has filed a counter affidavit, inter alia, questioning the maintainability of the writ petition on the ground of delay and laches, by contending that the copy of the impugned WP(C) No.2171/2017 Page 4 of 10

5 resolution dated had been brought on record by annexing the same to the affidavit-in-opposition filed in WP(C) No.4092/2016 on but the same was not challenged by the petitioner until i.e. the date on which the present writ petition has been filed. In the counter-affidavit the respondent No.4 has further stated that the writ petitioner was a defaulter for the years 2016 and 2016 and that is the reason why unanimous decision was taken not to go for any temporary or permanent settlement in his favour of the previous year s lessee for the year Accordingly, a decision was taken to operate the market departmentally through the official staff and the aforesaid process has resulted into increased collection of revenue. In the counter affidavit, it has also been stated that Md. Channaulla has expressed inability to operate the market and since there were complaints against the writ petitioner, hence, the decision to departmentally run the market was taken keeping in mind the overall public interest. 8. In the rejoinder affidavit filed by the writ petitioner, although an attempt has been made to deny the averments made in the counteraffidavit, yet, I find that there is no specific denial to the averments made in paragraph 4 of the counter-affidavit to the effect that the writ petition is barred by delay and laches. Save and except stating that the resolution dated was a backdated one, the petitioner has not given any explanation as to on which date and in WP(C) No.2171/2017 Page 5 of 10

6 what manner he had become aware of the resolution dated The learned counsel for the petitioner, Mr. S. Islam, has placed heavy reliance in the Government circular dated to contend that his client would have a right to get temporary settlement of the market at the enhanced rate of 25% over the previous year s price, which amount he is ready and willing to bear. Under the circumstances, the respondent No.4 could not have denied such right of operation of the market to the writ petitioner. 10. In order to appreciate the petitioner s contention, it would be necessary to examine the notification dated For the above purpose, paragraphs 2 and 3 of the notification dated are deemed to be relevant and are quoted herein below for ready reference :- 2. Therefore, it is hereby decided that whenever any interim arrangement for management of Hats/Ghats etc. are required to be done pending formal settlement due to stray order of Hon ble Court or any other reason and where there is no specific order of the Courts as to who will manage in the interim period, the Zilla Parishad will manage those Hats/Ghats whose tendered value during the latest bid was more than Rupees one lakh irrespective of the fact whether the Market/ Ghats was settled or not at the said tendered value. The other Hats/ Ghats etc. will be managed by the Anchalik Panchayat concerned. WP(C) No.2171/2017 Page 6 of 10

7 3. It has further now come to the notice of Govt. that some Zilla Parishad/Anchalik Panchayats are not following any procedure for such temporary settlement and instead they have offered the settlement arbitrarily causing loss of revenue to the PRIs. Therefore, Government has carefully examined the matter and decides that such temporary settlement should be done in the first instance with the lessee of the previous financial year at an enhanced rate of 25% over previous year s settled value proportionately for the period of interim/temporary settlement with rate of levies for that market remaining the same. In case the temporary settlement period is prolonged under some circumstances and extends beyond one year, the rate should increase by another 25% i.e. a total of 50% from the original regularly settled value and so on. In absence of the old lessee accepting the higher value the Hat/Ghat be managed by Zilla Parishad/ Anchalik Panchayat through own manpower as giving to third party would tantamount to again calling for offers for the said interim period. 11. From the reading of the aforesaid notification it is apparent that certain guidelines and instructions were issued by the Government to tide over the situation arising out of pendency of the Court cases or for any other reason coming in the way of regular settlement of the Hats/Ghats. As per paragraph 3 of the said notification, it is no doubt true that the authority is required to give first preference to the lessee of the previous financial year at an enhanced rate of 25% over the previous year s settled value for the period of interim/temporary WP(C) No.2171/2017 Page 7 of 10

8 settlement. But the notification dated would come into play only when the concerned Zilla Parishad/ Anchalik Panchayat takes a decision to grant interim/ temporary settlement of the market under the circumstances mentioned there-in. 12. In the case in hand, although initially temporary settlement was granted in favour of Md. Channaulla, the same was subsequently cancelled by the resolution dated Taking note of the resolution dated this Court had passed an interim order enforcing the right of the petitioner under Clause 3 of the notification dated But such right of the petitioner stood extinguished no sooner the decision to revoke the temporary settlement in favour of Md. Channaulla was revoked. Taking note of the said development the learned Single Judge had closed the writ petition by holding that the same had become infructuous. Since the Zilla Parishad is operating the market in question departmentally through its employees, no right will accrue in favour of the petitioner under the Government notification dated Moreover, there are allegations that the petitioner is a defaulter and the same is reflected in resolution dated The resolution No.2 of the meeting held on is quoted herein below for ready reference:- Resolution No.2 : A detail discussion is held in today s meeting over the matter of the mahaldars who have been declared defaulters for the year Maizuddin WP(C) No.2171/2017 Page 8 of 10

9 Ahmed, the former mahaldar of Lalpul Pahu Market and Md. Nokibul Alom, the former mahaldar of Besimari Dainik Sakpasoli Market are/ is found to be a defaulters and hence it is unanimously resolved in the meeting that no temporary or permanent settlement will be allowed in their favour for the year as per the provisions of law. On the other hand, since written complaint has been received against Md. Mohammad Ali of Baruajhar, the mahaldar of Besimari Bus Parking, it is unanimously resolved in the meeting not to give him the charge of running Besimari Bus Parking again. 14. The said resolution No.2 has remained un-assailed since the same had not been interfered with by this court in connection with WP(C) No.4092/2016. Therefore, the respondents cannot be compelled to issue an order of settlement in favour of a person against whom there is an allegation of being a defaulter. Under the circumstances, the petitioner cannot claim to have any right flowing from the notification that can be enforced in the present proceeding. 15. The learned counsel for the respondent No.4 has submitted that the new settlement year would commence from and the NIT has already been issued on fixing the date of opening the bids on Mr. Kaushik, therefore, submits that since there is less than a month remaining in the current settlement year, this Court may not like to interfere with the present arrangement WP(C) No.2171/2017 Page 9 of 10

10 as the same would upset the revenue collection model presently under operation. I find sufficient force in the said submission of Mr. Kaushik. 16. For the reasons discussed herein above, I am of the view that there is no merit in this writ petition and the same is accordingly dismissed. The parties to bear their own cost. JUDGE T U Choudhury WP(C) No.2171/2017 Page 10 of 10