Calcutta High Court (Appellete Side)
Ajit Singh vs The State Of West Bengal & Ors on 5 March, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 11667 of 2020
Ajit Singh
Vs.
The State of West Bengal & Ors.
For the writ petitioner :- Mr. Kushal Chatterjee, Adv.
Mr. Debabrata Roy, Adv.
For Kamarhati Municipality :- Ms. Chandrima Bhattacharya, Adv.
Heard on :- 18-02-2021
Judgment on :- 05-03-2021
Amrita Sinha, J.:-
The matter relates to grant of stall by the Kamarhati Municipality
in the Sky Walk at Rani Rashmoni Road.
The petitioner happened to be a stall owner on the Rani Rashmoni
Road, Dakshineswar. For the purpose of construction of the Sky Walk
the shop owners were temporarily shifted with assurance that they will
be properly rehabilitated in the stalls which shall be constructed on the
Sky Walk. Notices were issued to all licensees/shop owners of the Rani
Rashmoni Road, Dakshineswar Dokander Samity for shifting their
existing stall to the newly built temporary shop rooms for the purpose of
implementation of the project for construction of the Sky Walk.
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The petitioner initially objected to the shifting of the stalls. A writ
petition was filed through the Secretary of the Rani Rashmoni Road,
Dakshineswar Dokander Samity being WP 22980 (W) of 2015. By an
order dated 15th December, 2017 the Court directed three stall owners,
namely Ajit Singh, Abhijit Dey and Tapanjyoti Dey to make application
before the Chairman, Kamarhati Municipality within a stipulated period
with all supporting documents regarding their license to run the stall.
The Chairman of the Kamarhati Municipality was directed to consider
the applications and take a decision, in accordance with the law, after
giving an opportunity of hearing, to all the three stall owners and after
verifying all the documents and thereafter communicate the reasoned
order to the said stall owners. The aforesaid direction was passed by the
Court in view of the submission that out of the 137 stall owners only
three stall owners have not been given the temporary allocation, though
others have already been given such allocation.
Pursuant to the leave granted by the Court the petitioner made
application before the Kamarhati Municipality. The application of the
petitioner was taken up for consideration and a decision was taken by
the Municipality on 29th January, 2018 and the same was
communicated to the petitioner by memo dated 15th September, 2018.
The Kamarhati Municipality rejected the application of the petitioner for
grant of stall.
The petitioner being aggrieved by the decision taken by the
Kamarhati Municipality challenged the same by filing writ petition being
WP No. 5504 (W) of 2019. The Court after hearing the parties and
considering the materials placed, by order dated 22nd November, 2019,
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remanded the matter back to the Chairman, Kamarhati Municipality to
take a decision, strictly on merits, following the terms of the solemn
order of the Court dated 15th December, 2017, after affording another
opportunity of hearing to the petitioners and the Court was pleased to
set aside the impugned decision taken by the Kamarhati Municipality on
29th January, 2018.
The Municipality afforded an opportunity of hearing to the
petitioner and passed order on 17th October, 2020, communicated by
memo dated 17th December, 2020, again rejecting the prayer of the
petitioner.
Being aggrieved the petitioner has filed the instant writ application
praying for necessary direction upon the Kamarhati Municipality to
hand over a stall in the newly constructed Sky Walk.
The petitioner submits that the reasons for rejecting his
application for grant of stall as indicated in the order dated 17th
October, 2020 is similar to the reasons adopted in the earlier decision of
the Municipality. As the Court on an earlier occasion had been pleased
to set aside the decision taken by the Kamarhati Municipality rejecting
the application of the petitioner, accordingly the impugned reasoned
order dated 17th October, 2020 is also liable to be set aside.
It has been submitted that on both the occasions when the case of
the petitioner was taken up for consideration by the Municipality, the
authority admitted that the petitioner was indeed a licensee of a stall at
the Rani Rashmoni Road. The Court, in order dated 15th December,
2017 directed the Municipality to verify the documents in support of his
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status as licensee. As the Municipality has admitted that the petitioner
was a licensee in the Rani Rashmoni Road accordingly, the petitioner is
liable to be granted a stall in the Sky Walk.
With regard to the reason mentioned in the impugned order that
the petitioner acted in violation of the terms and conditions of the lease
agreement by parting /assigning the stall to a third party, it has been
submitted that there is a specific clause in the lease agreement for
termination in the event there is a breach in the terms and conditions of
the agreement. The petitioner has denied that he assigned the stall in
favour of any third party.
It has been submitted that the petitioner has cleared all dues in
respect of the erstwhile stall at Rani Rashmoni Road, Dakshineswar till
September, 2015.
It has been submitted that as the petitioner was one of the stall
owners who actively opposed the shifting, false criminal case was lodged
against him. The petitioner had to remain under cover to avoid arrest.
He was unable to collect the keys of the new stall in proper time as he
was apprehending arrest the moment he visits the Municipality.
The learned advocate representing the Kamarhati Municipality
submits, upon instructions, that the order passed by the Chairman is a
reasoned one. In the said reasoned order it has been clearly mentioned
that the petitioner intentionally and deliberately did not accept the keys
of the temporary stall which was offered to him in spite of repeated
requests.
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It has been alleged that the petitioner entrusted a third party to
run his shop independently.
The petitioner is implicated in a criminal proceeding for causing
resistance to the advancement of the Sky Walk, which is pending till
date. Allotment of stall to an under trial accused person is not justified.
The Chairman was of the opinion that as the chapter of
disbursement of stalls had been closed long ago and as the petitioner
did not collect keys during the disbursement session, accordingly the
prayer was refused on the ground of mala fide.
I have heard the submissions advanced by the parties in details
and considered the documents placed before the Court. The impugned
order is a detailed and reasoned one. The Court has to decide as to
whether the reasons assigned by the Municipality in rejecting the prayer
of the petitioner are valid in the eye of law.
In view of the ratio laid down by the Hon'ble Supreme Court in
the matter of Mohinder Singh Gill & anr. -vs- The Chief Election
Commissioner, New Delhi & ors. reported in 1978 AIR 851 there is
hardly any scope to supplement the reasons assigned in the impugned
order by filing affidavit by the respondents. Accordingly, the matter is
taken up for final hearing and disposed of as herein below.
From the documents annexed to the writ petition it is crystal clear
that the petitioner was indeed a stall owner/licensee in respect of a stall
in the Rani Rashmoni Road. All the communications made by the
Kamarhati Municipality addressed to the petitioner mentions the stall
number 33 of the petitioner. The Municipality accepted the rent in
respect of the said stall till September, 2015. The stall number of the
petitioner is also reflected in the money receipt issued by the Kamarhati
Municipality showing acceptance of rent.
One of the grounds for rejecting the application of the petitioner is
that the petitioner had assigned the stall in favour of a third party. The
license agreement annexed to the writ petition clearly mentions that the
license is valid for a period of four years and the same may be renewed
on the same terms and conditions and the licensee is required to pay
rent to the licensor and duly observe and perform the conditions
contained in the agreement for license.
Clause 10 of the agreement for license bars the licensee from
assigning/transferring or disposing of any of the rights under the license
without written permission of the licensor.
Clause 12 of the agreement for license mentions that license is
terminable at any time upon a months' notice to be served by the
licensor to the licensee in connection with breach of the terms and
conditions mentioned therein.
Clause 14 of the agreement for license lays down that the license
is not transferable nor shall confer on the licensee any right of
possession affecting absolute right of ownership as vested in the
Municipality in respect of the license.
As per clause 15, the licensor and/or his agents had the liberty to
inspect the stall at any time, if required.
It has been admitted by the parties that no steps for termination
of the agreement for license was taken by the Kamarhati Municipality.
Had the Municipality been aggrieved by the act of the petitioner in
assigning/transferring and/or permitting a third party to run the stall,
then steps ought to have been taken by the Municipality for termination
of the license.
The Municipality in the reasoned order, on both the occasions,
have recorded that the person who was allegedly running the stall of the
petitioner never came forward with the claim for grant of stall in his
favour. In fact, there is no rival claimant in respect of the stall of the
petitioner. The Municipality never denied the factum of the grant of
license to the petitioner neither did the Municipality initiate any
proceeding for terminating the license agreement of the petitioner on the
ground of breach of its terms and conditions. The Municipality had the
liberty to inspect the stall and take necessary steps against the
offending stall owner. The Municipality did not do so. Accordingly, the
allegation of assigning/ transferring/parting the stall in favour of a third
party remains unsubstantiated.
The other ground for rejecting the prayer of the petitioner is that
he is an under trial accused person and allotment of stall to such a
person was not justified. The elementary principal of criminal law is,
that, no person will be held guilty till an order to that effect is passed by
the appropriate Court. It is settled law, that till such time guilt of
a person is proved, he is deemed to be innocent. The Municipality has
recorded that the criminal case filed against the petitioner was pending
before the Court of law. Until and unless the Court passes an order
convicting the petitioner and holding him guilty, the pendency of the
criminal case ought not to stand in the way of the petitioner from being
allotted a stall for running his business, otherwise the same will amount
to infringement of the fundamental right of a citizen to carry on
business as enshrined in Article 19(1)(g) of the Constitution of India.
Non-granting of the stall to the petitioner in view of a criminal case
pending against him will amount to imposing punishment to the
petitioner even though he is yet to be held guilty by the Court. There is
also no provision in the agreement for license for
cancellation/revocation of the license if the licensee is implicated in a
criminal case. As such, the said reason adopted by the Chairman, for
not granting the stall to the petitioner cannot be held to be a valid one.
It is not improbable that the petitioner was implicated in a
criminal case only because he objected to the shifting of the stalls from
Rani Rashmoni Road, Dakshineswar to the temporary accommodation
which was provided to the stall owners. The petitioner in fact, on the
apprehension of being arrested by the police, remained absconding for a
considerable period of time because of the pendency of the criminal case
and only after he was granted bail by the Court did he approach the
authority for handing over the stall to him in the newly constructed Sky
Walk.
The Municipality ought to have considered the documents in
support of the status of the petitioner as licensee and the rent receipts
in support of payment of rent in respect of the stall occupied by him.
The Municipality ought not to have relied upon any other information
which is not required for the purpose of taking a decision with regard to
handing over of stall to a stall owner. It appears that the consideration
of the application of the petitioner has been made on extraneous
grounds.
Accordingly, the impugned order passed by the Chairman,
Kamarhati Municipality on 17th October, 2020 is liable to be set aside
and is accordingly set aside. The Kamarhati Municipality is directed to
take steps for handing over the keys of the stall in favour of the
petitioner, strictly in accordance with the scheme framed by the
Government, within a period of eight weeks from the date of
communication of a copy of this order, subject to compliance of all
necessary formalities by the petitioner.
It is needless to mention that if the petitioner acts in breach of
any of the terms and conditions mentioned in the agreement for license,
it will be open for the Municipality to take steps, against the licensee, in
accordance with law.
The writ petition is disposed of.
No costs.
Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
