Calcutta High Court
Ashok Agarawal vs Kolkata Municipal Corporation And Ors on 6 March, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APOT 460 of 2023 WITH
WPO 353 OF 2019
IA GA 3 of 2025
GA 1 OF 2023
ASHOK AGARAWAL
Versus
KOLKATA MUNICIPAL CORPORATION AND ORS.
APOT 36 of 2024
IA GA 2 of 2025
GA 1 OF 2024
PRADIP AGARWAL AND ORS.
Versus
KOLKATA MUNICIPAL CORPORATION AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant
(in APOT/460/2023) : Mr. Jishnu Chowdhury,Sr.Adv.
Mr. Uttiyo Mallick, Adv.
Ms. Vedika Sureka, Adv.
For the Appellant : Mr. Suman Kr. Dutt, Sr. Adv.
(in APOT/36/2024) Ms. Monica Jaiswal, Adv.
Mr. Niladri Khanra, Adv.
Mr. D. Mukhopadhyay, Adv.
2
For the KMC : Mr. Alak Kumar Ghosh, Adv.
Mr. Swapan Kr. Debnath, Adv.
For the Respondent No.4 : Mr. Rajarshi Dutta, Adv.
Mr. Aritra Basu, Adv.
Ms. Nairanjana Ghosh, Adv.
Mr. Kritin Saraf, Adv.
HEARD ON : 06.03.2025
DELIVERED ON : 06.03.2025
DEBANGSU BASAK, J.:-
1. Two appeals are taken up for analogous hearing as they emanate
from the same impugned judgment and order dated December 14,
2023 passed in WPO 245 of 2019 and WPO 353 of 2019.
2. Both the appeals were dismissed since no learned advocate for the
appellants appeared before the Court to assist the Court on the
merits of two appeals on a particular date.
3. Two restorations applications filed in two individual appeals are
taken up analogously for consideration as they relate to same
issues.
4. For the ends of justice, the causes shown in both the applications
for restoration are accepted as sufficient. Orders dismissing both the
appeals are recalled. Both the appeals are restored to their original
file and number.
5. By consent of the parties, both the appeals are taken up for final
hearing.
6. Learned senior advocate appearing for the appellant in APOT 460 of
2023 submits that, there was an initial license executed between the
Kolkata Municipal Corporation (KMC) and a private entity on
February 15, 1985. He refers to clauses 6(iii), (iv), (v) and (vi) thereof.
He submits that, KMC authorized such private entity to enter into
license agreement with different persons. The model form of
agreement was prescribed. He draws the attention of the Court to
such model forms of agreement. He submits that, his client is
occupying a stall at the subject premises pursuant to an agreement
entered into in terms of such license dated February 15, 1985.
7. Learned senior advocate appearing for the appellant in APOT 460 of
2023 submits that three tenders were attempted by KMC upon the
period of the first license coming to an end. He submits that, the
amount prescribed in the three attempts were successively reduced.
In response to the query of the Court he submits that, the first two
attempts by the Kolkata Municipal Corporation were not challenged
by his client. Justification for non-challenge is no knowledge of such
attempt.
8. Learned senior advocate appearing for the appellant in APOT 460 of
2023 submits that under the fresh tender, there is a clause which
records there are 354 existing stalls in the market. Successful bidder
cannot remove such existing stall holders.
9. Learned senior advocate appearing for the appellant in APOT 36 of
2024 submits that, the property is a municipal market. He refers to
Section 426 and 430 of the Kolkata Municipal Corporation Act, 1980
and submits that, the rates and taxes leviable are to be determined
by the KMC through the Mayor-in-Council. He submits that, fresh
tender process allows the successful tenderer to charge and obtain
such rates and taxes from the occupants as the successful tenderer
desired without reference to the Mayor in Council. Such course of
action, according to him is not permissible, in view of the provisions
of Section 426 and 430 of the Act of 1980.
10. Learned senior advocate appearing for the appellant in APOT 36 of
2024 draws the attention of the Court to Article 243W and 243X of
the Constitution of India. He submits that powers granted by the
Constitution on the Municipal Corporation to levy tax is sought to be
breached by the impugned tender process. Therefore, according to
him, KMC cannot undertake the tender process as it is in breach of
the Act of 1980 and the Constitution of India.
11. Learned advocate appearing for the KMC relies upon 1987 (Supp)
Supreme Court Cases 571 (Calcutta Youth Front and Others vs.
State of West Bengal & Ors.) and submits that, the issues as to
whether KMC was entitled to enter into a license agreement with a
private party in respect of the same market concerned fell for
consideration thereof. The decision of KMC to enter into a license
agreement was upheld. He submits that, license can be granted by
the Corporation in respect of the same market complex. First license
agreement expired by efflux of time. It is for the next period that the
KMC undertook the tender process.
12. Learned advocate appearing for the KMC submits that on the third
attempt of the tender process, KMC could obtain a successful
tenderer who is willing to undertake the license. Two earlier
attempts did not result in any person coming forward to take the
license. He submits that KMC is suffering lots of revenue since it is
being detained by the pedency of the present litigation from entering
into the formal contract with the successful bidder.
13. Learned advocate appearing for the successful bidder submits that
there are at least three civil suits pending in respect of the property
concerned. He submits that the occupants of the property are not
paying any occupation charges despite orders passed by the High
Court on appeal and on revision in such civil suits. He submits that,
Corporation is not executing the formal contract in view of the
pendency of the present litigation.
14. Two writ petitions were filed before the High Court. Both the writ
petitions are at the behest of the two appellants before us. Two writ
petitions assailed the tender process undertaken by the KMC in
respect of Satyanarayan Market for its operation, maintenance and
overall management.
15. Satyanarayan Market is a property owned by KMC. KMC initially
entered into a deed of license in respect of such market for its
maintenance and upkeep through a tender process. The first tender
process, was assailed right upto the Supreme Court which resulted
in Calcutta Youth Front & Ors. (supra).
16. Appellants before us are occupants of the Satyanarayan Market as
stall holders. They are one of the beneficiaries of the first tender
process.
17. The first tender process was also for maintenance and upkeep of the
Satyanarayan Market, amongst others.
18. Therefore, the contention of the appellants that the KMC authorities
cannot undertake a tender process for the purpose of grant of
license to maintain and upkeep a market place such as
Satyanarayan Market is not available to them since they are the
beneficiaries of the first tender for the same purpose.
19. None of the appellants participated in the tender process. Third
tender process after expiry of the first license period by efflux of time
resulted in indentifying a successful tenderer. The appellants did not
challenge the tender process at the inception. Rather the challenge
was thrown on the issuance of the letter of allotment in favour of the
successful tenderer.
20. Tender is a judicially recognized transparent process for grant of
State largesse such as the license involved. Appellants are not
complaining that the award of the tender was done in violation of the
terms of the tender.
21. Moreover, individual act of infraction of any provision of law is
absent. At least none of the appellants drew our attention to either
the Corporation or the private respondent acting contrary to
Sections 426 or 430 of the Act of 1980 or Articles 243W or 243X of
the Constitution of India.
22. No right of any of the appellants is established to be affected by the
tender process. Contentions of rates are in the realm of speculation
at present.
23. In such context, we are not minded to enter into the contention of
the appellant in APOT/36/2024 that, the tender process impugned
in the two writ petitions attracts provisions of Sections 426 or 430,
Articles 243W or 243X of the Constitution of India.
24. The learned single Judge noted that there are disputed question of
facts involved. Learned single Judge noted such disputed question
of fact should not be entered into by a writ petition although,
existence of disputed question of facts did not denude the writ Court
with the jurisdiction to decide the issues. There are three suits
pending also in respect of the first license and rights flowing
thereunder. In fact, there are subsisting orders of civil Court as also
the revisional Court and the appeal Court requiring occupants to
pay the occupation charges. There are allegations and counter
allegations with regard thereto. In view of the pending civil suits and
the orders passed therein, we need not enter such arena. Parties are
at liberty to avail of their remedies before the appropriate forum.
25. Policy decision taken by the KMC to undertake the tender process
for the purpose of grant of license to upkeep and maintain the
market place cannot be interdicted in the facts and circumstances of
the present case.
26. In such circumstances, the learned single Judge rightly dismissed
two writ petitions. We do not find any ground to interfere.
27. APOT/460/2023 and APOT/36/2024 along with the connected
applications are dismissed without any order as to costs.
(DEBANGSU BASAK, J.)
28. I agree.
(MD. SHABBAR RASHIDI, J.)
TR/
