Page No.# 1/12 vs Dhubri Municipal Board And 4 Ors A
2025 Latest Caselaw 3076 Gua

Gauhati High Court

Page No.# 1/12 vs Dhubri Municipal Board And 4 Ors A on 12 February, 2025

                                                                       Page No.# 1/12

GAHC010008012025




                                                           2025:GAU-AS:1658-DB

                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WA/38/2025

          ATIQUL HUSSAIN S/O LT. JALAL UDDIN SARKAR R/O WARD NO. 3,
          DHUBRI TOWN, DIST. DHUBRI, ASSAM

          VERSUS

          DHUBRI MUNICIPAL BOARD AND 4 ORS A
          REP. BY ITS CHAIRMAN AND HAVING ITS OFFICE AT WARD NO. 1, DHUBRI
          TOWN, DHUBRI- 783301, ASSAM

          2:THE EXECUTIVE OFFICER DHUBRI MUNICIPAL BOARD DHUBRI
          ASSAM PIN - 783301.

          3:KALIMUDDIN SHEIKH S/O LT. KARIMUDDIN SHEIKH
           C/O DHUBRI MUNICIPAL BOARD HAVING ITS OFFICE AT WARD NO. 1
           DHUBRI TOWN DHUBRI - 783301 ASSAM

          4:KAMAL SHEIKH S/OLT. KARIMUDDIN SHEIKH
          C/O DHUBRI MUNICIPAL BOARD HAVING ITS OFFICE AT WARD NO. 1
           DHUBRI TOWN DHUBRI- 783301 ASSAM

          5:ISMAIL HUSSAIN S/O ABDUR RAHMAN MOLLAH
          R/O VILL- MAHAMAYAR CHAR P.O. MUTHAKHOWA
           DIST. DHUBRI PIN - 783323 ASSAM

Advocate for the Petitioner : MD. M H CHOUDHURY, MR. S N AHMED,TANZIM L.
CHOUDHURY,MR MONZUR K CHOUDHURY,MR. P CHAKRABORTY

Advocate for the Respondent : MR. P S BHATTACHARYYA, S S AHMED (R-3),MR. M U
MONDAL (R-3),MR. P S BHATTACHARYYA (R-1)
                                                                 Page No.# 2/12

                               BEFORE
                    HONOURABLE THE CHIEF JUSTICE
              HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

                     Date of hearing             : 12.02.2025
                    Date of Judgment & Order : 12.02.2025


                          JUDGMENT & ORDER (ORAL)

(N. Unni Krishnan Nair, J.)

Heard Mr. Shahjamal Nawaj Ahmed, learned counsel, appearing on behalf of the appellant. Also heard Mr. P. S. Bhattacharya, learned counsel, appearing on behalf of respondents No. 1 & 2; and Mr. M. U. Mondal, learned counsel, appearing on behalf of respondent No. 3.

2. The appellant, herein, by way of instituting the present intra-Court appeal, has presented a challenge to a judgment & order, dated 16.12.2024, passed by the learned Single Judge in WP(c)4592/2018, dismissing the same.

3. The facts leading to the institution of WP(c)4592/2018 is noticed, as under:

The father of the present appellant Amjad Hussain was allotted a stall being Stall No. 2 in Lainey Municipal Market, Dhubri Town, and was operating a retail-cum-stationery shop therein. The allotment as made in favour of the father of the appellant, was extended from time to time by the authorities of Dhubri Municipal Board. The last extension of such allotment was made vide order, dated 01.02.2013. The order of allotment was made in favour of the father of the appellant, including orders of Page No.# 3/12

extension thereof, prescribed that the stall, in question, shall not be transferred and/or sub-let to any other authority without the prior written permission of the authorities of Dhubri Municipal Board. Further, in the agreement so entered into for the purpose of allotment of the stall, it was stipulated that in the event, the rent for the stall, in question, remains in arrears for a period of 3 months, the allotment of the stall, would be liable to be cancelled.

It is seen from the materials brought on record, that the respondent No. 5 had approached the authorities of Dhubri Municipal Board, vide communication, dated 17.07.2016, requesting for transfer of the said stall in his favour, who projected himself as the business partner of the father of the appellant. It was also stipulated in the said communication that the stall, in question, was handed over to him by the father of the appellant, by executing an affidavit. The authorities of Dhubri Municipal Board on receipt of the said communication, dated 17.07.2016, convened a meeting. However, it is seen that both the father of the appellant and the respondent No. 5 did not participate in such meetings. Thereafter, the authorities of Dhubri Municipal Board, vide communication, dated 15.05.2018, proceeded to intimate the father of the appellant that the rent of the stall, in question, being in arrears for a period of 7 months; a resolution was adopted by Dhubri Municipal Board for cancellation of the allotment of the said stall so given to the father of the appellant, and accordingly, the father of the appellant, was directed to handover the possession of the said stall to the authorities of Dhubri Municipal Board.

Pursuant to the cancellation of the stall, in question, it is seen that the Page No.# 4/12

authorities of Dhubri Municipal Board had issued a Notice, dated 19.06.2018, inviting applications for allotment of the said Stall No. 2 of Lainey Municipal Market, Dhubri. In pursuance of the said Notice, it is found that the said stall was allotted in favour of respondent No. 3 at the rate so quoted by him in terms of the Notice, dated 19.06.2018.

Being aggrieved by the cancellation of the allotment so made in his favour vide the communication, dated 15.05.2018, as well as the allotment of the said stall in favour of respondent No. 3, herein; the father of the appellant, had approached this Court by way of instituting a writ petition being WP(c)4592/2018. During the pendency of the said writ petition, the father of the appellant, had expired on 09.03.2022, and accordingly, the appellant being his legal heir, substituted himself as the petitioner in the proceeding of WP(c)4592/ 2018.

The learned Single Judge on considering the issues arising in the said WP(c)4592/2018; was pleased to uphold the cancellation of the allotment so made in favour of the father of the appellant, vide communication, dated 15.05.2018. However, with regard to the allotment of the stall, in question, so made in favour of the respondent No. 3, herein, noticing that the process so adopted for effecting such allotment not being transparent and/or fair, on the ground that the Notice, dated 19.06.2018, was not given a wide publicity; proceeded to interfere with the allotment so made in respect of the respondent No. 3.

On such interference being made; the learned Single Judge had directed the State Respondents to issue a fresh Notice by circulating the Page No.# 5/12

same in a local Newspaper for allotment of Stall No. 2 of Lainey Municipal Market, Dhubri.

The learned Single Judge further observed that the appellant, herein, and the respondent No. 3, herein, should also be permitted to apply for the same provided they fulfill all the requisite eligibility criteria as may be prescribed for allotment of the stall, in question.

4. Being aggrieved by the judgment & order, dated 16.12.2024, passed by the learned Single Judge in WP(c)4592/2018; the appellant, herein, has instituted the present proceeding before this Court.

5. Mr. Ahmed, learned counsel for the appellant, herein, by referring to the materials brought on record, has submitted that vide the impugned communication, dated 15.05.2018, the allotment of the stall, in question, made with the father of the appellant, was so cancelled on the ground that the rent thereof, was in arrears for 7 months. The learned counsel has further submitted that the father of the appellant, had subsequently cleared the said rent and accordingly, the father of the appellant could not have been held to be a defaulter in the matter and hence, the cancellation of the allotment of the stall, in question, so made in respect of the father of the appellant only on the ground of rent being in arrears for 7 months; would call for an interference.

6. Mr. Ahmed, learned counsel, has submitted that the learned Single Judge although being apprised of the said development, had not appreciated the same in the manner required and accordingly, proceeded to Page No.# 6/12

draw a conclusion that there was no ground for interference with the communication, dated 15.05.2018.

7. Mr. Ahmed, learned counsel, by referring to the allotment order so issued in favour of the father of the appellant, and the agreement so entered into by him with the authorities of Dhubri Municipal Board, has submitted that the said agreement had stipulated that in the event of the death of the allottee, within 3 weeks of such death of the allottee, in case, any of the heirs wanted to continue with the business being so run in the said premises for the remaining period of the allotment; they would be required to take written permission from the Chairman of Dhubri Municipal Board.

8. Mr. Ahmed, learned counsel, has further submitted that on account of cancellation of the allotment of the stall, in question, vide communication, dated 15.05.2018; the appellant, herein, has been prevented from making an application for being considered for allotment of the stall, in question. As regards the cancellation of the allotment so made in respect of the respondent No. 3, pursuant to the Notice, dated 19.06.2018, the learned counsel for the appellant, herein, has submitted that the said cancellation would not call for any interference. However, the directions for issuance of a fresh Notice, would not be sustainable, in-as-much as, the appellant, herein, being the legal heir of the allottee, would have a right to claim for allotment of the stall, in question, which has now been so prevented in view of the directions passed by the learned Single Judge vide judgment & order, dated 16.12.2024, in WP(c)4592/2018.

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9. Mr. Bhattacharya, learned counsel for respondents No. 1 & 2, has submitted that in addition to the default so committed by the father of the appellant, in not clearing the rent of the stall, in question, for a period of 7 months; the allottee was also guilty of having sub-let the said stall in favour of the respondent No. 5 without the prior written permission of the authorities of Dhubri Municipal Board. The learned counsel has further submitted that the respondent No. 5 had approached the authorities of the Board vide communication, dated 17.07.2016, and therein, had contended that the stall, in question, was handed-over to him by the father of the appellant, by way of executing an affidavit in the matter and accordingly, the respondent No. 5 had prayed for transfer of the said stall in his name in place of the father of the appellant.

10. Mr. Bhattacharya, learned counsel, has further submitted that the said communication, dated 17.07.2016, would go to reveal that the father of the appellant, without the prior written permission of the authorities of Dhubri Municipal Board, had transferred the stall, in question, in favour of the respondent No. 5, which was in clear violation of the terms and conditions of the allotment so made with the father of the appellant. The learned counsel has, accordingly, submitted that the cancellation of the allotment so made in respect of the father of the appellant, vide communication, dated 15.05.2018, would not call for any interference.

11. We have heard the learned counsels appearing for the parties and also perused the materials available on record.

12. The facts, as noticed hereinabove, is not disputed.

Page No.# 8/12

13. The Dhubri Municipal Board had cancelled the allotment so made in favour of the father of the appellant(original allottee), vide communication, dated 15.05.2018, on the ground that he had defaulted in clearing the rent of the stall, in question, for a period of 7 months. It is the contention of the appellant, herein, that the arrears of rent were subsequently cleared by his father i.e. the original allottee, and accordingly, the original allottee cannot be held to be a defaulter in the matter. The said aspect of the matter was considered by the learned Single Judge and had drawn the following conclusions:

"16. As can be seen from the allotment order, the Dhubri Municipal Board could revoke the allotment of the stall, in the event the licencee was in arrears for a period of 3 months in respect of the fees payable by the licencee. In the present case the impugned letter dated 15.05.2018 shows that Amjad Hussain had not been paying rent for the last 7 months. Though Amjad Hussain has taken a stand that he subsequently made payment of the entire arrears of rent payable by him on 19.05.2018, as per the money receipt annexed to the writ petition, the fact remains that Amjad Hussain had not paid rent for 7 months. In fact, the subsequent payment of the lump sum rent amount has proved the fact that the Late Amjad Hussain had not been paying his rent for a number of months.

17. As the allotment order and the impugned letter clearly shows that the Late Amjad Hussain had not been paying rent for more than three months, there was no infirmity in the decision of the Dhubri Municipal Board to cancel the allotment of Stall No.2 to the Late Amjad Hussain, on the basis of the reasons provided in the impugned letter/notice dated 15.05.2018. Accordingly, this Court is of the view that there is no ground for this Court to exercise it's discretion in the present case, for setting aside the letter/notice dated 15.05.2018."

14. Further appreciating the submissions made by the learned counsel representing the authorities of Dhubri Municipal Board, the learned Single Judge, had also drawn a conclusion that the handing-over of the stall, in question, to the respondent No. 5 by the original allottee without taking prior written permission of the authorities of the Board, was, in violation of the order of allotment.

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15. Having considered the submissions so advanced by Mr. Ahmed, learned counsel for the appellant, herein, before us, in the present proceeding, we are not persuaded to take a contrary view to that so taken by the learned Single Judge vide the impugned judgment & order, dated 16.12.2024, in WP(c)4592/2018, pertaining to the cancellation of the allotment order of the stall, in question, in favour of the original allottee, vide communication, dated 15.05.2018.

16. Having concluded as above with regard to the cancellation of the allotment, in question, vide communication, dated 15.05.2018; we also proceed to hold that the allotment, in question, having been so cancelled before the death of the original allottee occasioning; there would arise no occasion for the appellant, herein, to claim for being allotted the stall, in question, in terms of the agreement entered into by and between the authorities of Dhubri Municipal Board and the original allottee, in-as-much as, the said agreement mandates that only, in the event, of the death of the allottee so occasioning during the currency of the allotment; his heir would be entitled to make a claim for continuing with the business so run by the deceased allottee from the premises, in question, for the remaining period of the allotment.

17. Having concluded as above; this Court would now examine the conclusions reached by the learned Single Judge with regard to the allotment of the stall, in question; so made in favour of the respondent No. 3, herein, pursuant to the Notice, dated 19.06.2018. The learned Single Judge upon examining the manner in which the allotment of the stall, in question, was so made in respect of the respondent No. 3, had drawn the Page No.# 10/12

following conclusions:

"18. The only question that remains to be decided is whether the allotment of Stall No.2, by way of the impugned notice dated 19.06.2018, had been given wide circulation, by publishing it in a newspaper. In this respect, the reply made by the State Public Information Officer, Dhubri Municipal Board, to the petitioner's application under RTI Act dated 05.10.2020, shows that the impugned notice dated 19.06.2018 for allotment of Stall No.2, was not published in any newspaper. The contents of the notice dated 19.06.2018 is reproduced hereinbelow, as follows:

OFFICE OF THE MUNICIPAL BOARD :: DHUBRI Letter No. DM/2018-19/183/A Date: 19.06.2018 NOTICE The Municipal Tax-payer of Dhubri Municipal Board are hereby informed that the Tender invited for allotment of stall No.2 (Ground Floor) of Lainey Market under Dhubri Municipal Board will be received upto 2 p.m. of 02.07.2018 and will be allotted on the same day. The persons intending participate in the Tender/Auction process may submit Tender by depositing Bank Demand Draft of Rs. 10,000/- (Rupees ten thousand only) along with each Tender. In case, the 1st selected Tenderer fails to take up the shop for any reason, the security Money of Rs.10,000/-(Rupees ten thousand only) shall be forfeited. The decision of the Municipal Authority in the Tender/auction process shall be treated as final.

The contents of the above Notice dated 19.06.2018 also do not indicate that the same was to be published or was published in any newspaper.

19. To a query put by this Court to Mr. P.S. Bhattacharyya, counsel for the respondent nos.1 & 2, as to the meaning of FLS, the learned counsel for the respondent nos. 1 & 2 could not give any answer to the same. Suffice to say that a perusal of the notice dated 19.06.2018 and the reply made by the S.P.I.O, Dhubri Municipal Board to the petitioner's RTI application, shows that the impugned notice had not been published in a newspaper. In view of the reasons stated above, the allotment of Stall No.2 (Ground Floor) of Lainey Municipal Market in favour of the respondent no.3 cannot be said to be transparent or fair, as it was not given wide publicity, so as to enable a number of persons, including the petitioner, to participate in the tender. The allotment of the stall in favour of respondent no.3 is hereby set aside. Any consequential order/letter issued by the State respondents is also set aside. The State respondents are directed to issue a fresh notice, by circulating the same in a local newspaper for allotment of Stall No.2 (Ground Floor) of Lainey Municipal Market. It is needless to add that the petitioner and the respondent no.3 should also be permitted to apply for the same, provided they fulfill all the eligibility criteria required of bidders. The notice for allotment of Stall No.2 should be made at the earliest and preferably within a period of 1 (one) month, from the date of receipt of certified copy of this order."

18. On perusal of the conclusions so drawn and it being an admitted position that the Notice, dated 19.06.2018, preceding the allotment of the stall, in question, so made in respect of respondent No. 3, not having been given wide publicity; the interference so made by the learned Single Judge Page No.# 11/12

in favour of the respondent No. 3, herein, would not call for any interference.

19. The contention of the learned counsel for the appellant, herein, that on interference being made with the allotment so made in respect of respondent No. 3, herein; the learned Single Judge ought to have directed the authorities of Dhubri Municipal Board, to allot the stall, in question, in favour of the appellant, herein, would not be sustainable in view of the fact that the allotment of the stall, in question, is not heritable and the appellant, herein, cannot claim the same by way of inheritance.

20. Further, it is also to be noticed that the allotment of the stall, in question, so made in favour of the original allottee, was cancelled during his lifetime and the learned Single Judge having upheld such cancellation, which has not been interfered with by us, in the present proceeding; no right exists in favour of the appellant, herein, to claim for being allotted the stall, in question, on the ground of being the legal heir of the original allottee.

21. The learned Single Judge having provided that the appellant, herein, as well as the respondent No. 3, herein, would be eligible to participate in the tender process for allotment of the stall, in question; we do not find any prejudice being caused to the interest of the appellant, herein, in view of the directions so passed by the learned Single Judge with regard to the procedure to be adopted for allotment of the stall, in question, by the authorities of Dhubri Municipal Board.

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22. For the foregoing conclusions reached by us; we are of the considered view that the judgment & order, dated 16.12.2024, passed by the learned Single Judge in WP(c)4592/2018, would not mandate any interference.

23. In view thereof; the instant writ appeal is held to be bereft of any merit and accordingly, the same is hereby dismissed. However, there shall be no order as to costs.

                      JUDGE               CHIEF JUSTICE




Comparing Assistant