Page No.# 1/3 vs The State Of Assam And 5 Ors
2025 Latest Caselaw 4329 Gua

Gauhati High Court

Page No.# 1/3 vs The State Of Assam And 5 Ors on 21 March, 2025

                                                             Page No.# 1/31

GAHC010198412018




                                                        2025:GAU-AS:3127

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

                        Case No. : WP(C)/6224/2018

         NAZMUL KHAN AND 21 ORS.
         S/O- LATE NAZRUL ISLAM, R/O- H NO. 45, D C TALUKDAR LANE,
         SHANTIPUR, P.O- BHARALUMUKH, P.S- BHARALUMUKH, GUWAHATI-
         781009

         2: AZIZUL KHAN
          S/O- LATE NAZRUL KHAN
          R/O- H NO. 45
          D C TALUKDAR LANE
          SHANTIPUR
          P.O- BHARALUMUKH
          P.S- BHARALUMUKH
          GUWAHATI- 781009

         3: MUBARAK ISLAM
          S/O- LATE MUSA ISLAM
          R/O- HNO. 14
          S C BYE LANE
         ATHGAON
          P.O- BHARALUMUKH
          P.S- BHARALUMUKH
          GUWAHATI- 781009

         4: VIJAY TIWARI
          S/O- MANOHAR CHANDRA TIWARI
          R/O- H NO. 31
          KALIPUR DURGASAROVAR
          BHOOTNATH
          P.O- BHARALUMUKH
          P.S- BHARALUMUKH
          GUWAHATI- 781009

         5: PRADEEP JAIN
          S/O- LATE CHANDMAL JAIN
                              Page No.# 2/31

R/O- H NO. 522
AT ROAD
NEAR M B MARKET
P.O- BHARALUMUKH
P.S- BHARALUMUKH
GUWAHATI- 781009

6: ZAKIR MONDOL
 S/O- ABDUR RAHIM MONDOL
 R/O- MASJID GALI
 SHANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

7: BINOD SARMA
 S/O- SRI RAJKUMAR SARMA
 R/O-H NO. 36
 S J ROAD
 CHABIPOOL
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

8: ATIQUL KHAN
 S/O- LATE NAZRUL ISLAM
 R/O- H NO. 45
 D C TALUKDAR LANE
 SHANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

9: JABED AHMED
 S/O- MD SALIM
 H NO. 23
 S J ROAD
 CHABIPOOL
 BILPAR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

10: AKASH CHORARIA
 S/O- SRI BABULAL CHORARIA
 R/O- J P AGARWAL ROAD
 1ST BYE LANE
 P.O- BHARALUMUKH
                             Page No.# 3/31

P.S- BHARALUMUKH
GUWAHATI- 781009

11: GOLAM RASUL
 S/O- LATE GULAM RABBANI
 R/O- MASJID GALI
 SHANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

12: SUBHASH HALOI
 S/O- DHARANI HALOI
 R/O- VILL- BARMA
 NEAR BARMA COLLEGE
 P.O- BARMA
 P.S- BARMA
 DIST- NALBARI

13: SATYAJIT PAUL
 S/O- SRI SAMAR PAUL
 R/O- NEW GUWAHATI
 RLY COLONY
 B P CHALIHA NAGAR
 P.O- BAMUNIMAIDAM
 P.S- CHANDMARI
 GUWAHATI- 781021

14: VIJAY KUMAR
 S/O- SRI GOPAL PRASAD
 R/O- B R KALITA COMPLEX
 M S ROAD
 FANCY BAZAR
 GUWAHATI- 781001

15: SYED HASAN ALI
 S/O- LATE HAMIDULLAH
 R/O- BHANGAGARH
 NEAR MASJID
 P.S- BHANGAGARH
 GUWAHATI- 781005

16: RAJESH SHARMA
 S/O- SRI RAJKUMAR SHARMA
 R/O- H NO. 36
 S J ROAD
 CHABIPOOL
 P.O- BHARALUMUKH
                            Page No.# 4/31

P.S- BHARALUMUKH
GUWAHATI- 781009

17: CHANDAN VARMA
 S/O- LATE SAMPAT VARMA
 R/O- H NO. 10
 OPP ASHRAM ROAD
 SANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

18: CHANDRA SEKHAR DUTTA
 S/O- KARUNALAL DUTTA
 R/O- PP ROAD
 MILINPUR
 REHABARI
 P.S- REHABARI
 GUWAHATI- 781008

19: SIKTA RAHMAN
W/O- ATAUR RAHMAN
 R/O- B K KAKOTY ROAD
 ULUBARI
 P.S- PALTAN BAZAR
 GUWAHATI- 781007

20: DIPAK KUMAR KUNDU
 S/O- BIHOY KUMAR KUNDU
 R/O- MASJID GALI
 SANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

21: ATIQUL HUSSAIN
 S/O- AMZAD HUSSAIN
 R/O- MASJID ROAD
 SANTIPUR
 P.O- BHARALUMUKH
 P.S- BHARALUMUKH
 GUWAHATI- 781009

22: ASIF IQBAL
 S/O- MOTIUR RAHMAN
 R/O- SANTIPUR
 MAIN ROAD
 P.O- BHARALUMUKH
                                                                        Page No.# 5/31

             P.S- BHARALUMUKH
             GUWAHATI- 78100

            VERSUS

            THE STATE OF ASSAM AND 5 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
            MUNICIPAL ADMINISTRATION DEPTT, DISPUR, GUWAHATI- 781006

            2:THE DEPUTY COMMISSIONER
             KAMRUP(M)
             GUWAHATI- 781001

            3:THE ASSAM STATE AGRICULTURE MARKETING BOARD
             REP. BY THE CEO
             BIRUBARI
             GUWAHATI- 781007
            ASSAM

            4:THE GUWAHATI MUNICIPAL CORPORATION
             REP. BY ITS COMMISSIONER
             GUWAHATI- 781001

            5:THE COLLECTOR
             GMC
             GUWAHATI- 781001

            6:THE COMMITTEE
             CONSTITUTED FOR ALLOTMENT OF ROOM AT PAMOHI
            (GARCHUK)MARKET
             REP. BY THE MEMBER SECRETARY OF THAT COMMITTEE CUM CHIEF
            EXECUTIVE OFFICER OF ASSAM STATE AGRICULTURE MARKETING
            BOARD AND OF RAMKRISHNA MISSION ROAD
             ULUBARI
             GUWAHATI- 0

Advocate for the Petitioner   : MR. N N B CHOUDHURY, MR N DUTTA,MR D P SAHU,MR. M
DEWAN

Advocate for the Respondent : GA, ASSAM, MR. M DEWAN,MR. K N CHOUDHURY,MR. N J
GOGOI (R-3),SC, GMC,SC, A S A M B




             Linked Case : WP(C)/1330/2024
                                  Page No.# 6/31


NAZMUL KHAN AND 22 ORS
AGED ABOUT- 44 YEARS
SON OF- LATE NAZRUL ISLAM
RESIDENT OF- HOUSE NO. 45

D.C. TALUKDAR LANE
SHANTIPUR
POST OFFICE- BHARALUMUKH

POLICE STATION- BHARALUMUKH
GUWAHATI- 781009

2: AZIZUL KHAN
AGED ABOUT- 39 YEARS
 SON OF- LATE NAZRUL KHAN
 RESIDENT OF- HOUSE NO. 45

D.C TALUKDAR LANE
SHANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI 781009

3: MUBARAK ISLAM
AGED ABOUT- 39 YEARS
SON OF- LATE MUSA ISLAM
RESIDENT OF - HOUSE NO. 14

S.C. BYE LANE
ATHGAON
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781001

4: VAJAY TIWARI
AGED ABOUT- 44 YEARS
SON OF- MANOHAR CHANDRA TIWARI
RESIDENT OF- HOUSE NO. 31
KALIPUR DURGA SAROVAR
BHOOTNATH
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781009

5: PRADEEP JAIN
AGED ABOUT- 46 YEARS
SON OF- LATE CHANDMAL JAIN
                                 Page No.# 7/31

RESIDENT OF- HOUSE NO.- 522
A.T. ROAD NEAR M.B MARKET
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI -781009

6: ZAKIR MONDOL
AGED ABOUT- 35 YEARS
SON OF- ABDUR RAHIM MONDOL
RESIDENT OF- MASJID GALI
SHANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI- 781009

7: BINOD SARMA
AGED ABOUT- 42 YEARS
SON OF- SRI RAJKUMAR SARMA
RESIDENT OF- HOUSE NO. 36
S.J. ROAD
CHABIPOOL
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781008

8: ATIQUL KHAN
AGED ABOUT- 45 YEARS
SON OF- LATE NAZRUL ISLAM
RESIDENT OF- HOUSE NO. 45

D.C. TALUKDAR LANE
SHANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI -781009

9: JABED AHAMED
AGED ABOUT- 42 YEARS
SON OF- MD. SALIM
RESIDENT OF- HOUSE NO. 23
S.J. ROAD
CHABIPOOL
BILPAR
POST OFFICE- REHABARI
POLICE STATION- PALTAN BAZAAR
GUWAHATI-781008

10: AKASH CHORARIA
                                    Page No.# 8/31

AGED ABOUT- 44 YEARS
 SON OF- SRI BABULAL CHORARIA
 RESIDENT OF -J.P. AGARWAL ROAD
1ST BYE LANE
 POST OFFICE- BHARALUMUKH
 POLICE STATION- BHARALUMUKH
 GUWAHATI-781009

11: GOLAM RASUL
AGED ABOUT- 32 YEARS
SON OF- LATE GULAM RABBANI
RESIDENT OF- MASJID GALI
SHANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781009

12: SUBASH HALOI
AGED ABOUT- 34 YEARS
SON OF- SRI DHARANI HALOI
RESIDENT OF VILLAGE- BARMA
NEAR BARMA COLLEGE
POLICE STATION- BARMA
POST OFFICE- BARMA
DISTRICT- NALBARI

13: SATYAJIT PAUL
AGED ABOUT- 38 YEARS
SON OF- SRI SAMAR PAUL
RESIDENT OF- NEW GUWAHATI
RLY COLONY
B.P. CHALIAH NAGAR
POST OFFICE- BAMUNIMAIDAN
POLICE STATION- CHANDMARI
GUWAHATI- 781021

14: VIJAY KUMAR
AGED ABOUT- 37 YEARS
SON OF- SRI GOPAL PRASAD
RESIDENT OF- B.R. KALITA COMPLEX
M. S. ROAD
FANCY BAZAR
POLICE STATION- FANCY BAZAR
GUWAHATI-781001

15: SYED HASAN ALI
AGED ABOUT- YEARS
SON OF- LATE HAMIDULLAH
                                 Page No.# 9/31

RESIDENT OF- BHANGAGARH
NEAR MASJID
POLICE STATION- BHANGAGARH
GUWAHATI-781005

16: RAJESH SHARMA
AGED ABOUT- 48 YEARS
SON OF- SRI RAJKUMAR SHARMA
RESIDENT OF- HOUSE NO. 36
S.J. ROAD
CHABIPOOL
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781001

17: CHANDAN VARMA
AGED ABOUT- 32 YEARS
SON OF- LATE SAMPAT VARMA
RESIDENT OF- HOUSE NO.- 10
OPPOSITE ASHRAM ROAD
SHANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781009

18: CHANDRA SHEKHAR DUTTA
AGED ABOUT- 42 YEARS
SON OF- KARUNALAL DUTTA
RESIDENT OF- P.P ROAD
MILINPUR
REHABARI
POLICE STATION- REHABARI
GUWAHATI- 781008

19: SIKTA RAHMAN
AGED ABOUT- 53 YEARS
WIFE OF- ATAUR RAHMAN
RESIDENT OF- B.K. KAKOTY ROAD
ULUBARI
POLICE STATION- PALTAN BAZAR
GUWAHATI-781007

20: DIPAK KUMAR KUNDU
AGED ABOUT- 49 YEARS
SON OF- SRI BIHOY KUMAR KUNDU
RESIDENT OF- MASJID GALI
SANTIPUR
POST OFFICE BHARALUMUKH
                                                   Page No.# 10/31

POLICE STATION- BHARALUMUKH
GUWAHATI-781009

21: ATIQUL HUSSAIN
AGED ABOUT- 39 YEARS
SON OF- AMZAD HUSSAIN
RESIDENT OF- MASJID ROAD
SANTIPUR
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH
GUWAHATI-781001

22: ASIF IQBAL
AGED ABOUT- 25 YEARS
SON OF- MOTIUR RAHMAN
RESIDENT OF- SANTIPUR
MAIN ROAD
POST OFFICE- BHARALUMUKH
POLICE STATION- BHARALUMUKH GUWAHATI-781001
VERSUS

THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
MUNICIPAL ADMINISTRATION DEPARTMENT
DISPUR
GUWAHATI- 781006

2:THE SECRETARY TO THE GOVERNMENT OF ASSAM AGRICULTURE
DEPARTMENT
AND CHAIRMAN OF THE COMMITTEE CONSTITUTED FOR ALLOTMENT OF
ROOM AT PAMOHI (GARCHUK) MARKET
 DISPUR
 GUWAHATI- 06

3:THE DEPUTY COMMISSIONER
KAMRUP (METROPOLITIAN)
HENGRABARI GUWAHATI- 781036

4:THE ASSAM STATE AGRICULTURE MARKETING BOARD
REPRESENTED BY THE CHIEF EXECUTIVE OFFICER
BIRUBARI
GUWAHATI-781007
ASSAM

5:THE GUWAHATI MUNICIPAL CORPORATION
REPRESENTED BY ITS COMMISSIONER
GUWAHATI-781001
                                                                              Page No.# 11/31


             6:THE COLLECTOR
             GUWAHATI MUNICIPAL CORPORATION
             GUWAHATI- 781001

              7:THE COMMITTEE CONSTITUTED FOR ALLOTMENT OF ROOM AT PAMOHI
             (GARCHUK) MARKET
             REPRESENTED BY THE MEMBER SECRETARY OF THAT COMMITTEE CUM
             CHIEF EXECUTIVE OFFICER
              OF ASSAM STATE AGRICULTURAL MARKETING BOARD AND OF
             RAMKRISHNA MISSION ROAD
              ULUBARI
              GUWAHATI- 07
              ------------
              Advocate for : MR. K N CHOUDHURY
             Advocate for : GA
              ASSAM appearing for THE STATE OF ASSAM AND 6 ORS



                                   BEFORE
                       HONOURABLE MR. JUSTICE KARDAK ETE

                                       JUDGMENT

Date : 21-03-2025

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. N.N.B, Choudhury, learned counsel for the petitioners. Also heard Mr. S. Baruah, learned State Counsel for the respondent Nos.1 and 2, Mr. N. J. Gogoi and Ms. G. Bora, learned Standing Counsel for the Assam State Agricultural Marketing Board and Mr. P. Nayak, learned Standing Counsel for the Gauhati Municipal Corporation.

2. Having considered that both these Writ Petitions are similar on facts and supplement to one another, the same were heard analogously and disposed of by this common judgment and order.

3. The Writ Petition (C) No.6224/2018 is filed by the petitioners against the order dated 25.02.2015, 14.06.2018 and 17.07.2018, passed by the Commissioner, Gauhati Municipal Corporation and Chief Executive Officer and Member Secretary, whereby the allotment of rooms in favour of the petitioners were cancelled on the ground that no valid documents have Page No.# 12/31

been provided by the petitioners and they are not genuine traders of erstwhile Machkhowa Temporary Market and the communication, by which the list of the persons who were illegally allotted rooms upon reference of several Ministers and MLAs of the Government of Assam, ignoring the direction of this High Court passed in WP(C) No.1852/2015 and denying the rooms to the present petitioners in violation of the direction of this Court is given and also of fixing of the meeting of the Committee, without serving notice upon the petitioners.

4. In Writ Petition (C) No.1330/2024, the petitioners have challenged the order dated 26.03.2021, passed by the Secretary to the Govt. of Assam, Agriculture Department and the Chairman of the Committee constituted for allotment of rooms, whereby, the applications for allotment of rooms/shops of the petitioner have been rejected on the ground of non- fulfillment of required criteria under Clause No.4 b of the Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetables market at Pamohi (Garchuk) by the Committee, constituted vide Government Notification dated 28.08.2012.

5. The case of the petitioners is that the petitioner No.1 is the President of Guwahati Sak- Pachali Phalmul Paikari Byabashayee Santha and the Petitioner Nos. 2 to 22 are the members, who are wholesale vendors of fruits and vegetables at Machkhowa Temporary Market, Guwahati since 1995, till they vacated their premises as per the order and direction dated 28.04.2008 of this High Court in WP(C) No. 8081/2005. In the year 2005, the petitioners were tried to be evicted from their place of business at Machkhowa Temporary Market, against which a writ petition was filed by some of the petitioners with a prayer for setting aside the eviction notices and to refrain the Respondent Authorities from dismantling the shops from where the petitioners were running their business and further to allow the petitioners to continue their business in the Machkhowa Temporary Market at Guwahati. The petitioners vacated their premises as per the order and direction of this Court passed in Writ Petition (Supra).

6. The aforesaid judgment and order dated 28.04.2008 was assailed by some of the petitioners in Civil Appeal No. 7517 of 2011 and the same was disposed of by the Hon'ble Supreme Court vide its Judgment and Order dated 29.08.2011, directing the respondent Page No.# 13/31

authorities to complete the process of allocation of shop within a period of one year. When no steps were taken by the respondent authorities, some of the petitioners filed a contempt petition before the Hon'ble Supreme Court being Contempt Petition (Civil) No.97 of 2014.

7. During the pendency of the aforesaid said contempt petition before the Hon'ble Supreme Court, the Respondent No.4 issued a list dated 09.07.2014, wherein the present petitioners were found to be genuine vegetable vendors who have vacated from erstwhile Machkhowa Temporary Market and to be relocated in the newly constructed fruits and vegetables market in Pamohi (Garchuk). Thereafter, the concerned respondent authority prepared a provisional allotment list dated 28.01.2015 and as per that list, all the petitioners were allotted rooms/shops in the newly constructed market at Pamohi (Garchuk). In view of the preparation of the said allotment list, the contempt petition before the Hon'ble Supreme Court was closed vide order dated 09.03.2015, upon assurance of the respondent authorities that the process of allotment will be completed within the period of three (3) months from the date of closing the said contempt petition. However, vide letter dated 13.02.2015, the respondent authorities had directed the petitioners to submit certain additional documents including their respective trade licence and the petitioners vide their reply dated 16.02.2015, addressed to the respondent No. 4 requested allotment of the shops/rooms at the earliest and had also stated in the said reply that it was only after due process of scrutiny conducted by the Respondent authorities, the present petitioners were found to be genuine and legitimate vendors of the erstwhile Machkhowa Temporary Market.

8. The Respondent authorities vide order dated 25.02.2015, negated the claim of the petitioners and cancelled the allotment done in favour of the petitioners. Being aggrieved, the petitioners approached this Court by filing Writ Petitioner being W.P. (C) No. 1852/2015. The said writ petition was disposed of vide order dated 09.02.2017, with a specific direction that while allotting the rooms, the petitioners who are to be considered first would be given their preferential rooms. Accordingly, the petitioners submitted an application for compliance of the order dated 09.02.2017.

9. The Respondent authorities, through a Committee had held lottery for allotment of the Page No.# 14/31

room/shops and the petitioners were not served any notice for participation in the lottery for allotment of the rooms/shops. It is alleged that the Respondent No. 6 allotted rooms to other persons upon reference by various MLAs and Ministers of Assam.

10. It is the contention of the petitioners that after the order dated 09.02.2017, passed by this Court, the Respondent authorities, without issuing notice to the petitioners have illegally conducted the lottery behind the petitioners and thereafter allotted some rooms to some other persons of their choice. Although there is a specific direction of this Court and of the Supreme Court to settle the rooms with the petitioners but the petitioners were not allotted any rooms by the respondent authorities, which is complete violation of the order of the Hon'ble Courts.

11. It is contended that the petitioners came across a letter dated 14.06.2018, which was forwarded by the Chief Executive Officer and Member Secretary of the Committee to all the concerned respondent authorities communicating the agenda of discussion in the meeting of the committee constituted vide dated 28.08.2012. Perusal of the said letter dated 14.06.2018, shows that the allotment of the rooms were made as per the wish of the respondent authorities without following proper procedure and under the influence of the Ministers and MLAs of the State of Assam, despite specific orders of the Court to allot the rooms to the petitioners by giving them preference but on the contrary, the Respondent authorities without giving any importance to the specific direction of the Court, have held lottery and allotted the rooms without serving any notice to the petitioners.

12. Mr. K.N. Choudhury, learned Senior Counsel for the petitioners submits that the action of the Respondent Authorities in not inviting the petitioners for participation in the lottery held by the Committee is nothing but a total colorable exercise of their powers for collateral purpose and the same has been done for certain extraneous considerations and by doing so the Respondent Authorities are trying to oust the legitimate persons as that of the present Petitioners who were allotted rooms in the new market of Pamohi after they were found to be genuine and legitimate vendors who were running their business from the erstwhile Machkhowa Temporary Market till the time of their eviction as per the direction of the Hon'ble Page No.# 15/31

High Court.

13. Mr. K.N. Choudhury, learned Senior Counsel submits that on 12.02.2021 this Hon'ble court has directed the Respondent Authorities to supply the Guidelines to the learned counsel representing the petitioners. The said process has been directed to be completed within a period of 15 days from that day. Within the next 15 days after expiry of the period for serving the Guidelines, the petitioners were directed to submit their applications along with required documents. After completion of the period for submission of the applications, the respondent Committee constituted vide Government Notification No. AGA.124/2012/72 dated 28.08.2012 as referred to in the order dated 09.02.2017 in WP(C)/1852/2015 shall pass necessary orders on the basis of the applications within a period of 15 days from the date of closure for filing of applications. The action taken and/or orders passed by the Committee were to be placed before this court. The petitioners further contend that on 25.05.2021, the Respondent Authorities supplied the Guidelines as per direction of the Hon'ble Gauhati High Court and also supplied an application form to the conducting counsel of the petitioners. Accordingly, the petitioners submitted the relevant documents alongwith the application forms and the receipts of which have already been submitted to the GMC.

14. Mr. K.N. Choudhury, learned Senior Counsel, submits that the committee constituted vide Notification No. AGA.124/2012/72 dated 28.08.2012 for allotment of shops in the Fruits and Vegetable Market, Pamohi, Garchuk is not as per the mandate of Hon'ble Apex Court as the Hon'ble Apex Court, vide order dated 29.08.2011 in Civil Appeal No. 7517 of 2011, has categorically observed that if the markets are not constructed yet, same shall be constructed by the Government. The municipalities and other authorities in consultation with the representatives of the wholesale traders of Guwahati shall make allotments within a period of one year from that day. For this purpose, a Committee to be set up under the Chairmanship of the concerned Secretary of the Government of Assam and having members from the representatives of the Gauhati municipality and other authorities, and also representatives of the associations of wholesalers of fruits and vegetable and grains etc, as well as representatives from the electricity, telephone, police departments etc. This committee shall form a rational plan for allotment of the existing wholesale markets inside the Guwahati city Page No.# 16/31

to the new wholesale market which will be constructed, if not already been constructed.

15. He submits that the Minutes of the Meeting held on 26.03.2021 for discussion in the matter of compliance of the order dated 12.02.2021 of the Hon'ble Gauhati High Court in respect of allotment of shops/rooms in the 'Fruits & Vegetable Wholesale Market Pamohi (Garchuk) suggests that representatives from the electricity department, telephone department, police etc. were not present in that meeting and thus there has been a gross violation of the mandate of Hon'ble Apex Court. Since the composition of the committee was not as per the mandate of Hon'ble Apex Court and majority of the representatives are not part of the committee and were not present on 26.03.2021, the decision rendered by the committee in its meeting held on 26.03.2021 stands vitiated and therefore, is liable to be set aside.

16. Mr. K.N. Choudhury, learned Senior Counsel, submits that the respondent authorities prepared a provisional allotment list on 28.01.2015, wherein the names of the present writ petitioners were included so that they can be relocated to the newly constructed fruits and vegetables market in Pamohi (Garchuk). It is submitted that the said provisional allotment list was prepared by the concerned respondent authorities after verifying and scrutinizing all the relevant documents and after ascertaining the fact that the present petitioners are genuine wholesalers who were ousted from the erstwhile Machkhowa Temporary Market. All of them have been allotted shops as per the provisional allotment list prepared by the Respondent Authorities.

17. Mr. K.N. Choudhury, learned Senior Counsel, submits that the petitioners falls under the category of clause 1 (b) of the "Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetable wholesale market at Pamohi (Garchuk) under Guwahati sub-divisional market committee' enumerated by the committee constituted vide Govt. Notification No.- AGA.124/2012/72 dated 28.08.2012 and are having eligibility as per Clause-1 (b) and clause 4(b)(ii)(iv) of the said Guidelines for allotment of shops. Though the petitioners were not conducting their business since 1995, but they were under the temporary shades and for that reason they were not been issued with their trade license for their respective shops from the Page No.# 17/31

concerned authorities. Presently, the Petitioners applied for the trade license but the Municipality Authority did not consider the applications for trade license of the petitioner and for that reason the rejection made by the committee in the minutes of meeting dated 26.03.2021 for not having eligibility under clause 4 (b)(i) is not sustainable and highly prejudicial to the interests of the petitioners. Moresoever, the petitioners possessed with all the eligible documents and necessary requirements except trade license as enumerated under the Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetable wholesale market at Pamohi (Garchuk) under Guwahati sub-divisional market committee.

18. He submits that at one hand Municipality has not issued trade license to the petitioners and on the other hand the committee constituted for allotment of rooms, where the municipality is one of the members, is asking for trade license before allotting the rooms which is nothing but colorable exercise of power for collateral purposes. Therefore, the Minutes of meeting dated 26.03.2021 is highly prejudicial and unsustainable and therefore, same is liable to be set aside and quashed.

19. Mr. K.N. Choudhury, learned Senior Counsel, submits that the statement made by the GMC authorities as Fruits and Vegetable Market at Pamohi falls outside the GMC area and therefore, no Trade License could be issued is misconceived, misconstrued, incorrect and false. The petitioners by duly complying the Hon'ble Court's Order dated 12.02.2021 and order dated 9.02.2017 passed in WP(C) No. 1852/2015, after receiving the guidelines, have submitted the application forms before the respondent Board. He submits that the petitioners have separately applied before the appropriate authorities for granting and issuance of GMC Trade License and License as Trader or Commission Agent. He submits that since there is a specific direction from the Court directing that on the application for grant of the documents being made, the appropriate authority being either the GMC or the AAMTC or any other authority shall immediately, preferably within a period of 10 (ten) days thereafter, either grant/issue the documents or on the event of refusal, give a reasoned order for the same, the authorities ought to have considered the same and ought to have come up with an effective response instead of a vague observation stated herein. He further submits that when the resolution was taken in the minutes of meeting dated 26.03.2021, the Commissioner GMC Page No.# 18/31

was present. However, no such reason was recorded in the minutes of meeting and thus it is nothing but an after-thought. Hence, there is again a gross violation of the Hon'ble Gauhati High Court Order dated 09.02.2017 passed in WP(C) No. 1852/2015 and as such the statements by the GMC is non-est in the eye of law and is liable to be rejected.

20. Mr. K.N. Choudhury, learned Senior Counsel, submits that in the instant case there is a colourable exercise of power for collateral purposes and no reasonable person to the facts and circumstances of this case would have acted in a manner as has been acted by the Respondent Authorities who are trying to deny the petitioners of their legitimate rights and expectations by adopting a coercive method and without serving any notice and without giving any reasonable opportunity to defend their cases besides there being specific order by this Hon'ble Court in favour of the petitioners with specific direction to give preference to the present petitioners and as such the impugned action on the part of the Respondent Authorities is in utter violation of the order dated 09.02.2017 passed in WP(C) No. 1852/2015 is totally illegal, arbitrary, malafide, unjust and violative of the principles of natural justice and administrative fair play.

21. Mr. K.N. Choudhury, learned Senior Counsel, submits that such action of the Respondent Authorities has deprived the petitioner of his right to life as laid down by the Constitution under Article 21 of the Constitution, as right to life includes the right to equal opportunity. Further, such action of the Respondents which is influenced by mala fide and ulterior motive oust the petitioners from benefitting from the aforesaid allocation of shops to the vendor though the petitioners have all the requisite qualifications as necessary for the same. Ousting the petitioners from aforesaid allocation of shops is grossly arbitrary, unfair, illegal, and unreasonable. By depriving the petitioners from their rights of allocation of shops, the Respondent Authorities have also violated the Constitutional right of the petitioners as protected by Article 19 of the Constitution and also denied the equal protection and opportunity and as such, violated the fundamental rights of the petitioner as protected under Articles 14 and 19 of the Constitution. Therefore, he submits that respondent authorities may be directed to allot rooms/shops to the petitioners in the fruits and vegetable wholesale market at Pamohi (Garchuk), Guwahati.

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22. Mr. N. J. Gogoi, learned Standing Counsel for the Assam State Agricultural Marketing Board (respondent Nos.3 & 6), submits that pursuant to the order of this Hon'ble Court dated 09.02.2017 in WP(C) No. 1852/2015 and the direction of the Hon'ble Supreme Court in its order dated 29.08.2011 passed in Civil Appeal No. 7517 of 2011 and 7518 of 2011, for de novo exercise of allotment of rooms/shops in the said market, the respondent authorities have decided to prepare guidelines. Accordingly, the guideline has been prepared by the committee constituted vide Govt. Notification No.-AGA.124/2012/72 dated 28.08.2012. As per the guidelines, the wholesalers were divided into two categories for proper identification of eligible & deserving wholesalers, namely, (a) those who have been doing their business at the Pamohi (Garchuk) market including the writ petitioners of W.P.(C) No.553/2015, and (b) Those who were doing their business at Machkhowa before their eviction by the concerned authorities in the year 2005, petitioners, including the present writ petitioners, of WP(C) No.1852/2015.

23. He submits that the process of allotment of rooms/shops has been undertaken as per the directions of this Court in WP(C) No.1852/2015. The Marketing Board initiated the process under the guidance of the Committee constituted by the Government of Assam vide Notification dated 28.08.2012 for allotment of shops amongst the existing wholesale traders who are doing business in the said market since inception and out of the list of the 90 nos. of wholesale traders submitted by Guwahati Municipal Corporation vide order dated 09/07/2014 to the Board on 28/01/2015 prepared a list for provisional allotment in the said market. However, in view of the Order dated 06.02.2015, in W.P.(C) No.553/2015 filed by Sri Amal Das and 89 others, the allotment process was cancelled as directed by the then Chief Secretary, Government of Assam in its meeting held on 13.02.2015, as the list dated 09.07.2014 does not contain the proof of doing wholesale business nor having license under the Assam Agricultural Produce Market Act, 1972. The Board accordingly communicated it to the Guwahati Municipal Corporation vide its letter dated 13.02.2015.

24. Thereafter, the Guwahati Municipal Corporation vide its letter dated 13.02.2015, informed the Secretary, Guwahati Sak-Pachali Phalmul Paikari Byabashayee Santha to submit the list of wholesale traders evicted from the Machkhowa Market with documents Page No.# 20/31

such as Trade license of Guwahati Municipal Corporation, Licence under the Assam Agricultural Produce Market Act, 1972, Voter ID, address proof documents, any other proof for doing wholesale business at Machkhowa and passport size photo. The Guwahati Municipal Corporation accordingly prepared a list of 84 numbers of wholesalers, on the basis of documents submitted by them.

25. He submits that in the meantime, Supreme Court vide its order dated 09.03.2015, in Contempt Petition No.380-381/2013, held that the State Government will take all necessary steps for allotment of rooms in the said market within a period of 3 (three) months, with a liberty to some aggrieved persons to approach before the Gauhati High Court, if there is any outstanding grievances in the matter. Availing the said liberty, the W.P.(C) No.1852/2015 has been filed by the present petitioners, who claims to be the members of "Guwahati Sak Pachali Falmul Paikari Byabasayee Santha", who are found place in the said list dated 09.07.2014, prepared by the Guwahati Municipal Corporation and the provisional list for allotment in the said market. The W.P.(C) No.1852/2015 was filed against the cancellation order of the allotment process. The said Writ Petition was finally disposed of with a direction to the Board to complete the allotment process within four months and the process of allotment had been undertaken as per the direction.

26. Mr. N. J. Gogoi, learned Standing Counsel, submits that applications were invited from all the stakeholders including the petitioners. Accordingly, a total number of 167 applications were received, out of which 128 applications have been found in order and selection of rooms to them has been given by conducting lottery which was held on 12.10.2017, after observing all formalities. He submits that the petitioners have been given due information which has been duly received by the petitioners and the proof of such receipt is found by its letter dated 21.07.2017. He submits that the petitioners have not submitted application with the required documents as prescribed by the Committee and raised no grievance from their end in all the meetings of the Committee in writing, despite their representative, namely, Md. Mortaza, the Secretary of Guwahati Sak-Pacholi, Phalmul, Paikari Byabashayee Santha was present in the meeting. Therefore, by submitting mere applications before the competent authority for allotment of rooms/shops at Fruits & Page No.# 21/31

Vegetables Wholesale Market (Pamohi), Garchuk without following the above procedure, the petitioners cannot claim for allotment of rooms/shops. Since the petitioners had not submitted applications with required documents, it is not possible to ascertain the genuineness of their grievance so as to give allotment of rooms/shops at Fruits & Vegetables Wholesale Market (Pamohi), Garchuk to them. He submits that the allotment of rooms/shops has been given to the genuine wholesalers after ascertaining their genuineness on the basis of documents, as per the guidelines circulated by the Board dated 20.06.2017 and 06.07.2017.

27. Mr. N. J. Gogoi, learned Standing Counsel, while responding to the allegations of the writ petitioners regarding the allotment of rooms/shops to the persons other than the genuine traders of Machkhowa Market, upon reference of the MLA and Ministers of Assam, submits that it is true that one of the points of agenda of the meeting was the reference of application referred by the MLA and the Ministers of Assam. The Committee after deliberation of the matter, recorded its decision in the minutes. The minutes of the meeting dated 26.06.2018 clearly reflected the decision on the matter which states that the Committee after threadbare discussion, decided that since the entire process of allotment being done as per direction of the Hon'ble Supreme Court and the Hon'ble High Court, the applications as referred by various MLA's & Ministers of Assam will be discussed for consideration, if shops/rooms are available after compliance of the order of the Hon'ble Court. Therefore, the allegation of the writ petitioners is false.

28. He submits that vide notice dated 08.08.2018, the applications in prescribed format were invited from the interested wholesalers of fruits and vegetables for allotment of remaining 45 numbers of rooms in the market which was published in two daily newspapers. However, the petitioners did not submit their applications, whereas a total 101 numbers of applications have been received by the respondent authorities, which is now under process of scrutiny. Therefore, Mr. Gogoi, the learned standing counsel, submits that since the petitioners have not submitted their application for allotment of rooms/shops at Fruits & Vegetables Wholesale Market (Pamohi), Garchuk, as per the notice, the case of the petitioners could not be considered. That apart, the petitioners did not submit the Page No.# 22/31

required documents as per the guidelines. Until and unless the petitioners submitted their required documents as per the guidelines, they are not entitled for allotment of rooms/shops in the Fruits & Vegetables Wholesale Market (Pamohi), Garchuk.

29. The respondent No.4 has also filed an affidavit, which indicates that a meeting was held in the Chamber of the Joint Commissioner, GMC, on 16.07.2022, to ascertain the factual position on the claims of the petitioners. It is stated that 101 numbers of Wholesalers and 210 numbers of temporary vendors were doing business in the Pamohi Wholesale Fruit & Vegetable Market at Pamohi. Pamohi Wholesale Fruit & Vegetable Market is managed by the Assam Agricultural Marketing Board. Out of the 90 numbers of applicants, who claims to have been evicted from Machkhowa, 84 numbers of applications have been examined. However, the process of allotment was discarded as new criteria were fixed for examination and allotment. The new criteria provides for two broad categories of traders, namely, (i) Existing and doing business at Pamohi Market, and (ii) Applicants who were evicted from Machkhowa. The criteria laid down for eligibility for consideration of the allotment of rooms/shops are that, (a) the applicant must have trade license issued before 2005, (b) Agricultural Market Committee license issued before 2005 and (c) Cess realization documents. It is also stated that 167 numbers of applications have been received for consideration of allotments, out of which 101 numbers of applicants are those who were already doing business at Pamohi Market and remaining 66 numbers from Machkhowa evicted persons. Out of these 101 numbers of applicants, 94 numbers have been found satisfying the criteria and out of the remaining 66 numbers, only 34 numbers found to have fulfilled the criteria. A total number of 176 rooms were available for allotment and in the year 2017, allotment have been given to 128 numbers of applicants, but 2 (two) did not availed allotment. Therefore, 50 numbers of rooms remained un- allotted. Thereafter, 5 (five) more numbers of applications have been found valid on re- scrutiny and they have been given allotment of rooms. Now, the available number of rooms for allotment is 45. For allotment of these 45 rooms, advertisement was issued in the year 2018, inviting applications, pursuant to which 103 numbers of applications have been received, but the process has not been finalized due to stay operating in this present Page No.# 23/31

proceedings. It is also stated that some applications were received at GMC for grant of Trade Licenses to trade at Fruits & Vegetable Market at Pamohi. However, as Fruits & Vegetable Market at Pamohi falls outside the GMC area, no Trade Licenses could be issued.

30. Finally, an additional affidavit on behalf of the Member Secretary cum Chief Executive Officer, Assam State Agricultural Marketing Board i.e. respondent No.6 is filed. It is stated that after receiving the 22 numbers of application forms along with guidelines from the Board through their counsel, the writ petitioners have submitted their application forms before the Board and after receiving the same, the Committee constituted vide Government Notification dated 28.08.2012, called their meeting on 26.03.2021, for discussion and examination of the application forms submitted by the writ petitioners in compliance of the order dated 22.02.2021 of this Court passed in the present proceedings

- WP(C) No.6224/2018, in respect of the allotment of the shops/rooms in the fruits and vegetable wholesale market at Pamohi, (Gorchuk), relating to the writ petitioners. Accordingly, the Committee examined the application forms and after threadbare discussion found that the applications of the writ petitioners do not fulfill the required criteria as per the guidelines formulated in pursuance to the order dated 29.08.2011 of the Hon'ble Supreme Court and the order dated 09.02.2017 of this High Court. It is submitted that the writ petitioners failed to produce any one of the documents as required under the guideline dated 12.06.2017, specified in Clause No. 1(b) & 4(b), as they failed to annexed or produced any one of supporting documents to established that they were doing their wholesale business in the year 2005 at Machkhowa market, and also failed to produce any Trade License issued by the Guwahati Municipal Corporation prior to 2005 or in the year 2005, Municipal Tax Payment Receipt of Guwahati Municipal Corporation prior to 2005 or in the year 2005, or any license as trader or commission agent issued by the GMC or any other Regulated Market Committee under the Act of 1972. Accordingly, the application forms of the writ petitioners have been rejected for not fulfilling the required criteria as per the guideline. Therefore, the petitioners are not entitled for allotment of rooms/shops at the Wholesale Fruits & Vegetables Market at Pamohi, as they have failed to produce documents as per the guidelines, formulated in pursuance to the order of the Hon'ble Apex Page No.# 24/31

Court and this Hon'ble Court and as such, the writ petitions are liable to be dismissed.

31. I have considered the submissions advanced by the learned counsel for the parties and perused the records, including various orders of the Hon'ble Supreme Court and this Court.

32. Although, various issues have been raised in respect of initial process with regard to allotment of rooms/shops at the Wholesale Fruits & Vegetables Market at Pamohi (Garchuk), Guwahati, on deeper consideration and in view of the turn of events in the present proceedings, essentially the issue to be determined is in a narrow campus as the issue boils down to the interpretation of the clause of guidelines, particularly- clause 4 (b) of "Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetable wholesale market at Pamohi (Garchuk) under Guwahati Sub-Divisional Market Committee framed by the committee constituted vide Govt. Notification No.-AGA.124/ 2012/72 dated 28.08.2012.

33. In order to appreciate, this Court would refer to the "Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetable wholesale market at Pamohi (Garchuk) under Guwahati Sub-Divisional market committee framed by the committee constituted vide Govt. Notification No.-AGA.124/ 2012/72 dated 28.08.2012. which are reproduced herein below:-

"GUIDE LINES FOR ALLOTMENT OF SHOPS TO ELIGIBLE WHOLESALERS IN THE FRUITS & VEGETABLE WHOLESALE MARKET AT PAMOHI (GARCHUK) UNDER GUWAHATI SUB-DIVISIONAL MARKET COMMITTEE

The Committee constituted vide Govt. Notification No.AGA.124/2012/72 dated 28.08.2012 in its meeting held on 12.06.2017 formulated the following Guide Lines for free and fair allotment of shops/rooms in the Fruits and Vegetable Wholesale Market, at Pamohi (Garchuk) in pursuance of the order dated 29.08.2011 of the Hon'ble Supreme Court passed in Civil Appeal Nos. 7517/2011 and 7518/2011 including the order dated 09.02.2017 of the Hon'ble Gauhati High Court passed in WP(C) No. 1852/2015 & order dated 07.04.2017 passed in WP(C) No. 553/2015:

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1. The shops at Pamohi (Garchuk) market will be considered for allotment to the eligible wholesalers from the following:

(a) Those who have been doing their business at the Pamohi (Garchuk) market including the writ petitioners of WP(C) No. 553/2015.

(b) Those who were doing their business at Machkhowa before their eviction by the concemed authorities in the year 2005 including the writ petitioners of WP(C) No. 1852/2015 (Gauhati High Court), and

2. The interested wholesalers of the aforesaid categories must apply to the Chief Executive Officer, Assam State Agricultural Marketing Board (the Member Secretary of the Committee constituted vide Govt. Notification No. AGA.124/2012/72 dated. 28.08.2012) in "Prescribed Application Form".

3. The "Prescribed Application Form" will be available free of cost in the (i) Office of the Assam State Agricultural Marketing Board, RK Mission Road, Ulubari, Guwahati- 7, (ii) Office of the Guwahati Sub-Divisional Market Committee, Uparhali, Dist.: Kamrup and (iii) Office of In-Charge, Fruits & Vegetable Wholesale Market, Pamohi (Garchuk) from 13.08.2018 to 21.08.2018.

4. The "Prescribed Application Form" should invariably be accompanied with the following documents:

a) In case of the wholesalers falling in the categories 1(a) above, the following documents showing evidence of doing their business at Pamohi (Garchuk) market must be furnished-

(i) The License as Trader or Commission Agent issued by the Guwahati Sub-

Divisional Market Committee up to the year 2013-14 under provision of the Section 13(2) of the Assam Agricultural Produce Market Act, 1972.

ii) Up-to-date payment receipt (up to the month of May, 2017) issued by the Guwahati Sub-Divisional Market Committee against utilization of space by them at Pamohi (Garchuk) market for their marketing activities.

(b)In case of the wholesalers falling in the categories 1(b) above, any one of the following documents showing evidence of doing their business at Machkhowa market before their eviction must be furnished-

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(i) The Trade License issued by the Guwahati Municipal Corporation,

(ii) Municipal Tax payment receipt of Guwahati Municipal Corporation,

(iii) The License as Trader or Commission Agent issued by the Guwahati Sub-Divisional Market Committee or any Regulated Market Committee under provision of the Section 13(2) of the Assam Agricultural Produce Market Act, 1972,

(iv) Cess payment receipt in "K" Form issued under Rule 21(4) of the Assam Agricultural Produce Markets (General) Rules, 1975.

5. For both categories of wholesalers (i.e. in the categories 1(a) & 1(b) above), the following documents for KYC requirements must be furnished with the Prescribed Application Form-

(i) 3 (three) copies of recent Passport Size (4.5 cm x 3.5 cm) photographs. One photograph should be pasted in the given space and the remaining two photographs should be securely attached with the application.

(ii) Photo Identity (copy of either Passport or PAN Card or Adhar Card or Voter Identity Card or Driving License).

(iii) Proof of Address (copy of either Passport or Adhar Card or Driving License or Up-to-date Electricity Bill).

6. In addition to the above, both categories of wholesalers (i.e. in the categories 1(a) & 1(b) above), must furnished undertaking by Affidavit to the effect that:

(i) they will abide by the decisions taken or to be taken or procedure to be adopted by the Committee constituted vide Govt. Notification No. AGA 124/2012/72" dated 28.08.2012 in the matter of allotment of shops/rooms in the Pamohi (Garchuk) market,

(ii) they have not hold/occupy/utilize any shops/rooms under Guwahati Municipal Corporation for doing business of fruits and vegetable (including spices),

(iii) they will enter in to an agreement with the Guwahati Sub-Divisional. Market Comunittee in the event of allotment of shops to them at Pamohi market.

(iv) they will pay the monthly rent/shop user charge timely to the Guwahati Sub-

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Divisional Market Committee as fixed by the Assam PWD authority,

(v) they will deposit adequate security money to the Guwahati, Sub-Divisional Market Committee as fixed by the Assam State Agricultural Marketing Board or Guwahati Sub-Divisional Market Committee.

7. Duly filled up application form with all necessary documents will be received by the Chief Executive Officer, Assam State Agricultural Marketing Board, R K Mission Road, Ulubari, Guwahati- 7 in all working hours up to 27.08.2018.

8. After finalization of list of eligible wholesalers, the Committee will make allotment of available shops numbering 45 by way of lottery in a transparent manner.

9. For necessary publicity to all concerned, this Guidelines will be hanged in the office Notice Boards of (i) the Assam State Agricultural Marketing Board, Guwahati- 7, (ii) the Guwahati Municipal Corporation, Guwahati- 1, (iii) the Guwahati Sub-Divisional Market Committee, Uparhali, Dist.: Kamrup and (ii) office of the In-charge, Fruits & Vegetable Wholesale Market, Pamohi (Garchuk).

10. The copies of the Guideline will also be sent to (i) the Secretary, Wholesalers' Association, (ii) Nazmul Khan, the Writ petitioner of WP(C) No. 1852/2015 and (iii) Amal Das, Writ petitioner of WP(C) No. 553/2015 (iv) (iv) Shri Bappa Kundu, General Secretary, Pamohi Fruits & Vegetable Wholesale Market Association with request to inform their respective members/ associates.".

34. Bare perusal of the above Guidelines indicates that the shops at the Fruits & Vegetable Wholesale Market at Pamohi (Garchuk) will be considered for allotment to wholesalers from : (a) those who have been doing their business at the Pamohi (Garchuk) market including the writ petitioners of W.P.(C) No.553/2015, and (b) Those who were doing their business at Machkhowa before their eviction by the concerned authorities in the year 2005, including the writ petitioners of WP(C) No.1852/2015. It also provides that the interested wholesalers of the above categories must apply for allotment of rooms/shops in prescribed application form, which shall be available free of cost in the various offices of the Assam State Agricultural Marketing Board, in different places. Clause 4 provides that the prescribed application form should invariably be accompanied with the required documents. In clause 4 (b), it provides that in case of the wholesalers falling in the categories 1(b), which relates to petitioner herein, any one of the following documents showing evidence of doing their business at Machkhowa market Page No.# 28/31

before their eviction must be furnished- (i) The Trade License issued by the Guwahati Municipal Corporation,(ii) Municipal Tax payment receipt of Guwahati Municipal Corporation,(iii) The License as Trader or Commission Agent issued by the Guwahati Sub- Divisional Market Committee or any Regulated Market Committee under provision of the Section 13(2) of the Assam Agricultural Produce Market Act, 1972, (iv) Cess payment receipt in "K" Form issued under Rule 21(4) of the Assam Agricultural Produce Markets (General) Rules, 1975.

35. The above Clause, makes it clear that in case of wholesalers who were doing business at Machkhowa Market before their eviction, shall furnish any one of the documents as mentioned therein. Record reveals that the petitioners have submitted the applications alongwith municipal tax payment receipts/cess payment receipts of the year 2015-2016. The petitioners have also applied for issuance of trade license to the GMC.

36. Having considered the argument of learned Senior Counsel for the petitioners on the interpretation of the above guidelines, on the first impression, the submission looks quite formidable with regard to requirement of any one of the documents as per guidelines, but not on its deeper consideration, as any one documents, in my view, refers to the documents showing evidence of doing business before their eviction, which would be of on or before 2005.

37. However, this Court is of the view that the petitioners are entitled to be considered for allotment of rooms/shops at the Fruits & Vegetable Wholesale Market at Pamohi (Garchuk), in view of the fact that the Hon'ble Supreme Court as well as this Court have directed for consideration of the case of the petitioners having been found that they are wholesale traders in the erstwhile Machkhowa market. Though, Clause 4(b), provides that the wholesalers who were doing business at Machkhowa before their eviction must furnish anyone of the documents out of four documents and the petitioners have admittedly, submitted the Tax/cess payment document, which is one of the documents as required under the Guidelines, though of the year 2015-2016, it would not be fair to oust the petitioners as they have established that they were doing business prior to their eviction.

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38. It is noted that the Hon'ble Supreme Court, vide order dated 29.08.2011 in Civil Appeal No. 7517 of 2011, has categorically observed that if the markets are not constructed yet, they will be constructed by the government, the municipalities and other authorities in consultation with the representatives of the wholesale traders of Gauhati and allotments made within a period of one year from that day. For this purpose a Committee shall be set up under the Chairmanship of the concerned Secretary of the Government of Assam and having members from the representatives of the Gauhati municipality and other authorities, and also representatives of the associations of wholesalers of fruits and vegetable and grains etc, as well as representatives from the electricity department, telephone department, police etc. This committee shall form a rational plan for allotment of the existing wholesale markets inside the Gauhati city to the new wholesale market which will be constructed, if it has not already been constructed.

39. It is seen that the Minutes of the Meeting held on 26.03.2021 does not indicate the representatives from the electricity department, telephone department, police etc, which may suggest that same is not in accordance with the direction of the Hon'ble Supreme Court. However, it would not have much bearing on the issue.

40. This Court on 01.04.2015 passed an interim order directing the respondents to not re-allot the shops which have been provisionally allotted to the petitioners. After passing of the interim order by this Hon'ble Court, the Assam State Agriculture Marketing Board filed an Interlocutory Application being I.A. No. 2750/2015 for modification/alteration of the aforesaid Interim Order dated: 01.04.2015. This Court after hearing the parties and after perusing the records of the case, has disposed of the Interlocutory Application vide order dated 19.04.2016. It appears that the respondents have admitted that the writ petitioners of WP(C) No. 1852/2015 (petitioners herein) are genuine vendors of Machkhowa vegetable market. This Court has observed that it appears that the present petitioners have succeeded to set up a prima facie case that they were wholesale traders in Machkhowa before they were evicted in the year 2008. Letter dated 9.7.2014 issued by the GMC is a pointer to the same fact. GMC at some point on 28.1.2015 had issued provisional allotment order in favour of the present petitioners along with others but subsequently this was not Page No.# 30/31

favoured by the High Power Committee for which the present petitioners have not been allotted shops till date. Now that as many as 94 shops have been constructed and another 82 are on the verge of being completed, the present petitioners would be entitled to consideration for the allotment against them provided they establish prima facie that they were evicted wholesellers from Machkhowa. This Court referred the case of Olga Tellis

-vs- Bombay Municipal Corporation reported in AIR 1986 SC 180, wherein the Hon'ble Supreme Court has observed that even the street vendors are protected under Article 21 of the Constitution of India and so it is the liability of the State to consider their case for rehabilitation. Only after arrangement is made for the street vendors, they could be evicted. It has been held by this Court that since prima facie materials have been brought on record suggesting that the writ petitioners herein are evicted wholesalers of Machkhowa, they have made out a prima facie case for getting an interim order. In case, the stay order is vacated and the stalls constructed are settled in favor of others excluding the present petitioners, they will be put to irreparable loss and injury and so apparently balance of convenience lies in their favour. So, there is no reason to vacate the interim order.

41. The aforesaid observation of this Court clearly indicates that the present petitioners who were also the writ petitioners in W.P (C) No. 1852/2015, are genuinely evicted wholesalers of Machkhowa Market. Having considered the materials including the observation of this court, although interim in nature, I am of the view that the petitioners could establish that they are the genuine evicted wholesalers of the erstwhile Machkhowa market. Therefore, insistence on any one of the documents as per guidelines would be unfair and unreasonable. More so, the guidelines does not have statutory force and cannot be legally enforced.

42. In view of the discussion and observation made herein above, I am of the considered view that the impugned order dated 26.03.2021, passed by the Secretary to the Govt. of Assam, Agriculture Department and the Chairman of the Committee constituted for allotment of rooms/shops whereby, the applications for allotment of rooms/shops of the petitioners are rejected on the ground of non-fulfillment of required criteria under Clause Page No.# 31/31

No.4 (b) of the Guidelines for allotment of shops to eligible wholesalers in the fruits and vegetables market at Pamohi (Garchuk) by the Committee, constituted vide Government Notification dated 28.08.2012 is not sustainable and thus, deserved interference. Accordingly, the impugned order dated 26.03.2021, passed by the Secretary to the Govt. of Assam, Agriculture Department and the Chairman of the Committee is hereby set aside.

43. Consequently, the respondent authorities are directed to reconsider the case of the petitioners in accordance with the Guidelines, particularly, Clause 4(b) and if one of the documents required is submitted, without insistence on the year of documents for allotment of the rooms/shops at the Fruits & Vegetable Wholesale Market at Pamohi (Garchuk), within a period of six (6) weeks from the date of receipt of the certified copy of this order. It is made clear that above direction is issued considering the fact that the petitioners are found to be the evicted wholesalers of erstwhile Machkhowa market, Guwahati.

44. The writ petitions are disposed of in terms of the above observation and directions. However, no order is passed as to costs.

JUDGE

Comparing Assistant