Sri Shibu Debnath vs Agartala Municipal Corporation
2021 Latest Caselaw 82 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                             WP(C) 39 of 2020

1. Sri Shibu Debnath,
   son of Radha Raman Debnath,
   Radhanagar, Agartala, West Tripura, PIN: 799001

2. Sri Kinkar Das,
   son of Moti Lal das, Barjala, Agartala,
   West Tripura, PIN: 799002

3. Sri Harihar Pal,
   son of late Bipin Bihari Pal, Radhangar, Agartala,
   West Tripura, PIN: 799001

4. Sri Apurba Deb,
   son of late Dulal Deb, Radhanagar Agartala,
   West Tripura, PIN: 799001

5. Sri Bimal Mitra,
   son of Ramajoy Mitra, Buddhamandir, Agartala,
   West Tripura, PIN: 799001

6. Sri Umesh Rabidas
   son of late Golap Rabidas, Radhanagar, Agartala,
   West Tripura, PIN: 799001

7. Sri Saudagar Shau,
   son of late Ram Sundar Shau,
   Radhanagar Motor Stand, Agartala,
   West Tripura, PIN: 799001

8. Sri Prabhat Dhar,
   son of late Girendra Chandra Dhar, Radhanagar, Agartala,
   West Tripura, PIN: 799001

9. Sri Manik Roy,
   son of Nepal Roy, Buddha Mandir, Agartala,
   West Tripura, PIN: 799002

10. Sri Manik Miah,
    son of late Talek Ali, Radhanagar Agartala,
    West Tripura, PIN: 799001

11. Sri Samir Pal,
    son of Sri Sankar Pal, Radhanagar Agartala,
    West Tripura, PIN: 799001
                                                        ----Petitioner(s)
                                    Page 2 of 10


                                    Versus

1.   Agartala Municipal Corporation,
     represented by the Commissioner,
     Agartala Municipal Corporation, Paradise Chowmuhani,
     Agartala, West Tripura, PIN: 799001

2.   The Municipal Commissioner,
     Agartala Municipal Corporation, Paradise Chowmuhani,
     Agartala, West Tripura, PIN: 799001.

3.   The Assistant Municipal Commissioner,
     North Zone, Agartala Municipal Corporation,
     Paradise Chowmuhani,
     Agartala, West Tripura, PIN: 799001

4.   The State of Tripura
     Represented by the Principal Secretary,
     Urban Development Department,
     Govt. of Tripura
     New Secretariat Complex, Agartala,
     West Tripura, PIN: 799001

                                                       ----Respondent(s)

     For Petitioner(s)             : Mr. K. Nath, Adv.
     For Respondent(s)             : Mr. T. D. Majumder, Adv.
     Date of hearing and
     delivery of
     judgment and order            : 01.02.2021.
     Whether fit for reporting     : NO

                   HON'BLE MR. JUSTICE S. TALAPATRA

                          Judgment & Order (Oral)

Heard Mr. K. Nath, learned counsel appearing for the

petitioners as well as Mr. T. D. Majumder, learned counsel appearing

for the Agartala Municipal Corporation-respondents.

[2] The petitioners namely Sri Shibu Debnath (the petitioner

No.1), Sri Kinkar Das (the petitioner No.2), Sri Harihar Pal (the

petitioner No.3), Sri Apurba Deb (the petitioner No.4), Sri Bimal Mitra

(the petitioner No.5), Sri Umesh Rabidas (the petitioner No.6), Sri

Saudagar Shau (the petitioner No.7), Sri Prabhat Dhar (the petitioner

No.8), Sri Manik Roy (the petitioner No.9), Sri Manik Miah (the

petitioner No.10), Sri Samir Pal (the petitioner No.11) by means of

this writ petition, have urged this court for directing the respondents

to rehabilitate them allotting the shops at Radhanagar Shopping

Complex which has been constructed and is controlled by Agartala

Municipal Corporation. Further, the petitioners have urged this court

to compensate them for the damages that they have suffered during

the eviction drive which took place on 19.11.2019. The relevant fact

in the context in short is that the petitioners were running their small

businesses from the shop/premises/structures along the road in the

Radhanagar-Buddhamandir area. Even they had trade licenses issued

by the Agartala Municipal Corporation on various dates. Those

licenses are available at Annexure-1 to the writ petition and show

that the petitioners were carrying various small trades from those

shops.

[3] In the year, 2019, Agartala Municipal Corporation found

that for those illegal shops, lying along the very important road of the

city, which is popularly known as VIP road, the traffic is seriously

obstructed causing inconvenience to the people at large. On repeated

surveys, it was found that all the shops along with the said road were

on illegal occupation of the government land. Even some shops had

the electricity line from the State Electricity Corporation. Agartala

Municipal Corporation took a conscious decision that they would evict

all the shopkeepers from those illegal shops/structure and demolish

the shops permanently and nobody would be allowed to run business

along the road side for widening of the road. Accordingly, all the

shopkeepers were given notice for vacation. The respondents have, in

their reply, clearly stated that 19 shops, during the survey or at the

time of serving notices, were found closed. As a result, before

demolition, the respondents pasted the notice of eviction on those 19

shops including 11 shops of the petitioners, in presence of one

Executive Magistrate. One of such notices has been annexed by the

petitioners at Annexure-10 of the writ petition. The said notice dated

31.10.2019 being relevant in the context is extracted in the full-form:

OFFICE OF THE ASSISTANT MUNICIPAL COMMISSIONER NORTH ZONE, AGARTALA MUNICIPAL CORPORATION SHYAMALI BAZAR, AGARTALA,

No.F.31/NZ/AMC/2019/3536-39 Dated, Agartala the 31st Oct, 2019

NOTICE

It is for information of all concerned that market stalls in the newly built Radhanagar Shopping Complex has been distributed as approved to the eligible persons and a notice vide No.F.31/NZ/AMC/2019/3516-39 dated, the 29th Oct, 2019 was issued to all the persons to remove the structures built up by them over Govt. land along the roadside near Radhanagar Motor Stand within 7(seven) days of the issue of the above mentioned notice.

In view of this all unauthorised structures on the Govt. land are ordered to be dismantled & removed from the existing site by afternoon of 05th November, 2019 to make it free from all kinds of encroachments for further course of action by the Government. Otherwise it will be forcefully demolished & removed for which AMC shall not be responsible for any material damage.

This notice shall be treated as final.

To All concerned for information & strict compliance.

Municipal Commissioner Agartala Municipal Corporation

Copy to:-

1. The Hon'ble Mayor, AMC for kind information.'

2. The Hon'ble Zonal Chairperson, NZ, AMC for kind information.

3. The Sr. Manager, TSECL, Durga Chowmuhani ESD-II, Agartala for information with a request to disconnect the electric power supply of the said structures accordingly.

Municipal Commissioner Agartala Municipal Corporation

[4] Despite the notice was taken cognizance by the

petitioners, they did not file any representation against it asserting

their interest. However, they filed the representation on 21.12.2019,

(Annexure-11 to the writ petition) after the demolition was carried

out by the Municipal Commissioner, Agartala Municipal Corporation.

By that representation, the petitioners have asserted that their right

under the Street Vendors (Protection of Livelihood and Regulation of

Street Vending) Act, 2014 has been violated. They made a demand

simultaneously to rehabilitate them, as there are adequate number of

rooms are still available and those are lying vacant. According to the

petitioners, having received the said representation dated 21.12.2019

[though in the body of the representation, the date as written is

13.12.2019], the Municipal Corporation authorities did not take any

positive step. Thus, the petitioners have approached this court for the

relief as stated above.

[5] Mr. K. Nath, learned counsel appearing for the petitioners

has quite emphatically submitted that in the year 2020, the

petitioners have been given the vending license. Copies of those

licences are available alongwith the rejoinder filed by the petitioners

(See Annexure-12 of the writ petition). Mr. Nath, learned counsel has

submitted that those vending license show that the petitioners were

dependant on the shops and as such denying them rehabilitation is

not only discriminatory, but an attack on their livelihood. Accordingly,

Mr. Nath, learned counsel has submitted the petitioners be given

rehabilitation against the vacant shops available in the Radhanagar

Shopping Complex as the similarly situated persons have been given

such rehabilitation.

[6] Mr. T. D. Majumder, learned counsel appearing for the

Agartala Municipal Corporation-respondents, in order to repel the

submission of the Mr. Nath, learned counsel, has categorically

submitted that the petitioners and some other shopkeepers had

ceased to carry on any trade or business from those shops as

demolished for a long period. Whenever the surveyors or the officers

of Agartala Municipal Corporation had tried to contact those

shopkeepers, their shops were found closed. This fact itself shows

that the petitioners were not running any trade or business from

those shops as demolished. Those structures were abandoned by

them. As such, there had been no infringement on the right to

livelihood by any action of Agartala Municipal Corporation or by the

demolition drive in order to remove the unauthorized structure on the

government land. Those structures were obstructing the traffic.

[7] Mr. Datta Majumder, learned counsel has further

submitted that there was announcement during the demolition and at

that time the shopkeepers were requested to enlist their names for

rehabilitation. At that time also the petitioners did not approach and

did not get them enrolled for any rehabilitation. Only when the notice

of allotment of the shop started as circulated to the other

shopkeepers, they woke up from their slumber.

[8] Mr. Datta Majumder, learned counsel has categorically

stated that no right in favour of the petitioners has accrued from the

Street Vendors (Protection of Livelihood and Regulation of Street

Vending) Act, 2014 inasmuch as at the relevant point of time, the

petitioners were not recognized as 'the street vendor' and they have

failed to show any vending license for that period. Even if the vending

licence is shown, that will not confer them any right to get the

rehabilitation in the shopping complex. The vending license is only

given to carry on the business on the mobile unit in a notified vending

area in terms of the said Act.

[9] Mr. Datta Majumder, learned counsel has further

submitted that due process and human approach had been followed

while evicting the unauthorised structure. Agartala Municipal

Corporation has taken all sorts of care so that nobody is affected

adversely for the eviction. The petitioners did not suffer any damage

of worth. It is apparent as despite the notice given to remove the

structure, the petitioners did not remove those structures. Now they

cannot come forward for seeking damage owing to removal of the

structure.

[10] Mr. Datta Majumder, learned counsel, having referred to

the averment at Para-12, has contended that total 56 owners of

unauthorised structure were there, out of them 39 shopkeepers were

short listed as they were found carrying on their business from their

shops to earn livelihood. Remaining 19 shops were always found

closed from whenever the notice were sought to be served by the

survey team. Later, notices were pasted/fastened at the front side of

those 19 closed shops. By that notice, it was clearly asked to remove

the structure within the stipulated time i.e. 05.11.2019. In failing so

it was warned that the structure would be demolished by Agartala

Municipal Corporation. Mr. Datta Majumder, learned counsel has also

stated that 19 shopkeepers even did not enrol themselves for

allotment of the shops. According to Mr. Datta Majumder, learned

counsel, the names of those shopkeepers are available in Annexure -

4 to the writ petition. Against them, it has been categorically noted

that shops were closed for long time. But from the notice dated

21.10.2019, it is apparent that 37 similarly situated shopkeepers

were given the rehabilitation in the Radhanagar Shopping complex.

For choice of shops, lottery was held on 29.10.2019 and following the

outcome of the lottery, the shops were allotted.

[11] Mr. Datta Majumder, learned counsel has urged this court

to dismiss the writ petition as the petitioners were the bystanders to

observe what happens to the other shopkeepers. There had been no

immediate response from their end for any support from Agartala

Municipal Corporation.

[12] This court has scrutinized the records and there emerges

that the project of rehabilitation had included the petitioners. But the

petitioners were lacking in their response and that is the reason why

their cases were not considered by Agartala Municipal Corporation.

There had been no malafide intention on behalf of Agartala Municipal

Corporation. This court is, however, not inclined to explore whether

the shops were closed or open during the time of demolition or prior

to that when notices were sought to be served. But this court is not

oblivious of the fact that the petitioners had the trade licences to

show that for long time they are running their business from those

demolished shops. May be for sometimes, they were not available in

their shops for whatever reasons but their shops were under their

undisrupted occupation, even though not authorized by the

government. By an order dated 22.01.2020 delivered in this writ

petition, this court had directed the respondents to keep 11 shops in

the Radhanagar Shopping Complex referred as the New Shopping

Complex unallotted.

[13] From the scrutiny of the records, this court does not find

any hesitation to hold that all writ petitioners were occupying shops

in that area and in the eviction drive, their shops have demolished.

Moreover, on a misguided advice during pendency of the writ

petition, the petitioners had applied for license for vending without

any leave from this court. But, this fact stands to show that the

livelihood of the petitioners are depending on the vending or the

small trade.

[14] In this backdrop, Agartala Municipal Corporation and

other respondents are directed to enrol the name of the petitioners

for allotment of 11 shops by lottery for purpose of identifying their

preference of the shop and allot the shop having regard to the

outcome of lottery or the essential adjustment that would be made

Agartala Municipal Corporation. Such exercise shall be made within

three months from today. The petitioners shall comply all the

conditions of such allotment, equal to which the other shopkeeper

have observed, who were given allotment previously, without raising

further objection.

In terms of the above, this writ petition stands allowed.

There shall be no order as to costs.

A copy of this order be supplied to Mr. T. D. Majumder,

learned counsel appearing for Agartala Municipal Corporation.

Interim order, if any, stands vacated.

Pending Interlocutory application, if any, stands disposed

of.

Mr. T. D. Majumder, learned counsel appearing for the

Agartala Municipal Corporation has produced the original file

containing the relevant records. The said file is returned.

No order as to costs.

JUDGE

Dipak