Tripura High Court
Sri Swapan Das @ Swapan Chandra Das vs The Agartala Municipal Corporation on 11 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 11
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WA. No.18 of 2021
1. Sri Swapan Das @ Swapan Chandra Das, son of late Anil Ch.
Das, resident of Maharaj Ganj Bazar, Old Gangail Road, P.O.
Agartala P.S. West Agartala, District: West Tripura.
.....Appellant
-V E R S U S-
1. The Agartala Municipal Corporation, represented by the
Municipal Commissioner, City Centre, H.G. Basak Road,
Agartala-799001.
2. The Municipal Commissioner, Agartala Municipal Corporation,
City Centre, H.G. Basak Road, Agartala-799001.
3. The Assistant Commissioner, Central Zone, Agartala Municipal
Corporation City Centre, Agartala-799001.
4. Smti. Suvra Das (Roy), wife of Sri Dipen Roy, resident of
Maharaj Ganj Bazar, P.O. Agartala, P.S. West Agartala, District:
West Tripura.
..... Respondents
1. Sri Ajit Das, son of Sri Himangshu Das, resident of Maharaj Ganj
Bazar, Old Gangail Road, P.O. Agartala, P.S. West Agartala,
District: West Tripura.
.....Appellant
-V E R S U S-
1. The Agartala Municipal Corporation, represented by the
Municipal Commissioner, City Centre, H.G. Basak Road,
Agartala-799001.
2. The Municipal Commissioner, Agartala Municipal Corporation,
City Centre, H.G. Basak Road, Agartala-799001.
3. The Assistant Commissioner, Central Zone, Agartala Municipal
Corporation City Centre, Agartala-799001.
4. Sri Partha Ch. Das, son of late Abani Mohan Das, resident of
Maharaj Ganj Bazar, P.O. Agartala, P.S. West Agartala, District:
West Tripura.
..... Respondents
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
For Appellant(s) : Mr. Paramartha Datta, Advocate.
Mr. Alik Das, Advocate.
For Respondent(s) : Mr. A. Bhowmik, Advocate.
Date of hearing : 06.03.2024
Date of delivery of judgment
And order : 11.03.2024
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. P. Datta, learned counsel and Mr. A. Das, learned
counsel appearing for the appellants also heard Mr. A. Bhowmik, learned
counsel appearing for the respondent, AMC.
[2] These writ appeals are consolidated for disposal by a common
judgment as an identical controversy wades through these writ appeals. The
present appeals have been filed under Rule-2 of Chapter V-A of the
Guwahati High Court Rules presented against the common judgment and
order dated 20.10.2020 passed in WP(C) No.148 & 149 of 2020.
[3] The facts relating to W.A. No.18 of 2021 is that the appellant
was granted Touji No. 6/85/F by the Agartala Municipal Corporation
(AMC) for land measuring 97.5 sq. ft. in the year 2011 on which he has
been carrying on 'Painting Business'. By order dated 12-02-2020, the AMC
terminated the said Touji. The appellant challenged the said order by filing
writ petition in 2019 vide WP(C) 1179 of 2019. By a common Judgment the
Hon'ble High Court on 31-01-2020 uphold the power of AMC to terminate
the said Touji, however, the Court in observation held to consider the
request of appellant for fair re-settlement if the appellant is interested in
accepting the alternative offer as far as to the best possible extent.
[4] As follow up, the AMC carried out fresh exercise by re-
allocating the said piece of land to the respondent No.4 a similarly situated
evicted Touji holder as part of 600 sq. ft. area granted to her by a new
Touji, while instead offered to the appellant a premises of 60 sq. ft. in
Radhanagar Shopping Complex. As aggrieved, the appellant filed writ
petition before this Court and subsequently, by a common judgment and
order in WP(C) 149 of 2020 disposed the same with observation that there
is no error and arbitrariness in the action of the AMC.
[5] Subsequently, the AMC also initiated a process for distribution
of space at Old Cow Market at M.G. Bazar to the appellant and others who
were allotted space at Radhanagar Shopping Complex. As due to bona fide
mistake, on behalf of the appellant it was not argued before the Court in
WP(C) 149 of 2020 that AMC as respondents itself admitted the
requirement of respondent No.4 is at least 450 sq. ft. but granted to her in
new Touji 600 sq. ft. including the occupied space of the appellant in which
both of them can be accommodated without adversely effecting the plan of
AMC and as new development of scope to distribute plan at Old Cow
Market at M.G. Bazar arose in which the Respondent No.-4 can be
accommodated without disturbing the occupancy of the appellant. Hence,
the present writ appeal against the judgement and order dated 20-10-2020 in
WP(C) No. 149 of 2020 is filed.
[6] The facts relating to W.A. No.20 of 2021 is that appellant was
granted Touji No. 3/86/D by the Agartala Municipal Corporation (AMC)
for land measuring 67 sq. ft. in the year 2013 on which he has been carrying
on 'Painting Business'. By order dated 16-09-2019, the AMC terminated the
said Touji. The appellant challenged the said order by filing writ petition in
2019. By a common Judgment this Court on 31-01-2020 uphold the power
of AMC to terminate the said Touji, however, the Court in observation held
to consider the request of appellant for fair re-settlement if the appellant is
interested in accepting the alternative offer as far as to the best possible
extent.
[7] As follow up, the AMC carried out fresh exercise by re-
allocating the said piece of land to the respondent No.4 a similarly situated
evicted Touji holder as part of 200 sq. ft. area granted to him by a new
Touji, while instead offered to the appellant a premises of 60 sq. ft. in
Radhanagar Shopping Complex. As aggrieved, the appellant filed writ
petition before this Court and the Court in a common judgment and order in
WP(C) 148 & 149 of 2020 disposed the same with observation that there is
no error and arbitrariness in the action of the AMC.
[8] Subsequently, the AMC also initiated a process for distribution
of space at Old Cow Market at M.G. Bazar to the appellant and others who
were allotted space at Radhanagar Shopping Complex. As due to bona fide
mistake, on behalf of the appellant it was not argued before the Court in
WP(C) 148 of 2020 that the AMC as respondents itself admitted the
requirement of respondent No.4 is at least 450 sq. ft. but granted to her in
new Touji 200 sq. ft. including the occupied space of the appellant in which
both of them can be accommodated without adversely effecting the plan of
AMC and as new development of scope to distribute plan at Old Cow
Market at M.G. Bazar arose in which the respondent No.-4 can be
accommodated without disturbing the occupancy of the appellant, this writ
appeal against the judgement and order dated 20-10-2020 in WP(C) No.
148 of 2020 is filed.
[9] Having heard the parties and gone through the material
evidence on record, the Court has observed as under:
"Before closing, however it may be noted that the festival session is
approaching fast. The petitioners are occupying the present places since a
long time. Under the circumstances, while dismissing the petitions it is
provided that the petitioners shall not be evicted from the present places till
15th December, 2020. If thereafter they agree to shift to the new places
which the Commissioner has offered them, they would be granted toujis at
such new sites. In other words, merely because the petitioners have
approached this Court, the offer of the AMC to resettle them at new places
would not be withdrawn"
[10] Being aggrieved by and dissatisfied with the same, the present
appeals have been preferred by the appellant before this Court for redress.
[11] Learned counsel appearing for the appellant has submitted that
the very fact that the area which the appellant was occupying has been
allotted to the respondent No.4 would show that the eviction of the
appellant was not necessary for the stated purpose of removing the
encroachments or to rejuvenate the water body in the area. If the area
occupying by the appellant could be allotted to someone else, there was no
reason why the appellant should have been disturbed.
[12] It was not argued due to bona fide mistake that though the
AMC as respondents itself in affidavit in opposition admitted that the
requirement of respondent No.4 is at least 450 sq.ft. with 20 ft wide
passage, new touji of 600 sq.ft. has been granted by the AMC. It could have
been possible to accommodate both the respondent No.4 and the appellants
within the 600sq.ft. without adversely affecting the DPR for rejuvenation of
the water body of the locality. Even there would have been no requirement
to disturbing the occupancy of the appellant to accommodate the respondent
No.4 and if required only by granting fresh Touji by reallocating internal
boundaries. It was also not argued that though the AMC has admitted that
while the respondent No.4 presently occupying 97.5 sq. ft. area in M.G.
Bazar, the AMC has granted to him new Touji of 200 sq.ft.
[13] It has been further stated that subsequent development of scope
to distribute land at Old Cow Market of M.G. Bazar among the shoppers
against whom notice of eviction were served by the AMC and offered space
at Radhanagar Shopping Complex, has resulted the scope to re-allocate
appropriate space to the respondent No.4 without disturbing the present
occupancy of the appellant.
[14] The main ground raised by the appellant in the present appeal
is that the area which the appellant was occupying under touji, is allotted to
respondent No.4. According to the appellant, thus, if the same area could be
allotted to someone else, there was no reason why the appellant should have
been disturbed. Counsel for the appellant submitted that the very fact that
the same area which the appellant was occupying has been allotted to
respondent No.4 would show that the eviction of the appellant was not
necessary for the stated purpose of removing the encroachments or to
rejuvenate the pond in the area.
[15] It has been further averred that both the appellant has
submitted their representation before the Municipal Commissioner, AMC
stating that after cancellation the touji by order dated 12.02.2020 the land
has been re-allotted in favour of the respondent No.4 in the present appeals.
The toujis are cancelled on the ground that cancellation has been issued for
beautification, security and safety measures. But on the other hand after
cancellation of the toujis the same toujis have been re-allotted in favour of
the respondent No.4 herein.
[16] In view of above it is crystal clear that the ground on which
toujis were cancelled was not genuine and the Court was mislead by the
AMC by saying that the cancellation of toujis standing in the names of the
appellant was called for the beautification of the area and for safety and
security measures.
[17] During the pendency of the writ appeal, the Municipal
Commissioner of Agartala Municipal Corporation distributed space among
11 shopkeepers through lottery at Old Cow Market at M.G. Bazar out of 15
shopkeeper who are to be evicted from the existing place at M.G. Bazar,
Agartala in accordance with its memo dated 31.12.2020. Learned counsel
for the respondent AMC stated that AMC is ready to allot one of the
remaining shops to the appellant by lottery. But, the AMC on intervention
of the Court offered another evicted touji holder namely, Sri Santanu Saha
admeasuring 524.14sq.ft. in the same locality of the present appellant at
North East side on the ground that the site is not in the proposed
development area of the pond and AMC also clarified the Court that there is
no threat of eviction or demolition from the said site, which is reflected in
order passed by this Court on 25.11.2020. Hence, it is crystal clear that
there is no need to disturb the present occupancy of the appellant too.
[18] Mr. A. Bhowmik, learned counsel appearing for the respondent
AMC in support of his case has submitted that all the actions taken by the
respondents are in public interest. Banking upon the direction and
observation of this Court application of the respondent No.4 and the petition
was disposed of vide order dated 12.2.2020 and 15.2.2020. The requirement
of the respondent No.4 was at least 30 ft. x 15 ft. with 20 ft. wide passage at
the same place or nearby. There is no space having 450 sq.ft. area in
Radhanagar Shopping Complex with passage of 20 ft. wide so, the
Commissioner has caused resurvey on field to see if it is possible to
accommodate the respondents along with 2 others with reduced tauji area at
the same place or nearby place without compromising the development
project of M.G. Bajer West Pond. Survey team was accompanied by
consultant from Project Management Consultation of Agartala Smart City
ltd. (AGCL).
[19] Considering the survey report on physical measurement the
area of 600 Sq ft was offered to the respondent No. 4 for running iron rod
shop and has been allotted touji of 600 Sq ft area afresh with measurement
of 30ft x 20 ft, being a long road side and the respondent No. 4 has accepted
the same. The allotment to respondent No.4 was given without adversely
affecting he DPR for rejuvenation of the pond area. Little sacrifice has been
done so far parking space is concerned. AMC has to do it because it has no
more land either in the Radhanagar Shopping Complex with such vast area
for accommodation to the respondent No.4 following the observation of this
Court.
[20] The appellants' land is limited to small portion of land in old
touji whereas, the appellant can very well run his business at the complex
having masonry building area in commercial area and it was so done so that
his livelihood is not affected. As per verdict the appellant cannot choose a
place wherefrom removal was ordered. No right of the appellant has been
invaded by any act of the respondents.
[21] Following the direction contained in the judgment and order
dated 31.01.2020 in W.P.(C) 1178-1184 of 2019, given by this Court, and
for fair resettlement of the appellant the following steps were taken. (1) The
touji areas of persons shall not been drastically reduced in terms of area. (1)
Re-settlement was done only to such place where it is well connected by
roads. (iii) re-settlement was done only to those places which have
commercial activity. Radhanagar location fulfils all the criteria of the case
of the appellant. Keeping the observation of this Court, every effort was
taken by the Municipal authority for resettlement of the evicted persons on
humanitarian ground, without compromising the project area. Further, it
was also considered the distance from the existing location of evicted
person's to Radhanagar location which is less than 3 kms.
[22] The appellant was asked if he would accept the allotment at
Radharnagar shopping complex or he would like to shift in any other
alternative places. But, he stated that he did not know any other place.
Considering the order of this Court the appellant was given option for
resettlement at the Radharnagar Shopping Complex which fulfils all the
criteria laid down by the judgment dated 31.01.2020 with a commercial
area, good connectivity and a much better option than the existing location
of the business premises. The appellant was instructed to remove the
existing shop within next 7 days and indicating willingness for allotment of
shop in Radhanagar Shopping Complex failing which, AMC shall remove
his shop for the development of the MG Bazaar pond.
[23] Mr. Bhowmik, learned counsel appearing for the respondent
AMC has drawn our attention to the judgment of the learned Single Judge
wherein it has been stated that the official respondents have also fully
explained why the respondent No.4 has been resettled at the said site. It is
stated that he was holding a much larger area and it was not possible to find
a suitable area of similar size without incurring substantial expenditure.
[24] After obtaining a survey report he was offered a reduced area
which he has accepted. In the process, it may be that a portion of the area
which the appellant was occupying forms part of the reallocated touji to the
respondent No.4. However, when resettlements of such substantial number
occupants are to be made, reallocation of internal boundaries and toujis is
bound to happen. Merely because the respondent No.4 has been allotted a
portion of the area presently occupied by the appellant, would not mean that
the action of the respondents is arbitrary or mala fide.
[25] In view of above arguments advanced by the learned counsel
appearing for the parties, this Court is of the view that the function of the
Court is to see that lawful authority is not abused but not to appropriate to
itself the task entrusted to that authority. It is well settled that a public body
invested with statutory powers must take care not to exceed or abuse its
power. It must keep within the limits of the authority committed to it. It
must act in good faith and it must act reasonably. The Directive Principles
of State Policy set forth the humanitarian socialist precepts which were the
aim of the India Social revolution. The Directive Principles and
fundamental rights mainly proceed on the basis of human rights freedom to
nothing else but a chance to be better. It is this liberty to do better is the
theme of Directive Principles of State Policy.
[26] Directive Principles are aimed at securing social and economic
freedoms by appropriate State action. The Fundamental Rights are intended
to foster the ideal of a political democracy and to prevent the establishment
of authoritarian rule but they are of no value unless they can be enforced by
resort to courts. So they are made justiciable. However, it is also evident
that notwithstanding their great importance, the Directive Principles are less
important than Fundamental Rights or that they are not binding on the
various organs of the State. The State shall strive to promote the welfare of
the people by securing and protecting as effectively as it may a social order
in which justice, social, economic and political, shall inform all the
institutions of the national life.
[27] The State shall, in particular, strive to minimize the inequalities
in income, and endeavour to eliminate inequalities in status, facilities and
opportunities, nor only amongst individuals but also amongst groups of
people residing in different areas or engaged in different vocations. The
citizens, men and women equally, have the right to an adequate means to
livelihood. Equal justice and free legal aid- the State shall secure that the
operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities.
[28] Facts of the connected appeals are similar on all material
aspects and they are therefore not discussed separately. This Court
repeatedly more than half dozen times has advised learned counsel
appearing for the respondent-AMC to obtain necessary instructions if the
respondent AMC is going to take any suitable action to initiate and specifies
between the appellant and the unofficial respondent in terms of allocation of
land or they would have any alternative proposal. The learned counsel for
the respondent AMC insisted to proceed with the matter and concluded his
argument and after some considerable time when this Court was about to
pronounce the order, he sought for an adjournment to get instruction and
this Court has no hesitation to decline the same and consequently, the
matter was reserved for judgment.
[29] This Court is always stand with the State for its development
and the appellant being allotted has no locus standi to question the action of
the respondent if the said allotment of land is taken for development of the
city and for public purpose etc. But, here is the case where under the garb of
development, the action of the respondent in shifting the appellant giving
his land to the unofficial respondent i.e. respondent No.4 in both the
appeals, is one which this Court has no hesitation to say that the action of
the respondent AMC is biased and discriminatory.
[30] The official respondent cannot kick in the stomach of the
appellant to make a rich person richer. The action of the respondent in not
disclosing the fact with regard to the extent of land which is taken away
from the appellant and allotting to the unofficial respondent is silent and in
the argument, learned counsel for the official respondent except saying that
some little portion was allotted to the unofficial respondent, what exactly
the portion of land the appellant is given to the respondent No.4 not uttered
a single word and it is nothing else an adamant/arbitrariness of the
respondent.
[31] In view of above, the appeals stand allowed with costs of
Rs.20,000/- i.e. Rs.10,000/- each to be paid to both the appellants. The
judgment dated 20.10.2020 passed in WP(C) No.148 & 149 of 2020 is
accordingly, set aside. Consequentially, the appellants are permitted to
continue their business in the allotted land and at the same time in the event,
in future, the AMC may use the entire property for any public utility but,
they cannot apply the method of pick and choose. As a sequel,
miscellaneous applications pending, if any, shall stand closed.
B. PALIT, J T. AMARNATH GOUD, J
A.Ghosh
ANJAN Digitally signed by
ANJAN GHOSH
GHOSH Date: 2024.03.18
17:28:54 +05'30'
