Jiten Deka Vs the State of Assam and 4 Ors.

Heard Mr. D.K. Nath, learned counsel for the petitioner. Also heard Mr. J. Handique, learned counsel for the respondent nos.1 to 4 and Mr. S. Khound, learned counsel for the respondent no.5.

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2. By filing this writ petition, the petitioner has put to challenge the allotment order dated 05.08.2016 issued by the Chairman, Doomdooma Town Committee, Doomdooma, Tinsukia, whereby, a plot of land has been allotted to the

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respondent no.5, namely, Dr. Binoy Kumar Hazarika for construction of medical chamber on the land of the Doomdooma Town Committee.

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3. The case of the petitioner, in brief, is that he has been allotted a roadside stall at Nehru Road, Doomdooma Town, Tinsukia by Doomdooma Town Committee, on execution of a Deed of Lease on 07.03.1992. The Petitioner has applied for extension of the said allotted room/stall, which is on the backside of the said stall, particularly, on the northern side of the stall facing Doomdooma Town Field.

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4. In response to the application dated 22.10.2008, the Chairman, Doomdooma Town Committee, has allotted a plot of land and directed the Petitioner to deposit an amount of Rs. 1,05,000/- (one lac five thousand) only vide order dated 09.01.2009, as a security deposit. Subsequently, the said security deposit amount was reduced to Rs. 75,000/- (seventy five thousand) only vide order dated 03.02.2009.

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5. It is contended that the petitioner could not pay the said security amount due to certain financial difficulties as well as owing to his ill health for which he has applied for extension of time for payment of the said security deposit. The petitioner sought for an extension of time for payment of security deposit vide application dated 12.09.2014, thereafter, the Chairman, Doomdooma Town Committee, vide letter dated 30.08.2016 rejected the prayer for extension time for payment of security deposit, on the ground that the land has already been allotted to one Dr. Binoy Kumar Hazarika, respondent No. 5, for construction of a chamber in the extended portion, as the petitioner has failed to deposit the security amount of Rs. 70,000/- (seventy thousand) only till 31.03.2016.

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6. It is contended by the petitioner that he was informed vide letter dated

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30.08.2016 that the said plot of land had already been allotted to one Dr. Binoy Kumar Hazarika, respondent no.5, for construction of his medical chamber despite allotment granted to him by way of extension. The petitioner contends that he was never informed about such allotment to the respondent no.5 by the Committee nor he has been given any prior notice. On receipt of the relevant documents, it is found that the respondent no.5 had applied for the said portion which was already allotted to the petitioner vide letter dated 25.04.2016. It is contended that against the said application of the respondent no.5, the Chief Assistant has commented that as the said land was allotted to the petitioner, but for non-payment of the security amount of Rs. 70,000/-, the application filed by the petitioner may be considered after disposal of the previous allotment to the petitioner.

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7 . Mr. D.K. Nath, learned counsel for the petitioner submits that the respondent no.5 has been allotted the said land which has already been allotted to the petitioner without any prior notice to the petitioner. The allotment of the petitioner has not been cancelled nor any opportunity of being heard has been provided to the petitioner, which violates the cardinal principle of natural justice.

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8 . Mr. D.K. Nath, learned counsel, while referring to the provision of Sections43, 45, 46, and 63 of the Assam Municipal Act, 1956, submits that for allotment or grant of lease of land, a meeting has to be conducted by the Chairman, thereafter, a decision has to be taken. He submits that since no meeting has been conducted before allotment of the said land to the respondent no.5, the same violates the provisions of the Assam Municipal Act, 1956. That apart, the Municipal Committee or for that the Chairman has not cancelled the allotment made on behalf of the petitioner and no notice or opportunity of hearing was provided to the petitioner. Therefore, Mr. D.K. Nath, learned counsel for the

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petitioner submits that the allotment granted to the respondent no.5 is liable to be set aside.

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9 . On the other hand, Mr. J. Handique, learned counsel for the respondent nos.1 to 4, while referring to the affidavit filed by the respondent no. 2, submits that the open space of the back side of the Room No-1 was allotted to the petitioner by the respondents vide order dated 09.01.2009 subject to payment of security amount of Rs 1,05,000/- (Rupees One Lac Five Thousand) only. Subsequently, said security amount was reduced to Rs 70,000/- (Rupees Seventy Thousand) only. But the petitioner failed and neglected to deposit the security amount despite of repeated demand made by the respondent Nos. 2 & 3 and as such the allotment of the open space of the back side of the Room No1 was cancelled vide order dated 13.05.2016 by observing requisite formalities and the order of cancellation dated 13.05.2016 was communicated to the petitioner vide letter dated 30.8.2016 which was duly received and acknowledged by the elder brother of the petitioner.

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10 . Mr. J. Handique, learned counsel, submits that after cancellation of allotment granted to the petitioner, the said open space has been allotted to respondent no. 5 on the approval of the Board Meeting held on 19.05.2016 and by observing requisite formalities as provided under section 43 of the Assam Municipal Act 1956. Mr. J. Handique, learned counsel, submits that cancellation order was in conformity with the provisions of the Assam Municipal Act, 1956 as well as the terms of allotment order dated 09.01.2009.

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11 . Mr. J. Handique, learned counsel, submits that the petitioner had failed to deposit the requisite security amount of Rs 70,000/- (Rupees Seventy Thousand) only in favour of the Town Committee and the allotment of the petitioner was subject to the said deposit. Further, the petitioner failed and

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neglected to pay the monthly rent from the Month of April, 2015 onwards; hence he is also a defaulter in respect of his aforesaid allotted Room No. 1. As such the petitioner has not filed this instant petition before this Hon'ble Court with clean hand and the same is liable to be dismissed with cost.

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12. Mr. S. Khound, learned counsel for the respondent no.5, has adopted and subscribed to the submissions made by the learned counsel Mr. Handique. 13 . Considered the submissions of the learned counsel for the parties and perused the materials on record.

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14 . The petitioner was granted a roadside stall being room No.1 at Nehru Road, Doomdooma Town, Tinsukia by Doomdooma Town Committee. On his application, the petitioner was granted an extension of the plot of land in question subject to the payment of security deposit of Rs. 1,05,000/- initially and later reduced to Rs.70,000/-.

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15 . Admittedly, the petitioner has failed to deposit the said security amount till 2014, whereas, the extension was granted in the year, 2009. The respondent committee has allotted the said plot of land to the respondent no.5 after following the due process on having found that the petitioner has failed to deposit the security deposit, which is one of the conditions for allotment of the said land. Therefore, in my considered view there is no illegality in allotment of the land in question in favour of the respondent no.5, as the petitioner despite the grant of extension of the said plot of land in his favour has admittedly failed to deposit the security amount till 2014.

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16 . Having regard to the provision of the Assam Municipal Act, 1956, as relied by the learned counsel for the petitioner, I find that same is completely misplaced inasmuch as the provisions referred by the learned counsel for the petitioner, particularly, Sections 43,45,46, 63 of the Assam Municipal Act, 1956

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relates to general provisions of meeting of the Municipal Committee. The Section 63 relates to power to purchase, lease sell land, which provides that a Board may, at a meeting decide, to purchase or take on lease or by gift any land with the approval of the State Government. It also provides that no Board shall sell, let exchange or otherwise dispose of any land vested in it except with the sanction of the State Government.

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17 . It is true that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. The Hon’ble Supreme Court has held that the principle of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed and that non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary. However, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice. It is settled principle of law that no inflexible rule of hearing and due application of mind can be insisted upon in every and all the case as each case depends upon its own backdrop.

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18 . In the present case, the petitioner on his own showing, has admittedly failed to deposit the security deposit till 2014, which is one of the conditions for grant of allotment of the land of the Municipal Committee, while the allotment was made in the year, 2009. Thus, the petitioner has no right to claim that once

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allotted, the same shall be kept for indefinite period or until the time he pay the security deposit.

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19. In view of discussions made herein above, I am of the considered view that the petitioner has failed to show any illegality in allotting the land in question by the Doomdooma Town Committee, Doomdooma, Tinsukia in favour of the respondent no.5. Thus, no interference is called for.

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20. In the result, the writ petition stands dismissed being devoid of merit. No order as to costs.

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JUDGE

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Comparing Assistant

Jiten Deka v. the State of Assam and 4 Ors.

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Jiten Deka v. the State of Assam and 4 Ors.

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