Md. Noor Hussain and 5 Ors. Vs the State of Assam and 6 Ors.

Heard Mr. S. Sarma, learned counsel appearing for the petitioners. Also heard Mr. S. Dutta, learned Standing Counsel appearing for the P&RD as well as Mr. N. Das, learned State counsel appearing for the respondent Nos. 5 and 6.

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2. By way of the present petition filed under Article 226 of the Constitution of India, the petitioners have assailed the impugned notices dated 01.02.2024 issued by the Lumding Anchalik Panchayat, whereby the petitioners were directed to vacate their respective shop premises immediately.

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3. It is pertinent to note that on 17.02.2024, while issuing notice, this Court had stayed the operation of the impugned notices/cancellation orders till the returnable date. The said interim protection was extended from time to time primarily on the ground that no opportunity of hearing had allegedly been afforded to the petitioners prior to cancellation of the allotments of the bhetis by the Lumding Anchalik Panchayat.

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4. The brief facts leading to filing of the present writ petition are that the petitioners were issued different allotment orders by the office of the Lumding Anchalik Panchayat, Bamungaon, Lanka, Hojai, whereby individual Patta Nos. and Bheti Nos. were allotted to them for running small shops at Nakhuti Bazar under the Lumding Anchalik Panchayat.

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Page No.# 5/10

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5. It is the case of the petitioners that although they had been carrying on their business since 2003, suddenly notices dated 01.02.2024 were issued by the Office of the Lumding Anchalik Panchayat intimating them that renovation and developmental works of the fish market were to be undertaken, and consequently directing them to vacate the shops immediately. Aggrieved thereby, the present writ petition has been filed.

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6. Mr. S. Sarma, learned counsel appearing for the petitioners, submits that the impugned notices of cancellation were not preceded by any notice or opportunity of hearing and are therefore violative of the principles of natural justice. He further submits that since the petitioners had been allotted the bhetis and pattas had also been issued in their favour by the respondent authorities, against which taxes were being regularly paid, the respondent authorities could not have directed them to vacate the shops without affording an opportunity of hearing.

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7. Per contra, Mr. S. Dutta, learned Standing Counsel appearing for the P&RD Department, submits that the allotments in favour of the petitioners were purely temporary in nature. He further submits that after the year 2021, the allotments were neither renewed nor were any taxes collected from the petitioners. It is further contended that the fish market is required to be modernized and developed in public interest and, accordingly, the petitioners were directed to vacate the premises. According to the learned Standing Counsel, the petitioners, being unauthorized occupants after expiry of the allotment period,

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Page No.# 6/10

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cannot claim any vested right to continue in occupation or insist upon continuation of the allotment.

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8. Likewise, Mr. N. Das, learned State counsel appearing for respondent Nos. 5 and 6, submits that the petitioners, having continued in occupation without any subsisting allotment after expiry of the pattas, cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

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9. I have considered the submissions advanced by the learned counsel for the parties and have perused the materials available on record.

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10. It appears from the records that the petitioners were allotted different bhetis/pattas by the Lumding Anchalik Panchayat on the basis of their applications. The allotment orders clearly reveal that the allotments were temporary in nature and subject to various terms and conditions. One such allotment order issued in favour of petitioner No. 1 dated 13.11.2003 specifically stipulated that the allotment was temporary and liable to cancellation in the event of violation of the conditions contained therein. Similar stipulations are found in the allotment orders issued in favour of the other petitioners as well.

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11. The pattas subsequently issued in favour of the petitioners also clearly indicate that the allotments were for fixed periods, mostly for one year, and subject to compliance with the conditions prescribed by the Panchayat authorities. The pattas further stipulated that the allottees could not claim any permanent right over the allotted bhetis.

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Page No.# 7/10

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12. From the materials placed before this Court, it further transpires that though the allotments were initially extended from time to time, after the year 2021 no renewal or extension was granted in favour of the petitioners.

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13. It is also not in dispute that after the year 2021, no taxes were collected from the petitioners by the respondent authorities. Despite expiry of the tenure of allotment, the petitioners continued to occupy the shops without any subsisting authorization.

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14. Thereafter, notices dated 01.02.2024 came to be issued by the respondent authorities directing the petitioners to vacate the premises within two days for the purpose of carrying out renovation and developmental works of the Nakhuti Fish Market under a Governmentsponsored project. The notices further disclosed that the allotments stood cancelled for facilitating the developmental work.

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15. Upon receipt of the impugned notices, the petitioners submitted a representation dated 02.02.2024 requesting the authorities not to cancel the allotments on the ground that the shops constituted their only source of livelihood. The petitioners also alleged that there existed sufficient space elsewhere for implementation of the developmental project.

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16. Be that as it may, the representation submitted by the petitioners does not contain any assertion whatsoever that the authorities had refused to accept taxes from them after the year 2021. The pleadings subsequently raised before this Court in that regard therefore do not inspire confidence.

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Page No.# 8/10

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17. The allotment orders as well as the pattas placed on record unequivocally demonstrate that the allotments in question were temporary and tenure-based. Upon expiry of the stipulated period, no enforceable legal right survived in favour of the petitioners to continue in occupation of the premises.

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18. It is a settled proposition of law that mere occupation pursuant to a temporary allotment does not confer any indefeasible or perpetual right upon the allottee. Once the tenure of the allotment expires and the same is not renewed, continuation in occupation becomes unauthorized unless protected by a valid subsisting right recognized in law.

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19. In the present case, admittedly, the pattas issued in favour of the petitioners expired long back and were never renewed after the year 2021. In such circumstances, the petitioners cannot claim any vested right to continue in occupation of the premises indefinitely.

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20. The contention advanced on behalf of the petitioners regarding violation of the principles of natural justice also does not merit acceptance in the facts of the present case. The principles of natural justice cannot be invoked to perpetuate an unauthorized occupation after expiry of a purely temporary allotment. In the absence of any subsisting legal right in favour of the petitioners, the requirement of a detailed adjudicatory hearing loses much of its significance.

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21. Moreover, the impugned notices disclose that the premises in question are required for implementation of a market modernization and improvement project undertaken in public interest. The affidavit-

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in-opposition filed on behalf of the department further reveals that the developmental project had already been approved and the site was required to be handed over to the contractor for execution of the work.

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22. The relevant paragraphs of the affidavit-in-opposition filed on behalf of the respondent authorities also make it abundantly clear that the allotments were temporary in nature and liable to termination whenever required for developmental works of the market or in public interest. The affidavit further discloses that the project pertains to modernization and improvement of the Nakhuti Market under the APART scheme and that the development work is necessary for improvement of the market infrastructure as well as generation of public revenue.

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23. The interim protection granted by this Court during pendency of the proceedings has consequently delayed implementation of the proposed development work concerning the fish market.

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24. This Court is not oblivious of the fact that the petitioners may have been carrying on their small businesses from the allotted shops for several years. However, sympathy or hardship, by itself, cannot create a legal right contrary to the express terms of a temporary allotment, particularly when the land and premises are required for a public development project.

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25. Upon cumulative consideration of the pleadings, the documents brought on record, and the nature of the allotments in question, this Court is of the considered opinion that no case for interference under

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Article 226 of the Constitution of India has been made out by the petitioners.

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26. Accordingly, the writ petition stands dismissed.

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27. No order as to costs.

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28. The interim order passed earlier stands vacated.

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29. In view of dismissal of the writ petition and vacation of the interim order, the respondent authorities shall be at liberty to proceed further in accordance with law.

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JUDGE

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Comparing Assistant

Md. Noor Hussain and 5 Ors. v. the State of Assam and 6 Ors.

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Md. Noor Hussain and 5 Ors. v. the State of Assam and 6 Ors.

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