Disposed

Ashoka Market Merchants Society v. State of Odisha

Orissa HC3 Aug 2017WP(C)/4684/2016

Case brief

AI extract

What is this about?

The Court directed the Bhubaneswar Development Authority to prioritally re-allot newly constructed shop rooms to existing licensees petitioning, modulo development authority conditions, while directing petitioners to vacate existing premises within two weeks.

What did the court decide?

Directing DA to re-allot new shop rooms to petitioners as first preference subject to conditions; petitioners to vacate existing premises within two weeks after intimating allocation details.

8. 03.08.2017 Heard Sri A.Mohanty, learned senior counsel, Sri S.K.Pa ttanaik, learned senior counsel, Sri S.Parida, learned counsel appearing for the petitioners i n the different cases indicated hereinabove and Sri Sisir Das and Sri D.Mohapatra, learned co unsels appearing for the Bhubaneswar Development Authority in all the writ petitions. Short question involved in the case is that the members of the Ashoka Market Merc hants Society, Ashoka Market, Station Square, Bhubaneswar as well as the independent petitione r/petitioners filed on their own are the shop owners in the Ashoka Market Complex, Bhubanesw ar. There is no dispute that the shop rooms were allotted on lease/licence basis in or after 1 982 with condition of renewal of licence from time to time and the enhancement of rent from ti me to time. Leaving unnecessary details, as not relevant for the purpose the dispute, the deve lopment authority recently while asking the members of the Ashoka Market Merchants Society an d the others licensees moved this Court independently to vacate the shop premises in order to facilitate construction of a new market complex over the disputed area, attempt has been ma de relocating the shop owners/the licensees in the market complexes belonging to the developm ent authority situated in different parts of Bhubaneswar but without any scope for re-allot ment in the market complex proposed to be constructed on the same site to the existing shop owners, the licensees in more particular, the members of the Association claimed that since they are earning their livelihood from the shop rooms in Ashoka Market Complex over three deca des and for their long association with customers permanently shifting the licensees will put the shop owners not only to commercial disadvantage but also finding suitable business in the already operated shop complexes ultimately affecting their source of livelihood. Licensees th rough the petitioners hereinabove thus claimed since a new complex will be constructed over th e disputed site on completion of the market complex, priority should be given to the shop owne rs already existing i.e. the members of the petitioner- association and the other licensees in dependently moved before allocation of the shop rooms in favour of the altogether new persons. Upon notice, on their response, Sri Das and Sri D.Mohapatra learned counsels appearing for the Bhubaneswar Development Authority filing a counter in the first case and re questing for opting the same in the other cases, taking this Court into the averments made in the counter affidavit particularly drawing attention of this Court on the report of the sp ot inquiry conducted by the personnel of the development authority, available at Annexure-D d emonstrated the total numbers of the shop rooms, shop rooms actually run by licensees, allot ted shop rooms being continuing by persons without licence. A demonstration is also made with regard to the number of shop rooms available to be opened at the time of inquiry and with inti mation that there has been some shop rooms which are not being opened at all.

Sri Das and Sri Mohapatra, learned counsel appearing for the Bhubaneswar Develo pment Authority have made a conjointly submitted that new shop rooms likely to be constructed, the Development Authority has absolute right to decide the allotment and since the licensees will be relocated at different places, they have no right in the matter of allotment of the sh op rooms in the shop complex likely to be constructed over the existing area.

Considering the rival contention of the parties, this Court finds there is no d ispute that the members of the petitioner association and the shop owners independently movi ng were the allottees in respect of the existing shop rooms on grant of licence for the purpos e. They are all operating their respective shop rooms over three decades at the same place. Th is Court also finds for the obstruction of the competent authority, the dilapidated condition of the existing shop complex, there is no other option for the existing shop owners to vacate the shop premises. However, considering the length of running of the shop rooms by the licenc e holders, this Court finds the licence holders have a better right over the new shop rooms li kely to be constructed over the disputed area in comparison to the new entrants but however su bject to their agreement on the terms and conditions likely to be fixed by the development aut hority and depending the size of the shop rooms already in their possession.

From the rival contention of the parties, this Court nowhere finds any notice /action against any of the licence holders as on date in the matter of violation of licence co nditions at all. The submission that some of the licensees are in areas, this Court finds in such event nothing prevents the development authority to proceed against them in accordance with the terms and conditions in the licence itself. But considering the prayer involved here and taking into consideration the submission of the rival parties and further for the observ ation of this Court that the licence holders have a better right in the matter of allotment in volving the shop rooms likely to be constructed over the particular site for their long conti nuance therein, this Court while disposing the writ petitions directs the licence holders to s hift the shops from the existing situated over the disputed area to the relocated place sub ject to condition that the Bhubaneswar Development Authority shall re-allot the shop owners i

n the newly constructed shop rooms as a matter of first preference and with further condition that such allotment will be subject to the members of the petitioners association and licen sees independently enabling complying the conditions likely to be fixed by the development authority while allocating the new shop rooms in the market complex. The Bhubaneswar Develop ment Authority is also directed to intimate to each of the shop owners the details of the re-a llocated shop rooms as a temporary measure within a period of one month and in such event the petitioners in all the writ petitions will vacate the shop rooms presently in their possession within a period of two weeks thereafter to facilitate the development authority to go ahead w ith the new construction.

Let the licensees also file affidavit undertaking that allotment in the new s hop room over the disputed site will be subject to their agreeing to the condition likely to b e fixed by the development authority. The development authority is also directed while setting terms and conditions for allotment of new shop rooms in the particular site will take into co nsideration the long continuance of the members of the petitioner association and the other sh op owners independently moving.

Ashoka Market Merchants Society v. State of Odisha

Case brief

What is this about?

What did the court decide?

Ashoka Market Merchants Society v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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