Allowed

Jayanta Ku.Das v. State of Orissa

Orissa HC22 Feb 2019WA/429/2017

Case brief

AI extract

What is this about?

These appeals challenged an order allotting shops to footpath vendors in violation of a prior valid agreement granting 'as is where is' rights to original allottees. The Division Bench upheld the earlier impugned order, dismissed the appeals, quashed the non-compliant allotment decision by the Executive Officer for violating Section 94 of the Orissa Municipality Act, 1950, and directed the Municip

What did the court decide?

The impugned order allotting shops to foot path vendors was quashed. The respondents are directed to hand over possession of the shops to the original allottees under the 2010 agreement within two wee

Jayanta Ku.Das Vs State of Orissa — Pension and Retirement Benefits | Orissa HC (2019)

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W.A. Nos. 429, 424, 428, 432 & 487 of 2017

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22.02.2019

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Heard Mr. Gautam Mukherji, learned counsel for

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the appellants and Mr. Tanmay Mishra, learned counsel for the Koraput Municipality.

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All these appeals have been filed challenging the common judgment/order dated 03.11.2017, passed by the learned Single Judge in W.P.(C) No.4438 of 2015 along with 4 other writ petitions. The writ petitions were filed claiming allotment of shops in the market complex under Notified Area Council, Koraput.

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Learned Single Judge while disposing of the writ petitions directed as under:

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“15. Accordingly, this Court is of the view that the first right for allotment of shops is accrued in favour of the allottees, who were allottees in the old market complex and are signatories of the agreement dated 18.12.2010, as such, the Koraput Municipality is directed to handover the possession in their favour within two weeks from the date of receipt of copy of this order.

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The Koraput Municipality is further directed to consider the case of the Footpath Vendors in accordance with law by following the fair and transparent process of allotment of shops as per the decision taken by the Collector in this regard subject to availability of shops.”

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Upon hearing learned counsel for the appellants

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and on perusal of record, it appears that the learned Single Judge has taken into consideration the arguments advanced by learned counsel for the parties, more

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particularly, the order dated 05.05.2011, passed by a Division Bench of this Court in W.P.(C) No.11531 of 2011, which was disposed of directing the present appellants to submit their applications for allotment of shops. The Collector, Koraput was directed to take a decision on the said applications for allotment of shops.

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It is submitted by Mr. Mukherji, learned counsel for the appellants that although Executive Officer, Koraput Municipality was a party to the said writ petition but at the time of hearing it had never been brought to the notice of the Court that an agreement dated 18.12.2010 was executed between the Koraput Municipality and some other footpath vendors. Had this fact been brought to the notice of the Court at that point of time, the order might have been different. He further submitted that the said order/direction for consideration of these appellants was never challenged by the Koraput Municipality and it has attained its finality. Learned Single Judge has committed error in taking into consideration the said agreement which was not in the notice of the present appellants. Hence, the case of the appellants ought to have been considered in terms of the order passed in W.P.(C) No.11531 of 2011.

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Mr. Mishra, learned counsel for the Municipality on the other hand submitted that the order passed in W.P.(C) No.11531 of 2011 was ex parte and it was disposed of before issuance of notice to Koraput Municipality. Thus, Koraput Municipality had no occasion to put forth before this Court regarding execution of agreement dated 18.12.2010. However, the interest of the appellants have been taken care of in the impugned order passed by learned Single Judge and the Municipality is taking steps to comply with the said directions. As such, the appeals deserve no consideration being devoid of merit and are liable to be dismissed.

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Having heard learned counsel for the parties and on perusal of records, we have no hesitation to note that the order dated 05.05.2011, passed in W.P.(C) No.11531 of 2011 was passed without issuance of notice to the Koraput Municipality. Hence, it had no occasion to bring to the notice of the Court regarding execution of the agreement dated 18.12.2010. Further, the agreement dated 18.12.2010 was not challenged by the present appellants till passing of the impugned order. Mr. Mishra, learned counsel for the respondent-Koraput Municipality contended that the case of the appellants are not strictly

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covered under the relevant provision of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (in short “the Act”). We, however, make it clear that in order to avoid multiplicity of litigations and complications in the matter, the Koraput Municipality ought to have approached the Division Bench in W.P.(C) No.11531 of 2011 for necessary clarification of the order, which has not been done.

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Mr. Mukherji, learned counsel for the appellants however is not in a position to show as to whether they have been issued with necessary certificates to entitle them the benefit provided under Section 13 of the Act. We, without entering into the niceties of law, are in complete agreement with the discussions as well as findings arrived at by learned Single Judge in the impugned order. Hence, no interference in the impugned order is called for.

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However, in view of the order dated 05.05.2011, passed by the Division Bench of this Court in W.P.(C) No.11531 of 2011 as well as the observations and directions made in the impugned order, we dispose of these appeals with a direction to the respondent-Municipality to consider the case of the appellants in terms of the direction of learned Single Judge within a period of 4 months from

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today before considering the case of anyone else for allotment of shops.

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With the above observations, all the appeals are disposed of.

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All the connected Misc. Cases/I.As. if any, are accordingly disposed of.

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Issue urgent certified copy of this order as per

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rules.

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.…….......……………… ( K.S. Jhaveri ) Chief Justice

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…………………..……… (K.R.Mohapatra) Judge )

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The Municipality has allotted the shops to the allottees, who were the licensee in the earlier shopping complex and entered into an agreement on 18.12.2010. The content of the agreement is that:

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“Whereas the 1^st party intend to demolish the old N.A.C. guest house including the shops situated near Bus stand, Koraput wherein, 16 nos. of shop keepers are running their business in respective of stall nos. which were allotted by the 1^st party and whereas in order to safeguard the livelihood of the 2^nd party, the 1^st party has agreed to allot the shop on as is where is basis i.e. the place where the 2^nd party is running the shop will be allotted in the same place after construction of the super market complex by demolishing the old guest house.”

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The parties have agreed to take over the possession on following the terms and conditions as reflected in the agreement under Annexure-B/1 Series to the counter affidavit filed by the Koraput Municipality.

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The Footpath Vendors, who were earning their livelihood by running their business in the road side in front of the market complex, who being aggrieved with the decision of the Koraput Municipality regarding their eviction from the side where the market complex has been decided to be constructed, had approached this Court vide W.P.(C) No.11531 of 2011 wherein this Court disposed of the writ petition vide order dated 5.5.2011 directing the petitioners to submit their applications for allotment of stalls in their favour before the Executive Officer, N.A.C., Koraput; the Collector, Koraput was directed to consider the same as per the norms stipulated for allotment of stalls. The Koraput Municipality in terms of the said order has taken a decision on 4.6.2014 by which 16 shops have been allotted in favour of the Footpath Vendors by the order of the Executive Officer, Koraput Municipality.

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It is not in dispute that the direction has been passed by this Court in W.P.(C) No.11531 of 2011 is upon the Collector to take a decision, but the Executive Officer, Koraput Municipality has taken decision without even getting any consultation with the Collector and that to without any concurrence by the Municipal Council, which is

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mandatory to be obtained under the provision of Section-94 of the Orissa Municipality Act, 1950 which provides hereunder:-

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“ 94. Rights of individual Councillor – (1) The general control and supervision of a Municipal area and superintendence over the officers and servants of such Municipality shall vest in the Municipality.

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(2) Any Councillor may call the attention of the Chairperson to any negligence in the execution of the Municipality’s work to any waste of Municipality’s property or to the needs of any locality within the Municipal areas and may suggest any improvements which may appear desirable.

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(3) Every Councillor shall have right to move resolution and to interpellate the Chairperson on matters, connected with the administration of the Municipality subject to such regulation, as may be framed by the Municipality

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(4) Every Councillor shall have access during office hours to the records of the Municipality after giving due notice to the Chairperson.

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Provided that the Chairperson may for reasons given in writing forbid such access.”

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In view thereof, the decision taken by the Executive Officer, Koraput Municipality under the order dated 4.6.2014 is without any jurisdiction and contrary to the order passed by this Court in W.P.(C) No.11531 of 2011. Hence, the same is not sustainable in the eye of law. Accordingly, it is quashed.

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Now, the question of the right of the parties as to whether the right of the Footpath Vendors will prevail upon the right of the allottees in whose favour the agreement has entered into by virtue of the fact that they were licensee in the old market complex.

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It is not in dispute that the original allottees in the old market complex were the licenses by virtue of the valid allotment order having been issued by the competent authority and they were running the business in the shops since long. When the Municipality has taken a decision to demolish the building and construct a new market complex, the decision was taken to allot the shops on as is where is basis and to that effect an agreement has been entered into on 18.12.2010.

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The authority, in spite of entering into an agreement on 18.12.2010, has not handed over the possession of the shops in their favour.

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In the meanwhile, the Footpath Vendors have approached this Court and in their favour the order has been passed on 5.5.2011. While approaching this Court in the said writ petition, the fact about entered into an agreement dated 18.12.2010 has not been brought to the notice of this Court. This fact has not come in the notice to this Court, since on the very first day the writ petition was disposed of.

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It is necessary to note here that under Article 226 of the Constitution of India, it is the duty of the parties to approach the Court with clean hand without suppressing any material fact and as such, it was the duty of the Footpath Vendors to bring to the notice of this Court regarding the allotment of the shops in favour of the allottees in the old market complex. The fact about their making payment of license fees and the agreement dated 18.12.2010, but all these facts have not been brought to the notice of this Court although this Court has only directed the Collector to take a decision, but even the Collector has not taken any decision and also the matter was not placed before the Council otherwise the order dated 4.6.2014 could not have been passed by the C.E.O., Koraput Municipality.

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The Footpath Vendors has also not challenged the agreement dated 18.12.2010 in any forum.

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It is in the light of the fact that the allottees of the shops in the old market complex, since in their favour an agreement has been entered into while, on the other hand, the Footpath Vendors have been decided to be given priority in the matter of allotment of shops which the Koraput Municipality is still ready to do subject to availability of the shops.

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In view thereof, according to the considered view of this Court, right of the Footpath Vendors cannot be allowed to be prevail upon the right of the allottees in the old market complex in which an agreement dated 18.12.2010 has been entered into.

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Accordingly, this Court is of the view that the first right for allotment of shops is accrued in favour of the allottees, who were allottees in the old market complex and are signatories of the agreement dated 18.12.2010, as such, the Koraput Municipality is directed to handover the possession in their favour within two weeks from the date of receipt of copy of this order.

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Jayanta Ku.Das v. State of Orissa

Case brief

What is this about?

What did the court decide?

Jayanta Ku.Das v. State of Orissa

Case brief

What is this about?

What did the court decide?

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