Judgment · High Court · 2012
Case at a glance
Outcome
Allowed
In view of the above, the writ petition is allowed by setting aside and quashing
Key paragraphs
- Para 33. In case of any deviation from the terms and conditions specified in the orders of allotment, the GMC authority would be at liberty to take appropriate a ction in accordance with law. The writ petition is disposed of, without however, any order as to…
Judgment
Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Mr. D. Sai kia, learned AAG, Assam along with Mr. S. Bora learned Standing Counsel, GMC. I have also heard Mr. M.J. Baruah, learned counsel representing the applicants in MC No. 3353/2012 and so also Mr. S.P. Roy, learned counsel representing the appl icants in MC 3311/2012. The petitioner is an association of retail fruit sellers who had been allotted w ith space measuring 4ft x 4ft at the ’L’ pattern portion inside the railing of t he GMC market complex at Fancy Bazar. According to the petitioner, the associati on consists of 60 members, who were allotted with the space with the aforesaid s pecification. The members of the petitioner association were issued with the ord er of allotment on 18.9.2007, on the strength of which they occupied the space m easuring 4ft x 4ft. In the terms and conditions of the allotment, it was provide d that the members of the petitioner association shall not do business except th e retail fruit sale and that no permanent construction shall also be carried out in the allotted space.
It was further provided that in case of violation of any of the terms and conditions, the allotment of space would be cancelled for the reasons to be recorded in writing. When the members of the petitioner association had been occupying the allotted s pace and allegedly making use of the same for the purpose of selling fruit as pe r the allotment orders and has been paying the required rents etc, they were iss ued with the individual notice dated 20.10.2012. By the said identical notice, t he members of the petitioner association was directed to dismantle the purported unauthorised construction and discontinue the business within 7(seven) days. Th us, before issuance of the said notice having the final decision towards dis-con tinuation of the business by the members of the petitioner association, they wer e not provided with any opportunity of being heard. Moreover, although individua l notice had been issued to the members of the petitioner association but no spe cific ground was assigned with any specification as to what was the unauthorised construction, etc.
Pursuant to the said notice, the members of the petitioner association made a re presentation to the Commissioner, GMC on 31.10.2012 stating therein that there h ad been no violation of the terms and conditions. In the said representation, it was also stated that some unauthorised business are being run by some others in the market complex creating pollution hazard. After the aforesaid developments, the Commissioner, GMC passed the Annexure-F or der dated 6.11.2012 directing the Enforcement Branch of the Corporation to take immediate steps for removal of the purported unauthorised encroachments on the s aid ’L’ pattern space of the Fancy Bazar market. In the order, it was stated tha t the allottees had been carrying on business other than fruit business and that they had also erected sheds without any authorization from the Corporation. Be it stated here that in the representation dated 31.10.2012, the members of the p etitioner association had stated that there was no unauthorised construction and that they only used Tarpaulin and Polythene to get protection from sun and wate r.
Although, individual notices had been issued to the members of the petitioner as sociation but the Commissioner, GMC passed the impugned order dated 6.11.2012 co vering all the members with the direction to evict them without ascertaining the facts pertaining to each one of the members of the petitioner association who h ad been allotted with the aforesaid space to run their business. As stated above, in the notice itself the opinion of the GMC authority was conve yed with the direction to the members of the association to vacate themselves fr om allotted space within seven days under threat of cancellation of their allotm ent of open space. Along with the impugned order dated 6.11.2012 (Annexure-F) di recting the Enforcement Branch to evict the members of the association, the Comm issioner, GMC also passed the other impugned order dated 8.11.2012 (Annexure-G) cancelling the allotment in favour of the members of the association.
Operative part
Thus, here is a case in which the eviction was carried out before cancellation of the allo tment that was made in favour of the members of the petitioner association. When it was the specific case of the petitioner association that there was some unauthorised occupation at the market place by some others creating pollution ha zard and that its members were nowayre responsible for such unauthorised occupat ion and that they had been running their business from the allotted space withou t violating the terms and conditions of the orders of allotment, it was incumben t on the part of the GMC authority to verify the assertion made by each one of t he members instead of passing the cyclostyled order dated 6.11.2012 and 8.11.201 2, making the same applicable to each one of the members of the petitioner assoc iation. In view of the above, the writ petition is allowed by setting aside and quashing the Annexure-F and G orders dated 6.11.2012 and 8.11.2012, directing the respon dents to restore the possession back to the members of the petitioner associatio n maintaining the space which was earlier allotted to each one of the members of the petitioner association.
When the writ petition was moved on 16.11.2012 and even on subsequent dates also , an apprehension was expressed by the learned counsel for the petitioner associ ation that the vacant space upon eviction of the members of the petitioner assoc iation, are being used by some others without there being any valid allotment in their favour. Learned counsel appearing for the applicants in MC 3311/2012 and 3353/2012 submit that they have not occupied the space, which were earlier allot ted to the members of the petitioner association. While disposing of the writ petition in the above manner, the following directio ns are issued :-
The members of the petitioner association shall continue to occupy the s pace that was allotted to them strictly adhering to the terms and conditions sti pulated in the orders to allotment.
e same has been allotted to them. They will not use the allotted space other than the purpose for which th
In case of any deviation from the terms and conditions specified in the orders of allotment, the GMC authority would be at liberty to take appropriate a ction in accordance with law. The writ petition is disposed of, without however, any order as to costs.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In view of the above, the writ petition is allowed by setting aside and quashing
Which court decided this case, and when?
Gauhati High Court, on 05 Dec 2012. The bench was B K SHARMA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.