High Court · 2011

Heard Ms. Kalita, learned counsel for the petitioner, Ms. Baruah, learne d counsel appearing for the respondent Nos.2 to 4 in both the writ petitions and Mr. Kataki, learned counsel appearing for the respondent No.5 in WP(C) No.8419/ 2003. Also heard Mrs. Phukan, learned State counsel appearing for the respondent No.1 in both the writ petitions. The learned counsel for the petitioner referring to the averments made i n the writ petition as well as in the affidavit-in-opposition filed by the respo ndent Nos.2 to 4 in WP(C) No.8419/2003 and also the impugned order issued on 10. 09.2003, which is under challenge in WP(C) No.8419/2003, has submitted that it i s apparent that after construction of the Stalls by the ASTC authority a tender process was initiated for allotment of such Stalls and the petitioner’s bid havi ng been accepted, she was allotted Stall No.13 of South Block, which, however, w as sought to be changed to Stall No.13 of North Block, only with a view to favou r the respondent No.5 with the allotment of Stall No.13 of South Block, though h e did not participate in the tender process initiated by the ASTC authority for allotment of various Stalls constructed. It has also been submitted that the res pondent No.5 in the affidavit-in-opposition filed in WP(C) No.8419/2003 has admi tted that he filed the application for allotment only before the Managing Direct or of ASTC and accordingly on 29.05.2003 the Managing Director directed allotmen t for a shop in his favour, who is sought to given the shop No.13 of South Block , which was allotted to the petitioner way back on 12.11.2002. The learned couns el further submits that though such allotment was made in favour of the petition er on 12.11.2002, instead of allowing her to occupy the said Stall, the Station Superintendent had issued the impugned communication dated 23.07.2003, which is under challenge in WP(C) No.6718/2003 to vacate the space where the petitioner h as been doing her business, without allowing her to occupy the Stall No.13 of So uth Block as allotted to her. The learned counsel, therefore, submits that the a uthority may be directed to allow the petitioner to occupy the Stall No.13 of So uth Block in terms of the order of allotment dated 12.11.2002. Ms. Baruah, learned counsel appearing for the respondent Nos.2 to 4 prod ucing the record before this Court and also placing reliance on the averments ma de in the affidavit-in-opposition filed, has submitted that the records do not r eveal participation by the respondent No.5 in the tender process initiated by th e ASTC authority for allotment of different Stalls constructed by it, pursuant t o the NIT issued, who, however, was allotted a Stall in view of the order passed by the Managing Director, on the basis of the application filed by him. The lea rned counsel also submits that the Stall No.13 of South Block, in fact, was init ially allotted in favour of the petitioner pursuant to which she has also deposi ted certain amount, which, however, has been modified by the impugned order date d 09.09.2003 issued on 10.09.2003 by allotting Stall No.13 of South Block to res pondent No.5 and Stall No.13 of North Block in favour of the petitioner. The lea rned counsel submits that since a Stall has been allotted to the petitioner, she cannot continue to occupy the platform space, for which the impugned communicat ion dated 23.07.2003 was issued to her to vacate the platform space. Mr. Kataki, learned counsel appearing for the respondent No.5 in WP(C) N o.8419/2003 has also submitted that the allotment was made in his favour pursuan t to the application filed by him for such allotment and the respondent No.5 had no choice of Stalls and would occupy any Stall that may be allotted. It has, ho wever, been submitted that since there were certain complaints against the writ petitioner, the authority keeping in view the administrative exigencies, decided to shift the writ petitioner from Stall No.13 of South Block to Stall No.13 of North Block and allot the Stall No.13 of South Block in favour of the respondent No.5. Mrs. Phukan, learned State counsel appearing for the respondent No.1, ha s submitted that since the matter relates to the allotment of Stalls by the ASTC authority, the State as such has nothing to do in the matter. I have considered the submissions of the learned counsel for the appeari ng parties and also perused the pleadings of the parties including the materials available on record produced by the learned counsel appearing for the responden t Nos.2 to 4. It appears from the affidavit-in-opposition filed by the respondent Nos. 2 to 4 that after construction of various Stalls in the premises of ASTC at Siva sagar, a process for allotment of the Stalls was initiated by inviting tender, i n which process the writ petitioner participated and she was allotted a shop bei ng Stall No.13 in South Block. The allotment of the said Stall in favour of the petitioner is also evident from the impugned order dated 09.09.2003 issued on 10 .09.2003 as it speaks about the change of allotment from South Block to North Bl ock. It is also evident that after the petitioner was allotted with the said Sta ll on 12.11.2002, an allotment order was passed by the Managing Director of ASTC on 29.05.2003 allotting a shop in favour of the respondent No.5, however, witho ut mentioning the Stall number and though he did not participate in the tender p rocess initiated for such allotment. Admittedly prior to allotment of the shop i n favour of the petitioner on 12.11.2002, she was occupying a space in the platf orm of the ASTC and she continued to occupy the same till date because of the in terim order passed in WP(C) No.6718/2003 challenging the communication dated 23. 07.2003 issued by the Station Superintendent asking her to vacate the said space . The petitioner having been allotted with the shop i.e. Stall No.13 of So uth Block, pursuant to the tender process initiated for such allotment, who has deposited the required money, such allotment cannot be changed as has been done in the instant case, with a view to allot the same to respondent No.5, who even did not participate in such allotment process, as noticed above. It appears from the record that the Chairman of the ASTC on 14.07.2003 p assed an order for change of the allotment made in favour of the petitioner from South Block to North Block on the ground of certain alleged complaints by some unemployed youths against the petitioner. The records do not reflect verificatio n of such complaints and issuance of notice before recording the findings that s uch complaints against the petitioner are genuine. This Court also fails to unde rstand why the Chairman instead of initiating the proceeding for cancellation of the allotment, changed the allotment of the petitioner from South Block to Nort h Block, if there were some complaints against the petitioner. The entire action appears to have taken only with a view to allow the respondent No.5 to occupy S tall No.13 of South Block, which was earlier allotted to the petitioner. That being the position, the order of the Managing Director dated 09.09. 2003 issued on 10.09.2003, which is under challenge in WP(C) No.8419/2003 changi ng the allotment of the petitioner’s Stall from South to North Block is set asid e. The respondent authorities shall put the petitioner in possession of the said Stall No.13 of South Block. The petitioner on taking over the possession shall forthwith vacate the platform space she is presently occupying. Since the allotm ent order passed in favour of the respondent No.5 on 29.05.2003 is not under cha llenge, he may be allowed to occupy the Stall No.13 in the North Block. The writ petition No.8419/2003 is accordingly allowed. The writ petition No.6718/2003 stands disposed of. No costs.