JUDGMENT 1. The petitioners have impugned the inaction on the part of Nalhati Panchayat Samity in granting a licence to the petitioners to run a daily market or a hat in plot Nos. 2071, 2081, 2082 and 2083 appertaining to Khatian No. 3239 in Nalhati. They are the owners of the said land along with one Sushil Kinkar Sinha. The contention, inter alia, is that since 1956, the erstwhile landlord Maharaja of Nasipur, late Bhupendra Narayan Sinha used to conduct a daily market at the self same site. Smt. Surya Kumari Bahadura, wife of late Bhupendra Narayan Sinha was the original owner of plot No. 2079 appertaining to Khatian No. 3239 in Mouza Nalhati and since 1956 she used to run a daily market in the aforesaid plot and thereafter the petitioners also used to conduct a daily market at the self same site since their purchase of the plots from the erstwhile landlords. The record-of-right also reveals the user of the said land as a daily market, i.e., hat. In 1975 on the death of Surya Kumari, Ranendra Narayan Sinha who became the owner of the disputed land, sold the said land to the Petitioner Nos. 2 and 3 by a registered sale deed. The erstwhile landlord used to pay cess to the petitioners concerned and the Petitioner No.2 also paid a sum of Rs. 205/-, at the State Bank of India, Suri Branch as cess for the year 1983-84. The petitioners contend that they are paying revenue to the State Government authorities for which receipts are granted to them, copies whereof are marked as Annexure 'B' cumulatively. In the month of March, 1985 a circular was given to the public by the Sub-divisional Officer, Rampurhat, inviting applications for grant of licence In respect of holding daily markets. The petitioners submitted an application before the Panchayat Samity for obtaining a licence for running a daily market. The authorities concerned have not disposed of the said application but the petitioners were given to understand that the Respondent No.4 granted such licence to others without giving any opportunity to the petitioners to be heard in this context. 2. The petitioners state and submit that section 117 of the West Bengal Panchayat Act has empowered Panchayat Samity to grant licence for running a hat or a market. 2. The petitioners state and submit that section 117 of the West Bengal Panchayat Act has empowered Panchayat Samity to grant licence for running a hat or a market. Inasmuch as section 117 of the West Bengal Panchayat Act directly confers a right to the petitioners, the respondents have acted contrary to law. They contend that the Respondent No.5 viz., the Nalhati Panchayat Samity is duty bound to consider the grant the application to the petitioners in accordance with law. 3. The further contention made by the petitioners is to the effect that when licence was granted to others, the local people took a resolution taking a contrary view in this matter. The petitioners being dissatisfied with the inaction of the authorities concerned filed a writ application on 11.10.85 before the Hon'ble Mr. Justice Bhagwati Prasad Banerjee, upon which a Civil Order was issued but due to bonafide mistake on the part of the petitioner they not have complied with the order directing them to serve a copy of the order upon the respondents and hence the interim order stood vacated. 4. One Durga Debi Ganeriwala moved an application under section 144, Civil Procedure Code before the Sub-divisional Magistrate, Rampurhat and on hearing the said application the learned Magistrate passed a restraint order upon the petitioners restraining them from conducting any market in tile disputed plots without any valid licence. The order was passed on 15.3.1986. Thereafter, the Sabhapati, Nalhati Panchayat Samity restrained the petitioners from holding any market in the disputed plots. The petitioners contend further that as many as five daily markets were run within the jurisdiction of Nalhati Panchayat Samity without any licence and 'they were respectively so run at Purba Bazar and Paschim Bazar at Nalhati, at Kaith, at Bhadra and at Lohapur. The petitioners are ready and willing to abide by any order directing them to pay cess as per the prevailing law. But for best known to the respondents authorities, their application has not been considered in accordance with law as a result whereof an immense prejudice was caused to them. 5. On 15th June, 1986. The petitioners are ready and willing to abide by any order directing them to pay cess as per the prevailing law. But for best known to the respondents authorities, their application has not been considered in accordance with law as a result whereof an immense prejudice was caused to them. 5. On 15th June, 1986. the Respondent No. 5 Nalhati (I) Panchyat Samity filed an application for vacating the order of injunction wherein it was contended that there was no authorised market at Nalhati and some sporadic sales and purchases of vegetables were resorted to on the public road and other places without any express authority whatsoever. The Sabhapati of the Panchayat Samity in his letter dated 28.2.1985 requested the Executive Officer of the Panchayat Samity to take steps for establishment of a cattle hat, vegetable hat etc. Within the area of the Panchayat Samity and that too in public interest conforming to law. Acting upon the said letter, the Executive Officer issued a public notice on 27.3.1985 inviting applications for establishment of cattle hat/vegetable market within the said Panchayat Samity area. The last date for filing such application was fixed on 30.4.1985. 6. Pursuant to the said notice, four applications were received. One from Bikash Prasad, one from Abdul Bari and four others, one from Hiralal Maskara and another and one from Prem Kumar Shaw. They were all for establishing daily vegetable market at Nalhati within the Nalhati (B) Gram Panchayat area in Nalhati Panchayat Samity. The Sabhapati caused an enquiry and submitted his report before Artha Unnayan O Parikalpana Sthayi Samity of the said Panchayat Samity in the meeting held on 2.8.1985. The said samity in its meeting selected one Abdul Bari and four others for holding a daily market in plot Nos. 2463 within the mouza Nalhati and the yearly rent for licence for such a market was fixed at Rs. 1500/-. In the said meeting all the four applications were duly considered. The decision to grant a licence to Abdul Bari and others for holding a daily vegetable market in plot No. 2463 was communicated to the applicants by the Executive Officer of the Samity by letter No. 326 dated 20.8.1985. The said Abdul Bari and others deposited the said amour of Rs. 1500/- on 22.8.85. They were granted the licence pursuant to which they are running a hat. The said Abdul Bari and others deposited the said amour of Rs. 1500/- on 22.8.85. They were granted the licence pursuant to which they are running a hat. Their licence was also renewed for the subsequent years. They also paid taxes to the Nalhati (B) Gram Panchayat for holding a hat. 7. In Civil Order No. 15984(W) of 1985 the present writ petitioner filed a similar writ application impugning the inaction on the part of the Panchayat Samity as regards the licence for daily market. They obtained an order of injunction in their favour on 11.10.1985. The said case the private respondents, namely, Abdul Bari and Md. Ismail filed an application for vacating the order of injunction and ultimately Bhagabati Prasad Banerjee, J. dismissed the Writ application for non-prosecution on 8.4.1985 and all interim orders stood vacated. They did not crave leave of this Hon’ble Court to file a fresh application and no such liberty was also granted to them. 8. It was further contended by the Respondent No. 5 that the petitioners are not the owners of the entire land in plot No. 2079. One Smt. Durga Debi and Sri Sushil Kinkar Sinha are the co-owners in respect of the said plot. It was also denied and disputed that there was any such daily market as contended by the writ petitioners. There was no office record to show that any licence was previously granted for holding such a hat in the self same plots and even if such a hat was carried on at the self same site, it was done in an illegal manner and in violation of the statutory provisions. The Respondent No. 5 further contended that after the enforcement of West Bengal Estates Acquisition Act, the rights of intermediaries in respect of hats, bazars, ferries, fisheries tolls and other sairati interests were vested in the State and the alleged rights of Surya Kumari to hold the hat In the said plot has vested in the state. The writ petitioners did not file any application before the Respondent No.5 for grant of any licence for their existing hat which they now claimed to be holding since 1956. Even if the petitioners are running the said hat as a raiyat, they have to pay revenue to the State Government as direct tenants under the State Government. The writ petitioners did not file any application before the Respondent No.5 for grant of any licence for their existing hat which they now claimed to be holding since 1956. Even if the petitioners are running the said hat as a raiyat, they have to pay revenue to the State Government as direct tenants under the State Government. But even without obtaining a licence, they cannot run such a hat as alleged or at all. Even if a public notice was issued on 27.3.1985 inviting application for establishment of cattle hat/vegetable market, the Petitioner No. 2 only all by himself applied for such a licence for establishing a daily hat and in the said application no reference was made as regards the existing hat in the said plots which the petitioners now claimed to be holding since 1966. It was denied and disputed that the application for licence as submitted by the Petitioner No. 2 was not disposed of by the appropriate authorities in accordance with law. In fact all the four applications including the application of the Petitioner No.2 were considered and plot No.2463 was selected as the ideal polt for holding a daily vegetable market and the applicants Md. Abdul Bari and others were called upon to obtain licence for establishing a daily vegetable market in respect of the said plot. It was further contended by the Respondent No.5 that the application of the Petitioner No.2 was rejected since the area of the land was treated as insufficient and the site was inconvenient for holding a daily market. The applicant also did not obtain consent of his co-sharers in respect of the disputed plot for holding such a daily market. 9. It was further contended that the writ petition itself was defective inasmuch as no licence was granted the Respondent Nos.6 and 7 as indicated by the petitioners and in fact, such persons who were granted licence, were not impleded as respondents at all. It was pointed out, inter alia, that Chapter 4 of the West Bengal Panchayat (Panchayat Samity Administration) Rules, 1984 provided for a procedure to be adopted in granting licence for hat or market and the said rules do not provide for a personal hearing in the matter. It was further denied that there was any violation of the provisions of section 117 of the West Bengal Panchayat Act, 1973 in this regard. It was further denied that there was any violation of the provisions of section 117 of the West Bengal Panchayat Act, 1973 in this regard. Section 117 confers no specific right on the petitioners to hold a market in the land nor has there been any violation of the provisions as incorporated in section 117 of the said Act. The said section 117 made it obligatory on the part of any applicant to obtain a licence for holding a hat and Chapter 4 of the West Bengal Panchayat (Panchayat Samity Administration) Rules, 1974 provided for the procedure for granting such a licence. It was denied and disputed that the Panchayat Samity has violated the provisions of the West Bengal Panchayat Act, 1973 in this context. 10. It was further averred that the grant or refusal of licence is a discretionary power of the Panchayat Samity and the Licensing Authority on due consideration of all the application for licence, had the right to select one as the best suitable one and there was nothing wrong in it. Furthermore Artha Sanstha Unnayano Parikalphna Sthayi Samity of the Nalhati (I) Panchayat Samity in its meeting held on 2.8.85 duly considered all the four applications and selected Abdul Bari and others for grant of the licence and the said selection could not be characterised as arbitrary, illegal or mala fide. 11. A legal challenge was made on the part of the Respondent No.4 as regards the maintainability of the second writ application upon the self same cause of action. It was further contended that the petitioners were precluded by application of the doctrine of res judicata in moving a second writ application when the earlier one stood rejected and even if it was not heard and disposed of on merits, the petitioners did not have any locus standi to urge the self same point over again in a subsequent writ application, without any specific leave granted by the earlier Writ Court. 12. Mr. Rabindra Nath Mitra, appearing for the petitioners drew my attention to a Division Bench judgment of our High Court in (I) Province of Bengal v. Hingal Kumari Law reported in 50 CWN 184. 12. Mr. Rabindra Nath Mitra, appearing for the petitioners drew my attention to a Division Bench judgment of our High Court in (I) Province of Bengal v. Hingal Kumari Law reported in 50 CWN 184. To contended the proposition that in hat tolls were realised from vendors and hawkers came there to sell merchandise on the basis of quality and quantity of the goods sold and since the vendors did not take any lease of any portion of the site of the hat. they could be turned out at pleasure; the hawkers who did not sit but moved about the place selling goods bad also to pay tolls; the amount of the tolls collected did not depend upon the fact as to whether a particular vendor sat within outside a few sheds that were in the hat and if there were no sale, no toll bad to be paid; assessment to cess under the Cess Act was quite in order in respect of the hat, treating the tolls so received by the proprietor as annual net profits. As a hat is not excluded from the definition of the land in section 4 of the Cess Act and as it was not shown that the hat in question was treated otherwise then as land, assessment of the cess was held to be invalid by one of the learned Judges in the said decision whereas the other Judge was of the opinion that hat in question was neither land nor other immovable property as being a benefit arising cut of land within section 4 of the Act and therefore no assessment of cess could be made from the tolls received from the hat. Except as to the definition of a hat in that particular context and as regards the question of playability of cess, this decision does not lead anywhere as regards the existence of any right to hold a hat, even after the coming into operation of the West Bengal Estates Acquisition Act. That apart, this was a judgment passed long before to be precise on 10th August, 1945. 13. Mr. Mitra cited before me the decision of the Supreme Court in (2) Daryao v. State of U.P. reported in AIR 1961 SC page 1457. At page 1465 the Supreme Court had to consider the question of res judicata, even if a writ application was withdrawn. 13. Mr. Mitra cited before me the decision of the Supreme Court in (2) Daryao v. State of U.P. reported in AIR 1961 SC page 1457. At page 1465 the Supreme Court had to consider the question of res judicata, even if a writ application was withdrawn. It was held in that case that if the petition is dismissed as withdrawn, it cannot be bar to a subsequent petition, because in such a case there has been no decision on the merits by this Court. The conclusion thus reached by the Court are confined only to the point of resjudicata which was argued as a preliminary Issue in the said case. 14. Mr. Mitra further cited a decision of the Court (3) Joseph v. State of Kerala reported in AIR 1965 SC page 1514 at page 1515. That was also a case where it was decided, inter alia, that every citizen whose fundamental right is infringed by the State has a fundamental right to approach the Court for enforcing his right. If by a final decision of a competent court, his title to property has been negatived, he ceased to have the fundamental right in respect of that property and therefore, he can no longer enforce it. In that context the doctrine of res judicata may be invoked. But when there is no such decision at all, there is no scope to call in its aid. That was a case where the court had to consider the question on the basis of an earlier writ application under Article 226 being not decided on merits, as to whether such dismissal would or would not operate as res judicata for maintaining a subsequent application under Article 32 for similar relief before the Supreme Court. It was held that the earlier dismissal of the writ application without there having been any decision, on merits, would not operate as res judicata. 15. Mr. It was held that the earlier dismissal of the writ application without there having been any decision, on merits, would not operate as res judicata. 15. Mr. Bhakti Bhusan Ghosh, who appeared for the Respondent No.5 cited before me am decision of the Supreme Court in this context in (4) Sarguja Transport Service v. State Transport Appellate Tribunal reported in (1987) 1 SCC 5 In this case a Division Bench of the Supreme Court comprising of the two learned Judges were of the view that if the petitioner withdrawn a petition filed by him in the High Court under Article 226/227 without permission to institute a fresh petition remedy under Article 226/227 should be deemed to have been by the petitioner in respect of the cause of action relied on in the writ petition and it would not be open to him to file a fresh petition in the High Court under the same article, though other remedies like suit or writ petition before the Supreme Court Article 32 would remain open to him. The principle underlying Order 23, Rule 1, C.P.C. should be extended in the interest of administration of justice to cases of withdrawal of writ petition also. In this context the earlier decision of the Supreme Court in Daryao Vs. State of U.P. reported in AIR 1961 SC 1457 as cited by Mr. Mitra was distinguished. It was further held in this case that the applicability of the said principle underlying Order 23 Rule 1, C.P.C. to writ petitions is not on the ground of res judicata but on ground of public policy. It would also discourage the litigent from indulging in Bench hunting tactics. In any event no justifiable reason is found such a case to permit a petitioner to invoke the extra ordinary jurisdiction of High Court under Article 226 once again. However, the principles regarding bar to fresh petition under Article 226/227 would not be applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for a writ in the nature of Habeas Corpus or seeks to enforce the fundamental rights guaranteed under Article 21, since such a case stands on a different footing altogether. This question was however left open. 16. Mr. Ghosh further submitted before me by citing the decision of (5) Surindar Singh v. Central Govt. & Ors. This question was however left open. 16. Mr. Ghosh further submitted before me by citing the decision of (5) Surindar Singh v. Central Govt. & Ors. reported in AIR 1986 SC 2166 that whenever an order of government or some other authority is impugned before the High Court under Article 226 of the Constitution of India, the copy of the order must be produced in it. In the absence of the impugned order, it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution of India. 17, Mr. Ghosh further cited the decision of the Supreme Court in (6) Union of India & Anr. v. Cynamide India Ltd. reported in 1987(2) SCC 720 , to contend the proposition that if the legislation does not provide for observance of the principles or natural justices, subordinate legislative authority was not bound by the principles of natural justice and notes of hearing therefore, cannot be insisted upon. Drawing the analogy on the basis of the said decision it was contended that the Panchayat Samity, while considering the application of the Petitioner No.2, was not duty bound to give a personal hearing to him but only a consideration on merits was enough in the circumstances. 18. Mr. Ghosh further cited the decision of the Supreme Court in (7) Khargram Panchayat Samity & Anr. v. State of West Bengal & Ors. reported in 1987 (3) SCC 82 . That was a case about the conferment of statutory powers on legal authorities. It was held that it must be construed as impliedly authorising everything which could fairly and reasonably be regarding as incidental or consequential, to the power itself. The doctrine of ultra vires is not to be applied narrowly in such case. It should be applied reasonably so that exercise of such incidental or consequential powers may not be held to be ultra vires. It was further held in this case that the essence and content of the power of a Panchayat Samity in section 117 of the West Bengal Panchayat Act is issuance of a licence for holding a hat or fair and not mere maintenance of sanitation, health and hygiene. It was further held in this case that the essence and content of the power of a Panchayat Samity in section 117 of the West Bengal Panchayat Act is issuance of a licence for holding a hat or fair and not mere maintenance of sanitation, health and hygiene. Such power of general administration necessarily carried with it the power to supervise, control or manage such hat or fair within its territorial jurisdiction which includes the power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. The Rules or the absence of such rules, do not detract from the substantive power conferred by a Statute. 19. Regard being had to the facts and circumstances of the case and on a due consideration of the question of law as averred by the contending parties, I am of the view that the petitioner is not entitled to a relief at the present moment. I do hold that a second writ application was clearly barred and that apart, when the persons who have been granted a licence to run a similar hat in the vicinity in preference of the application of the petitioners, were not impleaded in the writ application, the petitioners are also not entitled to any efficacious relief against them. 20. I however do hold that even if an earlier application of the petitioners, specially by the petitioners from filing another application for grant of a licence for running a hat for identification or a different purpose at the self same or different site in a different context and if such an application be made the Panchayat Samity would be duty bound to consider the same in accordance with law and dispose of the application by a speaking order communicating its decision to the applicants concerned. In the result, the writ application stands dismissed, but liberty is given to the petitioners to make a fresh application in accordance with law in the light of my observations given out hereinbefore.