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2015 DIGILAW 988 (GAU)

Debanand Prasad v. Golaghat Municipal Board

2015-08-10

B.K.SHARMA

body2015
JUDGEMENT : 1. The petitioner is aggrieved by Annexure-B order dated 06/12/2008 of the Golaghat Municipal Board by which in reference to the hearing that took place on 01/07/2006 in connection with the order passed by this Court in MAF 7/1999 (Order dated 10/03/2003) and recording the purported agreement of the petitioner, he was directed to handover the premises in question. 2. Briefly stated the facts leading to the filing of the instant writ petition are that the petitioner has been running a Vegetable shop at Golaghat Municipality Chowk Bazar, built up area of which is 80 sq. ft. According to the petitioner, the respondent No. 3 in collusion with the Golaghat Municipal Board officials tried to evict him illegally from his shop. Being aggrieved, the petitioner filed a Title Suit registered and numbered as TS 5/1995. He also filed Misc (J) case No. 7/1999, for grant of injunction. In the suit, the petitioner made the following prayer :- “It is, therefore, prayed that the Court may be pleased to : (i) Decree the suit by declaring the possession of the suit land in favour of the Plaintiff; (ii) The temporary injunction may be grant against the defendants so that the Plaintiff cannot be evicted; (iii) An ad interim injunction may be granted till disposal of the suit so that the Plaintiff can not be disturbed by removing the shop; (iv) A perpetual injunction may be granted so that the Plaintiff can not be disturbed in future by removing the shop; (v) All costs of the suit may be decreed against the defendants; (vi) Any other relief and reliefs may be decreed under the law, equity and principles of the natural justice.” 3. Exparte ad-interim injunction having been granted, the respondents preferred an appeal being Misc. Appeal No. 2/1995 and the same was allowed by setting aside the exparte injunction order dated 20/05/1995. Against the said order, the petitioner preferred a revision petition, registered and numbered as Civil Revision No. 458/1995. While issuing notice on the Revision Petition, this Court recorded as follows :- “Mr. Mahanta’s only prayer is that a notice may be issued calling upon the opp. party Nos. 1 and 2 as to why he should not be provided with alternative accommodation for carrying on his business of grocery shop. Mr. Mahanta further submits that he has no grievance against the opp. Mahanta’s only prayer is that a notice may be issued calling upon the opp. party Nos. 1 and 2 as to why he should not be provided with alternative accommodation for carrying on his business of grocery shop. Mr. Mahanta further submits that he has no grievance against the opp. party No. 3 even if he is allotted the land where presently the petitioner is running his business of grocery shop. In these circumstances, it appears that opp. party No. 3 has been unnecessarily impleaded as one of the opp. party. As the petitioner has no grievance or prayer against the opp. party No. 3 and even if the prayer of the petitioner for providing him with an alternative accommodation for running his business is allowed, it will not affect the opp. party No. 3 in any manner. In that view of the matter, the name of the opp. party be deleted from the array of the O.Ps. Office shall take necessary action.” 4. The revision petition was finally disposed of by order dated 27/09/1996. For a ready reference, the order is quoted below :- “This revision petition has been filed with a prayer that he may be provided with an alternative accommodation for running his business. That will be evident from the order dated 5.12.95 passed in this revision. In the affidavit-in-opposition filed on behalf of Golaghat Municipal Board it has been stated inter alia as follows :- ‘The petitioner has the option of setting up his shop in the vegetable market of the Board by paying the daily rent to the lessee under the Board and nobody preventing the petitioner from setting up his shop in the vegetable market.’ In view o that matter, the Golaghat Municipal Board is directed to allow the petitioner to set up his shop in the vegetable market under the Board on payment of fee in accordance with law. Heard Mr. D.C. Mahanta, learned counsel for the petitioner. None appears for the respondents. This disposes of this revision petition.” 5. If we go by the aforesaid development and the orders passed in the proceeding, there is absolutely no manner of doubt that the petitioner abandoned his claim in respect of the vegetable shop at Golaghat Municipal Chowk Bazar. Heard Mr. D.C. Mahanta, learned counsel for the petitioner. None appears for the respondents. This disposes of this revision petition.” 5. If we go by the aforesaid development and the orders passed in the proceeding, there is absolutely no manner of doubt that the petitioner abandoned his claim in respect of the vegetable shop at Golaghat Municipal Chowk Bazar. From the order dated 05/12/1995 quoted above, it is apparent that the petitioner agreed to vacate the shop premises and the notice was issued only on the issue of providing him alternative accommodation for carrying on his business of grocery shop. 6. In the mean time, the Title Suit filed by the petitioner came to be dismissed, directing the Golaghat Municipal Board to provide alternative accommodation to the petitioner in the same market. Being aggrieved by the said order, the respondent No.3 preferred MA (1st) being MAF No. 7/1993 and the same was disposed of by order dated 10/03/2003 (Annexure-A) with the following direction. “7. In view of the developments that have been taken place during the pendency of the present suit and having regard to the above submissions of the parties, I am of the view that it would be in the fitness of things if the suit is disposed of by partly decreeing it in terms of the directio0n of this Court contained in the judgement and order dated 27.9.96 passed in Civil Revision No. 458/98 in the decree. A Court of law can always, having regard to the attending facts and circumstances, suitably mould the reliefs more so to provide a quietus to a long pending controversy. In the above premises, the TS No.5/95 is partly decreed directing the Golaghat Municipal Board to allow the respondent No.1/Plaintiff to set up his shop in the vegetable market on payment of requisite fee in accordance with law. The Golaghat Municipal Board would do needful in terms of the decree within a period of two months from today. Let a decree be prepared by the trial Court in terms of the above. The impugned judgement and order is set aside. No costs.” 7. While according to Mr. The Golaghat Municipal Board would do needful in terms of the decree within a period of two months from today. Let a decree be prepared by the trial Court in terms of the above. The impugned judgement and order is set aside. No costs.” 7. While according to Mr. Goswami, learned counsel for the petitioner, in terms of the aforesaid orders passed by this Court, the petitioner is entitled to run his vegetable shop from the original place i.e. the Golaghat Municipal Chowk Bazar but according to the respondents, he is not entitled to do so in view of his own agreement referred to above. It is also submitted by Mr. K. Sarma, learned counsel representing respondent No. 3 that there is nothing wrong in issuing the Annexure-B Order dated 06/12/2008, by which the petitioner was directed to vacate his vegetable shop at Golaghat Municipal Chowk Bazar. By the said order, the petitioner was further intimated that he would be accommodated in the newly constructed vegetable market. However, according to the petitioner, he is entitled to occupy the vegetable shop at Golaghat Municipal Chowk Bazar. Mr. B. Goswami, learned counsel for the petitioner further submits that since at the time of passing of the order in the proceedings referred to above, the newly constructed vegetable market at Golaghat was not in the offing, the alternative accommodation referred to in the aforesaid orders would mean accommodating the petitioner only in the Golaghat Municipal Chowk Bazar. 8. As to what is final order passed in the aforesaid MAF 7/99 has been noted above. In terms of the said order, the petitioner was required to vacate the vegetable shop at Golaghat Municipal Chowk Bazar and the Municipal Board was also to allow the petitioner alternative space to set up his shop on payment of requisite fee in accordance with law within two months from the date of the order. Mr. Goswami, learned counsel for the petitioner submits that the Municipal Board having failed to allow the petitioner to set up his shop in the vegetable market within the stipulated period of time, it could not have issued the subsequent notice dated 06/12/2008 requiring him to shift to the newly constructed vegetable market. Mr. K. Sarma, learned counsel representing respondent No. 3 submits that the newly constructed Golaghat Municipal market is in the existing and renovated old vegetable market. 9. Mr. K. Sarma, learned counsel representing respondent No. 3 submits that the newly constructed Golaghat Municipal market is in the existing and renovated old vegetable market. 9. There is no manner of doubt that the petitioner was required to vacate the vegetable shop at Golaghat Municipal Chowk Bazar which he was directed to vacate by the impugned notice dated 06/12/2008 (Annexure-B). There is some dispute as to whether the petitioner should be allowed space and / or allot to set up his shop in the old Municipal Market or the newly constructed Municipal Market. No clarification could be obtained, no response being shown by the Golaghat Municipal Board inspite of repeated service of notice. However, as submitted by Mr. K. Sarma, learned counsel representing the respondent NO. 3, there is not much difference between the old and the new market and that the new market has only replaced the old one with due renovation/construction etc. 10. In view of the above, the writ petition is disposed of with the following directions :- 1. The petitioner shall vacate the shop premises under his occupation at Golaghat Municipal Chowk Bazar. 2. The Golaghat Municipal Board shall allow him to set up shop at the appropriate place taking into account the earlier orders passed by this Court and referred to above. 11. Entire exercise in terms of this order shall be carried out and completed as expeditiously as possible, preferably within 30/10/2015. 12. Writ petition stands disposed of. There shall be no order as to costs.