Tayenjam (N) Kshetrimayum (O) Bembem Devi v. Kakching Municipal Council Represented by its Executive Officer
2016-08-04
KH.NOBIN SINGH
body2016
DigiLaw.ai
JUDGMENT AND ORDER : 1. Heard Shri S. Rajeetchandra, the learned counsel appearing for the petitioners and Smt. Th. Sobhana, the learned Government Advocate appearing for the respondent No. 2. None is present for the respondent Nos. 1 and 3. 2. The instant writ petition has been filed by the petitioners praying for issuing a direction, order or a writ of Mandamus directing the respondents to issue a licence, in respect of Seat No. 2 of Row-C of South Room No. 1, in favour of the petitioners. 3.1 According to the petitioners, the mother of petitioner No. 1 held a licence bearing No. 101 of a Seat No. 2 of Row-C of South Room No. 1 at the Kakching Market for carrying on the business of selling gold bangles under the respondent No. 1. Her mother had been carrying on the said business since the year 1998 till her death in December, 2014. Before her death, she had expressed her desire that her daughter, i.e., the petitioner No. 1 should continue to carry on the family business. Smt. Tayenjam (O) Phajabi Leima submitted an application dated 05-01-2015 to the respondent No. 1 for allotment of a seat to run the business of gold ornaments. While the said application was pending for disposal, on 11-02-2015, the petitioner No. 1 being the daughter of Smt. Tayenjam (O) Phajabi Leima submitted an application to the respondent No. 1 praying for issuing a licence, in respect of the seat earlier occupied by Smt. Tayenjam (O) Nillamani Devi, in her name because Smt. Phajabi Leima was facing a lot of problems to come daily from Thoubal to run the business. 3.2 In the meantime, it came to the notice of the petitioner No. 1 that the Seat No. 2 of Row-C of South Room No. 1 had been occupied by the respondent No. 3 namely, Mayanglambam Ibeyaima Devi without any authority and accordingly, the petitioner No. 1 submitted another application on the same day requesting the respondent No. 1 for taking legal action against her and to direct her to stop from occupying the said seat.
However, since no action was taken by the respondent No. 1 against the respondent No. 3, the petitioner No. 1 submitted another application dated 02-03-2015 requesting it to look into the matter and to take necessary action in the interest of justice and the said application is still pending for consideration by the respondent No. 1. Being aggrieved by the inaction on the part of the respondent No. 1, the petitioners have filed the present writ petition. 4. Despite a number of opportunities being granted to the respondents, they have failed to file their affidavit-in-opposition and it appears that they have chosen not to contest the instant writ petition. In view of the law laid down by the Hon’ble Supreme Court in the cases of Naseem Bano (Smt.) Vs. State of U.P. & Ors. 1993 Suppl. (4) SCC 46; State of Assam Vs. Union of India, (2010) 10 SCC 403; Asha Vs. PT. B.D. Sharama University of Health Sciences & Ors., (2012) 7 SCC 389 and since the averments made in the writ petition are not controverted by the respondents, the same shall be deemed to have been admitted by them. 5. Shri S. Rajeetchandira, the learned counsel appearing for the petitioners has submitted that there has been an accepted norm and practice being followed by the respondent No. 1 in matters of issuing licence when the licence holder has expired. The practice, in short, is that when the licence holder expires, any of her family members is allotted the vacant seat so as to enable them to continue the business. Referring to the averments made in the additional affidavit, it has further been submitted that after having followed the said norm and practice, the respondent No. 1 has issued many licences to the family members of the licence holders who have expired and that the inaction on the part of the respondent No. 1 for issuing a licence in favour of the petitioner No. 1 is very unfair, unreasonable and discriminatory. The relevant para No. 5 of the additional affidavit is as under:- “5. That, in the case of seats at the market place at the section popularly known as Hao Potpham Mamang Pareng one Naorem Ongbi Keinaton Devi of Khunyai Leikai was allotted the vacant seat formerly licensed to her mother (L) Thokchom Thanil Devi, another Ksh.
The relevant para No. 5 of the additional affidavit is as under:- “5. That, in the case of seats at the market place at the section popularly known as Hao Potpham Mamang Pareng one Naorem Ongbi Keinaton Devi of Khunyai Leikai was allotted the vacant seat formerly licensed to her mother (L) Thokchom Thanil Devi, another Ksh. Shakhi Devi of Mayai Leikai was allotted the vacant seat formerly licensed to her mother (L) Moirangthem Ongbi Apabi Devi at the section popularly known as Hao Potpham Matai yet another Ksh. Memcha Devi was allotted the vacant seat formerly licensed to her mother Naorem Magol Devi at the L.I.C. Pareng. Further one Nongmaithem Shanti was allotted the seat bearing No. 45 (south) Room No. 2 Row ‘B’ which was licensed to her mother (L) N. Tamu Devi and one Yenkhom Apik Devi was allotted the seat being No. 12 (West) Room No. 4 Row ‘F’ which was licensed to her mother (L) Yengkhom Purnimashi Devi.” On perusal of the above para along with the materials placed on record, the contention of the learned counsel appearing for the petitioners appears to have some considerable force and it is quite evident that the Respondent No. 1 has followed the said accepted norm and practice while issuing the licence to the members of the family when the licence holder has expired. The respondent No. 1 being an institution and a statutory body, is expected to act fairly and reasonably. Article 14 of the Constitution of India mandates that all equals are to be treated equally. It may be noted that although such licence has been issued to persons, similarly situated, pursuant to the norm and practice being followed by the respondent No. 1, the same has been denied to the petitioners. The request made by the petitioners appears to have fallen on deaf ears of the respondent No. 1 and the inaction on the part of the respondent No. 1 is unreasonable, unfair and discriminatory being violative of Article 14 of the Constitution of India. Moreover, since the averments made in the writ petition as well as the additional affidavit are not controverted by any of the respondents and in particular, the respondent No. 1, this court has no other option but to allow the writ petition. 6.
Moreover, since the averments made in the writ petition as well as the additional affidavit are not controverted by any of the respondents and in particular, the respondent No. 1, this court has no other option but to allow the writ petition. 6. For the reasons stated herein above, the instant writ petition is allowed with the direction that the respondent No. 1 shall issue a licence in favour of the petitioner No. 1, within a month from the date of receipt of a copy of this judgment and order, in respect of the Seat No. 2 of Row-C of South Room No. 1 at Kakching Market which was earlier allotted to Smt.Tayenjam (O) Nilamani Devi. There shall be no order as to costs.