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2016 DIGILAW 981 (UTT)

Sukhveer Singh v. State of Uttarakhand

2016-12-17

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. Petitioner has approached this Court seeking following reliefs:- i. Issue a writ, order or direction in the nature of certiorari calling for records and to quash the impugned order dated 31.3.2016 passed by the respondent no.3 i.e. Appar Mukhya Adhikari, Zila Panchayat, Haridwar, by which the respondent no.3 had declined to renew the license of petitioner to hold the Hat Bazaar (Paith) in his own land. ii. Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondents to renew the license of petitioner and permit him to hold the Hat Bazaar (Paith) in his own land and also direct the respondents not to unnecessary harass or interfere in the functioning of petitioner. 2. Brief facts of the case, as narrated in the writ petition are, that the petitioner is a permanent resident of Village Rawali Mahdood, District Haridwar and an umemployed person. He has his own 0.9630 Hectare, Bhumidhari land, situated in khasra no.462, which is about 100 meter away from main road. In the year 2013, he applied for issuance of license to hold the Hat Bazar (Paith) in his own land. On the application of the petitioner, the District Magistrate, Haridwar called report from police and local administration and receiving the report, forwarded the application to respondent no.3 Appar Mukhya Adhikari, Zila Panchayat, Haridwar. After completion of all the formalities, the respondent no.3 vide its order dated 7.10.2013 awarded the license to petitioner to hold the Hat Bazar (Paith) in his own land, situated in Village Rawali Mahdoon. The respondent no.3 while issuing license to petitioner, directed him to make arrangement of light, parking, toilet, drainage etc. from his own pocket, whereafter the petitioner constructed boundary wall in the aforesaid land and also made available the proper lighting and parking arrangements. Since 2013, the petitioner was running weekly Hat Bazar in his land with the approval of respondent no.3; but in the meantime, a complaint was made to District Magistrate, Haridwar by some persons, to cancel the license of Paith Bazar issued to the petitioner. On the said complaint, an enquiry was conducted by Naib Tehsildar, Jwalapur, Haridwar, who prepared a detailed report dated 11.11.2013 and submitted the same before S.D.M., Haridwar through Tehsildar, Haridwar. On the said complaint, an enquiry was conducted by Naib Tehsildar, Jwalapur, Haridwar, who prepared a detailed report dated 11.11.2013 and submitted the same before S.D.M., Haridwar through Tehsildar, Haridwar. On the report, Tehsildar also sent his report to SDM, Haridwar mentioning therein that “it will not be proper to cancel the Paith license till 31.3.2014”. Thereafter, one Smt. Babli Devi, the then Gram Pradhan also sent a complaint against the petitioner to C.D.O. Again enquiry was conducted and the complaint was disposed of by the order of respondent no.3 dated 19.09.2015. Thereafter, on 20.2.2016, for the year 2016, the petitioner alongwith the draft of requisite fee, applied for renewal of his license for holding the weekly Hat Bazar; but, the respondent no.3, by its letter dated 31.3.2016, refused to renew the license of petitioner. Hence, this writ petition. 3. Learned counsel for the petitioner submits that the petitioner was running the Hat Bazar in his own land from last three years and has invested money to develop the amenities like lighting, parking, drainage, etc. in the said place. He contends that the impugned order has been passed against the principles of natural justice as no opportunity of hearing was provided to him before passing of the same. Learned counsel further contends that the respondent no.3 has no power to cancel the license or to decline the renewal of license. 4. Learned counsel further submits that in spite of the fact that Tehsildar had given his report in favour of the petitioner, the respondent no.3 has declined to renew the license. He also contends that on the one hand the respondents have declined to renew the license of the petitioner on the ground of safety of the public, but on the other hand, has awarded the license to one Mr. Vishesh Kumar, in the same village, whose land is adjacent to highway. According to him, the impugned order has been passed due to political rivalry as the petitioner in the last three tier panchayat elections had contested election against the present member of Zila Panchayat, who had won the said election with the support of Babli Devi. The said member of Zila Panchayat recommended the name of that Vishesh Kumar for the Hat Bazar and on his recommendations the respondent no.3 issued new license to Vishesh Kumar and declined to grant removal to the petitioner. The said member of Zila Panchayat recommended the name of that Vishesh Kumar for the Hat Bazar and on his recommendations the respondent no.3 issued new license to Vishesh Kumar and declined to grant removal to the petitioner. He refers to paragraph 19 of the writ petition, which reads as under:- “That it has came to knowledge of petitioner that reason behind the not renewing the license of petitioner is the political rivalry as the petitioner in the last election of three tier panchayat elections, had contested election against the present member of Zila Panchayat, who win the said election with the support of Babli Devi. The said member of Zila Panchayat recommended the name of Vishesh Kumar for the Paith Bazar and on his recommendations the respondent no.3 issued new license to Vishesh Kumar and declined to grant removal to the petitioner.” 5. Per contra, learned counsel appearing for the respondent nos.2 and 3 submits that the impugned order is a reasoned order and does not require any interference. He further submits that the fees deposited by the petitioner for renewal of license has already been refunded to him. Further, learned counsel for respondent nos.2 and 3 strongly objected the argument of the learned counsel for the petitioner that the license of the petitioner has not been renewed despite the report of Tehsildar in his favour and, submits that the report should be read in totality; in fact it is not in the favour of the petitioner. 6. In support of his case, learned counsel also refers paragraphs F and G of the counter affidavit, which reads as under:- “F. That on the said license, a request was made to S.H.O. P.S SIDCUL to carry out investigation and submit the report and the said police station has submitted the report on 1.3.2016 that there is interruption in the path by the said Paith Bazar and it was found that it was not in the larger public interest to grant license. It is submitted that the entire facts of the case has been put forth before the special committee exercising the powers of Chairman of the Zila Panchayat, which has been recommended that no license may be granted for the year 2016-17 and accordingly no license has been granted to the petitioner for the present financial year. It is submitted that the entire facts of the case has been put forth before the special committee exercising the powers of Chairman of the Zila Panchayat, which has been recommended that no license may be granted for the year 2016-17 and accordingly no license has been granted to the petitioner for the present financial year. G. That it is submitted that since, there is an interruption in the public way and further there is an apprehension of breach of peace, if the license is being given to the petitioner, more particularly, when a license to village panchayat in the name of Village Pradhan has already been given to cater the need of local people and, as such, in view of above, the writ petition is devoid of merit and is liable to the dismissed.” 7. I have heard learned counsel for the parties and perused the entire material available on file. 8. The argument of learned counsel for the petitioner that the respondent no.3 has no power to decline the grant of renewal to the petitioner has no force for the reason that the Authority who is competent to grant license is also competent to cancel such license but that only in accordance with law. So far as the another argument of learned counsel that no opportunity of hearing was provided to the petitioner before passing of the impugned is concerned, I also finds myself in agreement with such argument of learned counsel. In my view, impugned order has been passed against the principles of natural justice, as neither any opportunity of hearing was provided to the petitioner, nor any show cause notice was issued to him before passing of the impugned order. Therefore, the impugned order is liable to be set aside on this ground alone. 9. In the light of aforesaid discussion, impugned order dated 31.03.2016 passed by respondent no.3 is quashed. The writ petition stands disposed of with the following directions:- i. The respondent no.3 shall re-consider the case of the petitioner for renewal of the license and thereafter shall pass a reasoned and speaking order. ii. Before passing such order, respondent no.3 shall first issue notice to the petitioner whereupon the petitioner shall submit his reply within one week. Thereafter, the decision will be taken by the respondent no.3 within ten days. 10. Let certified copy of the order be issued today itself.