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2020 DIGILAW 202 (JHR)

Abul Kalam @ Abul Kalam Ansari v. State of Jharkhand

2020-02-03

RAJESH SHANKAR

body2020
ORDER : 1. The present writ petition has been filed for quashing the Letter No. 173 dated 07.02.2019 (Anneure-9 to the writ petition) issued by the Block Development Officer, Kurdeg (respondent no. 4) whereby the said authority has directed the petitioners to vacate their respective kiosks (small shops) within 24 hours which were allotted to them by the respondent no. 4 vide letter of allotment contained in Memo No. 507 (ii) dated 01.06.2016 (Annexure-1 to the writ petition) undermining the fact that the petitioners’ representations dated 06.08.2018 and 06.12.2018 were pending before the Deputy Commissioner, Simdega (respondent no. 2), filed by them in pursuance of the order dated 10.07.2018 passed by this Court in W.P. (C) No. 560 of 2018. 2. Pursuant to filing of the writ petition, the petitioners by way of I.A. No. 10679 of 2019 sought challenge to the decision of the District Level Selection Committee as contained in memo no. 1136/ITDA dated 18.09.2019 which was allowed vide order dated 26.11.2019. The petitioners also filed I.A. No. 11543 of 2019 seeking challenging the order dated 22.07.2019 passed by the respondent no. 2 by reasons of which the kiosks earlier allotted in favour of the petitioners were ordered to be cancelled and a decision was taken to issue fresh advertisement for allotment of the kiosks, subject to final order of this Court. The said interlocutory application was allowed by this Court vide order dated 14.01.2020. 3. Learned counsel for the petitioners submits that two kiosks were allotted in favour of the petitioners who are the members of the minority community vide letter of allotment as contained in memo no. 507(ii) dated 01.06.2016 issued by the respondent no. 4. Though they were carrying on respective businesses from the said kiosks peacefully, the authorities stopped receiving the rent for the said kiosks after August, 2017 and thereafter an advertisement was issued in the daily local newspaper (Hindustan Hindi) on 29.12.2017 putting different kiosks for re-allotment including two kiosks of Kurdeg Block from which the petitioners were also carrying on their businesses. The petitioners thereafter filed writ petition being W.P. (C) No. 560 of 2018 challenging the said advertisement dated 29.12.2017 which was disposed of by this Court vide order dated 10.07.2018 giving liberty to the petitioners to file fresh representation before the respondent no. The petitioners thereafter filed writ petition being W.P. (C) No. 560 of 2018 challenging the said advertisement dated 29.12.2017 which was disposed of by this Court vide order dated 10.07.2018 giving liberty to the petitioners to file fresh representation before the respondent no. 2 with direction to the said authority to take appropriate decision in accordance with law preferably within a period of six months from the date of filing of the representation. However, without disposing of the said representation of the petitioners, they were directed to vacate their respective kiosks vide letter no. 173 dated 07.02.2019 issued by the respondent no. 4 which compelled the petitioners to file the present writ petition and a Bench of this Court vide order dated 15.02.2019 ordered for maintaining status quo as existed on that date which is still continuing. Thereafter, the respondent no. 2, without seeking permission of this Court, passed the impugned order dated 22.07.2019 cancelling the allotment of said kiosks earlier made in favour of the petitioners as well as the earlier advertisement issued in this regard directing the District Level Selection Committee to take steps for publication of fresh advertisement for allotment of different kiosks under the concerned category in Simdega district including Kurdeg Block. 4. According to the learned counsel for the petitioner, the respondent no. 2 by passing the impugned order dated 22.07.2019, has violated the interim order dated 15.02.2019 passed by a Bench of this Court. Consequently, the decisions taken by the District Level Allotment Committee as contained in memo no. 1136/ITDA dated 18.09.2019 is also illegal. Learned counsel for the petitioners further submits that the order dated 22.07.2019 of the respondent no. 2 and the decision of the District Level Selection Committee as contained in memo no. 1136/ITDA dated 18.09.2019 were passed behind the back of the petitioners and the same being in violation of the principles of the natural justice are liable to be set aside on this score alone. 5. On the contrary, learned AC to GP - V appearing on behalf of the respondents submits that the allotment of the concerned two kiosks in Kurdeg Block of Simdega district was earlier made in favour of the petitioners in violation of the guidelines issued by the Department of Welfare (including Minority Welfare), Government of Jharkhand as contained in memo no. On the contrary, learned AC to GP - V appearing on behalf of the respondents submits that the allotment of the concerned two kiosks in Kurdeg Block of Simdega district was earlier made in favour of the petitioners in violation of the guidelines issued by the Department of Welfare (including Minority Welfare), Government of Jharkhand as contained in memo no. 1615 dated 12.09.2008 which clearly stipulates that the allotment of kiosks under the said category shall be made by a District Level Selection Committee headed by the Deputy Commissioner of the district. Since the allotment of the kiosks was earlier made in favour of the petitioners in violation of the said guidelines, the respondent no. 2 vide order dated 22.07.2019 cancelled the said allotment and decided to take fresh steps for issuance of advertisement for re-allotment of the said kiosks. It is further submitted that the order dated 22.07.2019 passed by the respondent no. 2 is not violative of the interim order dated 15.02.2019 passed by a Bench of this Court as the said authority was required to pass reasoned order on the representation of the petitioners filed in pursuance of order dated 10.07.2018 passed in W.P. (C) No. 560 of 2018. Moreover, the respondent no. 2 while passing the order dated 22.07.2019 also observed inter-alia that as per the interim order of this Court, the status quo would continue and the petitioners were also given liberty to participate in the process of allotment to be carried out in terms with the fresh advertisement to be issued in that regard. Thereafter, the advertisement was issued by the District Welfare Officer, Simdega for allotment of five kiosks in the district including two kiosks in Kurdeg Block which were earlier allotted to the petitioners and the District Level Selection Committee vide memo no. 1136 dated 18.09.2019 made allotment of kiosks in favour of different persons as per their eligibility including 2 kiosks in question for which two other persons were found eligible. It has also been observed in the decision of the District Level Selection Committee that the said allotment will be subject to the order which may be passed by this Court in the present writ petition. 6. Heard learned counsel for the parties and perused the contents of the present writ petition. It has also been observed in the decision of the District Level Selection Committee that the said allotment will be subject to the order which may be passed by this Court in the present writ petition. 6. Heard learned counsel for the parties and perused the contents of the present writ petition. The specific stand of the respondents taken in the counter affidavit is that the allotment of the kiosks was earlier made to the petitioners by the respondent no. 4 who was not the competent authority to make such allotment. In support of the said contention, a copy of guidelines issued by the Department of Welfare (including Minority Welfare), Government of Jharkhand as contained in memo no. 1615 dated 12.09.2008 has been annexed to the counter affidavit which clearly provides that the allocation of the beneficiaries and the terms and conditions of the allotment of kiosks will be decided by a District Level Committee under the chairmanship of the Deputy Commissioner. I thus find substance in the contention of the respondents that the allotment of the kiosks earlier made in favour of the petitioners by the respondent no. 4 was without jurisdiction. I also see no infirmity in the order dated 22.07.2019 passed by the respondent no. 2 by reasons of which the said authority has decided to cancel the allotment of kiosks earlier made in favour of the petitioners on the said ground. Though the said order was passed by respondent no. 2 during pendency of the writ petition, yet keeping in view the observation made by him in the said order that, the status quo with regard to the said issue would continue in terms with the interim order passed by this Court and the petitioners were given liberty to participate in the allotment process to be undertaken for the said purpose afresh. The contention of the learned counsel for the petitioner that the order dated 22.07.2019 has been passed by the respondent no. 2 behind the back of the petitioners, also cannot be accepted as in the entire pleadings made in the writ petition as well as I.A. No. 10679 of 2019 and I.A. No. 11543 of 2019, no such averment has been raised by the petitioners. So far as the decision of the District Level Selection Committee contained in memo no. 2 behind the back of the petitioners, also cannot be accepted as in the entire pleadings made in the writ petition as well as I.A. No. 10679 of 2019 and I.A. No. 11543 of 2019, no such averment has been raised by the petitioners. So far as the decision of the District Level Selection Committee contained in memo no. 1136/ITDA dated 18.09.2019 is concerned, the same is consequential to the order dated 22.07.2019 passed by the respondent no. 2 and as such, I am also not inclined to interfere with the same by reasons of which the allotment of kiosks in question has already been made in favour of different persons. 7. Considering the entire materials available on record, I see no infirmity in the impugned order dated 22.07.2019 passed by the respondent no. 2, the order dated 07.02.2019 passed by the respondent no. 4 and the decision of the District Level Selection Committee as contained in memo no. 1136/ITDA dated 18.09.2019. The writ petition is accordingly dismissed. The interim order dated 15.02.2019 is hereby vacated.