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Gauhati High Court · body

2020 DIGILAW 235 (GAU)

Fulbar Ali v. State Of Assam

2020-02-19

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. A. Chetia, learned counsel for the petitioners. Also heard Mr. A.K. Sarma, learned counsel for the respondent Nos. 4, 5 and 6 and Ms. K. Phukan, learned State Counsel for the respondent Nos. 1, 2, 3, 7 and 8. 2. The dispute in the present case is with regard to the accommodation of the petitioners, who are in the business of selling meat and fish on wholesale basis in Bilasipara market place located at Ward No. 12 in the district of Dhubri. According to them, they are engaged in the business since the time of their forefathers. However, the Bilasipara Town Committee (the Town Committee) on getting financial assistance from the State Government proposed to construct a new RCC market building to replace the existing old market. The petitioners who were running their businesses in the old market were given an assurance that after the completion of the construction of the new building, they will be accommodated in the ground floor of the new building to carry on their business. Accordingly, an appropriate drawing of the building to be constructed was made and as per the drawing, the ground floor was meant for accommodation of meat and fish stalls. However, the drawing was subsequently modified pursuant to a meeting held by the Town Committee on 10.10.2014 wherein, it was resolved to accommodate the retail traders of fish in the ground floor instead of the wholesalers and that the wholesalers will be accommodated in the first floor temporarily and later they will be giving a permanent place to do their place in Hatipota Part-II under the Town Committee. Aggrieved with this decision, the petitioners are before this Court. 3. This Court while issuing notice of motion vide order dated 21.12.2015 passed an interim order to the effect that no allotment of space in the market building at Ward No. 12 should be made till the returnable date of the notice. The said interim order came to be modified subsequently vide order dated 20.01.2017 passed in I.A.(Civil) No. 1965/2016 filed by the Chairman of the Town Committee. As per the modification order, allotments of space in the Municipal Market except for the ground floor came to be permitted and the said interim order subsists till date. 4. Mr. The said interim order came to be modified subsequently vide order dated 20.01.2017 passed in I.A.(Civil) No. 1965/2016 filed by the Chairman of the Town Committee. As per the modification order, allotments of space in the Municipal Market except for the ground floor came to be permitted and the said interim order subsists till date. 4. Mr. G.N. Sahewalla, learned Senior Counsel submits that the petitioners were given assurance by the respondent Authorities that they will be accommodated in the ground floor of new building to be constructed. On being given such assurance, the petitioners vacated their respective place in the old building so that the construction of the new building could take place. He submits that the assurance given by the authorities had not been reduced in writing but it is clear from the architectural drawings prepared for construction of the market which shows that the ground floor is earmarked for selling meat and fish by wholesalers. He further submits that the meeting minutes dated 10.10.2014 of the Town Committee also clearly demonstrates the assurance given to the petitioners and the same Committee could not have later on taken a different view and that too, on the ground that senior citizens will have difficulty to climb to the first floor of the market building to buy fish and that business of the retail fish traders will be hampered, if the wholesalers sit in the ground floor. He, submits that in terms of the assurance given to them, the petitioners should be accommodated in the ground floor of the market building. In so far as the stand of the respondent Nos. 4 to 6 that there is another market i.e, Hatipota Part-II market under the Town Committee, where the wholesellers in meat and fish could be accommodated, the learned Senior Counsel submits that construction of the said building had been abandoned by the authorities long time back and in fact, going by their stand, Hatipota Market is located 400 meters away from Bilashipara Town. Therefore, it is not feasible for the petitioners to do the business in such an isolated area. Under the circumstances, the learned Senior Counsel submits that suitable direction may be passed as prayed for by the petitioners. Therefore, it is not feasible for the petitioners to do the business in such an isolated area. Under the circumstances, the learned Senior Counsel submits that suitable direction may be passed as prayed for by the petitioners. In support of his submission, the learned Senior Counsel relies upon the following decisions:- (i) Bannari Amman Sugars Limited -Vs- Commercial Tax Officer and Others (2005) 1 SCC 625 . (ii) S.V.A. Steel Re-rolling Mills Limited and Others -Vs- State of Kerala and Others (2014) 4 SCC 186 . 5. Mr. A.K. Sarma, learned counsel for the respondent Nos. 4 to 6 by referring to the affidavit-in-opposition filed by the said respondents on 02.01.2020 submits that at no point of time, trade licence was issued to the petitioners to operate their business as wholesale meat seller. However, some trade licence had been issued as 'fish arot' provisionally but no specific place was allotted to them for running their business by the Town Committee as claimed by the petitioners. He submits that it is true that the Town Committee requested the petitioners to vacate the place in order to construct a multistoried market building and that they will be accommodated in the new building after its completion but however, no assurance was given to them that they will be allotted space in the ground floor. 6. Mr. A.K. Sarma, learned counsel further submits that the original drawings of the proposed new building market had to be partially modified pursuant to a meeting held on 10.10.2014 in the office chamber of the then Executive Officer of the Town Committee alongwith the representatives of various traders. The fact that a meeting would be held on 10.10.2014 was clearly made known to all the stakeholders but the petitioners have intentionally suppressed this fact. He submits that in the said meeting, it was decided that Arotdar of fish shall sit in the first floor of the market complex temporarily and thereafter, they will be given a permanent place to do their trade in the new market at Hatipota Part-II. As for the retail fish traders, it was decided that the same shall be operated in the ground floor of the new market complex. Mr. As for the retail fish traders, it was decided that the same shall be operated in the ground floor of the new market complex. Mr. Sarma also submits that the construction of the market place at Hatipota Part-II, which is about only 400 meters away from Bilasipara town has the required infrastructure and the building construction was completed about three years ago. Since the business in selling and buying of wholesale meats requires a lot of space, the market place Hatipota Part-II is most suitable for the petitioners to run their business as observed in the meeting minutes dated 10.10.2014. 7. Mr. A.K. Sarma further submits that the construction of the fish and meat market at Bilasipara has since been completed and the building was officially handed over to the engineers by the concerned contractor on 13.03.2016. Therefore, it is only in the interest of the public that the ground floor be utilized for running the market without further delay. The learned counsel also submits that in the meantime, the petitioner Nos. 5, 7 and 10 approached the respondent authority concerned expressing their willingness to run their business in the First floor of the new market building and accordingly, an agreement was signed on 13.11.2015. Since then, they are running their business smoothly. He therefore submits that under the facts and circumstances, the writ petitioners cannot be said to have an indefeasible right to be allotted the ground floor and the decision to make appropriate allotments should be left to the discretion of the authority concerned. In other words he submits that no vested rights of the petitioners are infringed for this Court to issue a mandamus to the authorities. In support of his submission, Mr. A.K. Sarma, learned counsel relies upon Munindra Nath Upadhyaya -Vs- State of U.P. and Others reported in 1993 Supp (1) SCC 437. 8. Ms. K. Phukan, the learned State Counsel submits that although the respondents she represents have not filed an affidavit-in-opposition but she has received instructions that the Director of Municipal Administration had received a representation from one Matilal Das and 6 others regarding settlement of place of Fish Auction Centre of Bilasipara Town Committee. 8. Ms. K. Phukan, the learned State Counsel submits that although the respondents she represents have not filed an affidavit-in-opposition but she has received instructions that the Director of Municipal Administration had received a representation from one Matilal Das and 6 others regarding settlement of place of Fish Auction Centre of Bilasipara Town Committee. The respondent No. 3 on receipt of the same wrote to the Executive Officer of the Town Committee, (respondent No. 5) requesting the said authority to examine the petition from a practical point of view and disposed of the same. She therefore, submits that the issue raised before the respondent No. 3 has been left for the appropriate authority to take a decision in the matter and as for the claim made by the petitioners in the instant writ petition, the respondents she represents do not have much role to play. 9. I have heard the submissions made by the learned counsel for the parties and I have perused the materials available on records. 10. From the case projected by the parties, the issue to be decided is as to whether the petitioners can claim or insist that they should be given the ground floor of the market building for running their business on the basis of having run their business in the old market building since a long time back and also on the principle of promissory estoppel. In support of such claim, there is no written undertaking or agreement between the petitioners and the Town Committee that they will be given their place in the ground floor of the market to run their business. However, as per the architectural drawing for construction of the market buildings, the ground floor appears to have been initially reserved for running the meant and fish shops presumably to accommodate wholesale traders. Likewise, the meeting minutes dated 10.10.2014 also suggests that initially meat market and 'fish arot' was to be accommodated in the ground floor of the market complex and that the retail fish traders were to be accommodated in the first floor. However, this arrangement was reconsidered in view of the difficulty likely to be faced by senior citizens in climbing the stairs to buy fish. Also if the fish wholesalers are given the ground floor to run their business, the fish retail traders will suffer a loss. However, this arrangement was reconsidered in view of the difficulty likely to be faced by senior citizens in climbing the stairs to buy fish. Also if the fish wholesalers are given the ground floor to run their business, the fish retail traders will suffer a loss. It was therefore resolved in the meeting that the fish retail traders be allotted the ground floor to run their business while the wholesalers of meat and fish be given a place in the first floor temporarily and thereafter, given a permanent place in the new market of Hatipota Part-II under the Town Committee. 11. From the above narration, it may be seen that there is a change of plan. Though there is no written undertaking which provides that the petitioners will be allowed to occupy the ground floor of the market building but at the same time, there is no dispute that they have been running their business in the ground floor before the new market building was constructed and that there was an initial plan to keep them in the ground floor. 12. In the case of Bannari Amman Sugars Limited -Vs- Commercial Tax Officer and Others, (Supra) the Apex Court held that in order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must forever be present in the mind of the Court. 13. In the case of S.V.A. Steel Re-rolling Mills Limited and others (Supra), the Apex Court held that in the given circumstances of that case, it was duty of the Government in formulating a policy decision by taking into consideration, the pros and cons of the policy and its capacity to give the benefits. 13. In the case of S.V.A. Steel Re-rolling Mills Limited and others (Supra), the Apex Court held that in the given circumstances of that case, it was duty of the Government in formulating a policy decision by taking into consideration, the pros and cons of the policy and its capacity to give the benefits. Without proper appreciation of all the relevant factors, the State should not give any assurance, not only because that would be in violation of the principles of promissory estoppel but it would be unfair and immoral on the part of the State not to act as per its promise. 14. The Apex Court in the case of Munindra Nath Upadhyaya (supra) which was a case for awarding contract held that the liberty to decide the award of contract should be left open for the Government to decide and as such, under the circumstances in that case, the issuance of mandamus by the High Court to award tender to the highest bidder was interfered with. 15. Thus upon considering the facts and circumstances and its entirety, I am of the considered view that the Town Committee should once again reconsider the claim of the petitioners for allotting them space in the ground floor to run their business by convening a meeting and also giving the petitioners an opportunity of being heard. Such meeting should be convened within a period of 4(four) weeks from the date of receipt of the certified copy of this order. Till such meeting is convened and resolution taken, the interim order passed on 20.01.2017 shall continue. 16. The writ petition is accordingly disposed of. No cost.