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2023 DIGILAW 149 (CAL)

Abu Hussain Querashi v. Purulia Municipality

2023-02-01

APURBA SINHA RAY, ARIJIT BANERJEE

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JUDGMENT : 1. Affidavit of service filed in court today be kept with the records. 2. By consent of the parties the appeal and the application are taken up for hearing together. 3. A judgement and order dated January 18, 2023, whereby the writ petition of the appellants being WPA 28245 of 2022 was dismissed, is the subject matter of challenge in this appeal. 4. The appellants/writ petitioners are seven goomty holders within the territorial limits of Purulia Municipality. They say that they were granted license by the Municipality and accordingly they carry on business from such goomties. Although the license period has expired, the Municipality has continued to accept goomty rent from them. 5. Being aggrieved by a letter dated December 8, 2022, addressed by the Chairman of Purulia Municipality to the Superintendent of Police, Purulia, for deployment of requisite police personnel for removal of the seven goomties, the appellants approached the learned Single Judge. 6. It appears that on an earlier occasion, the private respondent herein had approached this Court by filing WPA 120 of 2022, alleging inaction on the part of the Purulia Municipality in removing the goomties of the appellants which, according to the private respondent herein, are illegal. 7. In that writ petition, the learned Single Judge took on record a report of the concerned Block Land & Land Reforms Officer to the effect that by reason of construction of the said goomties, the public road has narrowed down causing hindrance to movement of heavy vehicles. The learned Judge directed necessary steps to be taken after giving an opportunity of hearing to the goomty holders. 8. The appeal preferred against such order by the appellants herein being MAT 1654 of 2022 was disposed of by this Bench by an order dated December 13, 2022, recording as follows:- “Learned Advocate for the writ petitioner has produced a copy of an order dated December 8, 2022 passed by the Chairman of the Purulia Municipality. It appears from the said order that the parties were given a hearing on December 3, 2022. By the said order the Chairman of the Municipality has directed removal of the impugned construction being seven number of goomties. It thus appears that the appellants herein could not produce documents to show that the impugned construction is authorized. It appears from the said order that the parties were given a hearing on December 3, 2022. By the said order the Chairman of the Municipality has directed removal of the impugned construction being seven number of goomties. It thus appears that the appellants herein could not produce documents to show that the impugned construction is authorized. In any event, the order dated December 8, 2022 would furnish a fresh cause of action to the appellants. They may challenge such order before the appropriate forum in accordance with law, if they are so advised. We see no apparent infirmity in the order under appeal which, in our view, does not warrant any interference. However, purely on humanitarian grounds, we direct that no steps be taken for removal of the impugned construction for a period of ten days from today. If within the said period of ten days, the appellants are unable to obtain any favourable order from any competent forum, the order for removal of the impugned construction shall be implemented forthwith. It is made clear that the ten days’ breathing space granted to the appellants by this order is peremptory and the Municipality shall, under no circumstances, stay its hands beyond the said period.” 9. In the present writ petition, by an earlier order dated December 20, 2022, the learned Judge had directed the Municipality to explore the possibility of relocating the appellants at some convenient place so that the appellants may run their business and earn their livelihood. The learned Judge had also recorded the oral undertaking given by learned Advocate for the writ petitioners that if the writ petitioners are unable to produce any valid license permitting them to run their business, then the petitioners will be obliged to remove their goomties from the place which they are presently occupying. 10. In the impugned order, the learned Judge records that no valid license could be produced. The learned Judge records that the appellants had approached the Civil Court praying for an order of injunction to restrain the authorities from displacing them. The learned Civil Judge (Senior Division), Purulia, in T.S. No. 267 of 2021 rejected the appellants’ prayer for ad interim injunction. The learned Judge records that the appellants had approached the Civil Court praying for an order of injunction to restrain the authorities from displacing them. The learned Civil Judge (Senior Division), Purulia, in T.S. No. 267 of 2021 rejected the appellants’ prayer for ad interim injunction. The learned Judge observed, and in our view rightly, that once a competent civil court has rejected the prayer of the appellants, a prayer to the same effect should not be entertained by the Writ Court. The learned Judge dismissed the writ petition. Hence, this appeal. 11. We have heard learned Counsel for the parties. We find no apparent infirmity in the order under appeal. It is a well-reasoned and perfectly justifiable order. The appellants have no vested right to carry on business from the concerned goomties. They do not hold any valid license presently. Learned Counsel for the Municipality points out that the license agreements between the Municipality and the appellants expired in 2019. Even if the Municipality has accepted goomty rent from them, that would not create any legal right in their favour to continue business from the said goomties for all future times. In any event, learned Advocate for the Municipality says that goomty rent was last received from the appellants in 2021. 12. Further, a competent civil court having declined to pass an order in favour of the appellants, the learned Single Judge rightly refused to interfere in the writ petition. 13. Learned Advocate for the appellants relied on Section 18(3) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which reads as follows:- “18 (3). No street vendor shall be relocated or evicted by the local authority from the place specified in the certificate of vending unless he has been given thirty days’ notice for the same in such manner as may be specified in the scheme.” 14. In our view, the said provision does not come to the aid of street vendors who do not possess valid license from the concerned authorities and who carry on business without complying with the requirements of law. 15. We do not interfere with the order under appeal. However, one cannot lose sight of the fact that ours is a welfare State. The state should ensure that all citizens are gainfully employed or are permitted to carry on business lawfully. 15. We do not interfere with the order under appeal. However, one cannot lose sight of the fact that ours is a welfare State. The state should ensure that all citizens are gainfully employed or are permitted to carry on business lawfully. If the appellants are evicted from their present business place, they and their families are likely to face ruination. The Municipality is also a limb of the State although it may be a separate statutory authority. We would expect the Municipality and in particular the Chairman thereof to seriously apply mind as to how the appellants can be relocated at a convenient place where they can continue with their business and earn their livelihoods. As statutory authorities, this is a duty of all Municipalities. If the appellants make a representation to the Chairman of the Municipality requesting for their relocation at a convenient place, it is expected that the Chairman shall consider the same sympathetically and expeditiously. 16. Since we have not called for affidavits, the allegations made in the stay application, are deemed not to be admitted by the respondents. 17. The appeal and the connected application are, accordingly, disposed of. 18. We, however, clarify that this order will in any manner be construed as a stay of operation of the letter dated December 8, 2022, issued by the Chairman of the Municipality to the Superintendent of Police, Purulia. 19. After the judgment was dictated, Mr. Pain, learned Advocate appearing for the appellants, says that on humanitarian grounds some time should be granted to the appellants to remove their articles from the concerned goomties. If the goomties are demolished immediately, their movable properties lying therein would be damaged. Learned Advocate on record for the appellants, on instructions, furnishes oral undertaking of the appellants that within ten days from date they will remove all their goods and articles from the concerned goomties. We direct that for ten days from date the police or other authorities shall not take any coercive step against the appellants. After ten days the authorities shall be at liberty to take steps in accordance with law for removal of the goomties. 20. Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.