Mohd. Nasrullah v. The Commissioner, Good And Service Tax And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/137/2020 Mohammed Nasrullah Vs The Commissioner, Good and Service Tax and others Mr.Siddhartha Singha ... for the petitioner Ms. Babita Das ...for the respondents January 16, 2025 [SR] Item no. 23 1.

From the order dated 03.11.2015 bearing number 6123 passed by the Secretary, Municipal Council it appears that the petitioner was allowed to sell fruits at an open space measuring 1 square meter and adjacent to the existing fruit markets opposite to ACC Hotel in the year 2016.

2.

The rent being charged from the petitioner was Rs.20/- per day which was enhanced to Rs.70 per day. On objection by the various vendors the same has been reviewed and now stands revised/enhanced to Rs.50/- per day within a span of less than one year. It is under such circumstances, this Court directed the learned counsel for the respondent-Council to take instructions as to under what circumstances, the petitioner is required to pay Rs.50 x 30 = Rs.1500/- per month for being allowed permission to sell fruits in an open space upon the drain whereas others in the locality/adjacent fruit market are being charged lesser amounts though they have been allotted areas greater than the petitioner in the same locality for

carrying out similar activities such as selling fish and vegetables etc.

3.

The disparity was noticed with reference to the public notice dated 27.03.2017 also issued by the Secretary of the Port Blair Municipal Council.

4.

In view of the stark variance being observed on the levy of rent/licence fee for carrying out the activity of vending fruit etc., the learned counsel was requested to seek instructions from the authorities.

5.

The learned counsel for the respondents, upon instructions, submits that the petitioner is a fruit vendor and cannot compare himself with the other vendors in the locality. He has accepted the terms of allotment. Having accepted the same with open eyes, he cannot be permitted to assail the terms and conditions thereof.

6.

This court is not in agreement with the submissions advanced by the learned counsel for the respondents for the reasons that when the petitioner obtained the permission for selling of fruit vend at the space in question, the rent was being charged at Rs.20/- per day, since January, 2016. The same has been enhanced to Rs.50/- per day within a span of one year and it is this enhancement which the petitioner's claim to be discriminatory as the same amounts to the petitioner's paying an amount of Rs.1500/- per month whereas others are being levied lesser rent/licence fee.

7.

In my opinion the fact that the petitioner is a fruit vendor is not a relevant consideration to subject the petitioner to such discriminatory treatment. All other vendors in the same locality, as per the public notice dated 27.03.2017 are vendors of similar consumable items with reference to whom he is claiming discriminatory treatment.

8.

The Court finds the levy to be shockingly disproportionate and discriminatory. Such arbitrary demand is thus found to be unsustainable. The levy of Rs.50/- per day is clearly unsustainable since other vendors have been charged much less than Rs.1500/- per month, i.e. Rs.1000/- per month or Rs.800/- per month.

9.

This Court would take notice of the fact that the earlier interim order of this Court has directed the petitioner to deposit an amount of Rs.1.00 lakhs to establish his bonafide. The amount has since been deposited on 17.10.2024 with the authorities. According to the petitioner, even if the amount of rent per day is enhanced by 5% per year since January, 2016 when he occupied the space, then at best the authorities today would be in a position to charge nearly Rs.30/- per day casting corresponding liability of about Rs.900/- per month on the petitioner.

10.

Calculating the arrears after taking into consideration 5% enhancement per month, the total dues would come to an amount of around Rs.77,000/-, whereas the petitioner has deposited Rs.1.00 lakh.

11.

Such being the position, this Court is conscious of the fact that the determination of rent is an issue which is required to be considered by the authority with reference to certain parameters. A very essential parameter is the prevailing rent in the locality for similar structure/area of kind. 12.

In view of the shocking disparity as evident from the public notice dated 27.03.2017, this Court finds that the determination of rent for the petitioner at Rs.50/- per day is clearly unsustainable. This Court directs the respondent no.2 to take a final decision on the petitioner's claim as contained in annexure P-7 to the writ petition taking into consideration the observations recorded hereinabove. The authority would be required to consider the matter keeping in background the fact that the petitioner is a fruit vendor trying to carve his livelihood based on the permission duly granted to him by the authority to carry out the fruit vend on one sq.mtr space on the top of the drain. It is under such facts and circumstances that this Court is directing that the matter be considered by the Chairman keeping in mind the petitioner's claim for parity with other vendors in the area.

13.

Let a final decision be taken by the Chairman. The authority shall not insist on payment of any further rent by the petitioner till such decision is taken by the Chairman. Since the amount of Rs.1.00 lakh has already been deposited by the petitioner and is with the authorities. Let the order be passed within four weeks from date.

14.

The writ petition is accordingly disposed of. 15.

It will be open to the petitioner to assail the order passed by the Chairman, if he is unsatisfied with the same. ( Madhuresh Prasad, J. )