Saju K Moideen v. The Andaman And Nicobar Administration And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/16/2024 Saju K Moideen and another Vs.

The Andaman and Nicobar Administration and Others Mr. Debnath Ganguly ... for the petitioners Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents November 11, 2024 [SR] Item No.56 1.

The petitioners are aggrieved by an order dated 18.12.2023 passed by the Port Blair Municipal Council (PBMC). By reason of the said order, the petitioners have been compelled to accept shop rooms no.4 and 8 in the newly constructed MG Market as opposed to their original shop rooms nos.5 and 7 before reconstruction.

2.

The brief facts relevant to the case are that the petitioners were tenants and occupying the shop room nos.5 and 7 respectively at M.G. Market since the year 1974 as tenants under the PBMC.

3.

Sometime in June, 2017, the PBMC decided to demolish the dilapidated old wooden M.G.Market and construct an appropriate new structure thereat.

4.

By a letter dated 07.06.2017, the PBMC issued, inter alia, to the petitioner nos. 1 and 2 that they would be temporarily

shifted to another market until reconstruction of the existing M.G.Market is complete.

5.

It was further assured that after completion of the building, the shop keepers shall be accommodated in the ground floor in the same portion of the market. The relevant portion of the letter dated 07.06.2017 is set out hereinbelow. "Sub:- Alternative of temporary shops at M.G.Market-reg. In view of dilapidated condition of wooden market, Port Blair Municipal Council took a decision to demolish the existing wooden structures and decided to build new market at the present side. In order to avoid inconvenience to the existing shops keepers as mentioned above it has been decided to provide alternative allotment of temporary shops at M.G.Market, Mohanpura.

After completion of the construction work, the above mentioned shop keepers will be accommodated in the ground floor in the same portion of the market. Hence, you are requested to shift in the similar shop number in the temporary shops within 10 days of receipt of the same."

6.

Based on express agreement, assurance and undertaking of the PBMC the petitioners shifted out of the their respective shoprooms and moved into temporary makeshift rooms. 7.

However, after the construction was completed, by a letter dated 27.10.2020, the respondents fraudulently, dishonestly and unilaterally altered the agreement and undertaking and asked he original tenants to apply for allotment of shop rooms with documentary evidence. The relevant portion of the letter is set out herein below:

"This is to inform to all the above mentioned tenants of the old M.G. Market that the newly constructed M.G.Market block-V is ready for allotment.

You are hereby requested to apply for allotment of the shops with all documentary evidence within seven (07) days from the date of receipt of this notice failing with your claim for the shops will not be considered" 8.

By reason of the aforesaid, it became clear that the original shop owners would not get the shops that were being occupied by them in the old M.G.Market.

9.

Some of the tenants accepted the same and participated in a lottery process for allotment of shop rooms. 10.

By an order dated 13.12.2020, the PBMC sought to further frustrate the agreement dated 07.06.2017 and merged the shop nos.1,3,5&7 that was made into single shop unit and allotted it to M/s ANIIDCO at a monthly rent of Rs.1,50,000/- plus 18 % GST for setting up a wine shop thereat. 11.

The Court is shocked and surprised brazen and open dishonesty and impunity with which the PBMC acted as above since two of the shop rooms being Nos.5 & 7 were to be returned back to the petitioners after reconstruction albeit on an increased monthly rent.

12.

It therefore clearly appears that the petitioners were illegally dispossessed, evicted and ousted from their shop rooms on the pretext of reconstruction. The PBMC has made unlawful gain and has caused wrongful loss to the petitioners by depriving them of their original shop rooms.

13.

There is also a dishonest and reckless breach of undertaking/agreement, trust and assurance by the PBMC

based on which the petitioners altered their position and vacated the existing wooden M.G.Market that they were occupying since 1974. The actions of the PBMC are ex facie illegal, arbitrary and in blatant violation of the rights of the petitioners under Article 19(1)(g) of the Constitution of India. 14.

The petitioners therefore filed Civil Suit before the Civil Judge Junior Division at Port Blair and obtained an order of status quo on 7th January 2021 against the PBMC from making further construction in the market 15.

Upon being repeatedly pressurized to accept the shop rooms at other location in the market, the petitioners filed a writ petition being WP No.137 of 2021. By an order dated 13.04.2021, a Coordinate Bench has held that the rental for the front portion of the shop room fixed at Rs.15,000/- per month earlier was excessive and unfair and asked the PBMC to reconsider the same. This court directed continuation of the order of status quo passed by the Civil Court. It also directed that the shop room no.5 shall not be allotted to anyone until the Revenue Officer decides fair rent payable in respect of the premises.

16.

The PBMC by a minutes of the meeting dated 07.07.2023 reduced the rent for shop rooms on the ground floor at Rs.7000/- plus 18 % GST per month and Rs.5000/- plus 18% GST per month on the first floor.

17.

There is absolutely no indication as to whether the said rent would apply to the same shop rooms enjoyed by the

petitioners in the old structure. In fact the same could not have been so as the old shop rooms nos.1,3, 5 and 7 were all illegally merged together to form a single large shop unit. 18.

By a letter dated 11.07.2023, issued by the Revenue Officer without any authority of law, illegally ordered that the shop rooms should now be allotted by a lottery system. This has further confirmed the dishonest and fraudulent inducement by the PBMC to lure the petitioners to vacate the old wooden M.G.Market without intending to restore the shop rooms to the original shop tenants. The PBMC is therefore liable for breach of trust.

19.

The petitioners are now left to whim and fancy of a lottery system completely negating any chance there being allotted the shop rooms originally occupied by them.

20.

The petitioners refused to accept any other shop rooms than the ones originally occupied by them. A lot of communications ensued thereafter between the parties. 21.

The instant writ petition has been filed after a decision taken by the PBMC on 18.12.2023. By the impugned order, the petitioners were still being compelled to accept the shop room nos.8 and shop no.4 instead of their earlier shop room nos.5 and 7.

22.

Mr. Shatadru Chakraborty, learned counsel for the PBMC and the ANIIDCO submits that by reason of the communications issued by the PBMC and the vacating of the

old structure, it was impliedly indicated to all shop owners that they would not be allotted shop rooms originally occupied. It is also argued that the nature and structure of the new construction which was visible to the petitioners would itself indicate that the original shop rooms being occupied by them were not possible to be allotted to them.

23.

The new construction, involved huge expenditure and the PMBC was lawfully entitled to let out any part or portion of the building to recover its construction costs and also earned revenue for the State. It is even otherwise not possible for the petitioners to be allotted shop room nos.5 & 7 since the new structure has merged shop room nos.1,3,5 &7 into a single structure that has been already allotted to M/s ANIIDCO at the rate of Rs.1,50,000/- per month plus GST.

24.

It is also submitted that there was never any undertaking by the PBMC to allot them the same shop rooms being occupied by them except to the extent of the floor that they were originally occupying.

25.

This Court has carefully heard the arguments advanced by the parties.

26.

The conduct of the PBMC smacks of an old trick played by the landlords, private or a public, to evict and/or dispossess the tenants on the pretext of reconstruction and/or restoration of the premises. The helpless dispossessed tenants are then at the mercy of the landlords and are coerced to accept pittance as opposed to their original entitlement.

27.

It is essentially for this reason that binding contracts are generally entered into by the existing tenants with the landlord to ensure that the location and position of their original shop rooms are not disturbed under the new construction. The agreement dated 07.06.2017 is therefore a binding agreement on the PBMC.

28.

A plain reading of the communication dated 07.06.2017 would clearly indicate that the PBMC expressly represented to the petitioners that they would be allotted the same rooms after reconstruction of a dilapidated wooden M.G.Market such undertaking would imply and indicate that they would get back the same shop rooms in the same place and to the same extent that they were occupying in the old market.

29.

The petitioners altered their position based on such undertaking of the PBMC. The PBMC is therefore estopped from offering any other shop rooms to the petitioners or resile away from their undertaking made inter alia on 07.06.2017. 30.

It further appears to this Court that the PBMC, which is the State authority, has acted in a dishonest and cunning manner for making unlawful gain but has devastatingly caused unlawful loss to the petitioners. There is clear violation of Article 19(1)(g) of the Constitution in the facts of the case. 31.

It is true that any new and stronger construction in the M.G.Market, the PBMC is entitled to recover some costs of

construction and increase rent that was stagnant over for a period of time.

32.

The state authority could have obtained certain sums of money from the petitioners towards contribution to the construction. It is also entitled to revise the rent with a passage of time.

33.

It is definitely however not expected that four shop rooms should be merged into a single unit thereby changing the nature and character of the property to such an extent that it would extinguish existing rights of tenants and in return give them pittance.

34.

Retail trade is all about location. The original shop rooms of the petitioners were located on the front side of the M.G.Market. They are now being offered either in the backside or in the first floor or in the rear of the front side. The conduct of the PBMC to say the lis is utterly dishonest if not arbitrary, illegal and in gross violation of Article 19(1)(g) of the Constitution of India.

35.

In those circumstances, this Court is inclined to quash and set aside the impugned order dated 18.12.2023. 36.

The petitioner shall be allotted the exact extent position and location on the ground floor in the front side of the shop room nos.5 & 7 that were being occupied by them in the old shopping complex. The writ petitioners are ready and willing to pay Rs.7000/- plus GST per month for each shop room or

leased rent from the day they are put in possession of the shop room.

37.

Any addition or alteration that are required to be made towards such accommodation shall be conducted by the PBMC at their own cost as expeditiously as possible. 38.

It is expected the above process is completed within a period of three months from date.

39.

It is submitted by Mr. Chakraborty that except the petitioners, all other tenants have accepted alternative accommodation. The instant order is restricted to the two writ petitioners and shall not be cited as precedents by other tenants.

40.

With the above direction, the writ petition is allowed and disposed of without any order as to costs.

41.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. )