The Port Blair Municipal Council And ORS. v. Shri.S.Balu

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/42/2025 IA NO. CAN/1/2025, CAN/2/2025, CAN/3/2025 The Port Blair Municipal Council and others Vs.

Shri S. Balu With MAT/43/2025 IA NO. CAN/1/2025, CAN/2/2025,CAN/3/2025 The Port Blair Municipal Council and others Vs.

Shri S. Balu Mr. Rakesh Kumar ... for the petitioners Ms. Anjili Nag, Sr. Adv Ms. Shoni Biswas ... for the respondent October 31, 2025 [SR] Item Nos.5 &10 Re : CAN/1/2025 (Condonation of delay) CAN/1/2025 is an application for condonation of delay in filing MAT/42/2025. According to the appellants, the appeal was filed belatedly as the review application was pending before the learned Single Bench. From the order impugned in the appeal, another appeal was preferred. The same was disposed of on July 31, 2024 by a coordinate Bench, granting liberty to the petitioner to approach the Single Judge by filing a proper application.

The appellants had challenged the order of the learned Single Judge dated December 21, 2023, on the ground that the same was passed without considering certain relevant materials and consent of the appellants had wrongly been recorded in the order impugned.

The review application was pending before the concerned Judge and ultimately dismissed on April 2, 2025. Hence, the period between the earlier appeal and the review application is sought to be condoned. Due to pendency of the proceedings which have been discussed hereinabove, the delay of 565 days in preferring this appeal has occurred.

We are satisfied with the grounds assigned in the application for delay in filing the appeal. The delay is condoned. CAN/1/2025 is disposed of and MAT/43/2025 is regularized and taken up by us.

Re: MAT/43/2025 The appellants submit that the learned Single Judge had passed the order without affording an opportunity to the respondents to take proper instructions from the Municipal Council. The learned Judge had failed to appreciate that the application of the respondent seeking allotment of a shop room in the newly constructed market place, was highly belated. A person who was sleeping over his rights could not be favoured with a writ in the nature mandamus with a mandatory direction upon the appellants to allot a shop room, after the market place had been demolished in 2009.

The respondent did not have a vested right for allotment of the shop and the resolutions passed by the appellants in this regard, especially those by which the appellants had decided to hold public auction for allotment of the reconstructed shops. MAT/42/2025 MAT/42/2025 is an appeal from the order passed in review. Both the appeals are taken up together as they arise out of similar orders.

The learned Judge considered the grounds on the basis of which review of the order was sought for, but rejected the same upon holding that, it was an admitted position that a shop room had been allotted to the respondent and the same had been demolished. From the note of the Secretary, which was sought to be produced in the review as relevant material and evidence in support of the appellants' contentions, the Court found that, two other persons were also allotted shops, although they had left the market earlier. The issue of auction was dealt with by the learned Single Judge and it was found that the decision to hold a public auction to raise funds for the municipality was contrary to the interest of the public. It was found that the respondent was running from pillar to post, praying for allotment of an alternative shop, since long.

The learned Judge found that the respondent was in possession of the shop room prior to demolition and the admitted position was that the reconstructed shops had been allotted to other similarly situated persons. The evidence which was produced with regard to the decision of the appellants to reject the case of the respondent prior to the filing of the writ petition, was found to be of no consequence.

We have gone through the documents in the writ petition and we find that the respondent had relied upon the initial order of allotment. A rent receipt issued by the Municipal Council showing payment of advance market rent for the year 2010 was also relied upon. The demolition took place in 2009, but the advance rent was accepted from the respondent for the year 2010. This reaffirms the contention of the respondent that

he had been allotted a shop in the market place namely shop 21, and was in possession thereof, until the demolition took place. It further indicates that the appellants had treated him as a rightful tenant in 2010, i.e. even after demolition. The order No.5380 dated December 08, 2009 of the Council, mentions the decision of the appellants to demolish the wooden market building and to construct a new market place. Names of the three persons who had been occupying the shop no.38, 39 and 40 have been mentioned. Thus, once those three tenants were allotted shops, there cannot be any legitimate reason to discriminate against the respondent and not give him an allotment. Moreover, the learned Single Judge found that subsequently, two more persons had been allotted shops.

A resolution of 2016 of the Municipal Council has been annexed to the writ petition from which it appears that the council had resolved to allot shops to nine other applicants/tenants, which were lying vacant. The learned Single Judge came to a finding that it was an admitted position that the respondent would be allotted a shop because the council had resolved to do so.

On this factual finding, a direction was passed in the writ petition to allot an alternative shop in the new market place to the respondent.

This is an intra court appeal. The learned Single Judge had appreciated the facts, the resolution of the Council and the factum of allotment of shops to similarly situated tenants. The entire issue was once again revisited in the review. The issue of

livelihood of a person is of primary importance, which was appreciated by the learned Judge.

Financial constraints of the council cannot be a ground for not allotting the shop to the respondent. The council is at liberty to auction the shops, but the respondent shall not be deprived of his right to get allotment of a shop as directed by the learned Single Judge.

We do not wish to interfere with the order impugned. We also do not wish to interfere with the order passed in the review application, which is more detailed and contains proper reasons.

Needless to mention that, the rent to be paid by the respondent shall be calculated as per the present rent being paid by the shopkeepers running shops from the said market place and as per the measurement. The respondent will comply with the formalities and requirements as may be called upon to do so, like the other allottees.

In view of the above, both the appeals being MAT/42/2025 and MAT/43/2025 are dismissed and the connected applications are disposed of accordingly. Parties to act in terms of the server copy of this order downloaded from the website of this Hon'ble Court. ( Shampa Sarkar, J. ) ( Ananya Bandyopadhyay, J. )