Shri Sailesh Kumar v. The Port Blair Municipal Council And ORS.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/863/2022 IA No.CAN/1/2022 Shri Sailesh Kumar Vs.

Port Blair Municipal Council and others Mr. Gopala Binnu Kumar ... for the petitioner Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents December 14, 2022 [SR] Item No.1 The petitioner is aggrieved by a notice of cancellation dated 6th December, 2022 of an allotment of a shop room space vide Order No.5774.

The facts of the case are that the petitioner participated in a tender process for setting up a shop room for selling refreshments and souvenirs opposite to the High Mast Flag point near Government Press. He succeeded and Order No.5774 dated 28th October, 2022 was issued to him. The tenancy was for a period of three years commencing from 01st December, 2022. The monthly rent and security deposit were specified.

The letter of allotment also inter alia recorded that in case of violation of terms and conditions or bye-laws of Port Blair Municipal Council or the directions issued from time to time, the allotment of the property would be cancelled. The Secretary, PBMC reserved rights to cancel the allotment

without any prior intimation, in case of any violation of the terms and conditions of the allotment.

By a formal agreement dated 4th November, 2022, the Revenue Officer, PBMC formally recorded terms and conditions of such tenancy.

The terms referred to hereinabove have been incorporated in clauses 13 and 14 of the said agreement.

"13. In case of violation of any of the terms and conditions, Byelaws of PBMC and directions issued from time to time, the allotment of the property will be cancelled.

14.

The Secretary, Port Blair Municipal Council reserves the right to cancel the allotment without any prior intimation in case of any violation in terms and conditions of the allotment."

The petitioner put in the rent and security deposit as required by the respondents.

Suddenly by a communication dated 6th December, 2022, the Revenue Officer of the PBMC issued a notice of cancellation of the Order No.5774. The petitioner was asked to remove the structure erected by him within three days. The ground for cancellation indicated in the notice dated 6th December, 2022 is that the petitioner had erected a permanent structure with GI pipe, sheet roofing and plinth with hollow block. This, according to the respondent, is in contravention of the terms and conditions of the allotment order and agreement.

Mr. Gopala Binnu Kumar, learned counsel for the petitioner has submitted as follows:

(a) The impugned order is in violation of basic principles of natural justice since prior notice of cancellation was not given to the petitioner. (b) The writ petition was prepared and served on the respondents on 9th December, 2022.

The respondents, on the very next day, completely dismantled and removed the structure erected by the petitioner within a couple of hours.

(c) The fact that the structure was dismantled and removed in a couple of hours itself indicate that the structure was temporary.

(d) Apart from the blatant violation of the principles of natural justice, clauses 13 and 14 in the agreement and letter of allotment cannot sustain the test of reasonableness.

(e) It submitted that the clauses are draconian, and confer uncanalised and arbitrary powers on the PBMC to violate the rights inter alia enshrined under Article 19(1)(g) of the Constitution of India. It is submitted by Mr. Binnu Kumar that the actual reason behind the drastic and illegal action taken by the PBMC was that the writ petitioner was unable to satisfy some elected members of the PBMC and that he is a victim of political rivalry.

Per contra, Mr. Shatadru Chakraborty, learned counsel for the PBMC would argue as follows:

(a) The lis cannot be entertained under Article 226 of the Constitution of India since there are a number of disputed questions facts. As to whether the petitioner in fact constructed a temporary or permanent structure, cannot be decided under Article 226 of the Constitution of India.

(b) The petitioner seeks to enforce rights under contract in the writ jurisdiction of this Court. There is no public element in the contract in question warranting interference under the Article 226 of the Constitution of India.

(c) There has been no objection raised in writing to the letter dated 6th December, 2022 by the writ petitioner. There is no demand for justice. The writ petition cannot be maintained in terms of the Appellate Side Rules of this Court.

(d) The respondent ought to be allowed to bring facts on records by way of affidavit before any interim orders are passed even at this stage.

(e) Even assuming, the Court would want to entertain and admit the writ petition, grant of any order of restoration of the status quo ante as on date, would amount to grant of athe principal relief.

(f) Interim orders are even otherwise not warranted since the writ petitioner has effective alternative remedy in seeking damages against the council.

This Court has carefully considered the rival arguments as advanced by the parties.

On the question of maintainability of a writ petition in respect of contractual rights, it is now well settled that every State Authority is required to act in fairness and reasonably even in the area of contract with citizens. Reference is made to the decisions of Tata Cellular Vs. Union of India Reported in (1994) 6 SCC, 651 and Ramana Dayaram Shetty Vs. The International Airport Authority of India Reported in (1979) 3 SCC Pg.489.

The principle has been extended to permit allowing undisputed monetary claims under contract with an authority under Article 12 of the Constitution of India as laid down in the case of ABL International Ltd. & Anr vs Export Credit Guarantee Corporation of India Limited Reported in (2004) 3 SCC 553 and the case of Joshi Technologies International INC vs. Union of India and Others Reported in (2015) 7 SCC 728.

In the facts of the instant case, this Court finds substance in the argument of the petitioner that a structure that can be dismantled by the PBMC in a span of couple of hours cannot by any stretch of imagination amount to a permanent structure.

The findings and prima facie evidence in the form of photographs of the structure as existed before and that which remains after it was removed, are sufficient for this Court to form a prima facie opinion at an ad interim stage in a writ petition.

The question, therefore, is, could the PBMC not wait atleast for a reasonable period for receiving a response from the writ petitioner before passing the order of cancellation of the contract of tenancy. This Court is unable accept the argument of learned counsel for the respondent that three days period given to the writ petitioner to remove and/or dismantle the structure would constitute compliance of the principles of natural justice for purpose of the cancellation of the allotment.

The three days period is clearly for removal of the structures and cannot amount to any notice to show cause. It is a post decisional direction in execution issued by the PBMC. The respondent acted in strange, undue and unexplainable haste.

On the next argument that a demand of justice is a pre-condition for filing a writ petition, this Court is of the view that in the facts of the instant case, any demand for justice after a gross illegality, has perpetrated and suffered by the petitioner would be a useless formality. Rules of procedure cannot frustrate substantive rights. The argument of the PBMC is that grant of any relief for restoration of status quo ante, would amount to allowing final relief is equally not acceptable. The conduct of the respondent even on prima facie view is unfair, unreasonable extreme and draconian and akin to an act in a "Police State". Clauses 13 and 14 of the agreement set out hereinabove are

in the nature of "Henry VIIIth" Clauses. Reference in this regard is made to the decision of Supreme Court in the case of Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly Reported in (1986) 3 SCC 156. The petitioner clearly having been lawfully awarded a contract, put in all sums of money for setting up a refreshment and souvenir shop could not have been dealt with by the PBMC, in the manner as indicated hereinabove. If the respondents felt that the petitioner had violated the contract, they were obliged to issue a reasonable show cause to the petitioner for any violation of the terms and conditions of the contract.

Even assuming that the contract did not provide for such show cause, the right to a predecisional hearing and the principles of Natural justice must be read into the contract by the PBMC which is an "Other authority" under Article 12 of the Constitution of India. The remedy of damages that the petitioner may pursue in civil litigation, is but illusory. Compensation in money after a prolonged civil litigation is not an efficacious or alternative relief to the petitioner who is lawfully engaged in a small shop room business.

In the above circumstances, this Court is inclined to even, at an ad interim stage, to direct the PBMC to restore the status quo ante. The shop room as it stood before demolition is directed to be restored by the PBMC to its position as it stood before demolition within 48 hours. The

petitioner would be entitled to commence operations in the shop room in terms of the contract of tenancy/license. The impugned notice of cancellation dated 06.12.2022 of the allotment order No.5774, is hereby quashed and set aside.

Mr. Chakraborty, learned counsel for the respondents submits that the PBMC should be given an opportunity to formally show cause the petitioner as regards what his client believes is a violation of the terms and conditions of the contract.

This Court appreciates such submission. Let a show cause notice be issued to the petitioner for alleged violation of the terms and conditions of the contract within a period of two weeks from date. The writ petitioner may reply thereto within a period of one week thereafter.

The PBMC shall, after giving a personal hearing to the petitioner and/or his legal representative and pass appropriate orders thereafter. Any order that may be passed adverse to the writ petitioner shall become operative only after a period of 15 days of actual receipt of such order by the writ petitioner.

Since the respondents have not been called upon to use affidavits, none of the allegations in the writ petition shall be deemed to have been admitted by them.

WPA/863/2022 stands disposed of. CAN/1/2022 also stands disposed of.

There shall be no order as to costs.

Learned counsel for the PBMC shall communicate the gist of the order as dictated in open Court to his client in course of the day.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

( Rajasekhar Mantha, J. )