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

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** MA/16/2022 IA No. CAN/1/2022 Port Blair Municipal Council and others Vs.

Shri Sailesh Kumar Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the appellants Mr. Gopala Binnu Kumar ... for the respondent January 18, 2023 [SR] Item No.3 The present appeal and the application are directed against the order dated 14th December, 2022 passed by the learned Single Judge a writ petition, being WPA/863/2022. The appeal and the stay application are heard today by treating the same on day's list, in the presence of the learned advocates representing the appellants and the petitioner/respondent.

On hearing Mr.

Shatadru Chakraborty, learned advocate representing the appellants, it appears that the appellants have been aggrieved by the direction, as contained in the impugned order of the learned Single Judge, which is as follows:

"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."

It has been contended on behalf of the appellants that the petitioner/respondent participated in a tender process for setting up a stall within the jurisdiction of Port Blair Municipal Council and, being selected, the petitioner/respondent ultimately erected the stall, which according to the Port Blair Municipal Council (for short PBMC), is not in accordance with the agreement dated 4th November, 2022.

It has been contended that the stall erected by the petitioner/respondent was permanent in nature which impinges upon clauses 13 and 14 of the said agreement

dated 4th November, 2022, which led the concerned authority of the PBMC to issue cancellation notice dated 6th December, 2022.

According to the appellants, based such cancellation notice, ultimately the stall erected by the petitioner/respondent was demolished on 10th December, 2022 since no plausible explanation was offered by the petitioner/respondent. Therefore, there is no departure made by them while taking steps in terms of the said cancellation notice dated 6th December, 2022 and it has further been contended that the direction in the nature of restoration of status quo ante, after demolishing of the stall is unwarranted. Mr.Gopala Binnu Kumar, learned counsel representing the petitioner/respondent has opposed the prayer made by the appellants and submits that there is gross violation of principle of nature justice on the part of the appellants in demolishing the stall erected by the petitioner/respondent.

According to the respondent the notice dated 6th December, 2022, in effect, is a communication of decision of cancellation and there is no scope left open to the petitioner for deliberation before the PBMC that there was no violation made by the petitioner/respondent while erecting the structure and such structure was constructed in compliance with clauses 13 and 14 of the agreement dated 4th November, 2022.

It is also submitted behalf of the petitioner/respondent that the PBMC merely communicated

their decision of cancelling the allotment and the ultimatum was given vide said notice dated 6th December, 2022, that if the petitioner/respondent fails to demolish such structure within three days, the same exercise shall be carried out by the authority of the PBMC.

We have considered the contentions made by the respective parties and perused the cancellation notice dated 6th November, 2022 as well as the order passed by the learned Single Judge dated 14th December, 2022. On a conjoint reading of cancellation notice dated 6th December, 2022 and the directions, as contained in the order of the learned Single Judge on the anvil of clauses 13 and 14 of the agreement dated 4th November, 2022, it appears to us at first blush that, before demolishing the structure erected by the petitioner/respondent for running his business, pursuant to the permission given by the PBMC, there was necessity to comply the principle of nature justice.

It transpires that the concerned authority of the PBMC by overt act of violation of principle of nature justice straightway demolished the structure which the petitioner built thereby denying the right of the petitioner to run his business based on the permission as accorded by the PBMC.

granting opportunity to the petitioner/respondent to make deliberation in receipt of show-cause notice. We are also in ad idem with the view expressed by the learned Single Judge directing the concerned authority of the PBMC to restore status quo ante relating to the structure as made by the petitioner/respondent. However, it is made clear that continuation of business of the petitioner/respondent in the structure erected by him shall be subject to the decision to be taken by the appropriate authority of the PBMC on following the procedure as directed by the Learned Single Judge.

Accordingly, the application and the intra-court appeal stand dismissed. However, there shall be no order as to costs.

After dictating the order, Mr. Shatadru Chakraborty, learned counsel representing the appellants has prayed for stay of operation of the order, which has been considered and the same is refused.

( Subhasis Dasgupta, J. ) ( Saugata Bhattacharyya, J. )