w w w . L a w y e r S e r v i c e s . i n



Afiya Begum Laskar Others v/s Sahin Ahmed Laskar & Others


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Case No. WA 38 of 2019

    Decided On, 11 February 2019

    At, High Court of Gauhati

    By, THE HONOURABLE CHIEF JUSTICE MR. A.S. BOPANNA & THE HONOURABLE MR. JUSTICE ARUP KUMAR GOSWAMI

    For the Petitioner: B.C. Das, Advocate. For the Respondents: H.I. Choudhury, Advocate.



Judgment Text

A.S. Bopanna, C.J.

1. Heard Mr. B.C. Das, learned senior counsel assisted by Mr. N.H. Barbhuiya, Mr. M.H. Laskar and Mr. U. Dutta, learned counsel for the appellants. Also heard Mr. B.D. Das, learned senior counsel assisted by Mr. H.I. Choudhury and Ms. R. Deka, learned counsel for Respondents No.1 to 5; Mr. M. Nath, learned counsel for Respondents No.6, 9, 10 and 11; and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for Respondents No.7 and 8.

Since the Secretary, Algapur Gaon Panchayat is represented and, keeping in view the nature of consideration in this appeal, service of notice on Respondent No.12 is dispensed.

The appellants are before this Court in this appeal assailing the order dated 25.01.2019 passed by the learned Single Judge in W.P.(C) No.436 of 2019. The said order passed by the learned Single Judge is by way of interim direction and the writ petition, in fact, is pending consideration on its merit.

The private respondents herein have filed the said writ petition in W.P.(C) No.436 of 2019 seeking issue of Mandamus to the Deputy Commissioner, Hailakandi for issuance of necessary direction to the Block Development Officer, Algapur Development Block to initiate process inviting open tender for 29 numbers of shop rooms including construction over the land belonging to Algapur Gaon Panchayat. The petitioners have also sought for issue of Mandamus to restrain the Block Development Officer and Secretary of the Algapur Gaon Panchayat not to proceed with the allomtment of newly constructed shop rooms to Respondents No.8 to 36 therein, namely the appellants herein. In that light, an interim direction was also sought in the writ petition to direct the Deputy Commissioner, Hailakandi for issuance of necessary direction to the Block Development Officer not to give allotment of 29 numbers of newly constructed shop rooms in favour of Respondents No.8 to 36 therein.

In that background, learned Single Judge while considering the interim prayer has taken note of the contentions as put forth in the writ petition and keeping in view that the shop rooms belong to the Algapur Market and, in that view, keeping in view the provisions of the Assam Panchayat Act, 1994 and the Assam Panchayat (Financial) Rules, 2002, was of the opinion that the shop rooms are to be allotted after inviting open tender. It is in that light, the learned Single Judge has directed that the tender in respect of the shops be conducted. While so ordering, the learned Single Judge has allowed the appellants herein also to participate in the tender process, subject to eligibility. The appellants claiming to be aggrieved by the order of the learned Single Judge is before this Court in this appeal.

Learned senior counsel for the appellants while seeking to assail the order passed by the learned Single Judge has contended that the appellants had, in fact, contributed money for the construction of the shop rooms and, in that light, since in the earlier proceedings a direction was issued to determine the right of the parties, to that extent, the direction as issued in W.P.(C) No.6397/2017 and W.P.(C) No.6943/2017, was complied with by the Deputy Commissioner and through the order dated 26.12.2018 passed thereto, a conclusion has been reached that the appellants herein had contributed for the construction of the 29 shop rooms. It is in that light, contended that in such circumstance, the appellants are entitled to occupation of the said rooms and the interim order passed by the learned Single Judge to bring the shops to tender process and permitting the appellants to participate in the tender process is not justified.

Learned counsel for the respondents would, however, contend that the contribution as claimed to have been made by the appellants cannot create any right. In fact, the very manner in which the possession of the shops is taken over by the appellant is not justified and appropriate criminal proceeding has been initiated based o the complaint. It is contended that in respect of the properties belonging to the Panchayat, such allotment to individuals without following the due procedure of tender process would not be justified.

Though contentions are urged in that regard, we are conscious of the fact that the writ petition is pending consideration before the learned Single Judge and all aspects relating to such contention is to be ultimately decided by the learned Single Judge in the writ petition. In that view, we do not find it appropriate to pronounce a view one way or the other on the said contentions put forth. Therefore, in that circumstance, we propose to consider the instant appeal limited to the aspect of appropriateness or otherwise of the order passed by the learned Single Judge.

In that regard, at the outset, we take note that the learned Single Judge has kept in view that the property in question, in any event, belongs to the Algapur Gaon Panchayat and, in such circumstance, the public largesse can be distributed only after following due procedure and enabling all persons entitled to participate in the tender process. Therefore, to that extent, the learned Single Judge was justified in the conclusion in allowing all the parties to participate in the process, due to which, we see no reason to interfere with the order to the extent as passed by the learned Single Judge.

However, at this stage, we also take note of the fact, as rightly contended by the learned senior counsel for the appellants, that the grant of the interim prayer in absolute terms, as made by the learned Single Judge at this stage, would, in fact, make the writ petition infructuous. Therefore, in that circumstance, to the limited extent, we clarify the order passed by the learned Single Judge.

To that extent, we clarify that though the process as directed by the learned Single Judge shall be undertaken and all interested persons including the appellants may participate in the tender process

Please Login To View The Full Judgment!

, however, the competent authority shall not issue any possession orders to the succeeding parties without leave from the learned Single Judge in the writ petition. This is for the reason that at that stage, if the writ petition is ready for hearing, the learned Single Judge may consider to decide the writ petition itself and dispose of the same on its merit. However, if the same is not possible, the learned Single Judge may at that stage take note of the manner in which the tender process has been conducted and decide the manner in which any further interim direction is to be issued. With the above clarification, the instant writ appeal stands disposed of.
O R