CALCUTTA MUNICIPAL CORPN Vs. DEBU BHATTACHARJEE

JUDGEMENT

(1.) THIS is an appeal filed by the appellant, Calcutta Municipal Corporation and others, from the judgment and order dated 18th May 1990 passed in a writ application being Matter No. 160 of 1990 filed by the respondent, Debu Bhattacharjee. By the said order the learned Trial Judge allowed the writ petition filed by Debu Bhattacharjee and set aside the order passed by the Mayor- in- Council, Calcutta Municipal Corporation dated 16th February 1990 and granted a consequential relief to him by way of quashing the order dated 2nd January 1990 passed by the Mayor- in- Council. The learned trial Judge also directed the Calcutta Municipal Corporation to implement the orders dated 7th May 1986 and 10th May 1986 passed by the Mayor- in- Council within 31st July 1990.

(2.) THE facts relevant for the purpose of this appeal may be stated as follows : -Stall no, D ( N) - 13/1 covering about 4 sq. ft. of area in S. S. Hogg Market, premises of the Calcutta Municipal Corporation was allotted to the Respondent Writ. petitioner On a representation made by the. writ, petition the said area was extended by 8 sq. ft. making the total are. of 12 sq. ft. Subsequently, the writ petitioner made another representation and upon that remaining 47. 69 sq. ft. of Stall to, D ( N) which included the entire shall nos, D (N) - 13/1 to D (N) - 13, was allotted to the petitioner making the to all area to 59. 69 sq, ft. The writ petitioner -was allowed to carry on business, there. . En or about - December 1985 a devastating fire broke out" in the S. S. Hoog Market' destroying greater part of the market including Block D, where the writ petitioner was carrying on his business. In January 1986 the Calcutta Municipal Corporation published in the calcutta ' Municipal Gazette its decision for rehabilitation of the owners of the Stalls, which were destroyed by fire pursuant to the said decision two separate stalls being stalls nos. 10 and 61 under shed No. 3 at the temporary new Market in the Maidan were allotted to the writ petitioner and this allotment was 'made by reason of the petitioner's occupation, possession and enjoyment of the destroyed Stalls nos. D (N) - 13/1 and 13. The case of the petitioner was that after construction of the new complex of the S. S. Hogg market the writ petitioner was, entitled to two stalls being stalls nos. D (N)- 13/1 and 13 covering total 59. 69 sq. ft. of area. The writ petitioner stated that this claim was founded on the basis that two temporary stalls in the Maidan market were allotted to him. The petitioner made the said claim for 59. 69 sq. ft. of area, on the basis of the order passed by the Mayor-in-Council on 10. 5. 86. The said- order passed with regard to the representation of the petitioner for allotment. of space for stall no. D ( N) - 13 in S. S. Hogg market measuring About 47. 69 sq. ft. The said order is as follows : -

(3.) IT appears that pursuant to the said" order passed by the Mayor-in-Councl on 10. 5. 1986 the petitioner had deposited a sura of Rs. 29,145. 87, which was accepted by the respondent Corporation' on 10. 5. 1986 by granting a receipt in this behalf. It also appears that temporary reallocation of stalls of Maidan Market was made in favour of the writ petitioner after the previous stalls in the S. S. Hogg Market were destroyed by fire. From the certificate of shifting of stalls, which was granted by the Corporation, it appears that the writ petitioner was the holder of the -Stall no. D (N)-13. After shifting to the temporary Maidan Market premises. Stalls nos. 10 and 61 in Shed III were allotted to the writ it petitioner. The date of shifting has been shown to be 8. 9. 86. An undertaking was also taken from the writ petitioner to the effect that if there was any an Corporation dues against Stall No. D (N)-13, the same would be paid off by the writ petitioner before the final allotment is made, The certificate of shifting and temporary real location of stalls was issued under the signature of the Market superintendent, S. S. Hogg Market, which was counter signed by the Deputy Municipal Commissioner (Market) on 3. 4. 87. The writ petitioner in terms of the order of the Mayor- in- Council deposited a sum of Ds. 29,1 45. 87 p. and the deposit was made in the Suspense account without any prejudice to the Corporation at an early date in order to enable the department to take further act ion in the matter. The case of the petitioner is that when reallocation was made after a valid order was passed and payment pursuant thereto was made for the stalls and when the petitioner was occupying the temporary stalls at Maidan Market and when the petitioner was awaiting for allotment of stalls in the New Market complex at S. S. Hogg Market, tine petitioner received a letter dated 16. 2. 90 from the. Market andsuperintendent, S. S. Hogg market, which is quoted as follows : -