RAJENDRA ROY Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Heard on I.A. No.01 of 2025 which is an application filed by the Petitioner seeking the following reliefs;

(2.) Learned Senior Counsel for the Petitioner while narrating the facts of the Petitioners case has walked this Court specifically through the impugned Orders as well as the interim Order of the Learned Single Judge of this High Court dtd. 22/11/2021, in WP(C) No.39 of 2021, the Order dtd. 9/8/2023 and clarificatory Order dtd. 20/10/2023 in the same Writ Petition. It is submitted that, the interim order of this High Court recognises that, the livelihood of the Petitioner was at stake and therefore a temporary space was to be designated to the Petitioner to carry on his business of hawking goods. Pursuant thereto, on 15/4/2023, the licence of the Petitioner was renewed by the Gangtok Municipal Corporation (GMC, Respondent No.3). Following this development, the Petitioner intimated the Municipal Commissioner that his licence has been renewed and that he had occupied the same space as earlier, for hawking his goods. After the renewal of his licence, the private Respondents filed I.A. No.04 of 2023, in WP(C) No.39 of 2021, seeking a clarification of the interim order dtd. 9/8/2023. The clarification was given by the Learned Single Judge, on 20/10/2023. After such clarification, the private Respondents had apparently approached the Respondent No.3 (GMC) complaining against the occupation by the Petitioner. The Respondent No.3 (GMC), vide order dtd. 12/6/2024, informed the private Respondent No.5 (Kiran Devi) herein, that it had examined the matter in detail and the dispute being civil in nature, advised the Respondent No.5 (Kiran Devi), to approach the Civil Court. Aggrieved by this Order, the private Respondents No.4 and 5, i.e., Sharda Devi Agarwal and Kiran Devi, sent a communication to the Municipal Commissioner- cum-Chairperson, Town Vending Committee, on 30/11/2024. This communication was not responded to, instead the Petitioner was summoned by the Office of the District Magistrate (Respondent Rajendra Roy vs. State of Sikkim and Others No.2) evidently based on the letter of the private Respondents (supra) to the Municipal Commissioner. It is submitted by Learned Senior Counsel for the Petitioner, that, the Counsel appearing before the Respondent No.2 (District Magistrate) for the Petitioner, was informed verbally that, the Complaint being considered by the Respondent No.2 (District Magistrate), was one addressed to the Municipal Commissioner. After the parties were heard, the impugned Order (Annexure P1) was pronounced by Respondent No.2 (District Magistrate). It is submitted by Learned Senior Counsel, that, the Respondent No.2 (District Magistrate) exceeded his jurisdiction by issuing the impugned order, giving directions to the Respondent No.3 (GMC) regarding the removal of the Petitioner from his hawking space and relocating him. Upon the direction of the Respondent No.2 (District Magistrate), the Respondent No.3 (GMC), vide Notice dtd. 31/5/2025, directed the Petitioner to remove his hawking stall from the place he had occupied. It is further urged that, the new order of renewal of licence (Annexure P5), indicates that, the Petitioners hawker licence was renewed on 20/5/2025 up to 31/3/2026 allowing him to thereby continue his trade. Hence, the prayers in the I.A. be granted to ensure that the Petitioner is not deprived inter alia, of his right to life as the balance of convenience and inconvenience is tilted in his favour.

(3.) Learned Senior Counsel for the Respondents No.4 and 5 (Sharda Devi Agarwal and Kiran Devi) objecting vehemently to the prayers put forth, submitted that, for the last approximately 10 to 15 years, with intervening intervals, the Petitioner has been in occupation of the space in front of the two buildings that belong to the Respondents No.4 and 5 (Sharda Devi Agarwal and Kiran Devi). Admittedly, the land on which he has put up his stall is Government land and a public thoroughfare. The stall of the Petitioner has disturbed the ingress and egress to the private property of the Respondents No.4 and 5 (Sharda Devi Agarwal and Kiran Devi) as well as to their place of business and therefore infringed their right as well. The renewal of the Petitioners licence does not specifically mention that he shall resume his business in the previous premises i.e., in front of the property of the Respondents No.4 and 5 (Sharda Devi Agarwal and Kiran Devi) as Sl. No.2 of the renewed licence merely mentions that he shall run the trade in the building/house of Shri/Smt. - at Lall Market Road under 12, Upper M. G. Marg Ward. There is no name of any person entered in the Form to enable identification of the space specifically allocated to him. The impugned order of the Respondent No.2 (District Magistrate), is only a recommendation and the Respondent No.3 (GMC) is not bound by it. That, the impugned Notice, dtd. 31/5/2025, of the Respondent No.3 (GMC), was issued post the recommendation, but pursuant to a clearance drive initiated by the Respondent No.3 (GMC) to clear the thoroughfare on the Tharo Line as it was congested. The Petitioner was not isolated for relocation, there were several other hawkers who were shifted from Tharo Line to other places to clear the thoroughfare.