Full Judgment
Amitava Roy, J.
1. The petitioners are before this court being aggrieved by the resolution dated 13.5.1996 taken by the Dhekiajuli Municipal Board (hereinafter referred to as the 'Board') initially restricting the allotment of 16 newly constructed rooms at the Dhekiajuli Daily market to only 10 persons, one from each ward but subsequently allotting all the rooms excluding the petitioners.
2. This court by order dated 29.1.1997 on a perusal of the resolution dated 13.5.1996 and on a consideration of the other materials on record, in the interim, while permitting the Board to proceed with the allotment of the rooms in terms of the said resolution, directed it to keep vacant four new rooms until further orders. Liberty was also granted to the respondents to approach this Court for modification/ alteration or vacation of the said order, which in fact, was not done. The petitioner in the instant proceeding, inter alia, have impleaded as respondent No. 4 the chairman of the Board and the 16 allottees as respondent Nos. 5 to 20. Though notices were issued to the said respondents by registered post with A/D and service thereof on them had been accepted, but none has entered appearance to contest the claim of the petitioners.
3. The facts, shortly put, are that the petitioners while doing their
business in their shops at the Dhekiajuli daily market were issued
noticed to vacate their sites as the work of construction of a new
building was to be started assuring them that on completion of the
new building, they would be allotted rooms therein. ,The petitioners,
acting on the said assurance accordingly vacated their original sites
of business. They were thereafter on 6.1.1994, required to deposit
earnest money of
Rs. 25,000 each for allotment of rooms in the new building, which the
petitioners did accordingly. It was thereafter, that on 13.5.1996 a
resolution was taken by the Board to the effect that out of 16 new
room 10 rooms would be allotted to person, one of each Municipal
Ward, there being 10 wards under the Municipal Board. However,
eventually in a whimsical manner, as contended by the petitioners,
all the 16 shop rooms were allotted to the exclusion of the petitioners.
Representations submitted by the petitioners failed to evoke any
response.
4. The learned counsel for the petitioners has argued that as the petitioners have been continuing with their business at the daily market Dhekiajuli from their father's time and were assured accommodation in the new building, the impugned action, after realising earnest money therefor is discriminatory and arbitrary warranting interference by this court. This Court vide order dated 29.1.1997 had directed the Board to keep vacant four new rooms until further orders. The stand of the petitioners as reflected in the writ petition as already mentioned hereinabove, has not been refuted by any of the respondents. The facts narrated are uncontroverted. The documents annexed to this writ petition, prima facie indicate that the Board had in terms of its resolution taken in its meeting held on 6.1.1994 asked the petitioners to deposit Rs. 25,000/- as earnest money for the new rooms at the Dhekiajuli daily market. The list of allottees, 16 in number, does not include the petitioners. From the materials on record and in view of the inaction on the part of the respondents to controvert the statement made in the writ petition, I am inclined to accept the contentions raised on behalf of the petitioners. Mr. Uzir, learned counsel for the petitioners submitted that the respondent authorities have failed to discharge their public duty without any justification and thus the petitioners are entitled to a writ of mandamus directing them to allot four rooms in the newly constructed building at the Dhekiajuli daily market in favour of the petitioners.
5. The submission made by the learned counsel for the petitioners merits acceptance. In the facts and circumstances of the case, this petition is allowed. Respondent No. 4 is directed to allot four rooms in the newly constructed building at the Dhekiajuli daily market in favour of the petitioners.
6. This direction has been issued taking note of the uncontroverted stand of the petitioners that inspite of the impugned allotment, the physical possession of the rooms had not been handed over to the allottees and more particularly the interim order contained in the order dated 29.1.1997. This should be done within four weeks from the date of submission of the certified copy of this order. No costs.