Sunday, February 25, 2024

Gauhati High Court dismisses petitions seeking lowering of rent in GMC markets

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The Gauhati High Court dismissed a bunch of petitions pertaining to the allotment of rooms in the markets under the Gauhati Municipal Corporation (GMC).

The petitioner in all these petitions are different market committees under the GMC. In 1989, the entire market in Fancy Bazar was gutted and thereafter, a decision was taken to construct a multi-storied building and to accommodate the shopkeepers and in this direction, the petitioners claim that in spite of repeated orders of the High Court since 2000, the building could not be completed. Ultimately, after completion of construction in 2004, the rooms were allotted; however, the rent was charged at Rs 10 per sq. ft. which according to the petitioner was inconsistent with the rent fixed by the High Court as per an Expert Committee Report. 

It is the case of the petitioners that in 2020, the rent was again enhanced to Rs 38 per sq. ft. The said enhancement was the subject matter of challenge in a petition of 2020 in which a direction was issued on 07.01.2021 for submission and consideration of a representation by the GMC. Accordingly, on 29.01.2021, a representation was submitted which, according to the petitioners, was ignored and again notice was issued to pay the enhanced rate. The petitioners had again filed another petition in 2021 which was disposed of on 15.12.2021 directing consideration and disposal of the representation dated 29.01.2021. 

The petitioners allege that thereafter an order dated 18.12.2021 has been passed by the Commissioner, GMC whereby the enhancement of the rates were justified and the prayer to reconsider was rejected. The petitioners contended that while maintaining the enhanced rates, the GMC could not perform their reciprocal duties in providing required facilities. The petitioners further allege that the GMC has been allowing unauthorized market / vendors on the roads approaching the market thereby making the GMC market inaccessible to customers. It is this action of the GMC which is the subject matter of challenge. It is also the case of the petitioners that on 09.03.2022, the shops of the petitioners were locked for which the petitioners had to institute a petition in 2022 and pursuant to an interim order of the High Court, the locks were opened by GMC authorities.

The single-judge of Justice Sanjay Kumar Medhi considered the petitions and noted that the non-registration of the petitioner  has been objected to as a non-registered body cannot assume the role of a legal entity. Not impleading the GMC in certain cases has also been objected to along with the objection of the petitions being barred by the doctrine of res judicata.

As regards the first objection that the petitioner is a non-registered body and therefore, does not have any legal existence, the High Court was of the view that the said objection is a substantial one. However, the Court being a Court of Equity and there being a second petitioner in the cases, who is a citizen, the Court would not like to non-suit the petitioners on this ground. A similar view of the High Court would be on the other objection namely, not making the GMC a party respondent. 

The High Court added that the said view is only in connection to the peculiar facts and circumstances of these cases and are not to be treated as a precedent. As regards the issue of res judicata, this Court is of the view that though it is correct that the issue and parties are the same, there was no adjudication on merits in the earlier rounds of  litigation and vide the order dated 17.12.2020 only a direction was given by the High Court to consider a fresh representation of the petitioners which was accordingly done vide the impugned order dated 24.12.2020. Therefore, in the strict sense, res judicata may not come in the way of adjudication.

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As regards the merits of the cases, on perusal of the order dated 24.12.2020, the High Court noted that the representation of the petitioners were disposed of by the GMC by giving a proper hearing to the petitioners. All the relevant factors were taken into consideration wherein the GMC have come to a finding that the enhancement was only 10% of the earlier rate prior to 2008 and the rates which were revised in 2008 were never paid. As regards the rates in the Fancy Bazar Market, the same was discussed and held to be reasonable.  

The High Court found force in the argument made on behalf of the State that there is absolutely no applicability of the Assam Urban Areas Rent Control Act, 1972 as the same is specifically barred by Section 444 of the Gauhati Municipal Corporation Act, 1971. The Court has also noticed that under Section 315 of the GMC Act, power has been vested upon the Commissioner to enhance the rent and therefore, it cannot be said there has been exercise of power without any authority of law.   

In an endeavor to show that the enhancement of the rent was unreasonably high, a chart was prepared to show that the enhancement was manifold. However, it is noted by the High Court  that the enhanced rate itself is on a much lower side. The said chart would show that certain new allottees were given rooms in the first floor of the GMC Market at Fancy Bazar at the rate of Rs 230 per sq. per month, Rs 130 and Rs 157 per sq. per month to three parties. The said fact has not been denied or rebutted by the petitioners.   

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Under the aforesaid facts and circumstances, the High Court is of the considered opinion that even ignoring the preliminary objections on the maintainability of the  petitions, even on merits, the petitioners have not been able to make out any case for interference. Rather, the present litigations appear to be lacking bona fide and have been filed only to prolong the issue. Accordingly, the petitions were dismissed by the High Court. 

However, while dismissing the  petitions, the Court considered the ancillary grievance of the petitioners regarding early completion of the ongoing construction of the new Market Complex and making the business of the petitioners a conducive one by removing the encroachment leading to the shops of the petitioners.  

The GMC authorities are however directed by the High Court to take adequate steps to complete all the constructions of the various markets in the city of Guwahati and take steps to remove encroachment and unauthorized vendors, who obstruct the way of the customers to the shops of the members of petitioner committee in the respective cases.

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