S. Zahid Hussain And Brothers And Ors vs State Of Bihar Through And Ors

On the request of learned counsel for the parties, these three writ applications which are connected to each other have been taken up for consideration and are being disposed of by this common judgment.

This Court would discuss the facts of each of the cases separately as under:

Petitioner in C.W.J.C. No. 3924 of 2017 is seeking to challenge the order dated 23.01.2017 passed in Appeal Petition No. 01 of 2016 by which the Administrator of the Bihar State Agricultural Marketing Board (since Dissolved) (hereinafter referred to as the 'Board') has held the entitlement of respondent no. '5' to continue with the allotment of shop no. '58' situated in the market yard of the Agricultural Produce Market, Musallahpur, Patna and thereby he has restored the allotment dated 15.12.2004 of respondent no.'5'.

A further prayer has been made to quash the order of cancellation of allotment of the petitioner vide letter no. 1504 dated 08.09.2004 and letter No. 01759 dated 07.10.2004 and to restore the possession of the petitioner after evicting respondent no. '5' from the shop in question by deputing a Magistrate with police force.

Brief Facts of the Case

It is not in dispute that this petitioner S. Zahid Hussain and Brothers in C.W.J.C. No. 3924 of 2017 being a licensee under Rule 98 (A) of Bihar Agricultural Produce Markets Rule 1975 (hereinafter referred to as the 'Rules of 1975') was allotted a shop bearing no. 58 in the premises of the Fruit Sector situated in the premises of the Market Yard. Letter of allotment bearing no. 4798 dated 17.12.1999 is Annexure '4' to the writ application. Pursuant to Annexure '4', the said petitioner entered into the lease dated 5th day of January, 2000 for a period of 11 months. The lease was renewable at the end of the 11 months period on an application to be made by the lessee. From the endorsement made on page 25 of the brief, learned counsel for the petitioner has submitted that the lease period of the petitioner was extended from time to time and lastly on 31.03.2002 for the period 2002-2003. It is the case of the petitioner that while he was carrying on his business, his wife fell victim of Cancer, she was treated at Tata Memorial Hospital, Mumbai but ultimately died on 04.02.2006. The discharge summary of the hospital shows that she was admitted in the hospital on 28.02.2005 having Metastusis Cancer and was discharged on 09.03.2005.

It is the further case of the petitioner that he had informed the Market Secretary vide letter dated 11.01.2005 (Annexure '7') that in his absence his Munsi will look after his shop but at this stage Md. Ahmad Mumtaz Ahamd (respondent no. '5') acted in connivance with the then Market Secretary, broke open the lock of the shop and tress passed into the shop. In this regard the petitioner represented vide his letter as contained in Annexure '8' to the writ application. A perusal of the letter dated 20.06.2005 (Annexure '8') shows that the petitioner claimed to have returned from Mumbai in the same month and complained that his shop no. 58 had been illegally given possession to respondent no. '5'. The petitioner claims that no proceeding for cancellation of his allotment was ever drawn and the cancellation was not communicated to him, he has assailed the finding recorded by the Administrator in his order dated 23.01.2017 to this effect saying that the same is false and must be quashed.

The petitioner claims that in terms of the judgment of the Hon'ble Division Bench of this Court in C.W.J.C. No. 2607 of 1999 the allotment of shop in the Market Yard has to be done strictly in seriatim order of the licenses. It is submitted that respondent no. '5' was much junior licensee as he was standing at serial no. 30 in terms of seriatim and, therefore, there was no question of allotting shop No. 58 to respondent no. 5.

Be that as it may, the facts revealed from the records would show that the petitioner had filed a writ application challenging the order of cancellation of allotment on the ground of violation of principles of natural justice, he prayed for restoration of his license and to grant him possession of shop no. 58. The writ application was registered as C.W.J.C. No. 6799 of 2006.

C.W.J.C. No. 7438 of 2017

It appears that one Hassan Imam (petitioner of C.W.J.C. No. 7438 of 2017) claimed himself to be a senior licensee in terms of the date of his license, his name was at serial no. 9 in the seniority list and he was looking for allotment of shop no. 58. He is said to have applied for allotment on 16.06.1990 itself. It is his case that when the Market Secretary of Marketing Committee, Mussallahpur did not act on his application, he submitted an application before the Hon'ble State Agriculture Minister, Patna who after considering the same passed specific order on 17.08.1999 directing the Secretary of the Marketing Committee to allot the shop no. 58 to him. Further when the allotment was not made, he preferred C.W.J.C. No. 2535 of 2000 which was disposed of by a Bench of this Court on 19.05.2000 permitting him to withdraw the writ application with liberty to ventilate his grievance before the Managing Director of the Board by way of filing an application under Section 38 of the Bihar Agricultural Marketing Act, 1960 (hereinafter referred to as the 'Act of 1960'). It is his submission that when the Market Committee learnt about the filing of the writ application before this Court by said Hassan Imam (petitioner in C.W.J.C. No. 7348 of 2017) they issued ante-dated letter in the first week of May, 2000 purporting to allot the shop no. 58 to M/s S. Zahid Hussain and Brothers (petitioner of C.W.J.C. No. 3924 of 2017).

At this stage, the Managing Director of the Board disposed of the application of the petitioner Hassan Imam who was above in the seniority list. Annexure 'P-3' to C.W.J.C. No. 7438 of 2017 would show that the Managing Director of the Board had recorded a finding that in the seniority list this petitioner Hassan Imam was standing at serial no. '9' and the licensee (M/s S.Zahid) to whom shop no. 58 was allotted had his date of license of the year 1987-88 but was not in possession of the shop and if it is so then the Secretary would take action to cancel the allotment and allot the shop in order of seniority. The operative part of the order dated 11.08.2000 passed in appeal no. 1 of 2000 (Annexure 'P-3' of C.W.J.C. No. 7438 of 2017) by the Managing Director on the application of the petitioner Hassan Imam is extracted hereunder for a ready reference:

"दोनों पक्षों द्वारा प्रस्तुत किए गए साक्ष्यों के अवलोकन से मैं इस निष्कर्ष पर पहुँचा हूँ कि समिति द्वारा अनुज्ञप्तिधारी व्यापारियों, जिन्हें अभी तक दुकान आवंटित नहीं किया गया है, की वरीयता सची जो तैयार की गयी है, उसमें आवेदक का क्रमांक 9 है तथा दुकान संख्या 58 जिस व्यापारी को आवंटित किया गया है वह अनुज्ञप्ति वर्ष 1987-88 का है जो अपीलार्थी से पहले का है। परन्तु संभवतः वह संबंधित आवंटी के कब्जे में नहीं है । वर्णित परिस्थिति में यदि ऐसा है तो सचिव उक्त दुकान का आवंटन नियमानुसार रद्द कर वरीयता के आधार पर नियमानुसार दूसरे को आवंटित करने की कार्रवाई करें । दुकान संख्या 79 फल के व्यापारियों हेतु आवंटित है तथा वह दुकान दुर्ग विजय कुमार, अनुज्ञप्ति संख्या 43/91-92 को आवंटित किया गया है जिनका अनुज्ञप्ति वर्ष 1991-92 का है तथा आवेदक बाद के अनुज्ञप्तिधारी हैं । अतः यह आवंटन भी सचिव नियमानुसार रद्द करने की कार्रवाई करें । शेष दूकानें जिनका उल्लेख आवेदक के विद्वान अधिवक्ता ने किया है, उनके संबंध में भी सचिव समीक्षा कर लें तथा माननीय उच्च न्यायालय द्वारा सी0डब्ल0जे0सी0 सं0 2607 में पारित आदेश दिनांक 23-5-91 के आलोक में आवेदक को नियमानुसार वरीयता के आधार पर दुकान आवंटन करें ।

ह0अ0

(राजित पुनहानी)

द्वारा लेखापित एवं संशोधित

ह0अ0

(राजित पुनहानी)"

It is the aforesaid order of the Managing Director which triggered the button, the action followed and ultimately the cancellation action was taken against the petitioner S. Zahid Hussain and Brothers the original allottee of shop no. 58. The order of cancellation of the allotment of the petitioner S. Zahid Hussain and Brothers has not been brought on record and in course of argument neither learned counsel for the petitioner nor learned Senior Counsel for the respondent no. '5' could place the same before the Court. It is, however, admitted that the allotment of the petitioner S. Zahid Hussain and Brothers had been cancelled and the said cancellation order was challenged in C.W.J.C. No. 6799 of 2006 with other prayer as noted hereinabove.

The entry of Md. Ahmad Mumtaz Ahmad

It appears from the materials available on the record that the petitioner S. Zahid Hussain & Brothers / original allottee and respondent no. '5' M/s Md. Ahmad Mumtaz Ahmad had entered into an agreement (Annexure 'R/5-B' of the counter affidavit of respondent no. '5' ). This agreement is dated 03.02.2003. Under this agreement original allottee received Rs. 3,75,000/- from respondent no. '5' on certain conditions. The condition No. '1' says that both the parties to the agreement shall continue to do their respective business from the premises of shop no. 58 and no one will have any objection against each other. The amount of Rs. 3,75,000/- has been given as a friendly exchange for all the consideration agreed by S. Zahid Hussain & Brothers / original allottee in terms of allowing respondent no. '5' to continue his business from the premises. Under the agreement the respondent no. '5' was given responsibility to pay the rent, electricity charges and any other kind of dues on the shop and the original allottee was not to be liable to compensate respondent no. '5' in this respect. What is important to note is that the agreement nowhere fixes the period within which the amount of Rs. 3,75,000/- is to be returned by the original allottee to respondent no. '5'. No interest would be chargeable and, in case, in future, the original allottee fail to repay the said amount of Rs. 3,75,000/- for any reason or expresses his inability to refund the amount, respondent no. 5 would have right to get the money recovered from any immovable or movable property of the original allottee. It is, thus, an admitted position that respondent no. '5' entered in the premises of shop no. 58 by virtue of the agreement with the original allottee, the terms whereof are stipulated in Annexure 'R/5 B' to the counter affidavit of respondent no. '5'.

Learned counsel for the petitioner has submitted in course of argument that the petitioner admits first page of the agreement but does not admit the other three pages. Learned counsel, however, failed to demonstrate from the rejoinder to the counter affidavit that the petitioner/original allottee has ever denied the contents of the agreement as a whole and his signature appearing on all the pages of the agreement. No serious challenge to Annexure 'R/5 B' could be thrown.

Allotment of Shop to Md. Ahmad Mumtaz Ahmad and Cancellation thereof

It further appears that in terms of the order of the then Managing Director of the Board, the Market Secretary was required to go for fresh allotment of shop no. 58 because the original allottee was not in possession of the shop as was contended before the Managing Director and the fresh settlement had to take place as per seriatim but unfortunately, instead of following the direction of the Managing Director to follow the seriatim which was also in consonance with the direction of the Hon'ble Division Bench of this Court, the Market Secretary allotted shop no. 58 in favour of respondent no. '5'.

Since the petitioner Hassan Imam of C.W.J.C. No. 7438 of 2017 was continuously agitating this issue, the allotment in favour of respondent no. '5' (respondent no. 5 in C.W.J.C. No. 3924 of 2017 is respondent no. 6 in C.W.J.C. No. 7438 of 2017) was also cancelled. It is the case of respondent no. '5' that he was paying all the rent and other liabilities on account of the said shop since beginning of the allotment i.e. on 17.12.1999 because he was using shop for keeping the fruits. Respondent no. '5' admits his possession through the original allottee but alleged that original allottee used to extort money from him because he was the licensee of the shop in question. Respondent No. '5' admits to have made a complaint to the authorities of the Board that the original allottee was not running the shop himself and that he had no concern with the fruit business, thereafter, an inquiry was conducted, the shop was found closed and it was held to have been sub-letted to a third party without knowledge of the authority. The allegations of respondent no. '5' were found true and accordingly, the action for cancellation had taken.

Challenge to the Cancellation of Allotment by Md. Ahmad Mumtaz Ahmad

The fact remains that the allotment made in favour of respondent no. '5' was also subsequently cancelled which respondent no. '5' challenged before this Court in C.W.J.C. No. 7566 of 2005 wherein he challenged letter no. 1213 dated 16.06.2005 by which the allotment of shop in favour of respondent no. '5' was cancelled. The cancellation was done on the ground that he was below in the seniority list whereas the shop had to be allotted according to the seniority as per order of the Managing Director. Respondent No. 5 pleaded violation of principles of natural justice.

During this very period one M/s Rayeen Brothers filed a writ application being C.W.J.C. No. 13810 of 2005 claiming that he had been doing fruit business for several decades, he had license no. 933 of 1988-89 which has been renewed up to date, he was the oldest licensee but despite his efforts being made since year 1988 for allotment of the shop in Market Yard, he could not succeed for the reasons known to the authorities only. He had filed an application on 25.07.2005 before the Managing Director of the Board but that was not attended to and the allotment of shop was made in favour of M/s Md. Ahmad Mumtaz Ahmad (respondent no. '5').

C.W.J.C. no. 18594 of 2017

M/s Md. Gaush Alam Shoaib Alam had also moved a writ application being C.W.J.C. No. 11651 of 2006 claiming his entitlement for Shop No. 58 which was heard along with other writ applications and vide common judgment dated 14.1.2011 the said writ application was dismissed. Letters Patent Appeal and Special Leave to appeal were also dismissed. Now in this fresh writ he is once again claiming his right to get the shop on those very grounds which was subject matter of adjudication in earlier round.

Hassan Imam who is petitioner before this Court in C.W.J.C. No. 7438 of 2017 also moved this Court by filing C.W.J.C. No. 6261 of 2006 for a direction to the respondent authorities to allot the vacant shop no. 58 in the Mussalahpur Market Yard and also to restrain the respondent from interfering with his business on the platform of the Market Yard which he was doing since several decades by virtue of the license granted to him. He explained that he was granted license of fruit vending in the year 1990 i.e. on 23.06.1990, his name was standing at serial no. 9 in the seniority list but ignoring his request for allotment of shop, the Market Secretary has allotted subsequent licensee the said shop established in the Market yard. He referred to the earlier writ application being C.W.J.C. No. 2535 of 2000 and the order passed by the Managing Director of the Board on 11.08.2000 for allotment of shop seniority-wise. His allegation was that the allotment of shop no. 58 in favour of S. Zahid Hussain and Borthers was not an issue because he was above in the seniority list but when said S. Zahid Hussain and Brothers violated the terms of the license and was not found in possession of the shop also and his allotment was cancelled, the fresh allotment was required to be made in favour of this petitioner (Hassan Imam). At this stage, it was also explained that when his request for allotment of shop no. 58 was not being paid heed to, he had filed one writ application being C.W.J.C. No. 14040 of 2001 and in course of hearing of the same learned counsel for the Market Committee took a stand that the Market Committee was going to take up a self financing scheme within the Market Yard for the licensee who have not been provided any shop till now. When the Court was informed that the Self Financing Scheme is likely to be brought in existence, the learned Writ Court disposed of the said writ application vide order dated 25.03.2003 but the Board did not abide by its undertaking. Subsequently, the petitioner Hassan Imam brought one M.J.C. No. 2289 of 2003 for initiation of contempt but the same was disposed of leaving it for the petitioner to avail his remedy in accordance with law.

It is submitted that the Market Secretary acted illegally to favour respondent no. '5' by allotting the shop no. 58. It is further submitted that vide Annexure '7' (C.W.J.C. No. 7438 of 2017) dated 20.07.2004 the Market Secretary allotted the vacant piece of land to the petitioner (Hassan Imam) to construct his shop. It required sanction from the Board but nothing was done. Petitioner Hassan Imam filed appeal no. 01 of 2005 before the Managing Director of the Board which was disposed of vide order dated 10.06.2005 holding that 30 shops were going to be constructed near the canteen in Market Yard but in fact neither any shop was constructed in that area nor any allotment was made in favour of the petitioner. In course of hearing learned counsel for the petitioner Hassan Imam (in C.W.J.C. No. 7438 of 2017) has placed before this Court the statements made in paragraph '4' of the supplementary counter affidavit of respondent no. 5 (in C.W.J.C. No. 7438 of 2017) to show that the respondent no. '5' has admitted to the extent that shop no. 190 had not been allotted to the petitioner Hassan Imam. Learned counsel, however, explained that shop no. 190 was sought to be allotted to the petitioner Hassan Imam vide letter bearing no. 164 dated 10.10.2011 issued by the then S.D.M. cum-special officer, A.P.M.C. (Dissolved), petitioner had deposited the security amount of Rs. 25,000/- by that time but by the time allotment of shop no. 190 was sought to be made to the petitioner under the self financing scheme, the petitioner was found entitled to get allotment of shop no. 58 by virtue of the Hon'ble Writ Court's order passed in C.W.J.C. No. 6261 of 2006 on 14.11.2011., therefore, vide Annexure 'D' to the counter affidavit of respondent no. '5' in C.W.J.C. No. 7438 of 2017, the petitioner Hassan Imam sought to be placed in Shop no. 58 and declared that he had no need to get another shop and recalled his security deposit.

Adjudication in the first round of litigation among the parties.

It so happened that when all the writ applications being C.W.J.C. No. 7566 of 2005, C.W.J.C. No. 6799 of 2006, C.W.J.C. No. 13810 of 2005 and C.W.J.C. No. 11651 of 2006 and C.W.J.C. No. 6261 of 2006 were heard together by the Hon'ble Single Judge, in ultimate analysis C.W.J.C. No. 7566 of 2005 filed by M/s Md. Mumtaz Ahamd (respondent no. '5' in C.W.J.C. No. 3924 of 2017) ; C.W.J.C. No. 13810 of 2005 filed by M/s Rayeen Brothers ; C.W.J.C. No. 6799 of 2006 filed by S. Zahid Hussain and Brothers (petitioner of C.W.J.C. No. 3924 of 2017) and C.W.J.C. No. 11651 of 2016 filed by Md. Goush Alam Shoaib Alam (petitioner in C.W.J.C. No. 18594 of 2017) came to be dismissed. The Hon'ble Single Judge, however, found the writ application of the petitioner Hassan Imam being C.W.J.C. No. 6261 of 2006 is fit to be allowed. With regard to the case of Hassan Imam, the Hon'ble Writ Court recorded its finding in paragraphs 31, 32 and then in pargraphs 38, 39, 40, 41, 42 and 43 as under:

"31. So far the petitioner of C.W.J.C. NO. 6261 of 2006, namely, Hassan Imam is concerned, he was, admittedly at serial no.9 of the seniority list as per his licence no. 1121 of 1990-91. Although this petitioner is not the oldest licensee but is certainly one of the oldest licensees and immediately after the grant of the said licence, he had applied for allotment of a shop on 16.06.1990 and had been doing his fruit business on the verandah of the Market Yard since then, which facts are not denied by respondent-authorities.

Comparing the petitioner of C.W.J.C. No. 6261 of 2006 (Hassan Imam) with other writ petitioners, it becomes clear that Md. Goush Alam Shoaib Alam ( C.W.J.C. No. 11651 of 2006) was the oldest licensee vide licence no. 764 of 1982-83, but he could prove only his application dated 22.08.2006 for allotment of a shop in the market area. Similarly petitioner-S. Zahid Hussain and Brothers (C.W.J.C. No. 6799 of 2006 ) was at serial no.1in the seniority list having licence no. 911/1987-88 due to which shop no. 58 was allotted to him on 17.12.1999, but his licence and allotment were subsequently cancelled by the authorities due to his violation of the provisions of law and the clauses of agreement, which has been fully proved by the authorities.

On the other hand, Hassan Imam (C.W.J.C. No. 6261 of 2006) applied for licence i••••n the year 1990 and was granted licence no. 1121 of 1990-91 and immediately thereafter he applied for allotment of shop on 16.06.1990 and had been doing his business on the verandah of the Market Yard since then. These facts are not denied by respondent-authorities. In furtherance thereto, this petitioner had been throughout seriously trying for allotment of a shop and when it was denied he filed C.W.J.C. No. 2535 of 2000, which was permitted to be withdrawn by a Bench of this Court vide order dated 19.05.2000 with a liberty to him to move before the Managing Director of the Board under section 38 of the Act. The petitioner moved the said authority within time and the Managing Director of the Board vide order dated 11.08.2000 rejected his application on the ground that shop no. 58 had already been allotted to M/s S. Zahid Hussain and Brothers (C.W.J.C. No. 6799 of 2006). Thereafter, the petitioner again moved this Court vide C.W.J.C. No. 14040 of 2001, but when the counsel for the respondents submitted before the Court that the authorities of the Board were trying to construct and provide more shops and would adjust the petitioner and others, learned counsel for the petitioner did not press the said writ petition, which was disposed of on 25.03.2003. From Annexure 8 series of C.W.J.C. No. 6261 of 2006, it also transpires that in view of the order of this Court and the stand taken by the authorities, the Secretary of the Committee decided to allot vacant land to the petitioner to construct his shop and it was approved by the Market Committee on 20.07.2004 and only sanction of the Board was required, but nothing was done by the authorities although in the meantime shop no. 58 had already become vacant due to cancellation of allotment of that shop made earlier in favour of S. Zahid Hussain and Brothers (C.W.J.C. No. 6799 of 2006).

Considering the entire facts and circumstances as well as the materials on record as discussed above, it is quite apparent that Hassan Imam (C.W.J.C. No. 6261 of 2006) was amongst the top-ten licensees according to the seniority list Furthermore, amongst all the writ petitioners, he is the senior most applicant as none of other claimants could prove filing of any application by them prior to 1990. The said writ petitioner, namely, Hassan Imam (C.W.J.C. No. 6261 of 2006) has also been able to prove that he was doing his fruit business in the Market Yard since 1990 and had filed his application for allotment of a shop immediately thereafter on 16.06.1990 and had been pursuing it throughout very vigorously and had not only approached the Managing Director of the Board in that regard, but had also filed writ petitions for the said purpose and his claim had never been rejected rather the matter was merely delayed due to non-compliance of the undertakings given by the authorities before the Court.

It has already been held above that allotment of applicant as none of other claimants could prove filing of any application by them prior to 1990. The said writ petitioner, namely, Hassan Imam (C.W.J.C. No. 6261 of 2006) has also been able to prove that he was doing his fruit business in the Market Yard since 1990 and had filed his application for allotment of a shop immediately thereafter on 16.06.1990 and had been pursuing it throughout very vigorously and had not only approached the Managing Director of the Board in that regard, but had also filed writ petitions for the said purpose and his claim had never been rejected rather the matter was merely delayed due to non-compliance of the undertakings given by the authorities before the Court.

40.It has already been held above that allotment of shop no. 58 in favour of S. Zahid Hussain and Brothers (C.W.J.C. No. 6799 of 2006) vide order dated 29.11.1999 had been rightly cancelled along with licence due to letting out the said shop to others and not being interested in doing his own business in the shop, hence the said shop is vacant for allotment to any competent licensee according to the seniority amongst the licensees and the applicants. Therefore, the authorities must get the said shop vacated if not yet done, expeditiously within one month from the date of this order. 41.Furthermore, there is no occasion to allot shop no. 58 again to a person, who has never been seriously interested in doing business in the shop although they are old licensees, but filed application for allotment of shop decades thereafter only when the old claim of Hassan Imam (C.W.J.C. No. 6261 of 2006) was at its final stages. Allotment of shop in favour of such person is bound to result in the same manner,which the authorities were forced to do in case of S. Zahid Hussain and Brothers (C.W.J.C. No. 6799 of 2006).42. According to the aforesaid criteria of seniority amongst the licensees and applicants as well as the genuineness of the claim and the seriousness of interest shown by the applicants in doing business in the shop in question, the person, who appears to be the fittest amongst the claimants, is undoubtedly Hassan Imam (C.W.J.C. No. 6261 of 2006) and hence his said writ petition is allowed and respondent-authorities are directed to allot shop no. 58 in his favour and put him in possession thereof immediately within one month of receipt/production of a copy of this order.

In the facts and circumstances discussed above in this order, C.W.J.C. No. 7566 of 2005, C.W.J.C. No. 13810 of 2005, C.W.J.C. No. 6799 of 2006and C.W.J.C. No. 11651 of 2006 are hereby dismissed. Howe ver, in future if any shop is vacated or is constructed, the authorities concerned shall consider the claims of the said petitioners along with other applicants for allotment of shop in the light of the principles prescribed above i.e. seniority of licensees amongst the applicants on a given date."

From a bare reading of the judgment of the Hon'ble Writ Court it would appear that out of five writ applications, four writ applications were dismissed by the Hon'ble Writ Court but C.W.J.C. No. 6261 of 2006 which was preferred by the petitioner Hassan Imam was allowed and the respondent authorities were directed to allot the shop no. 58 in his favour and put him in possession thereof immediately within one month from the date of receipt/production of a copy of this order.

It appears from the record that the petitioner S. Zahid Hussain and Brothers and respondent no. '5', M/s Md. Ahmad Mumtaz Ahmad also M/s Md. Gaush Alam Shoaib Alam preferred Letters Patent Appeal against the judgment of the learned Single Judge dismissing their respective writ applications. All the three Letters Patent Appeal bearing No. 1854 of 2011; 26 of 2012 and 152 of 2012 were disposed of by Hon'ble Division Bench of this Court vide judgment and order dated 22.11.2013. The Hon'ble Division Bench of this Court vide judgment and order dated 22.11.2013 affirmed the findings of the learned Single Judge and dismissed all the three Letters Patent Appeals. Copy of the judgment of the Hon'ble Division Bench is Annexure '11' to the C.W.J.C. No. 3924 of 2017. It is worth taking note of the fact that so far as the judgment of the learned Writ Court with respect to C.W.J.C. No. 6261 of 2006 concerned, no challenge was made to the judgment of the learned Writ Court in the case of the petitioner Hassan Imam. This Court would have therefore, no difficulty in saying that the findings of the learned Writ Court as regards the entitlement of petitioner Hassan Imam to get allotment of shop no. 58 in order of seniority remained intact without any challenge and has attained finality.

It further appears that after dismissal of the Letters Patent Appeal, the petitioners S. Zahid Hussain, (respondent no. 5) as well as M/s Md. Gaush Alam Shoaib Alam (petitioner in C.W.J.C. No. 18954 of 2017) moved before the Hon'ble Supreme Court by filing Special Leave Petitions. In Civil Appeal No. 4214 of 2015 (Arising out SLP (C) No. 37025 of 2013 M/s Md. Ahmad Mumtaz Ahmad Vs. Bihar State Agriculture Marketing Board and Ors.), the Hon'ble Supreme Court granted leave and on the solitary ground of non-issuance of show cause notice before cancellation of allotment, the order passed by the Board cancelling the allotment of shop in favour of the appellant M/s Md. Ahmad Mumtaz Ahmad (respondent no. 5 in C.W.J.C. No. 3924 of 2017) was set aside and the matter was remitted to the Board granting liberty to pass appropriate orders in accordance with law. The copy of the order of the Hon'ble Supreme Court is Annexure '18' to C.W.J.C. No. 18594 of 2017 ( M/s Md. Gaush Alam Shoaib Alam vs The State of Bihar & Ors.).

The Special Leave to Appeal (c) No. 8492 of 2014 preferred by M/s Md. Gaush Alam Shoaib Alam was, however, dismissed in limine (Annexure '16' to C.W.J.C. No. 18594 of 2017). Similarly the Special Leave Petition preferred by the petitioner S. Zahid Hussain and Brothers was also dismissed vide S.L.P. (C) 37435 of 2013. It is, therefore, evident from the records that the Hon'ble Supreme Court did not interfere with the judgment of the Hon'ble Writ Court and Hon'ble Division Bench of this Court with respect to the petitioner S. Zahid Hussain and Md. Gaush Alam Shoaib Alam.

The Hon'ble Supreme Court only set aside the impugned order of cancellation of allotment of petitioner M/s Md. Ahamd Mumtaz Ahmad (respondent no. '5' in C.W.J.C. No. 3924 of 2017 and respondent no. 6 in C.W.J.C. No. 7438 of 2017) and after setting aside the cancellation order in his respect the Hon'ble Supreme Court granted liberty to the Board to pass appropriate order in accordance with law. It was, thus, a limited interference to the extent of the order of cancellation of allotment of respondent no. 5 on the ground of violation of principles of natural justice.

It is apparent from the records and the judgments of the Hon'ble Writ Court, the Hon'ble Division Bench and the Hon'ble Supreme Court that so far as the claim of petitioner S. Zahid Hussain and Brothers and Md. Gaush Alam Shoaib Alm are concerned, they have failed before the learned Writ Court, the Hon'ble Division Bench and finally before the Hon'ble Supreme Court. In their respect, therefore, the findings of the learned Writ Court has attained finality and those very issues cannot be allowed to be agitated afresh at their instance. Learned counsel for the petitioner S. Zahid Hussain and Brothers as well as M/s Gaush Alam Shoaib Alam have in course of their arguments only reiterated the submissions which were the subject matter of consideration in the earlier round of proceedings. Those being the matters of record, the Court has discussed all such submissions herinabove.

So far as the case of respondent no. 5 of C.W.J.C. No. 3924 of 2017 is concerned, that was remitted to the Board for a fresh consideration on the ground of violation of principles of natural justice. Therefore, by virtue of the order of the Hon'ble Supreme Court the Administrator had to give him an opportunity of hearing and to take a view as to whether the allotment made in favour of respondent no. '5' may be held to be legal, valid and in accordance with the guidelines settled by the Hon'ble Division Bench of this Court in C.W.J.C. No. 2607 of 1991. By the impugned order dated 23.01.2017 the Administrator has taken a view in favour of respondent no. 5 and in order to examine the same the reasoning and rationale behind the order as expressed by the Administrator are being taken note of as under :

"13. As the matter stands now, present occupier of Shop no. 58 namely, M/s . Ahmed Mumtaz Ahmed alone had moved up to Hon'ble Supreme Court in order to get allotment of land in his favour and no other applicant from array of parties took pain to resist his petition in Supreme Court. M/s M. Ahmed, Mumtaz Ahmed is carrying out business from said shop ever since allotment of shop to him on 15.12.2004 due to reasonable high last three years submission of market fee return, which is one of the criterions for selection of shop allotment, as per record found in counter affidavit filed in the court. He has complied with all terms and conditions of allotment and as such, he is having legitimate expectation for formal allotment of shop in his favour. Order passed by Hon'ble Supreme Court on 1-5-2015 also bolsters claim of M/s M. Ahmed Mumtaz Ahmed and there is neither any legal impediment nor any judicial injunction in way of formal allotment of Shop No. 58 in favour of M/s M. Ahmed Mumtaz Ahmed. New Shop Allotment Policy No. 566, memo-1880, dated 23.12.22016 is not applicable in instant case due to the fact that shop no. 58 is not vacant as on date since M/s M. Ahmed Mumtaz Ahmed, is already carrying out business from said shop.

In the light of Order passed by Hon'ble Supreme Court on 1-5-2015 as referred to in Para 9 of this order and keeping in view spirit and mandate of that order, Shop No. 58 situated at Fruit Market in Agriculture Produce Market Yard, Musallahpur, Patna is hereby continued to be allotted to M/s M. Ahmed Mumtaz Ahmed on such terms and conditions stipulated in letter of allotment dated 15. 12.2004 by allowing the appeal. Applications preferred by other claimant, namely, (1) Md. Gaus Alam Shoaib Alam; (2) M/s Hassan & Co. and (3) S. Zahid Hussain & Bros. (Prop. Arif Hussain), are hereby rejected in respect of shop no. 58. However, liberty is granted to unsuccessful applicants to apply for allotment of various other shops which are still lying vacant in Agriculture Produce Market Yard, Musallahpur, Patna."

Learned Senior Counsel for the respondent no. '5' Md. Ahmad Mumtaz Ahmad has defended the impugned order passed by the Administrator of the Board (Dissolved) on the ground that because the said respondent is in possession of the shop for about 15 years by now, the Administrator has rightly allowed him to continue with the allotment. Learned Senior Counsel was, however, unable to answer as to how on the face of the findings already recorded in favour of the petitioner Hassan Imam that he was entitled to for allotment being the senior licensee and the said finding had attained finality, the allotment in favour of respondent no. '5' at the very first instance may be held legal and justified. It is not a dispute that in terms of the Hon'le Division Bench judgment of this Court which has been referred at the very beginning, all allotments were required to be made as per seniority of the licensee, even at this stage, there is no different plea of the Administrator. Thus, the contention of learned Senior Counsel for the respondent no. '5' would not be acceptable in view of the discussions hereinafter.

Impugned order-assailed-set aside

A perusal of the aforesaid order would show that the Administrator was overwhelmed by the efforts taken by respondent no. 5 M/s Md. Ahmad Mumtaz Ahmad to move up to the Hon'ble Supreme Court in order to get the allotment of the shop in his favour. His observation that no other applicant from array of parties took pain to resist his objection in Supreme Court and further that because he was carrying business in the shop since the allotment and has paid market fee are totally irrelevant considerations. The further observation of the Administrator that he is having legitimate expectation for formal allotment of shop in his favour is in fact a completely misconceived view expressed by the Administrator, inasmuch as, he has failed to understand and appreciate that it will be in fact an illegitimate expectation of respondent no. 5 which cannot become a legitimate expectation on the face of the fact that he was looking for allotment by violating the norms and procedures meant for purpose of allotment of shops. There cannot be a legitimate expectations to get a shop by violating the judgment of the Hon'ble Division Bench which clearly sets out the norm to be followed whereunder seniority is the basis of allotment.

It further appears from a reading of the impugned order that the Administrator has interpreted the order of the Hon'ble Supreme Court to mean and understand that the order bolsters the claim of M/s Md. Ahmad Mumtaz Ahmad, this shows the total misunderstanding of reading the orders of the Court on his part. The Hon'ble Supreme Court in its order dated 01.05.2015 has not expressed any opinion or prima facie observation with respect to the claim of the respondent no. '5' and therefore, the observation of the Administrator is totally unfounded and misplaced. The further observation of the Administrator that there is no legal impediment or a judicial injunction in way of formal allotment of shop no. 58 in favour of respondent no. 5 Md. Mumtaz is a kind of totally irresponsible and unmindful observation made by him. There is a Division Bench judgment of this Court which has to be followed in the matter of allotment of shops and thereunder a shop has to be allotted as per seniority. It is not in dispute that respondent no. '5' is much below in the seniority and therefore, both legal impediment and judicial injunction were existing and coming in the way of formal allotment of shop in favour of respondent no. '5'. The Administrator while passing the order allowing the respondent no. '5' to continue in the shop failed to appreciate that the entitlement of the petitioner Hassan Imam has been found by the learned Writ Court while deciding C.W.J.C. No. 6261 of 2006 when the learned Writ Court held in paragraph '42' of the judgment that the said petitioner appeared to be the fittest among the claimants and hence, issued a direction to allow shop no. 58 in his favour. There is no difficulty in repeating the existing position that the finding recorded by the learned Writ Court in favour of petitioner Hassan Imam has attained finality. The Administrator of the Board (Dissolved) has, therefore, passed a wholly illegal and arbitrary order in favour of respondent no. '5' who is respondent no. 6 in C.W.J.C. no. 7438 of 2017.

In the ultimate result, the impugned order dated 23.01.2017 passed by the Administrator of the Board (Dissolved) in so far as that held respondent no. '6' in C.W.J.C. No. 7438 of 20-17 entitled to continue with the allotment is liable to be set aside and is accordingly, hereby set aside.

This Court comes to a conclusion that so far as claim of the petitioner S. Zahid Hussain and Brothers (C.W.J.C. No. 3924 of 2017) and that of M/s Gaush Alam Sohaib Alam (C.W.J.C. No. 18594 of 2017) are concerned, they have failed to succeed up to the Hon'ble Supreme Court in the earlier round of proceeding, they have no fresh cause of action and these two petitioners cannot be allowed to re-agitate those very issues which have been considered, decided and attained finality in the earlier round of litigation. The principles of res-judicata would apply as against them and their writ applications are, therefore, dismissed. In their cases the findings of the learned Writ Court have attained finality.

So far as C.W.J.C. No. 7438 of 2017 preferred by Hassan Imam is concerned, it has to succeed. Since the impugned order of the Administrator as regards M/s Ahmad Mumtaz Ahmad (respondent no. 6 in C.W.J.C. No. 7438 of 2017) has been set aside by this Court, the Administrator is directed to proceed forthwith in terms of the direction of this Court as contained in paragraph '42' of the judgment dated 14.11.2011 allowing the C.W.J.C. No. 6261 of 2006. The petitioner Hassan Imam shall be put in possession of the shop within one month from the date of receipt/production of a copy of this order. Action for eviction of respondent no. 6 in C.W.J.C. no. 7438 of 2017 and to place the petitioner Hassan Imam in Shop No. 58 shall be taken without any delay.

C.W.J.C.No. 7438 of 2017 is thus, allowed.