CIVIL WRIT JURISDICTION CASE No.7212 of 2005 (In the matter of an application under Article 226 of the Constitution of India) THE NEW MARKET P M C STALL HOLDERS ASSOCIATION, a society registered under the Societies Registration Act 1860, through its General Secretary, having its registered office at New Market, PS Kotwali, in the town and District of Patna …Petitioner Versus 1. THE PATNA MUNICIPAL CORPORATION, PATNA, through the Chief Executive Officer 2. The Chief Executive Officer, Patna Municipal Corporation - Both having their offices at Budha Marg, PS Kotwali in the town and District of Patna… ….Respondents With CWJC No.6959 of 2005 VIJAY MINI MARKET DUKANDAR SANGH, through its Secretary, Rajendra Prasad Gupta, son of late Sheolal Sah, resident of Mohalla Mithapur, PS Jakkanpur, District Patna …… ….Petitioner Versus 1. PATNA MUNICIPAL CORPN. Through its Chief Executive Officer, office New Capital Area, Patna 2. Chief Executive Officer, Patna Municipal Corporation, New Capital Area, Patna 3. Executive Officer cum Revenue Officer, New Capital Area Office, Near GPO, Patna Municipal Corporation, Patna ….. ….Respondents ******* In CWJC No.7212 of 2005 For the Petitioner : Mr. Ram Balak Mahto, Senior Advocate Mr. Pushkar Narain Shahi Mr. Sitesh Chandra Mitra In CWJC No.6959 of 2005 For the Petitioner : Mr. Ambar Nath Banerjee In both the writ petitions For the Respondents : Mr. Vinay Kirti Singh Mr. Bishwa Bibhuti Kumar Singh P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. The two writ petitions have been preferred by the two Associations of vendors in representative capacity, representing shop-keepers of two different segments of the market known as New Market, Patna, where members of the two Associations are licensees to put up stalls for commercial purposes. They assail the 2 validity of the order dated 31.5.2005 (Annexure 12), whereby the licence fee/rent payable by the members of the petitioner has been enhanced. (2) CWJC No. 7212 of 2005 It appears that the predecessor-in-interest of the present Patna Municipal Corporation (hereinafter referred to as the Corporation), set up a market comprising shops and kiosks for commercial purposes in the township of Patna. The members of the Association, or their predecessor-in-interest, took on lease/rental different premises way back in 1922 on monthly licence fee/rental @ Rs.8/-. The rent was enhanced from time to time. It is further stated in the writ petition that, by an agreement inter-parties dated 14.2.1995 (Annexure 4), the rent @Rs.1/- per sq. feet was to be realizable with effect from 1.4.90, and @ Rs.1.75p. per sq. feet with effect from 1.4.94 which was to remain in force for a period of three years. It was further agreed that there shall be enhancement of rent at the rate of 15 per cent once every three years. The members of the petitioner Association continued to pay the rent at that rate till such time they were visited with the impugned order, whereby the rent was enhanced. The petitioner Association challenged the same by preferring CWJC No.16610 of 2004, which was disposed of by a learned single Judge of this Court by order dated 4.4.2005 (Annexure 9), whereby the petitioner was directed to submit a representation before the Chief Executive Officer of the Corporation who had to dispose of the same by a reasoned order after affording reasonable opportunity of hearing. The representation has since been disposed of by order dated 31.5.2005 (Annexure 12), whereby licence fee/rent @Rs.15/- per sq. feet shall be realizable with effect from May 2002. (3) While assailing the validity of the impugned order, learned counsel for the petitioner submits that enhancement of licence fee/rent @Rs.15/- per sq. feet is steep and unrealistic. Learned counsel submits in the same vein that it is unaffordable keeping in view the size of the premises and the extent of profit. They continue to be in occupation of old and dilapidated structure made over to them way back in 1922, and the entire expenditure to keep the structure in reasonably good condition is entirely on the members of the Association. 3 (4) We have perused the materials on record and considered the submissions of learned counsel for the parties. It must first of all be emphasized that by order dated 4.4.2006, passed in CWJC No.16610 of 2004, the Corporation was directed to consider the grievances of the petitioner by a speaking order after affording reasonable opportunity of hearing. Not having been challenged, this order has attained finality. Both sides are bound by the direction of this Court and, therefore, we are now called upon to examine the reasonableness and the validity of the order passed by the Chief Executive Officer. It appears to us on a perusal of the order that the members of the petitioner Association or their predecessor-in-interest are in occupation of their respective premises for commercial purposes ever since 1922. It is further evident that the Corporation has passed orders for uniform rates of licence fee/rental for its different markets spread over various parts of the township, and the dominant condition is the locational-cum-commercial advantage of each site. Therefore, the Corporation has divided its different markets on scientific basis, namely, the locational-cum-commercial advantage of the situs. This is a validly commercial decision, and categorization of its markets according to this yardstick has to be taken by the Corporation. The Court has only to judge its reasonableness. This Court will be stepping into a most difficult area if it ventures to re-determine the commercial yardstick. The order further states that the New Market is surrounded by Patna junction station, Hanuman Mandir – possibly the busiest and most frequented temple for the Hindus in the township of Patna, a busy Mosque, General Post Office, cinema halls, etc. It is one of the busiest and bustling commercial areas in the township of Patna. The impugned order has also noticed that the members of the petitioner Association are in the inveterate habit of resisting enhancement of licence fee/rental, completely ignoring the rise in the establishment cost of the Corporation. The impugned order very rightly notices that, in view of the implementation of the recommendations of the Fifth Pay Revision Commission, salary of its employees has risen by 40%. We are thus of the view that the learned Executive Officer has taken into account relevant circumstances, and no irrelevant circumstance has been taken into account. We also take judicial notice of the spiral of inflation which is bringing higher gross profits and income to the shop-keepers. We are informed at the Bar that 4 the members of the petitioner Association are in possession of 200 sq. feet approximately each. In other words, each one of them is required to pay, after enhancement, a sum of Rs.3000/- per month approximately. According to the spiral level of prices and the prevailing conditions, this licence fee/rental is just and proper. We certify the reasonableness of the order. (5) We are in this connection reminded of the following observations of the Supreme Court in S G Jaisinghani v. Union of India (AIR 1967 SC 1427) :- “(14) In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey –“Law of the Constitution” – Tenth Edn., Introduction ex). “Law has reached its finest moments,” stated Douglas, J. in United States vs. Wunderlich, (1951) 342 US 98, “when it has freed man from the unlimited discretion of some ruler …. Where discretion is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of Jon Wilkes, (1770) 4 Burr 2528 at p.2539 “means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful.” The impugned order survives the rigorous test of reasonableness prescribed by the Supreme Court. (6) We do not find any merit in this writ petition. (7) CWJC No. 6959 of 2005 This writ petition is at the instance of the Association of another group of shop-keepers in the New Market itself. In 1983, the Corporation had set up a market, known as “Vijay Mini Market”, in the rear side of the market with smaller areas. Though it is part of the same New Market, in view of its locational disadvantage, the authorities have fixed the licence fee/rental @ Rs.10/- per sq. feet. Following is the chart promulgated by the authorities by its order dated 8.7.2002 (Annexure 6) :- dzekad nwdku dk izdkj izfr oxZQhV izfrekg fdjk;k nj 1- U;w ekdsZV iDdk LVky 15@&izfr oxZ QhV izfr ekg 2- fot; feuh ekdsZV 10@& ^^ ^^ ^^ ^^ ^^ 3- diM+k cktkj 10@&^^ ^^ ^^ ^^ ^^ 5 4- ,e IykSV 10@&^^ ^^ ^^ ^^ ^^ 5- fo|qr Hkou fLFkr D;ksLd 5@&^^ ^^ ^^ ^^ ^^ 6- jktLo Hkou fLFkr D;ksLd 5@&^^ ^^ ^^ ^^ ^^ 7- iqukbZpd fLFkr D;ksLd 5@&^^ ^^ ^^ ^^ ^^ 8- Uk;k lfpoky; fLFkr D;ksLd 5@&^^ ^^ ^^ ^^ ^^ 9- ihjeqgkuh fLFkr xqeVh 5@&^^ ^^ ^^ ^^ ^^ 10- “kadj lCth ekdsZV 5@&^^ ^^ ^^ ^^ ^^ 11- lsUV~zy gkWy 10@&^^ ^^ ^^ ^^ ^^ 12- xwM “ksM nwdku 10@&^^ ^^ ^^ ^^ ^^ 13- CykSd fu;j dh oys 15@&^^ ^^ ^^ ^^ ^^ 14- fNV iwV xweVh 5@&^^ ^^ ^^ ^^ ^^ g0@& vLi’V lgk;d iz”kkld] uwru jkt/kkuh vapy It is stated that the shops covered by the aforesaid CWJC No.7212 of 2005 shall be charged @Rs.15 per sq. feet per month, whereas the shop-keepers of the Vijay Mini Market covered by the present writ petition shall be charged @Rs.10/- per sq. feet per month. Apart from the aforesaid facts and circumstances equally governing the present case also, it is remarkable to note that the aforesaid chart itself speaks of a very just and proper order on the part of the authorities. If that were not so, they would not have fixed licence fee/rental differently. It shows close application of the mind, and due deference to the relevant circumstances like locational, commercial advantages and disadvantages. Such an approach acquits them of all charges of unreasonableness. They have with utmost fairness considered that Vijay Mini Market suffers from locational disadvantage and, therefore, have to pay lower rate. We certify the reasonableness of the order. In that view of the matter, the offer made by the petitioner Association to pay the licence fee/rental @Rs.4/- per sq. feet is grossly inadequate and fit to be rejected outright. (8) In the result, both the writ petitions are dismissed. The shop-keepers are liable to pay the differential amount of arrears, which shall be paid in twelve equal 6 monthly instalments, over and above the monthly rental to be paid as per the impuged order. In the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar ) Kishore K Mandal, J. I agree. ( Kishore K Mandal ) Patna High Court, Patna The 19th of April 2010 AFR/mrl