Page No.# 1/8 GAHC010290302023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7510/2023 NIRMAL DAS S/O- LATE AKHIL DAS, R/O- DHING TOWN, WARD NO. 6, P.S.- DHING, P.O.- DHING, DIST.- NAGAON, PIN- 782123, ASSAM. VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, MUNICIPAL ADMINISTRATION DEPARTMENT, DISPUR, GUWAHATI-6. 2:DHING MUNICIPAL BOARD REPRESENTED BY THE CHAIRMAN/ CHAIRPERSON DHING P.O.- DHING DIST.- NAGAON PIN- 782123 ASSAM. 3:THE VICE CHAIRMAN DHING MUNICIPAL BOARD DHING P.O.- DHING DIST.- NAGAON PIN- 782123 ASSAM. 4:THE EXECUTIVE OFFICER Page No.# 2/8 DHING MUNICIPAL BOARD DHING P.O.- DHING DIST.- NAGAON PIN- 782123 ASSAM. 5:THE DISTRICT COMMISSIONER NAGAON DISTRICT ASSAM PIN- 782001. 6:THE ADDITIONAL DEPUTY COMMISSIONER I/C URBAN AFFAIRS NAGAON DISTRICT ASSAM PIN- 782001. 7:MD. MAHEBUDDIN HAZARIKA S/O- SAMSUR ALI HAZARIKA R/O- SONARI GAON DHING DIST.- NAGAON PIN- 782123 ASSAM Advocate for the Petitioner : MR. JYOTIRMOY ROY, B SAHA,MR B P SARMAH,MR D DAS,MR. C CHAKRAVARTY,MR. R HAZARIKA,MR. S SARMA Advocate for the Respondent : GA, ASSAM, MR. B CHAKRABORTY(R7),MR K L GUPTA (r-4) BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 06.08.2026 The instant petition under Article 226 of the Constitution of India has been filed seeking the following relief:- Page No.# 3/8 “ In the premises aforesaid, it is therefore, humbly prayed that Your Lordship may be pleased to issue a rule calling upon the Respondents to show cause as to why a writ in the nature of Certiorari to set aside the impugned letter vide No. DMB.234/2022-23/471 dated 29.11.2023 issued by the Executive Officer, Dhing Municipal Board, Nagaon, Assam (Annexure No.7) thereby cancelled the Bheti allotment order of the Petitioner vide No. DMB/36/2023-24/0865 dated 19.09.2023 and also pleased to issue a rule calling upon the Respondents to show cause as to why a writ in the nature of Mandamus shall not be issued thereby directing the Respondents more particularly Respondent No.2 to 4 to consider the case of the Petitioner by upholding the Bheti allotment order of the Petitioner vide No. DMB/36/2023-24/0865 dated 19.09.2023; and upon consideration of the cause or causes being shown and after hearing the parties be pleased to make the rule absolute and/or to pass such order or order(s) as Your Lordship may deem fit and proper. In the interim, pending disposal of the instant writ petition, Your Lordship would be pleased to stay of the operation of the impugned cancellation letter vide No. DMB.234/2022-23/471 dated 29.11.2023 issued by the Executive Officer, Dhing Municipal Board, Nagaon, Assam (Annexure No. 7) and further pleased to direct the Respondent No. 2 to 4 not to allot to Bheti No. 55/1 to Respondent No.7 and/or not to create any third party right and/or pass any such order or order(s) as Your Lordship may deem fit and proper in the interest of justice. And for this act of kindness the Petitioner as in duty bound shall ever pray.” 2. The facts projected in brief are that the petitioner is having a shop at Bheti No. 55 of Dhing Bazar, Ward No. 6 which was duly allotted to him. He had applied for a Bheti in the 1st floor of the newly constructed RCC building vide application dated 18.08.2023 and accordingly, he was allowed to deposit an amount of Rs.30,288/- for such allotment and the allotment order dated Page No.# 4/8 19.09.2023 was issued in his favour. The petitioner started the construction and claims to have spent a considerable amount whereafter suddenly, the Executive Officer, Dhing Municipal Market had issued the impugned letter dated 29.11.2023 cancelling the allotment by stating that due to server error, the Bheti was wrongly allotted to the petitioner. It is this action which is the subject matter of challenge in the present writ petition. 3. I have heard Shri J. Roy, learned Senior Counsel assisted by Shri C. Chakraborty. I have also heard Shri K. L. Gupta, learned counsel for the Dhing Municipal Board and Shri B. Chakraborty, learned counsel for the respondent no. 7. Ms. U. Das, learned State Counsel is present for the State respondent. 4. Shri Roy, the learned Senior Counsel for the petitioner has submitted that while the allotment was made to the petitioner of the Bheti No. 55/1 on 19.09.2023, all verifications were made whereafter the petitioner had also started constructions. He has submitted that the cancellation has been done on extraneous factors to favour the respondent no. 7. He has submitted that though materials have been placed to show that the allotment was previously made in favour of the respondent no. 7, such allotment appears to be of the year 2016 and the very fact that no construction was made for all this period would show that such allotment did not practically take place. He has also submitted that the from the date of allotment on 19.09.2023 till the date of cancellation i.e. 29.11.2023 more than 2 months had passed in which period, the petitioner had also made constructions which were done openly and even whereafter not action was taken and suddenly, after more than 2 months, the impugned action has been taken. He has submitted that though an agreement has been shown to be made by the Dhing Municipal Board with the respondent no. 7, such agreement was for a period of 1 year with a renewable clause and Page No.# 5/8 there was no renewal. He has submitted that under Clause 18 of the said agreement, if no renewal is done within 3 years, such allotment would be cancelled and by the application of the legal fiction, the allotment if done with the respondent no. 7, stood cancelled. 5. By drawing the attention of the affidavit-in-opposition of the respondent no. 7, the learned Senior Counsel for the petitioner has submitted that only on 03.06.2023, the permission has been given to the respondent no. 7 to make the constructions which gives an impression that the papers have been manufactured. The learned Senior Counsel accordingly submits that the impugned order of cancellation is liable to be interfered with. 6. Per contra, Shri Gupta, the learned counsel appearing for the contesting Dhing Municipal Board has submitted that affidavit-in-opposition has been filed on 20.04.2026. He has submitted that on 19.09.2023 due to server error, Bheti 55/1 was allotted to the petitioner. He has submitted that when the said mistake was detected, the communication dated 29.11.2023 has been issued cancelling the same and requesting the petitioner to take refund of the allotment amount. He has submitted that the Bheti No. 55/1 was allotted to the respondent no. 7 in the year 2016 and only due to server error, the Bheti was wrongly allotted to the petitioner. 7. When this matter was taken up for consideration on the earlier occasion i.e. 28.07.2026, this Court had directed Shri Gupta, the learned counsel to obtain the record which he has accordingly done. 8. On the aspect that no construction was made by the respondent no. 7 in this period from 2016-2023, the learned counsel for the Board has submitted that permission was not granted for various reasons and therefore the Page No.# 6/8 construction by the respondent no. 7 could not be done. He has also clarified that though the agreement of his client with the respondent no. 7 dated 13.10.2016 was not renewed as a matter of fact, he had been paying the rents on time and there is no default. He has also submitted that the petitioner himself is allotted the ground floor of the same building in connection with which there is an agreement which is also not renewed and not registered. 9. The learned counsel for the Board accordingly submits that the impugned order dated 29.11.2023 does not suffer from any legal infirmity and accordingly this writ petition is liable to be dismissed. 10. Supporting the decision making process, Shri B. Chakraborty, learned counsel for the respondent no. 7 has submitted that it is clear that the arrangement made with the petitioner on 19.09.2023 was a result of an inadvertent mistake. He has submitted that as a matter of fact, no allotment order as such has been able to be placed before this Court and the communication relied upon is only a receipt of the amount. He has also submitted that the Bheti 55/1 was duly allotted to his client in the year 2016 followed by an agreement and all up-to-date payments have been made. He has submitted that as permission was granted to his client only on 03.06.2023, the construction could not be done in between. However, in the meantime, the present dispute had arisen. He has also questioned the authority of the petitioner to make construction without any permission. 11. The rejoinder submission has been made by Shri Chakraborty, learned counsel for the petitioner who has submitted that the aspect of non-registration or non renewal of the agreement of his client with the Dhing Municipal Board has not been pleaded in the affidavit and therefore cannot be raised. He has also submitted that though no allotment order as such has been served upon Page No.# 7/8 him, it is not in dispute that the communication dated 19.09.2023, though is in the form of a receipt will clearly show that allotment was indeed made with his client for the Bheti 55/1. 12. The rival submissions have been duly considered and the materials placed before this Court including the original register and file of the Dhing Municipal Board have been carefully examined. 13. The challenge to the cancellation order dated 29.11.2023 has passed on the basis that the Bheti in question (55/1) was allotted to the petitioner on 19.09.2023. Though there has been some resistance made on behalf of the respondents that the document relied by the petitioner is not an allotment order, this Court is of the opinion that the said document, though is in the form of a receipt would show that the allotment was indeed made in the name of the petitioner on 19.09.2023. Under those circumstances, it is required to examine as to whether the cancellation order is legally tenable and justified or not. 14. The specific defence taken by the respondents which is also reflected in the documents is that the Bheti 55/1 was already allotted to the respondent no. 7 in the year 2016. The petitioner has however contested the aforesaid aspect by stating that such defence is a manufactured one as from 2016 onwards there was no construction made by the respondent no. 7. The said aspect being within the realm of disputed questions of fact, this Court vide the earlier order dated 28.07.2026 had directed the learned counsel for the Board to produce the original documents which has accordingly been produced. To dispel and remove any doubts on this issue, the said records have been duly examined. The register which has been produced in original however clearly reflects that Bheti No. 55/1 was indeed allotted to the respondent no. 7. The aspect that the respondent no. 7 has not made construction over the land would not make any Page No.# 8/8 difference to such allotment as the allotment, as such, has not been cancelled. It is also the pleaded case of the respondents that the respondent no. 7 has been making up-to-date payments to the Board for the Bheti allotted and it is also the case of the respondent no. 7 that lack of permission to make construction was only the reason not to have any construction done. It is on record that such permission has been granted only on 03.06.2023 and immediately thereafter, the allotment to the petitioner was made by 19.09.2023 which has been said to be because on a server error. Though it may be argued that vide the allotment order dated 19.09.2023, a right has accrued upon the petitioner, taking into consideration that when such allotment was clearly made by server error and the Bheti was already allotted to the respondent no. 7 way back in the year 2016 which is fortified by the records, this Court is of the opinion that the impugned order dated 29.11.2023 cannot be faulted with. 15. The petitioner would however be entitled to have the refund of the entire money deposited by him. The petitioner may also make appropriate application for reimbursement of the expenditure incurred for the construction and if the same is done, it is required to be considered by the Board and disposed of by a speaking order. 16. The writ petition is accordingly disposed of. 17. The original records including the register are handed over back to Shri Gupta, learned counsel for the Board. JUDGE Comparing Assistant