p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20998 of 2025 Rahim Khan …. Petitioner Mr. L. Pangari, Senior Advocate -Versus- The Commissioner, BMC, Khorda and others …. Opposite Parties Mr. S. Palit, Senior Advocate Assisted by Mr. B. Dash, Advocate And W.P.(C) No. 19444 of 2025 Farida Begum …. Petitioner Mr. S. Palit, Senior Advocate -Versus- State of Orissa & others …. Opposite Parties Mr. P.K. Ray, AGA Mr. L. Pangari, Senior Advocate Mr. B. Dash, Advocate for BMC CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING:24.10.2025 DATE OF JUDGMENT:13.02.2026 1. Since common cause of action is involved, both the writ petitions have been clubbed together and are disposed of by the following judgment. 2. W.P.(C) No.20998 of 2025: Instant writ petition is filed by the petitioner assailing the correctness, legality and AFR p. 2 judicial propriety of the impugned order dated 6th May, 2025 as at Annexure-9 of the Commissioner, Bhubaneswar Municipal Corporation (BMC), namely, opposite party No.1, whereby, allotment of shop No.36, Unit-IV, Fish Market, Bhubaneswar in his favour has been cancelled and furthermore, to direct the opposite parties and particularly, BMC to restore and re-affirm the allotment and possession of the shop with necessary steps to be taken to prevent any such interference in its possession by opposite party No.2 with such other reliefs sought for therein. 3. W.P.(C) No.19444 of 2025: Present writ petition is filed at the behest of opposite party No.2 seeking quashment of the impugned order dated 6th May, 2025 as at Annexure-11 of the BMC, pursuant to the direction issued in W.P.(C) No.1662 of 2025 vis-à-vis consideration of her grievance in transferring ownership of the shop in question initially allotted to opposite party No.4 (allottee and the petitioner in the other case) on the grounds inter alia that such decision is liable to be interfered with besides a direction to opposite part Nos.2 & 3 to re-consider the demand for regularization of possession/ownership in respect thereof as deemed just and proper in the facts and circumstances of the case. 4. According to the petitioner in W.P.(C) No.20998 of 2025, he was allotted with the alleged shop in Unit-IV market at Bhubaneswar by the BMC on 13th August, 1996 and ever since then, running a business from there. It is pleaded that in 2011, the petitioner hired one Sayed Samsur Alli as an p. 3 Accountant and during Covid-19 pandemic, due to his old age and health issues, temporarily handed over the management of the shop to the latter’s son, namely, Salim Khan but in mid-2024, it was learned by him that the shop’s electricity connection had been fraudulently transferred in the name of one Farida Begum, who is the widow of Sayed Samsur Alli using forged and fabricated documents including a false notarized agreement dated 5th November, 2004 besides letter dated 28th June, 2023 purportedly issued by the BMC and thereafter, their family forcefully took over possession of the shop threatening and preventing him to run the business, as a result of which, an FIR was lodged on 21st February, 2025 corresponding to ICC No.16699 of 2025 pending in the file of S.D.J.M., Bhubaneswar. It is also pleaded that in the meanwhile, opposite party No.2, who is the petitioner in W.P.(C) No.19444 of 2025, filed W.P.(C) No.1662 of 2025 disposed of on 30th January, 2025 at the stage of admission carrying a direction therein to the BMC to consider her representation afresh. It has been alleged by the petitioner that he submitted a representation on 9th April, 2025 and had even intimated the BMC about the fraudulent agreement managed by opposite party No.2. It is claimed that the parties appeared before the BMC on 15th April, 2025 pursuant to the order in W.P.(C) No.1662 of 2025, however, without providing the petitioner a proper and reasonable opportunity of hearing, directed cancellation of the allotment by the impugned order vide Annexure-9. The aforesaid decision of opposite party No.1 has been p. 4 questioned by opposite party No.2 as well on the premise that possession/allotment in respect of the alleged shop was not confirmed and transferred as it had been applied by her. In fact, opposite party No.1 vide Annexure-9 held and concluded that both the parties violated the norms in transferring/subletting/purchasing of licence of the allotted shop, hence, it cannot be allotted/transferred to them. The further conclusion of opposite party No.1 therein regarding the claim of opposite party No.2 is that the same is impermissible in absence of any provision of transfer of license, subletting and mortgaging the allotted shop to any other person or in favour of a business partner by the allottee. In other words, since the allotment has been cancelled, the allottee has knocked the doors of this Court and as there has been no transfer in respect of the shop allowed by opposite party No.1, it has also been challenged by opposite party No.2. 5. The question is, whether, the allotment in favour of the allottee could have been cancelled as has been directed by opposite party No.1? Whether, opposite party No.2 could have demanded the transfer of licence of the allotted shop in her favour on the grounds stated and such transfer is permissible? 6. Heard Mr. Pangari, learned Senior Advocate for the petitioner, Mr. Dash, learned counsel for the BMC and Mr. Palit, learned Senior Advocate for opposite party No.2. Page 5 of 23 7. Mr. Pangari, learned Senior Advocate for the petitioner refers to the certificate of trade licence issued in favour of the allottee on 14th November, 2024 valid till 30th October, 2025 as at Annexure-1 and the receipts issued by the BMC towards the monthly licence fee deposited to contend that the allottee is in possession ever since 1996. The further submission is that possession of the allotted shop till the month of July, 2025 is proved and established referring to the holding tax receipts at Annexure-2. It is contended that there has been payment of monthly licence fee till July, 2025 revealed from Annexure-2 and hence, the possession of the shop by the allottee is clearly discernible, the fact, which has been lost sight of by opposite party No.1. It is also contended that opposite party No.2 produced a fake notarized agreement dated 5th November, 2024 and fraudulent application addressed to the BMC with an order by them dated 28th June, 2023 as at Annexure-3 series to claim possession and transfer of the allotted shop in her favour, however, such fraud was revealed after information was obtained under the RTI Act. It has been the submission that opposite party No.2 used a fake Aadhaar Card bearing a wrong Aadhaar number of the petitioner indicated therein and even obtained an electricity connection in her own name, which is an act of misuse of personal identification and hence, it seriously affects the credibility and authenticity of the document relied on while demanding transfer of the allotted shop in her favour. A copy of the original Aadhaar Card of the petitioner as at Annexure-5 is p. 6 referred to claim that such a fraud has been perpetrated by opposite part No.2. The contention of Mr. Pangari, learned Senior Advocate is that the alleged agreement dated 5th November, 2004 was never acted upon even assuming for the sake of argument that it is genuine and notably, the electricity connection in the name of opposite party No.2 was managed in the year 2024 and thereafter, this Court was approached in W.P.(C) No.1662 of 2025 in the month of January, 2025 and because of gross delay, such claim on the basis of the agreement casts serious doubt on the genuineness of the same. Furthermore, it is contended that opposite party No.1 did not provide the allottee, a reasonable opportunity of hearing, while complying the Court’s order in W.P.(C) No.1662 of 2025 and showing disinterestedness disposed of the representation of opposite party No.2, who was demanding the transfer of the allotted shop without considering the plea advanced by him on the ground of fraud leading to the passing of the impugned order as at Annexure-9 and arbitrarily and illegally canceled the allotment, instead. While advancing such an argument Mr. Pangari, learned Senior Advocate submitted that opposite party No.1 ought to have taken judicial notice of the forgery and fraud committed by opposite party No.2 and also the official confirmation received from the BMC with regard to the information shared under the RTI Act on ownership vis-à-vis shop No.36 but unfortunately, without a proper hearing being held, such a decision was arrived at cancelling the allotment altogether and therefore, it amounts p. 7 to violation of principles of natural justice for non- consideration of valid documents and even acceptance of holding tax till the month of July, 2025. In support of the above contention, Mr. Pangari, learned Senior Advocate cited the following case laws, such as, Bela Sethi Vrs. North Delhi Municipal Corporation & others 2018 SCC OnLine Del 11012 and Ajay Choudhary & others Vrs. The Ranchi Municipal Corporation & others in LPA No.296 of 2022 of the High Court of Jharkhand dated 15th September, 2022 with the submission that there has been cancellation of allotment without observing the principles of natural justice and that apart, the decision dated 6th May, 2025 by the BMC is not legally tenable for having not assigned any reason, though, it has been rightly held that the transfer of the allotted shop in favour of opposite party No.2 is not permissible. 8. On the contrary, Mr. Dash, learned counsel for the BMC submitted that the Authority concerned did not commit any error or illegality in compliance of the Court’s order in W.P.(C) No.1662 of 2025 and on a subjective satisfaction about subletting of the allotted shop by the allottee in absence of any such provision of transfer of licence/subletting and mortgaging of a shop to anyone else, rightly cancelled the allotment and correctly held that it cannot be allotted to opposite party No.2 either and therefore, such a decision as per Annexure-9 & 12 should not be disturbed and tinkered with. Page 8 of 23 9. Mr. Palit, learned Senior Advocate for opposite party No.2 submits that there has been an agreement between the parties in 2004 and it was on such ground and understanding between them that the transfer of the allotment of the shop and a claim in that regard was put forth but it has not been duly considered by the BMC ignoring the fact that on account of such agreement, the allottee was paid an amount of Rs.13 lac and as a consequence, the entire charge of the business was taken over and also possession of the shop in the year 2004 itself. The contention is that the agreement was executed by the allottee and allowed the shop being used by opposite party No.2 to run the business. It is contended that pursuant to the agreement as well as the affidavit dated 5th November, 2004 the allotee submitted a representation before the BMC for transfer of ownership of the shop by stating the reasons regarding his inability and financial crisis to run the business. A copy of the letter addressed to the BMC as at Annexure-4 in W.P.(C) No.19444 of 2025 is referred to, while advancing such a plea and according to Mr. Palit, learned Senior Advocate, the aforesaid development having taken place and possession being with opposite party No.2 since 2004 and the fact that the Union had requested the BMC in 2007 as per Annexure-5 for transfer of the allotment in her favour, such transfer of allotment could not have been denied by the Authority concerned. Further referring to Annexure-12, it is contended by Mr. Palit, learned Senior Advocate that there is no bar in transferring the allotment in favour of opposite p. 9 party No.2 and therefore, it was not right and justified on the part of the BMC declining the same, while cancelling the allotment altogether. It is also the submission that the possession of the allotted shop by opposite party No.2 is established from the trade licence issued in her favour in 2022-2023 and 2024-2025. The copies of the IT returns with the address statement therein as at Annexure-6 series are also placed reliance on. The further submission is that there has been transfer of possession in favour of opposite party No.2 by the allottee and hence, a case is made out for such transfer of the allotment but the BMC while disposing of her representation denied the same with the conclusion that there is no provision for transfer of licence and the agreement between the parties amounts to violation of the norms of any such transfer of the licence in respect of the shop in question. The contention is that the BMC ought to have considered the facts narrated herein above and directed transfer of the allotment as it had already been allowed before in view of Annexure-12 and therefore, the impugned decision dated 6th May, 2025 cannot be sustained in law. An order dated 25th August, 2014 in W.P.(C) No.5726 of 2012 of this Court is cited by Mr. Palit, learned Senior Advocate to submit that a direction was issued therein for the BMC to consider change of ownership and regularization of possession in respect of the shop rooms in Unit-I Market at Bhubaneswar and list of names of the original allottees with transfer of ownerships in respect of the occupants with the claim that transfer of licence/ownership of the allotted shop p. 10 in favour of opposite party No.2 is permissible. Lastly, a decision of the Apex Court in M/s. Motilal Padampat Sugar Mills Co. Ltd. Vrs. State of Uttar Pradesh & others (1979) 2 SCC 409 is cited by Mr. Palit, learned Senior Advocate to contend that opposite party No.2 is entitled to such transfer of allotment on the basis of doctrine of estoppel. One more decision in Union of India & others Vrs. Indo-Afghan Agencies Ltd. (1968) 2 SCR 366 is referred to in support of the claim that the BMC should have directed transfer of allotment in favour of opposite party No.2 under the circumstances described and pleaded on record. 10. The claim of opposite party No.2 is based on a notarized certificate accompanied with an agreement dated 5th November, 2004 and also a representation by the Union, namely, Jaya Jawan Maschhaya Byabasai Sangha, Bhubaneswar to the BMC with a request to transfer the allotment of the shop dated 26th November, 2007. The claim is that there has been such an agreement between the parties, which is stoutly denied by the allottee alleging fraud and fabricated documents. It has also been alleged that opposite party No.2 secretly staged managed the electricity connection with an application dated 2nd April, 2025, which was without the knowledge of the allottee. It is also alleged that the signature in the agreement dated 5th November, 2004 does not belong to the allottee. A copy of the letter received by opposite party No.2 dated 28th June, 2023 from the BMC supplied along with other documents on an p. 11 application under the RTI Act is also claimed to be an act of fraud, as according to the allottee, no such letter was ever issued by the BMC. It is also alleged by the allottee that the above stated document is a forged one shown to have been issued by the Executive Officer, BMC. From the agreement dated 5th November, 2004, it is made to understand that there was demand of Rs.13 lac paid and received by the allottee to opposite party No.2 with delivery of possession of the shop. As earlier stated, the signature of the allottee therein has been outrightly denied. The claim of possession of the shop is based on the above documents discussed herein before. The transfer of licence and allotment of shop was recently applied even though the agreement is of the year 2004. The said agreement is alleged to be fraudulent one by the allottee. The letter of the BMC dated 28th June, 2023 purportedly signed by the Executive Officer, BMC and placed on record from the side of the allottee reveals transfer of ownership in respect of the shop situated inside Unit-IV market at Bhubaneswar. According to the allottee, fraud was perpetuated by opposite party No.2 and it was towards transfer of the ownership of the shop. On a reading of the said letter of the BMC, it is made to reveal that the transfer of ownership was in pursuance of the order of this Court and after due consideration and identification of site by a joint survey team, whereafter, permission was accorded for such transfer with certain terms and conditions imposed for compliance by opposite party No.2. Quite interestingly, the said letter of the BMC has not been referred to by p. 12 opposite party No.2 while advancing the claim of ownership change with respect to the shop in question. The agreement dated 5th November, 2004 is clearly denied by the allottee and all along the plea is that opposite party No.2 committed fraud and forcibly took over possession of the shop. On the other hand, opposite party No.2 claims that there has been payment to the allottee and as a result, possession of the shop was delivered to her in 2004 and hence, it should have been transferred by the BMC. The Authority concerned by a cryptic order not only denied transfer of licence not being permissible but also cancelled the allotment in favour of the original allottee on the ground that he has violated the norms of the BMC, as there is no any provision to sublet or transfer of licence or mortgage of a shop by an allottee in favour of a third party. 11. Insofar as transfer of license or ownership of the allotted shop is concerned, it is the stand of the BMC that there is no such provision to allow the same. But, in course of hearing, Mr. Palit, learned Senior Advocate produced an order of this Court in W.P.(C) No.5726 of 2012 dated 25th August, 2014 and also a copy of the proceeding of the CT Management Group (CMG) held on 17th December, 2011 by claiming that the transfer of allotment has already taken place earlier. The list of original allottees and occupants with an office order of the year 2012 of the BMC with respect to the decision of the Government to develop Unit-I market inviting applications for change in ownership/regularization of possession in respect of the shop rooms is cited to claim p. 13 that there is no any such restriction or complete bar in the transfer of license in favour of opposite party No.2 but on a proper reading of the decision towards transfer of allotted shop rooms in favour of the occupants in Unit-1 market, Bhubaneswar, it is revealed that the CMG was constituted to ensure development of Unit-1 market and to undertake such other activities under consideration and discussed in the meeting held on 17th December, 2011 and under peculiar facts and circumstances prevailing then that the ownership transfer of the shop rooms was considered. It is not a routine or regular course that the BMC allowed the change in ownerships. It was a policy decision of the Government in GA Department that ownership in respect of the shop rooms in Unit-1 market at Bhubaneswar was conceived of. In fact, the Commissioner, BMC made a disclosure that the shopkeepers of the market at Unit-I are demanding mutation of the shops in the names of the occupants and hence, the CMG had a decision to invite applications for such mutation from the claimants decided on the basis of record and field verification. It is to reiterate that under a special circumstance that the ownership in respect of the shop rooms was changed. It was indeed not a routine transfer but a change under the circumstances detailed in the minutes of the proceeding of 22nd meeting of the CMG held in the year 2011 and therefore, on any such ground, it would not be proper for opposite party No.2 to demand any such transfer of allotment or license in her favour. Though, the BMC has not discussed in detail regarding the provision whereby p. 14 transfer of license is not allowed but the fact remains, decision against opposite party No.2 is on the aforesaid ground. No any provision has been brought to the notice of the Court either from the side of opposite party No.2 to show and satisfy that any such transfer of license of allottee is permissible, which has not been considered by the BMC. In such view of the matter, referring to the proceeding of the CMG and changes in ownership in respect of the shop rooms at Unit-I of Bhubaneswar carried out in the year 2011-2012 on the basis of a policy decision of the Government under the special circumstances as existed by then, the conclusion of the Court is that transfer of allotment in respect of the shop in favour of opposite party No.2 could not have been directed by the BMC. 12. So far as the plea of the allottee is concerned, the contention of the petitioner is that no opportunity of hearing was provided to him nor any reason has been assigned for the cancellation of the allotment, when the claim is that there has been fraud committed by opposite party No.2. The impugned order dated 6th May, 2025 does not reveal whether the Authority concerned conducted any enquiry with regard to subletting of the shop by the allottee. The allotment in respect of the shop in favour of the allottee in the year 1996 is not in dispute. It is also revealed from the record that a certificate of trade licence was issued in favour of the allottee valid till 31st March, 2025. It is noticed that opposite party No.2 was issued with a trade licence certificate for two consecutive years in the address of the p. 15 same shop. The BMC could have enquired about the same. That apart, a copy of the letter dated 28th June, 2023 addressed to opposite party No.2 allegedly received from the Executive Officer, BMC has been provided to the allottee while applying for information under the RTI Act. The said letter accorded permission of ownership transfer in respect of the shop in favour of opposite party No.2. According to the allottee, no such letter was issued at any time by the BMC to opposite party No.2. When the allottee from the very inception alleged fraud with regard to the documents relied on by opposite party No.2 including the letter of the BMC dated 28th June, 2023, in the considered view of the Court, it was for the Authority concerned to examine the same before reaching at a conclusion that there has been subletting of the same or handing over possession thereof in favour of opposite party No.2 thereby violating the BMC norms. As stated before, the Authority concerned did not discuss anything with regard to the plea of the allottee and assign reason for cancellation of the allotment upon a satisfaction arrived at that the allottee is guilty of subletting the alleged shop. Had it been that the allottee admitted subletting while challenging the possession of opposite party No.2 on any such ground, it would have been held by the BMC that any such delivery of possession is not permissible and it is amounted to subletting of the same. But the allottee outrightly denied the agreement of 2004 and alleged that opposite party No.2 secretly obtained the document and even the electricity connection to the shop p. 16 and forged the letter dated 28th June, 2023 of the BMC granting permission for transfer of ownership in respect of the shop. Whether there was any fraud and falsehood in the claim of opposite party No.2, it could have been easily ascertained by the BMC with least effort. It is alright to hold that subletting or mortgaging of a shop or transfer of license is not allowed under the BMC norms but to outrightly cancelling the allotment in favour of the allottee, as according to the Court, is unreasonable, rather, it was necessary for the Authority concerned to hold an enquiry considering the plea of the allottee. An enquiry does not mean receiving evidence from the parties but at least, the BMC should have scrutinized the records to ascertain the rival claims of the parties. It is no doubt true that when such conduct on the part of the allottee in delivery of possession of the shop in favour of opposite party No.2 in absence of any such provision and without the concurrence of the BMC cannot be countenanced but before concluding as such in juxtaposition to the claim of fraud against opposite party No.2, it was the bounden duty of the Authority concerned to find out and ascertain the truth before directing cancellation of allotment. Any such decision without proper enquiry is certainly to prejudice the allottee, who all along alleged fraud against opposite party No.2. Furthermore, the impugned order dated 6th May, 2025 does not to deal with any materials referred to and relied on by the parties. In absence of any such provision to transfer license subletting or mortgaging an allotted shop, the Authority concerned p. 17 though declined the demand of opposite party No.2 but cancelled the allotment as well. A conclusion is necessary before cancellation of allotment that the original allottee sublet or handed over possession of the shop to opposite party No.2. No such decision has been rendered while dealing with the representation of opposite party No.2 with the participation of the original allottee. Only if subletting or delivery of possession is proved and that the original allottee is found to be at wrong, only then, there can be cancellation of allotment and not otherwise. 13. In the case at hand, the allottee alleged fraud and that apart, there is nothing revealed on record from the side of the BMC and for that matter, in the impugned order dated 6th May, 2025 to show that the allottee violated the BMC norms with the delivery of possession of the shop and subletting the same to opposite party No.2. The Court is constrained to hold that the BMC ought to have considered all such aspects as discussed herein before at least while directing cancellation of allotment. Admittedly, at present, opposite party No.2 claimed to be in possession. According to the petitioner, it is a forceful possession by opposite party No.2. A proper enquiry is necessary to ascertain how and under what circumstances, opposite party No.2 entered into the possession of the shop allotted to the allottee in 1996. Unless and until an enquiry is held, the conclusion of the Court is that it would not be proper to direct cancellation of allotment of the shop. Page 18 of 23 14. In Bela Sethi (supra), it has been held and concluded that any such decision by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. It is also held therein that the Authority is not in a position to decide an action between the parties in the manner and strict compliance with the forms of judicial procedure. It may not be proper to insist upon such compliance but is the duty of the Authority to provide an opportunity in course of any such enquiry for a proper defence, which would, otherwise, result in prejudice. The said decision was in the context of an enquiry in the matter of cancellation of mutation and therein, it was held by the Delhi High Court that a party to whose prejudice and/or is intended is entitled to a hearing applies alike to the Tribunals and other bodies or persons invested with authority to adjudicate upon such matters involving civil consequences. It has been concluded therein that it is one of the fundamental rules of constitutional set up that every citizen is protected against exercise of arbitrary authority of the State or its officers; duty to act judicially therefore arises from the very nature of the function intended to perform. If an Authority is vested with the power to decide and determine to the prejudice of a person, the observance of the principles of natural justice is implicit in the exercise of such power; if the principle of audi alteram partem is ignored, any order or action taken by an Administrative Authority is a nullity and is liable to be set aside and therefore, the basic concept of the rule of law p. 19 transcends the significance of a decision and therefore, an order of the State or any such Authority may only be made in accordance with the rules of justice and fair play. The decision of the apex Court in State of Orissa Vrs. Dr. (Miss) Binapani Dei & others (1967) 2 SCR 625 has been referred to therein by the Delhi High Court and at last, held and concluded that the mutation proceeding was to be restored for a decision in accordance with law after providing reasonable opportunity of hearing to the party concerned. In fact, in the above decision, the law enunciated in Kranti Associates Private Ltd. And another Vrs. Masood Ahmed Khan & others (2010) 9 SCC 496 was referred to, wherein, it has been concluded that in India, the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially; a quasi-judicial authority must record reasons in support of its conclusions; recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or administrative power. 15. In the case at hand, the Court finds that the BMC Authority did not deal with the matter with a proper enquiry and assigning reasons with respect to the claim of the allottee. At least, it was for the BMC to consider and discuss the materials on subletting of the shop in favour of opposite party No.2 when it was stoutly denied by the allottee. The claim is that the husband of opposite party No.2 was allowed to manage the shop but he instead played fraud and p. 20 fabricated the documents and even obtained the permission vis-à-vis transfer of the ownership. The allegation is that there has been no such permission ever granted by the BMC but opposite party No.2 manufactured the document purportedly issued by them, a copy of which was received by the allottee while applying for information under the RTI Act. In the above circumstances, it was for the BMC to hold a threadbare enquiry before directing cancellation of allotment as it has substantially prejudiced the allottee. The impugned order dated 6th May, 2025 does not deal with any such matter and in absence whereof, the Court has to reach at a conclusion that any such decision vis-à-vis cancellation of allotment needs a re-visit. 16. Insofar as the decision cited by Mr. Palit, learned Senior Advocate for opposite party No.2 in Motilal (supra) is concerned, the same is not applicable to the case at hand, as therein, exemption from sales tax was demanded by company dealing with manufacture of Vanaspati and sought confirmation of such exemption on the plea that the State of Uttar Pradesh cannot be permitted to deny the same and bound by the doctrine of promissory estoppel. In the said case, the Apex Court considered the plea of the Government based on waiver and since it was not pleaded, the writ petition was never amended and came to be raised for the first time at the time of hearing held that the same is not permissible and thereby accepting the stand of the company that it had acted upon the decision of the Government, which had granted the exemption from the sales tax and p. 21 thus, could not have resiled from such promise but the case of opposite party No.2 does not stand on any such ground. It is not that opposite party No.2 demands transfer of allotment on any such application made to the BMC. It is not a case that the BMC had ever promised opposite party No.2 towards transfer of ownership or allotment of shop or licence issued to the original allottee, when the RTI information revealed otherwise. Rather, the plea is based on an agreement with the original allottee that opposite party No.2 demanded the transfer of ownership. The BMC was hence required to examine the plea of the allottee alone when it concluded that there is no provision for any such transfer of license. Therefore, the conclusion of the Court is that the decision in Motilal (supra) is not applicable and is not to render any assistance in support of the plea of opposite party No.2. 17. Having said that, with the conclusion as above, the Court is of the considered view that the BMC Authority is required to be directed to hold an enquiry on the plea of the allottee with regard to fraud perpetrated by opposite party No.2 and to re-visit the decision on cancellation of allotment of the shop. In absence of any such discussion with reasoned order especially considering the plea of the allottee alleging fraud, the BMC is needed to hold an enquiry and in absence of any such concrete proof of fraud or at least to conduct an enquiry regarding delivery of possession of the shop. The above decision of the BMC is necessary keeping in view the facts pleaded on record by both the sides. It is to be borne in p. 22 mind that running of a shop after an understanding with the allottee may indeed amount to subletting making it violation of tenancy agreement especially when it is done without the owner’s consent. It is also to be kept in mind that subletting in a commercial context is generally defined by the transfer of exclusive possession and control to a third party in exchange of monetary compensation without the knowledge or permission of the owner. If the allottee no longer manages the business and it has been taken over entirely by a third party, one may infer that it has been sublet. If a tenant permits an outsider to use the shop and to conduct the business, subletting may be presumed but where there is a genuine partnership and the allottee retains control over the business, it would not be considered so but any such partnership or understanding or agreement may be subject to scrutiny by an Authority to ensure that the same is not a cover-up for a sublet. The said aspects are also to be examined by the Authority concerned. If the entire episode was without any fault of the allottee and that the possession has been taken over by fraud, the BMC is to take action accordingly. If allotment of the shop is non-transferable in nature and there has been confirmation of fraud with the information supplied by the BMC, the allottee should be restored with the possession of the shop by whatever measures necessary. In other words, in the interest of justice, the Court is of the ultimate view that an enquiry is needed for the BMC to ensure that the allottee is not guilty of any such subletting of the shop in favour of opposite p. 23 party No.2, who in any case cannot demand transfer of license or ownership of the same in absence of any such provision in place. 18. Accordingly, it is ordered. 19. In the result, the writ petition in W.P.(C) No.20998 of 2025 stands allowed with a direction to the BMC to reconsider the plea of the petitioner on cancellation of the license with an enquiry held and to take a decision thereon after providing reasonable opportunity of hearing to him at the earliest preferably within a period of four weeks upon production of a copy of this judgment keeping in view the discussions and observations made hereinabove. In so far as, the other writ petition in W.P.(C) No.19444 of 2025 is concerned, the same is dismissed for the reasons stated. 20. In the circumstances, however, the parties are to bear their respective costs. (R.K. Pattanaik) Judge Manoj Designation: Junior Stenographer