MANIK SARKAR Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) IN this writ application under Article 226 of the Constitution of India, Petitioner has challenged Annexure -A notification dated 9.12.93 issued by the Commissioner and Secretary to the Government of Assam, Municipal Administration, appointing an adhoc body comprising of the 3rd to 18th Respondents to exercise and perform all the powers and the duties exercised by Jorhat Municipal Board, under the Assam Municipal Act, 1956, for short 'the Act', Petitioner also prays for issuance of an appropriate writ on direction to allow the Executive Officer, Jorhat Municipal Board to discharge the duties and functions of the said Board till such time now Board is constituted under the provisions of the Act. The writ petition was moved on 17.12.93, but the case was adjourned. However, on that day, the Court passed an order to maintain status quo as on that day. The matter came up on 22nd December, 1993. On that day, this Court issued Rule. However, the Court refused to pass any interim order.

(2.) THE facts of the case as stated by the Petitioner in brief are as follows:

(3.) ACCORDING to the Petitioner the State Government had no power, authority or jurisdiction to appoint an adhoc body as was done in the instant case, more particularly when the State Government had already exercised the power under Section 299(1)(B) of the Act by appointing an Executive Officer for exercising and performing the powers and duties of the Jorhat Municipal Board during the period of supersession. As such, under the provisions of law the State Government could not have ordered other alternative but to extend the said appointment of the Executive Officer for a further period till the general election was held. The Petitioner further states that according to the provisions of the Act, the only course available to the State Government was to reconstitute the Municipal Board by a fresh general election as contemplated under Section 299(2)(ii) of the Act. As such the appointment of the adhoc body by replacing the Executive Officer in purported exercise of the power conferred under Section 299(1) and (2) of the Act is ultra vires in view of the provisions contained in the said Section of the Act. Section 299 does not contemplate appointment of an adhoc body by replacing an Executive Officer, instead of holding a general election. This according to the Petitioner is not envisaged tinder the provisions of "the Act". Besides, the democratic process has been throttled by appointing an adhoc body, denying the legitimate right of the residents of Jorhat town to choose their own representatives for running the affairs of the local body, namely, the Municipality.