MOULABI HUSSAIN AHMED Vs. STATE OF ASSAM

JUDGEMENT

(1.) The six petitioners who are residents of the Hojai Sub-division impugned the notification dt. 21-1-86, issued in partial modification of the earlier notification dt. 12-1-84, declaring Sankarbasti renamed as Sankardevnagar as the headquarter of Hojai Sub-division in the district of Nagaon with immediate effect. Earlier in Civil Rule No. 763 of 1986 one Sri Abdul Jalil Raghbi moved a writ petition seeking to quash the same notification dated 21-3-86. The writ petition was dismissed by a Division Bench of this Court holding that the question whether Sankardevnagar was better suited as the headquarter of Hojai sub-division than Hojai was a pure question of fact which could not be properly investigated into and decided in a petition under Art.226 of the Constitution of India. The petitioners have fairly, annexed a copy of that judgment and order dated 21st July, 1986 as Annexure-6 to this petition. Even so, notice of motion was issued on this writ petition on 19-12-86. The Government has filed an affidavit-in-opposition and the petitioners have filed an affidavit-in-reply. The first question to be decided is, the earlier writ petition impugning the same notification having been dismissed, whether this petition would be barred by res judicata, either actual or constructive.

(2.) Mr. A.M. Mazumdar, learned counsel for the petitioner submits that the earlier petition was moved by one M.L.A. from Jamunamukh constituency and not from Hojai proper. However, it is not denied that Jamunamukh Constituency is one of the Constituencies included within the Hojai Subdivision. It is submitted that the decision given in the petition moved by the M.L.A. will not be binding on the instant petitioners as they are different members of the public and further that detailed facts were not stated in the earlier petition, but they have elaborately been stated in this petition. Mr. Mazumdar also submits that the earlier decision embodied in notification dated 3rd Aug. 1983 sanctioning the formation of a new sub-division to be known as Hojai Subdivision comprising (1) Jugijan (2) Hojai (3) Lanka (4) Lumding (5) Kaki (6) Kapahabari (7) Jamunamukh and (8) Namati of the district was based on the report of the expert committee which recommended Hojai as the permanent headquarter of Hojai Sub-division and the Cabinet meeting adopted a resolution on 15-12-83 to that effect. This was followed by another notification dt.12th Jan, 1984 sanctioning Hojai as the permanent headquarter of Hojai Sub-division. According to Government there was no reason why the still earlier decision had to be changed and no expert committee was appointed for the purpose.

(3.) Mr. P. Prasad, learned Senior Government Advocate, Assam placing the affidavit-in-opposition submits that as early as on 22-12-78 the Council of Ministers, Government of Assam in its meeting decided to create 12 new Sub-divisions with a view to bring the administration close to the people and amongst the said Sub-divisions provision was made for creation of a new Sub-division in the district of Nagaon by the name South East Nagaon Sub-division comprising Lumding, Hojai and Jamunamukh Assembly Constituency with headquarter at Sankarbasti to be renamed as Sankardevnagar. The Government, thereafter on 15-4-82 decided to constitute a Committee to select the site for the headquarter of the said Sub-division and that expert committee after site inspection submitted its report on 27-7-82 and on the basis of their report a meeting of the Executive Committee held on 9-10-82 at the Raj Bhavan, Gauhati decided that Sankardevnagar be fixed as the proposed headquarter of the South East Nagaon Subdivision. It appears that as there was some demand for retaining the headquarter at Hojai a second expert committee was appointed and that committee also found Sankarbasti as the most centrally located amongst all the principal sites and had also found that the area was very centrally located for the new Sub-division and Government lands were available for taking up construction for Sub-divisional headquarter and that Sankarbasti area had sarkari land mostly as V.G.R. by the side of the highway from Daboka Nilbagan to Lanka. The above facts only justify our earlier conclusion that the question whether Sankardevnagar is better suited as the headquarter of Hojai Subdivision than Hojai is a pure question of fact which cannot be properly investigated into and decided in this petition. Whether in taking the latest decision it was necessary to appoint another expert committee, is also a purely executive decision and we are not inclined to substitute our judgment in that regard. We accordingly feel bound by our earlier decision. In other words, we feel the application to be barred by the principle of res judicata at least in its constructive sense. See Forward Construction Co. v. Prabhat Mandal, AIR 1986 SC 391; Devilal v. Sales Tax Officer, AIR 1965 SC 1150. Yet we heard this petition following B. Prabhakar Rao v. State of A.P., AIR 1986 SC 210 wherein also the writ petition filed earlier had been dismissed in limine by a Bench of the Supreme Court and it was held that that might inhibit their Lordships discretion but not their Lordships jurisdiction.