BONGAIGAON MUNICIPAL BOARD Vs. STATE OF ASSAM

JUDGEMENT

(1.) IE this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order communicated in W.T. Message dated 22.1.97 by the Secretary to the Government of Assam, Municipal Administration Department, (respondent No. 3), to the Deputy Commissioner, Bongaigaon (Respondent No. 4), and for a direction on the said respondents to allow the present Bongaigaon Municipal Board (ad hoc) to continue in office till elections are held by the Government in accordance with law.

(2.) The facts, briefly, are that the ad hoc Bongaigaon Municipal Board was constituted of which Sri Bhupendra Narayan Das was the Chairman. Apprehending that the said ad hoc Municipal Board would be removed, the Bongaigaon Nagarik Parishad, a voluntary organisation representing the interest of the residents of Bongaigaon Town, filed a writ petition being Civil Rule No. 126/94 which was disposed of by this Court by judgment and order dated 3rd January, 1995 with a direction that the State Government would hold the election to the Bongaigaon Municipal Board within six months and till the election was held the said ad hoc Bongaigaon Municipal Board would not be disturbed by the authorities. The State Election Commission thereafter issued a notification dated 6.11.96 fixing the date of election of Municipal Boards and the Town Committees in the State of Assam as 6.12.96. But on difficulties being pointed out by the State Government for holding elections, this Court permitted the State Government to move the State Election Commission for postponment of the elections and on the State Election Commission being moved, elections to the Municipal Boards have been postponed. In the circumstances, the ad hoc Bongaigaon Municipal Board continued in office in terms of the said judgment and order dated 3.1.95 passed by this Court in Civil Rule No. 126/94, But all on a sudden, a notification dated 26.11.96 was issued by the Secretary to the Government of Assam, Municipal Administration Department (respondent No. 3) stating therein that all powers and duties under the Assam Municipal Act, 1956 (for brevity, 'the Act') which were being exercised and performed by the ad hoc Bongaigaon Municipal Board, whether at a meeting or otherwise, would be exercised and performed by the Deputy Commissioner, Bongaion, temporarily with immediate effect and until further orders in respect of the said Municipal Board. The aforesaid notification dated 26.11.96 was followed by an order dated 3.12.96 of the Deputy Commissioner, Bongaigaon (respondent No. 4) stating that the Extra Assistant Commissioner would perform the duties of the Chairman, Bongaigaon Municipal Board and exercise the powers of the Chairman on behalf of the Deputy Commissioner, Bongaigaon, effective from 3.12.96 The said notification dated 26.11.96 of the respondent No. 3 and the order dated 3.12.96 of the respondent No. 4 were challenged by the petitioner in Civil Rule No. 6015/96 and on 9.12.96 this Court while issuing Rule suspended the operation of the aforesaid notification dated 26.11.96 and the order dated 3.12.96 pending disposal of the Rule. The said Civil Rule No. 6015/96 is pending before this Court and has not yet been disposed of During the pendency of the afoesaid Civil Rule, the impugned W.T. Message dated 22.1.97 has been issued by the Secretary to the Govt. of Assam, Municipal Administration Department (respondent No. 3) directing the respondent No. 4 to cause immediate enquiry into the alleged misappropriation of Government and public money by the Chairman and the Vice-Chairman of the Bongaigaon Municipal Board as alleged by Sri Anil Sarkar and Ram Narayan, respondents 5 and 6 respectively, in their respresemation dated 16.1.97 and to stop the expenditure from the bank accounts except payment of salary to staff, electricity bills and telephone bills, and to send the applications and tenders relating to allotment of market shed and weekly and daily markets to the Government for taking final decision. In the said Message dated 22.1.97 it has further been mentioned that the order was issued on the strength of Section 296 of the Act.

(3.) At the hearing of this Civil Rule, Mr. N.M. Lahiri, learned senior counsel appearing for the petitioner, submitted that the impugned order under W.T. Message dated 22.1.97 has been issued by the respondent No. 3 only with the view to frustrate the interim order passed by this Court in Civil Rule No. 6015/96 suspending the operation of the impugned notification dated 26.11.96 and the order dated 3.12.96 of the respondent No. 3 and 4 respectively under which the powers of the Chairman of Bongaigaon Municipal Board were to be exercised by the Deputy Commissioner and the Extra Assistant Commissioner. He further argued that a reading of the impugned order would show that the respondent No. 3 has relied on the provisions of Section 296 of the Act for issuing the order. But under the said Section 296 of the Act, the respondent No. 3 has no such jurisdiction to issue the impugned order. He contended relying on the judgments of this Court in the cases of Municipal Board, Sibsagar Vs. Secretary to the Government of Assam, (1983) 2 GLR 63, and Sri Lohit Chandra Saikia Vs. North Lakhimpur Municipal Board & ors., (1984) 2 GLR 412, that the power under Section 296 of the Act is to be excercised only to meet an extra-ordinary exigency or emesgent situation and that an order, resolution or act of an autonomous body like a Municipality cannot be interferred with lightly by the State Government under the said provisions. He further argued relying on the aforesaid authorities in the aforesaid two decisions that unless and until the resolution, order or act of the Board militates against the fundamental rights conferred by Part-Ill of the Constitution of India and the State Policy on the Directive principles laid down in Part-IV of the Constitution of India or is in excess of power conferred by law; or the execution of it is likely to lead to a serious breach of the peace, or to cause serious injury or annoyance to the public, or to any class or body of persons, the State Government cannot issue any order or direction under Section 296 of the Act. In the facts of the present case, no resolution, order or act has been adopted by the Bongaigaon Municipal Board in violation of fundamental rights contained in Part-III of the Constitution or the Directive Principles of the State Policy contained in Part-IV of the Constitution; nor any power has been exercised by the ad hoc Bongaigaon Municipal Board in excess of what has been conferred by law. No resolution, order or act of the ad hoc Bongaigaon Municipal Board would have the effect of breach of peace or cause serious injury or annoyance to the public, or to any class cc body of persons. Thus none of the pre-conditions for exercise of power under Section 296 of the Act against the ad hoc Bongaiigaon Municipal Board exists and the impugned order which has been based on mere allegations made by respondents-5 and 6 is without jurisdiction. Mr Lahiri also cited the judgments of this Court in the casses of Sri Ratan Dutta & others Vs. State of Assam & Org., (1988)2 GLR 168 and Navajyoti Dutta Vs. State of Assam, 1997 (1) GLT 189 for the proposition that the State Government has no jurisdiction under Section 296 of the Act to allot shops or settle markets and the said powers belong to the Municipal Boards.