Quashed

Samrat Dutta v. the State of Assam and 6 Ors.

Gauhati HC1 Feb 2022WP(C)/2059/2015

Case brief

AI extract

What is this about?

A petition challenging the Executive Officer's authority to allot a commercial room to a third party. The Court quashed the allotment order as the Official lacked jurisdictional authority since the Town Committee was not formally dissolved. The Court maintained status quo until a new Committee decided the dispute.

What did the court decide?

Order dated 26.12.2014 set aside and quashed; status quo maintained; dispute to be placed before newly formed Town Committee.

Samrat Dutta Vs the State of Assam and 6 Ors. — Property and Title | Gauhati HC (2022)

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GAHC010011562015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2059/2015

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SAMRAT DUTTA

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S/O LT. KUSHAL DUTTA, R/O BORUAHTIKA, P.O. and P.S. DHAKUAKHANA, DIST- LAKHIMPUR, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, MUNICIPAL ADMINISTRATION DEPTT., DISPUR, GHY-6

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2:THE DIRECTOR URBAN DEVL. DEPTT. GOVT. OF ASSAM DISPUR GHY-6

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3:THE DY. COMMISSIONER LAKHIMPUR DIST- LAKHIMPUR ASSAM

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4:THE SUB DIVISIONAL OFFICER CIVIL DHAKUAKHANA DIST- LAKHIMPUR ASSAM

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5:DHAKUAKHANA TOWN COMMITTEE REP. BY THE CHAIRMAN DHAKUAKHANA TOWN COMMITTEE P.O. and P.S. DHAKUAKHANA DIST- LAKHIMPUR ASSAM

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PIN-787055

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6:THE EXECUTIVE OFFICER DHAKUAKHANA TOWN COMMITTEE P.O. and P.S. DHAKUAKHANA DIST- LAKHIMPUR ASSAM

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7:KALYAN KONCH S/O SRI KHAGEN KONCH R/O PANIGAON P.O. GOBINDAPUR P.S. DHAKUAKHANA DIST- LAKHIMPUR ASSA

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Advocate for the Petitioner : MR.S M SARMA

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Advocate for the Respondent : MR.M CHETIAR-5

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT & ORDER (ORAL)

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Date : 01-02-2022

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Heard Mr. P Hazarika, the learned counsel for the petitioner. Also heard Mr. B Deori, the learned Junior Government Advocate appearing on behalf of the respondents no. 1, 2, 3, 4 and 6 and Mr. M Chetia, the learned counsel appearing on behalf of the respondent no. 5 as well as Mr. S Borthakur, the learned counsel for the respondent no. 7.

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The dispute in the instant case is in respect to an order passed by the respondent no. 6 dated 26.12.2014 whereby the respondent no. 6 decided to allot one part of room no. 3 situated at New Market at Dhakuakhana Town Committee to the petitioner and the other part of the said room to the

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respondent no. 7 in respect of which the respondent no. 7 admittedly is in possession.

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The counsel for the petitioner submits that the Executive Officer, Dhakuakhana Town Committee i.e. the respondent no. 6 herein did not have the power and authority to allot the room to the respondent no. 7 inasmuch as at that relevant point of time though there was no Dhakuakhana Town Committee and an Executive Officer was in charge of the Dhakuakhana Town Committee but as no power specifically has been given to him in terms with Section 299 (b) and as such the said Executive Officer i.e. the respondent no. 6 could not have decided or allot a part of the room no. 3. He further submits that in terms with Section 148 read with Section 334 and 335 of the Assam Municipal Act, 1956 (in short, the Act of 1956) the power could have been exercised by the Board or the Town Committee as the case may be. He further submits that in respect to the instant area wherein the commercial room is situated, it is under the Dhakuakhana Town Committee which has been notified under Section 334 of the Act of 1956.

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On the other hand, Mr. B Deori, learned Junior Government Advocate for the respondents no. 1, 2, 3, 4 and 6 submits that the said Respondents have filed an affidavit-in-opposition wherein it was categorically stated that the Executive Officer of the said Town Committee has the authority to allot the said room to both the petitioner as well as the respondent no. 7.

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Mr. Chetia, learned counsel appearing on behalf of the respondent no. 5 submits that the respondent no. 5 has filed an affidavit-in-opposition wherein it has been categorically mentioned that the power of allotment of the shop, imposition by levying rent, toll and fees are vested with the Municipal Board and the order dated 26.12.2014 was passed by the respondent no. 6 behind the

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back of the Dhakuakhana Town Committee. It has been submitted that in view of the existence of the dispute pursuant to the order dated 26.12.2014, the respondent no. 5 is being deprived from the legitimate rent of the aforesaid room.

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Mr. S Borthakur, learned counsel appearing on behalf of the respondent no. 7 submits that the respondent no. 7 has been in possession of the part of the Room no. 3 on the basis of an agreement dated 20.07.2006 between the respondent no. 7 and the petitioner’s father and the Dhakuakhana Town Committee had also issued a Trade License in favour of the respondent no. 7 to run his business from a part of the Room no. 3 of the Dhakuakhana New Market in the name and style of PK Commercial and Papers House. In the affidavit-inopposition filed by the Respondent no. 7 it has been categorically stated that the Dhakuakhana Town Committee rightly allotted one part of the room no. 3 of the New Market, Dhakuakhana wherefrom the respondent no. 7 is running his business since 2006 in the name of Respondent No. 7 instead of allotting the whole room in the house of the petitioner.

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I have heard the learned counsel for the parties at length.

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The issue which arises for consideration is as to whether the Executive Officer, Dhakuakhana Town Committee i.e. the respondent no. 6 had the authority to pass the order dated 26.12.2014 whereby he had allotted a part of room no. 3 to the respondent no. 7. Section 148 of the Act of 1956 stipulates the powers of the Board in respect of levy of rent, tolls and fees and it is the Board in terms with sub-section (2) of Section 148 who may levy rents, tolls and fess at such rates as it may think proper for the right to expose goods for sale in the municipal market and for the use of the shops, stalls and standings therein and also may regulate such rates in respect of private markets or places used or

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declared by the Board as a market place by public notice in the locality. From the said provision it is apparent that it is the Board who has been empowered to do so as per the said provision.

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Section 298 stipulates as to when the Board may be dissolved. A perusal of the said Section would reveal that in case of incompetence or default or abuse of power the State Government till formation of a new Board shall dissolve the Board and hold an election within a period of six months from the date of such dissolution. Section 299 of the Act comes into play in a situation when the State Government had exercised its jurisdiction under Section 298 and thereupon it empowers the State Government to appoint an Officer with all powers and duties which under the Act may be exercised and performed by the Board, whether at a meeting or otherwise during such period of dissolution as the State Government may direct till the Commissioner and Chairman are elected. 10. Thus from a perusal of Sections 298 and 299 of the Act of 1956 would show that it is in interregnum from the date of the dissolution of the Board for the grounds and reasons mentioned in Section 298 and till the formation of the new Board pursuant to an election, the power can be vested upon an Executive Officer to exercise all powers and duties of the Board as contemplated under the Act of 1956.

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It is not in dispute that at present there is no Town Committee and an Executive Officer was appointed in terms with Section 253 of the Act of 1956. It is also not in dispute that the Dhakuakhana Town Committee was not dissolved in the manner as envisaged under Section 298 at that relevant point of time. Under such circumstances unless there is any specific authority being conferred upon, the Executive Officer in terms with Section 299(b) the Executive Officer would not have the power to exercise such jurisdiction as the Board could have

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exercised in terms with Section 148 of the Act.

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Although the respondent no. 6 has filed his affidavit wherein he contends that he has the authority but there is no material placed before this Court on the basis of what he claims that he has any authority to do so. Under such circumstance, the exercise of jurisdiction by the respondent no. 6 in passing the order dated 26.12.2014 whereby the respondent no. 6 had allotted the part of room no. 3 to the respondent no. 7 is without any jurisdiction or authority and accordingly, the said order stands set aside and quashed.

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Be that as it may, taking into consideration that the respondent no. 7 has been functioning out there in a part of the room no. 3 since 2006 and as per the submission of Mr. B Deori, learned Junior Government Advocate that in 2/3 months time, the new Town Committee would be formed, it would be for the interest of justice that the matter pertaining to the allotment of room no. 3 or for that matter the dispute between the petitioner and the respondent no. 7 as regards the claims of room no. 3 be placed before the new Town Committee and till such time, a status-quo be maintained as regards the possession of the room no. 3 as on today.

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Accordingly, it is directed that the respondent no. 6 shall place the dispute as well as the claims of the petitioner and the respondent no. 7 before the newly formed Town Committee immediately upon its formation and thereupon the new Town Committee shall decide the claims and counter claims of the petitioner and the respondent no. 7 in respect to room no. 3. It is further directed that the status-quo be maintained as regards the possession of the room no. 3 till such final decision is arrived at by the new Town Committee. 15. With the above observation, the instant petition stands disposed of.

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JUDGE

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Comparing Assistant

Samrat Dutta v. the State of Assam and 6 Ors.

Case brief

What is this about?

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Samrat Dutta v. the State of Assam and 6 Ors.

Case brief

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