Dismissed

Kalaya Yubak Sangha and 2 Ors. v. the State of Assam and 8 Ors.

Gauhati HC7 Feb 2022WP(C)/484/2014

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the inclusion of Kalayahati village within the Barpeta Municipal Board. Upholding notifications dated 1989 and 1995, the Court held them to be valid final notifications under Section 5(2) of the Assam Municipal Act, 1956, validating subsequent election processes.

What did the court decide?

The writ petition stood dismissed; parties to bear their own costs.

Kalaya Yubak Sangha and 2 Ors. Vs the State of… — Writ and Judicial Review | Gauhati HC (2022)

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GAHC010005372014

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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)/484/2014

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KALAYA YUBAK SANGHA and 2 ORS.

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A REGISTERED SOCIETY DULY REGISTERED UNDER THE REGISTRATION OF SOCIETIES ACT, REP. BY ITS PRESIDENT.

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2: PRAHLAD MALLA SECY. OF KALAYA YUBAK SANGHA KALAYAHATI R/O VILL.- KALAYAHATI P.O.- SUNDARIDIYA DIST.- BARPETA ASSAM.

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3: KAMAL KR. DAS EXECUTIVE MEMBER OF KALAYA YUBAK SANGHA KALAYAHATI R/ VILL.- KALAYAHATI P.O.- SUNDARIDIYA DIST.- BARPETA ASSAM

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VERSUS

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THE STATE OF ASSAM AND 8 ORS REP. BY ITS COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, MUNICIPAL ADMINISTRATION DEPTT., DISPUR, GHY- 6.

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2:THE COMMISSIONER and SECY. GOVT. OF ASSAM URBAN DEVELOPMENT DEPTT. DISPUR GHY- 6.

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3:THE JOINT SECRETARY MUNICIPAL ADMINISTRATION DEPTT.

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DISPUR GHY- 6. 4:THE DY. SECRETARY MUNICIPAL ADMINISTRATION DEPTT. DISPUR GHY- 6. 5:THE DIRECTOR MUNICIPAL ADMINISTRATION DEPTT. HENGRABARI GUWAHATI. 6:THE DY. COMMISSIONER BARPETA DIST.- BARPETA ASSAM. 7:THE BARPETA MUNICIPAL BOARD REP. BY ITS CHAIRMAN P.O. and DIST.- BARPETA ASSAM. 8:THE WARD COMMISSIONER WARD NO. 14 OF THE BARPETA MUNICIPAL BOARD BARPETA P.O. and DIST.- BARPETA ASSAM. 9:THE STATE ELECTION COMMISSION REP. BY ITS COMMISSIONER DISPUR GHY- 6. 10:SRI MANOJ KUMAR DAS S/O SRI SHARBANADA DAS R/O BUDARPUR TUP MUNICIPAL WARD NO. 13 P/S and P/O BARPETA DIST.BARPETA ASSAM 11:SRI NAYANJYOTI DAS S/O SRI HARGOBIND DAS R/O BUDARPUR TUP MUNICIPAL WARD NO. 13 P/S and P/O BARPETA DIST.BARPETA

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ASSAM

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12:SMTI.BHARTI CHOUDHURY W/O SRI PRALAY CHOUDHURY R/O DONGORKUCHI SONKUCHI MUNICIPAL WARD NO. 14 P/S and P/O BARPETA DIST.BARPETA ASSAM

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13:SRI PRALAY CHOUDHURY S/O PROMOD CHOUDHURY R/O DONGORKUCHI SONKUCHI MUNICIPAL WARD NO. 14 P/S and P/O BARPETA DIST.BARPETA ASSAM

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14:SMTI. RINKUMANI DAS W/O SRI DINESH DAS VILL- BILARTARI HATI P.O. and DIST. BARPETA ASSAM.

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15:SMTI RANJUBALA DAS W/O SRI LAKHMAN DAS VILL- PALANGDI HATI P.O. and DIST. BARPETA ASSAM.

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16:SMTI SUPRABHA DAS W/O SRI RANJIT DAS VILL- PALAHATI P.O. and DIST. BARPETA.

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17:SRI SATYABAN DAS S/O LATE SARBESHWAR DAS VILL-RAYAT PARA P.O. P.S. and DIST. BARPETA ASSAM.

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18:SMTI. SABITA RANI DAS W/O SRI GAPESH CH. DAS VILL-AMBARI HATI P.O. and DIST. BARPETA ASSAM.

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19:SRI MUKUL DAS S/O SRI HARI LAL DAS VILL-PALANGDI HATI P.O. and DIST. BARPETA ASSAM.

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20:SRI DHANJIT DAS S/O LATE LABA RAM DAS VILL- NAHATI P.S. and DIST. BARPETA ASSAM.

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21:SMTI ANIMA MAZUMDAR W/O SRI GUNMANI MAZUMDAR VILL-GANDHI NAGAR P.S and DIST. BARPETA ASSAM.

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22:SMTI. ANITA GAYAN W/O SRI DIMBESWAR GAYAN VILL-GANDHI NAGAR P.O. and DIST. BARPETA ASSAM.

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23:SRI RANJIT DAS S/O LATE BOLORAM DAS R/O GANDHINAGAR BARPETA DIST. BARPETA ASSAM.

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24:SRI HRISHIKESH DAS S/O LATE RAMSISH CH DAS MEATUAKUCHI GUJIA ROAD DIST. BARPETA ASSAM. 25:SRI DIPANKAR ROY CHOUDHARY S/O LATE KAMALAKANTA ROY CHOUDHARY R/O P.S. GANAK KUCHI DIST. BARPETA ASSAM.

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26:SMT. DHANJITA UZIR W/O SRI NIRMAL UZIR R/O ISHAPUR HATI P.O. AND P.S. BARPETA

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DIST- BARPETA ASSAM.

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27:SRI PRANJIT DAS S/O SRI BHARAT DAS R/O METUAKUCHI P.O. AND P.S. BARPETA DIST. BARPETA ASSAM

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Advocate for the Petitioner : MR.A D CHOUDHURY

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Advocate for the Respondent : MR.M U MAHMUD

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 07-02-2022

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Heard Mr. D Chakraborty, learned counsel for the petitioner and Ms. S Sharma, learned counsel appearing on behalf of respondent Nos.1, 3, 4, 5 & 6. None appears on behalf of respondent Nos.2, 7, 8 and 9 as well as respondent Nos.10 to 27.

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The instant writ petition has been filed by a Society registered under the provisions of Societies Registration Act, 1860 whereby the notifications dated 26.12.2013 and 09.01.2014 issued by the State Election Commissioner has been challenged on the ground that it is in violation to the Assam Municipal Act, 1956 (for short, Act of 1956), inasmuch as the village in the name of Kalayahati which is a part of Sundaridia Revenue Circle has been included in the territory of the Barpeta Municipal Board.

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The facts of the instant case is that in the Barpeta district there is a Satra in the name of Sundaridia Satra which consists of five

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numbers of Hati i.e., village namely Pubhati, Pachimhati, Dakhinhati, Uttarhati and Kalayahati. The village of Kalayahati is the subject matter of controversy before this Court as to whether the said village or part thereof has been brought within the Barpeta Municipal Board. 4. It is admitted case of the petitioner that on 07.04.1989 a notification bearing No.A.A.373/88/97 was issued to bring the village of Kalayahati within the Barpeta Municipal Board and thereby calling for objections from the concerned. The petitioner in the writ petition contends that the said notification was not widely published for which the petitioners could not submit their objection.

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Be that as it may, vide the notification No.MA.94/95/41 dated 06.09.1995, various lands including the lands included in the Sundaridia Revenue Circle (part) of Mouza Barpeta were brought within the Barpeta Municipal Board. The said notification dated 06.09.1995 specifically mentions that there was a notification dated 07.09.1989 published and there was no public opinion received by the Government for which the said notification was published in exercise of the powers under section 5(2) of the Act of 1956. It may be relevant herein to mention both the said notifications dated 07.04.1989 as well as 06.09.1995 is not a subject matter of challenge in respect to the instant writ petition before this Court.

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Subsequent thereto, the record reveals that the petitioners have objected to the said notification dated 06.09.1995 by filing objection. Thereupon, the petitioner approached this Court by way of a writ petition which was registered and numbered as WP(C) No.6978/2005 challenging the notification dated 06.09.95 and inter

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alia praying for a direction to exclude the area of the petitioners from the domain of the Barpeta Municipal Board. The said writ petition being WP(C) No.6978/2005 was withdrawn by the petitioner with a liberty to file a fresh writ petition which was permitted vide an order dated 21.08.2009. Thereupon, another writ petition was filed being WP(C) No.1929/2010 before this Court highlighting the grievances of the petitioner and praying for passing appropriate direction in that regard.

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This Court vide an order dated 08.08.2013 disposed of the said writ petition. In the said writ petition, the specific stand of the respondent authorities was that the issue pertaining to inclusion of the area with the Barpeta Municipal Board stood settled vide the notification dated 06.09.1995 and if there is any inclusion in both the voters list i.e., in the Barpeta Municipal voters list and Panchayat voters list, the same is required to be corrected.

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In view of the specific stand taken by the respondent authorities, the writ petition was disposed of directing the respondents, more particularly, the State of Assam represented by the Commissioner & Secretary to the Govt. of Assam, Municipal Administration Department as well as the Commissioner & Secretary to the Government, Urban Development Department who are presently the respondent Nos.1 and 2 herein to look into the grievance of the petitioners and then to pass appropriate orders taking note of the attending facts and circumstances and in accordance with law.

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It is the relevant herein to mention that the grievance of the petitioner in the said writ petition was that the Kalayahati village in

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question ought not to have been included in the territory of Barpeta Municipal Board as the area falls within No.5 Sundaridia Gaon Panchayat; No.4 Barpeta Anchalik Panchayat and No.23 Sundaridia Zila Parishad in the district of Barpeta.

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It is the petitioners further case that in pursuance to the order dated 08.08.2013, the petitioner again represented before the authorities concerned but nothing has been in that regard and on the other hand, the Assam State Election Commission vide a notification dated 26.12.2013 published a final electoral Roll for the ensuing election in the Barpeta Municipal Board to be held on 26.12.2013. Further to that, the Assam State Election Commission vide another notification dated 09.01.2014 issued the notification for holding the election to the Barpeta Municipal Board.

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Being aggrieved by such actions of the Assam State Election Commission as well as to the inaction of the respondent Nos.1 and 2 to the directions dated 08.08.2013 passed by this Court, the petitioner has approached this Court under Article 226 of the Constitution of India.

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None of the respondents except the respondent No.6 had filed an affidavit-in-opposition. In the said affidavit-in-opposition it was mentioned that as regards the direction contained in order dated 08.08.2013, the Deputy Secretary to the Govt. of Assam on behalf of respondent Nos.1, 2 and 3 of the writ petition had directed the Deputy Commissioner to submit a detailed report in respect to the matter as alleged by the writ petitioner for exclusion of the area of Kalayahati (Part of Sundaridia Revenue Circle) from Barpeta Municipal Area. It

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has also been mentioned that the fact of inclusion of Kalayahati village (part of Sundiaridia Revenue Circle) have already stood concluded on the basis of the publication of Govt. Notification No. MA.373/88/97 dated 07.04.1989 and the subsequent publication in Assam Gazette Notification No.MA.373/94/95/41 dated 06.09.1995. It was mentioned that for the election to the Barpeta Municipal Board the draft and final electoral roll 2008 was published for all the 22 number ward constituencies of Barpeta Municipal Board and it was approved accordingly by the concerned authority. On processing the election of the Barpeta Municipal Board, contesting candidates had submitted nomination papers including candidates from ward Nos.13 and 14 which includes Kalayahati area (Part of Sundaridia Revenue Circle) for the election of Ward Commissioner and accordingly, one Shri Kabita Das had been elected for Ward No.13 Kalayahati and Shri Ratul Das elected for ward No.14 Kalayahati and they have enjoyed full tenure for municipal board during the period 2008-2013. It was also mentioned that in the last election of the Municipal Board during the period of submission of nomination papers contesting candidates from ward No.13 and 14 who hailed from Kalayahati village had also submitted nominations.

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I have heard the learned counsel for the petitioner as well as Ms. S Sharma appearing on behalf of respondent Nos.1, 3, 4, 5 and 6. 14. The dispute which arises in the instant writ petition is as to whether the Kalayahati village which is a part of Sundaridia Revenue Circle is within or has not been included within the Barpeta Municipal Board. For that purpose what needs to be taken into consideration is

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Section 5 of the Act of 1956 which is quoted herein below:

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5. Objection to the creation, alteration of limits, or abolition of municipality. - (1) Any inhabitant of any part of a local area defined in, a notification published under Section 4 or any rate-payer of the municipally, may, if he objects to anything therein contained, submit his objection in writing through the Deputy Commissioner to the Chief Commissioner within forty two days from the date of the publication, and the Chief Commissioner shall take his objection into consideration.

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(2) When sixty days from the date of the publication of the notification have expired, and after considering any objection, which may be submitted, the Chief Commissioner may by Notification-

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(a) Constitute the local area or any specified part thereof to be a municipality under this Act, or

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(b) Include the local area or any part thereof in the Municipality or exclude it there from, or

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From a perusal of the said quoted section it would show that any inhabitant of any part of a local area defined in the notification published under Section 4 or any rate payer of municipality, may, if he objects to anything therein contained submit his objections in writing

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through the Deputy Commissioner to the State Government within 42 days from the date of publication and the State Government shall take his objection into consideration.

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In the instant case, the notification in question which was published under Section 4 was the Govt. Notification No.MA.373/88/97 dated 07.04.1989. Though the petitioner alleges that the said 1989 notification was not properly publicized as is required under Section 4 but in view of not challenging the said notification and also taking into consideration the specific stand taken by the respondent authorities that the said notification was widely published, this Court deems it appropriate that the said notification of 1989 was duly published.

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Sub-section (2) of Section 5 stipulates that when 60 days from the date of publication of the notification under Section 4 has expired and after considering any objection which may be submitted, the State Government may by an objection constitute the local area or any specified part thereof to be municipality under the Act of 1956 or including the local area or any part thereof in the Municipality or exclude it therefrom or withdraw the whole area comprised in the municipality from the operation of the Act of 1956 as the case may be. 18. In the instant case, after the notification dated 07.04.1989, the Government of Assam vide a notification bearing No.MA94/95/41 dated 06.09.1995 included the contiguous areas described in the schedule below within the Barpeta Municipal Board in the district of Barpeta. Admittedly, from the said notification the village Kalayahati under Sundaridia Revenue village was brought within the ambit of Barpeta Municipal Board. At this stage it may be relevant to take note

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of the contention of the learned counsel for the petitioner that in the Schedule to the said notification dated 06.09.1995 it has been mentioned “as proposed” to be included and as such, he submits that the said notification is just a proposal and cannot be taken to be the final notification in terms with Section 5(2). In the opinion of this Court, the said submission is misconceived in view of the fact that the State Government had issued the notification in terms with Section 5(2) and thereby categorically mentioning that the said area mentioned in the schedule has been brought within the Barpeta Municipal Board and as such, the said notification dated 06.09.1995 cannot be said to be a proposed notification as it is a final notification under Section 5(2) of the Act.

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At this stage it may also be relevant to take note of Section 6 of the Act of 1956 which is quoted herein below:

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6. Effect of including local area in Municipality. - When a local area is included in a Municipality by a notification Published under section 5 sub-section (2), all the provisions of this Act and all rule and bye-laws made orders, directions and notices issued and power conferred there under and in force throughout the municipality at the time when the local area is so included, shall apply thereto unless the Chief Commissioner, by notification, otherwise direct.

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The said section is relevant for the purpose of the instant dispute because the said section stipulates the effect of an area being brought within the municipality. It stipulates then when a local area is included in the municipality by a notification published under Sub-

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Section (2) of Section 5, all provisions of the Act of 1956 and all rules, by-laws made, orders, directions and notices issued and powers conferred there under and in face to the municipality at that time when the local area is so included shall apply thereto unless the State Government by notification otherwise directs. Thus it would be seen in pursuance to the issuance of the notification dated 06.09.1995, the area in question i.e., Kalayahati village under Sundaridia Revenue Circle was brought within the ambit of Barpeta Municipal Board and consequently the provisions of the Act of 1956 its rules, By-laws, orders, directions and notices shall apply in so far as the said area is in question.

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In that view of the matter, the preparation of the electoral rolls by the Assam State Election Commission and the holding of elections in respect to the said area cannot be held to be ultra-vires or without jurisdiction so as also the notifications dated 26.12.2013 and 09.01.2014 impugned in the instant proceedings.

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In view of the above observations made, the writ petition being devoid of any merits, accordingly, stands dismissed. However, the parties shall bear their own costs.

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JUDGE

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Comparing Assistant

Kalaya Yubak Sangha and 2 Ors. v. the State of Assam and 8 Ors.

Case brief

What is this about?

What did the court decide?

Kalaya Yubak Sangha and 2 Ors. v. the State of Assam and 8 Ors.

Case brief

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What did the court decide?

What the court decided

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