Wp(C) 824/2016

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

WP(C) No. 824/2016

Sri Shahjahan Ali, S/o Nur Uddin, R/o Village Bhalukmari, P.S. Fakirganj, District-Dhubri, Assam. - Petitioner

-Versus- 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati -6. 2. The Dhubri Zilla Parishad, represented by the Chief Executive Officer, Dhubri, P.O. and P.S. Dhubri, District-Dhubri, Assam. 3. The President, Dhubri Zilla Parishad, Dhubri, P.O. and P.S. Dhubri, District-Dhubri, Assam. 4. The Executive Officer, South Salmara Anchalik Panchayat, Bhalukmari, Dhubri, Assam. 5. The President, South Salmara Anchalik Panchayat, Bhalukmari, District-Dhubri, Assam. 6. Sri Abedin Joynal Bhuyan, J.E., Dhubri Zila Parishad, Dhubri, PIN – 783324. - Respondents

BEFORE THE HON’BLE MR. JUSTICE A.K. GOSWAMI

For the petitioners : Mr. J. Payeng, Advocate.

For the Respondents : Ms. M. Goswami, Government Advocate,

Date of hearing and judgment : 15.02.2016.

JUDGMENT AND ORDER (ORAL)

Heard Mr. J. Payeng, learned counsel for the petitioner. Also heard Ms. M. Goswami, learned State counsel, appearing for respondent Nos. 1, 2 and 4. 2. This writ petition is filed by the petitioner challenging the order dated 29.01.2016, issued by the Chief Executive Officer, Dhubri Zilla Parishad, whereby it was directed that the Fakirganj Hat will be run, in the interest of revenue, departmentally till regular arrangement is made. 3. During the course of the proceeding to-day, Mr. Payeng has also produced a copy of the order dated 05.06.2015, passed by this Court in WP(C) 3277/2015, filed by the present petitioner. From a perusal of the said order, it appears that the petitioner was the lessee in respect of Fakirganj Hat for the period from 01.07.2014 to 13.06.2015. Perusal of the said order of this Court also goes to show that by urging various grounds, the petitioner had prayed for extension of lease period and this Court, without expressing any opinion on the merits of the case, disposed of the writ petition providing that the respondents therein may dispose of the representation dated 05.04.2015 submitted by the petitioner, making it very clear that the above direction should not be construed to be an order for granting extension. It appears that subsequent thereto, Fakirganj Hat was settled with the petitioner for a period of three months with effect from 01.07.2015 till 30.09.2015. 4. A second writ petition came to be filed by the petitioner contending that the representation, filed by him on 19.09.2015 praying for extension of the lease period on account of suffering of loss due to heavy rains and floods, was not disposed of. The said writ petition was registered as WP(C) 6524/2015. This Court disposed of the said writ petition by an order dated 16.10.2015 at the motion stage itself by directing the respondent No. 5 therein to consider the petitioner’s representation dated 19.09.2015 and to dispose of the same by passing a reasoned order within a period of one month from the date of receipt of a certified copy of the order. 5. It is pleaded in the present writ petition that the petitioner was again settled with the said Hat by order dated 03.11.2015 passed by the South Salmara Anchalik Panchayat for another period from 01.10.2015 till 30.06.2016 as per resolution No. 1 adopted at the meeting of the Standing Committee of the said Anchalik Panchayat held on 17.10.2015. In paragraph 2 of the writ petition, it is averred that the Standing Committee considered the case of the petitioner for settlement of the Hat on the basis of the High Court’s order dated 16.10.2015 passed in WP(C) 6524/2015. 3

6. Section 105 of the Assam Panchayat Act, 1994, provides that all Hats within the territorial jurisdiction of Anchalaik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by its President. Rule 47(2) of the Assam Panchayat (Financial) Rules, 2002, envisages that tender notice shall be floated at least forty-five days before the last day of Panchayat financial year, which is 30th June of every year. 7. A reading of Section 105(1) of the Act clearly indicates that the Legislature has given a mandate to the jurisdictional Anchalik Panchayat that as far as the Hats are concerned it has to be settled only for a period of one financial year and by inviting tenders. It is, therefore, clear that the power of the Anchalik Panchayat is circumscribed by the provisions of Section 105(1) and the settlement cannot be for a period of more than one year and the settlement has also to be only by inviting tenders. Thus, where a settlement has been made for one year already, the period of settlement cannot be extended for any period beyond the period of one year. Moreover, after the period of one year has expired in respect of a settlement, the next settlement has to be only by inviting tenders from all intending parties and not by extending the settlement of the party in whose favour the settlement had been made for the earlier period. 8. This Court, in the case of Kosheswar Bharali v. State of Assam and Ors., reported in (2000) 2 GLR 615, held that the express provisions of Section 105 of the Assam Panchayat Act, 1994 (for short, ‘the Act’) prohibit any extension of settlement beyond the period of one Panchayat Financial Year.

9. It is to be noticed that an application was filed by the petitioner before the authorities for extension of lease on the basis of which settlement was again granted in favour of the petitioner. Whether distribution of State largesse was granted to the petitioner by way of settlement or by way of extension does not make any difference as, whichever way one looks at it, the same is not permissible in law, because there is no provision in the Act for extension of settlement period and settlement cannot also be granted without inviting tenders under the provisions of the Act. There is no dispute that no notice inviting tender was issued. Therefore, the order by virtue of which the petitioner was operating the Hat is, ex facie, illegal. 10. Article 226 of the Constitution of India confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for enforcement of any of the rights conferred by Part-III, or for any other purpose. Under Article 226 of the Constitution the High Court has extra-ordinary discretionary power. It is implicit that for exercising the extra-ordinary jurisdiction, the relief asked for must be one for enforcing a legal right. 4

11. By the impugned order dated 29.01.2016, passed by the Executive Officer, South Salmara Anchalik Panchayat, the order of settlement of Fakirganj Hat made in favour of the petitioner was cancelled in the interest of upholding the provisions of law and to avoid loss of government revenue. Even if it is assumed that the Executive Officer could not have set aside the order of settlement made in favour of the petitioner, quashing of the order dated 29.01.2016 would result in reviving an order, which is ab initio void. Therefore, this Court is of the considered opinion that the impugned order does not call for any interference. In Godde Venkateswara Rao v. Government of Andhra Pradesh and Others, reported in AIR 1966 SC 523, the Apex Court had upheld the order of the High Court refusing to exercise discretionary jurisdiction under Article 226 of the Constitution when setting aside of an order would have resulted in restoration of an illegal order. 12. Taking that view, the writ petition is dismissed. No cost.

JUDGE