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1996 DIGILAW 11 (GAU)

Gopal Harijan v. State of Assam and Ors.

1996-01-30

D.N.CHOWDHURY, V.K.KHANNA

body1996
VK Khanna, C.J. — This public interest litigation has been initiated by Shri Gopal Harijan, seeking a relief that the order communicated vide letter dated 11.6.95 (Annexure 4) be quashed along with the consequential communication communicated by the letter dated 17.6.95 (Annexure 5) issued by the Deputy Commissioner, Karimganj, Assam and also for quashing of the order communicated vide Memo dated 4.7.95 (Annexure 9) issued by the Deputy Secretary to the Govt. of Assam, Panchayat and Rural Department. It has been further prayed that a writ of Mandamus be issued commanding the Deputy Commissioner, Karimganj (respondent No. 4) to enforce his report dated 26.6.95 (Annexure 8) and to remove all unauthorised markets set up in encroachment of the PWD roadside and other public places in and around Anipur Bus Stand which are creating hazards to the traffic, public safety and convenience and movement of the school going students/children as per his Report/Memo dated 26.6.95 (Annexure 9) and to take positive steps to set up such markets in the newly constructed Anipur Panchayat Market Complex which was constructed for that purpose. 2. We have heard Mr. N. Dhar, the learned counsel for the petitioner at some length, Mr. DP Chaliha, Senior Govt. Advocate appearing on behalf of the State/respondents and Mr. SS Dey, the learned counsel appearing for the contesting respondents No. 8 and 9. It may also be noted that respondent Nos.8 and 9 have also filed an affidavit-in-opposition in this Civil Rule. 3. Mr. Dey at the very outset has raised the preliminary objection that the present public interest litigation is not maintainable inasmuch as it does not come within the purview of the parameters as laid down by the Apex Court for entertaining a public interest litigation. 4. For adjudicating the aforesaid question, it would be necessary to have the brief facts of the case and the controversy which has been raised in the present public interest litigation. Admittedly, there is no dispute that there is market which is running on the Anipur PWD Road which comes under the Dullavcherra Anchalik Panchayat. The petitioner has alleged that he is a Member of the aforesaid Anchalik Panchayat and if. Admittedly, there is no dispute that there is market which is running on the Anipur PWD Road which comes under the Dullavcherra Anchalik Panchayat. The petitioner has alleged that he is a Member of the aforesaid Anchalik Panchayat and if. that be so, he is an elected representative of the Anchalik Panchayat which has been vested with powers of management and settlement of Haats and Bazars within its territorial jurisdiction as would be evident from the discussions made in the subsequent paragraphs of the judgment. In our opinion, therefore, it cannot be said that the present public interest litigation at the instance of the petitioner is a litigation initiated by a busybee. The preliminary objection, in our opinion, has no force and is accordingly liable to be rejected. 5. The dispute which is being sought to be raised in the present public interest litigation is as to whether the settlement and control of the Haats and Bazars within the territorial jurisdiction of the particular Anchalik Panchayat under the Assam Panchayat Act, 1994 vest in the Anchalik Panchayat or as to whether in connection with the aforesaid settlement and regulation, directions can be given by any other authority. 6. Haats and Bazars are defined under the Assam Panchayat Act, 1994 (hereinafter referred to as the Act) in section 2 (19) of the Act and it has been stated that it will mean any place within the administrative control of the local authority where persons assemble daily or biweekly or periodically for sale or purchase or articles for human or animal consumption or of livestocks or of other merchandise. Section 49 (1) of the Act enumerates the general functions of the Anchalik Panchayat. Section 49 (18) of the Act gives powers for regulation of markets, fairs and festivals to the Anchalik Panchayat. Section 105 of the aforesaid Act speaks of settlement of Haats by Anchalik Panchayats and vests power of settlement of Haats within the territorial jurisdiction of the Anchalik Panchayat with the Anchalik Panchayat concerned in accordance with the procedures prescribed under that, section. As far as powers of the State Government are concerned, they have been conferred under section 112 and the directions which the Government can issue have been enumerated under section 122 of the Act. As far as powers of the State Government are concerned, they have been conferred under section 112 and the directions which the Government can issue have been enumerated under section 122 of the Act. Section 112 of the Act gives the general powers to the Government which relate to inspection, supervision over the performance of the administrative duties of a Zilla Parishad, Anchalik Panchayat or Gaon Panchayat If one looks to the provisions of the aforesaid section the one finds that it gives power of entry and inspection of immovable property in the occupation and control or any work in progress under the direction of the Panchayats and also powers of inspection of any documents which may be in possession of the Panchayats and similar powers for furnishing of statements, accounts, reports and proceedings. It will be pertinent to note that as far as the aforesaid section 112 of the Act is concerned, it only confers powers to the State Government under section 112 (d) and that power is only confined to giving advice in writing in respect of the administrative works, duties and proceedings as they think necessary besides giving advice for the purposes of seeing that all the proceedings which are being done by the Panchayats are in accordance with and in conformity with law which may prescribe performance of the functions. 7. As far as giving of specific directions are concerned, one can find the powers which the State Government has been given under the Act under section 122. Section 122 of the Act reads as follows: "122. (1) Notwithstanding anything contained in this Act, it: snail be lawful for the Government to issue directions to any Panchayat in matters relating to State and national policies and such directions shall be binding on me Panchayat (2) The Government may: (a) call for any record or register or other document in possession or under me control of any Panchayat; (b) require any Panchayat to furnish return, plan, estimate, statement, accounts or statistics; and (c) require any Panchayat to furnish any information or report on any matter concerned with such Panchayat" 8. Mr. DP Challiha, the learned Senior Govt. Mr. DP Challiha, the learned Senior Govt. Advocate appearing on behalf of the State/respondents has frankly conceded before us that either under section 122 or under any other section of the Act, no power has been conferred on the Government to give directions for the settlement of Bazars and Haats and the only power which the State Government has got is to give advice in writing under section 112 (d) of the Act. If that be so, we are of the opinion that the orders passed by the State Government can at best be treated to be attributable to the powers which have been conferred under the Act under section 112 (d), i.e. written advice given by the State Government to the concerned Anchalik Panchayat. The concerned Anchalik Panchayat, according to the petition itself, has passed resolution and communications have also been annexed which show that the Deputy Commissioner has also taken some stand in respect of holding of the market by the side of the PWD road. 9. After hearing the learned counsel for the parties, we are of the opinion that for the purpose of exercise of powers conferred under section 112 (d) of the Act and for tendering written consent, it is the State Government which has to take a decision in this matter. This Court is making it clear that it is not giving any finding on merits and it will be for the State Government to take into account afresh the resolutions which may have been passed by the concerned Anchalik Panchayat which is entitled to settle the Haats within their territorial jurisdiction and also take into account the views of the District Administration besides any representation which may be made by the persons who may be affected by any written advice which is given by the State Government. Under the scheme of the Act, it is expected that the statutory advice which the State Government is entitled to give under section 112 (d) of the Act, would be taken into consideration by the concerned Anchalik Panchayat before discharging its functions and we have reasons to believe that the authorities constituted under die Act would discharge their functions in accordance with law at the earliest. 10. Subject to the aforesaid observations, the present Civil Rule is finally disposed of. 10. Subject to the aforesaid observations, the present Civil Rule is finally disposed of. However, looking to the facts and circumstances of the case, the parties shall bear their own costs. A certified copy of the judgment will be given to the learned counsel for the parties by the second day of February, 1996 on payment of usual charges.