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2006 DIGILAW 561 (GAU)

Kamal Goswami v. State of Assam

2006-06-14

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. Heard Mr. S. Medhi, learned Counsel appearing for the petitioner and Mr. K.C. Mahanta, learned State counsel appearing for the official respondents. None appears for the GMC as well as private respondents despite notice when the matter is taken up for final hearing today. 2. The correctness and validity of the order dated 31.10.1998 passed by the Commissioner and Secretary to the Government of Assam, Gauhati Development Department (for short, "the Commissioner') has been challenged in this writ petition. 3. Against order dated 15.7.97 passed by the Standing Appeal Committee, Gauhati Municipal Corporation (for short, 'the G.M.C.') in Appeal Case No. GCL/53 of 1996 preferred by the Respondent No. 4 herein as the appellant against the petitioner and others, an application under Section 420 of the Gauhati Municipal Corporation Act, 1971 (for short, 'the Act') was filed on 28.10.1998 by the petitioner narrating following facts: The case in brief is that late Bhuban Ch. Goswami deceased father of the petitioner applied on 28.6.1993 for cancellation of holding No. 55 standing in the name of Smti Madhuri Das.W/o. Sri P.K. Das of Ward No. 20(O) 30(N) at J.C. Das Road as Smti Madhuri Das allegedly obtained the said holding number fraudulently by suppressing facts. The learned Additional Commissioner, GMC cancelled the holding No. 55 in the name of Smti Madhuri Das W/o Sri P.K Das by an order dated 25.2.1996 in Mutation case No. GTX/CZ/60/93 after hearing both parties and taking evidences and the said order was approved by the learned Commissioner, GMC on 27.2.1996. On being aggrieved, Smti Madhuri Das filed an appeal before the GMC Standing Appeal Committee. The learned Standing Appeal Committee admitted the appeal in appeal case No. GCL/53/96 and passed orders 15.7.1997 by setting aside the impugned order dated 25.2.96 passed by the learned Additional Commissioner, GMC in Mutation case No. GTX/CZ/60/93. The Commissioner, GMC was directed to restore the holding No. 55 of Ward No. 20(old)/30(new) of GMC in the name of the appellant Smti Madhuri Das, if deleted by then. And thus appeal of Sri K. Goswami was rejected by the learned Standing Committee by their order dated 15.7.1997. 4. The Commissioner by his impugned order rejected the application holding that the State Govt. found no reason whatsoever to invoke the powers conferred under Section 420 of the Act. And thus appeal of Sri K. Goswami was rejected by the learned Standing Committee by their order dated 15.7.1997. 4. The Commissioner by his impugned order rejected the application holding that the State Govt. found no reason whatsoever to invoke the powers conferred under Section 420 of the Act. In arriving at the above decision, the Commissioner discussed the scope of Section 438 read with Section 420 of the Act and it was recorded therein as follows: The decision of the Standing Committee, or where the matter has been referred to the Corporation on aforesaid, the decision of the Corporation shall be final. "Case records in Appeal Case No. GCL/53/96 received from the Commissioner under letter number GCL/93/98/2, dated 16.5.1998 does not show that the Commissioner referred the order of the Standing Committee dated 15.7.1997 in aforesaid Appeal Case within sixty days from the date of order to the Corporation under Sub-section (2) to Section 438 of GMC Act, 1971. As such as per Sub-section (2) of Section 438 "the decision of the Standing Committee shall be final" and therefore law does not allow State Govt. to interfere with the decision of the Standing Committee. 5. Before in depth consideration of the issue involved herein on the basis of the arguments canvassed by the learned Counsel for the petitioner as well as the State counsel it would be expedient to refer to Sections 420 and 438 of the Act and the same may be read as under: Section 420 -- Government's power to call for records, etc. --The Government may at any time require the Corporation (a) to produce any records, correspondence, plan or other documents in it", possession or under its control; (b) to furnish any return, plan, estimate, statement, accounts or statistics relating to the proceedings, duties or works of the corporation or any of the municipal authorities; and (c) to furnish or obtain and furnish any report. Section 438 --Appeal from Commissioner to Standing Committee. Section 438 --Appeal from Commissioner to Standing Committee. -- (1) Notwithstanding anything contained in the provisions of this Act in the matter of appeal, an appeal shall lie to the Standing Committee from -- (a) any notice issued or other action taken or proposed to be taken by the Commissioner -- (i) under any section of this Act; (ii) under any bye-law concerning house-drainage, or the connection of house drains, with municipal drains or house connections with municipal water supply or lighting mains; (b) any refusal by the Commissioner to grant permission to construct or reconstruct a building; (c) any refusal by Commissioner to grant a Permission under any section of this Act ; (d) any refusal by Commissioner to grant a licence ; (e) any order of the Commissioner suspending or revoking a licence; and (f) any other order of the Commissioner that may be made applicable by rules framed under this Act. (2) If, on any such appeal, the Standing Committee reverses or substantially modifies any action taken or proposed to be taken by the Commissioner or any order passed by him, he may, within sixty days of the date of such decision, refer the matter to the Corporation and pending the decision of the Corporation on such reference the Commissioner shall not be bound to give effect to the decision of the Standing Committee. The decision of the Standing Committee, or where the matter has been referred to the Corporation as aforesaid, the decision of the Corporation shall be final: Provided that notwithstanding anything contained in the Act, during the period of supersession, an appeal shall lie before the State Government against the decision of the Standing Appeal Committee. (3) Notwithstanding anything contained in the principal Act, the State Government may, at any time, call for the records in any matter from the Corporation and give such order as may be deemed necessary after examination of such records. The order of the State Government in this regard shall be final. 6. A common reading of the above quoted provisions would go to show that under Section 420 of the Act the Government has the power of supervision on the Corporation and in this regard the Corporation may be directed as follows. The order of the State Government in this regard shall be final. 6. A common reading of the above quoted provisions would go to show that under Section 420 of the Act the Government has the power of supervision on the Corporation and in this regard the Corporation may be directed as follows. (i) to produce any records, correspondence, plan or other documents in his possession under his control; (ii) to furnish any return, plan, estimate, statement, accounts or statistics relating to the proceedings, duties or works of the Corporation or any of the municipal authorities and (iii) to furnish or obtain and furnish and report. 7. On the other hand, appeal provisions has been provided under Section 438. As per Section 438(1)an appeal shall lie to the Standing Committee from any notice/action/order issued by the Commissioner under this Act and Section 438(2) provides that the decision of the Standing Committee on appeal shall be final. In Section 438(3) the State Govt. has been empowered to call for the records in any matter from the Corporation and to give such order as may be deemed necessary after examination of such records, which shall also be final. 8. Section 420, therefore, does not provide for calling for/production of any record from the Standing Appeal Committee including its any order passed on appeal which is being treated as final. Even Section 438(3) prescribes no such power to the State Govt. for interference with any appellate order of the Standing Appeal Committee of the G.M.C. 9. Relying on the provisions of Sections 420 and 438(3) as mentioned above, Mr. Medhi, learned Counsel for the petitioner has forcefully submitted that the Government can exercise revisional power being inherent under Section 438(3) by calling for the records of the appeal case of the Standing Committee under Section 420 of the Act. His case is that since the Standing Committee is a creation of the Corporation, the term of 'the Corporation' appeared in these provisions of law obviously includes the Standing Committee also and any decision of the Standing Committee, being a decision of the Corporation's undoubtedly reviewable by the State Government When these provisions above mentioned clearly empower the State Government to exercise its power to make the revision of the appellate order passed by the Standing Committee, according to Mr. Medhi, the Commissioner has acted illegally and failed to exercise its jurisdiction in rejecting the application of the petitioner filed under Section 420 of the Act before him. 10. On meticulous scrutiny of the records including the impugned Govt.'s order and the provisions of law quoted above, it would appear that Section 420 is meant for supervision and guidance by the Government upon the activities of the Corporation, specifically in those three areas demarcated in Section 420 itself. Nowhere under Section 420 it is mentioned that appellate order of the Standing Committee can also be brought under the said provision. 11. Insofar as Section 438(3) is concerned, this provision is not meant for any revisional power to be exercised by the Government from the appellate order of the Standing Committee. The Sub-clause (3) of Section 438 is appeared to be an independent provision because Section 438(2) provides that the decision of the Standing Committee shall be final. 12. Since Section 420 of the Act does not provide any power of revision to entertain a petition challenging the appellate order of the Standing Committee, this Court, is of the view that the Commissioner rightly and justifiably rejected an application preferred by the petitioner under the said provision and accordingly this Court finds no illegality or any jurisdictional error to interfere with the same. 13. In the result, this writ petition fails and stands dismissed. No costs. Petition dismissed