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2019 DIGILAW 409 (GAU)

Patiladoha Gaon Panchayat Samabay Samittee Ltd v. State of Assam

2019-04-02

SANJAY KUMAR MEDHI

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JUDGMENT : Sanjay Kumar Medhi, J. The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this petition under Article 226 of the Constitution of India. The petitioners who are three in numbers are Gaon Panchayat Samabay Samities. They have approached this Court with a common grievance challenging the action of the authorities in taking certain agents from them and tagging them to the Respondent No.7. Specific challenge has been made to a communication dated 02.01.2013 by which such decision was conveyed by the CHD and Joint Director (In-charge), Food, Civil Supplies and Consumers Affairs, BTC to the Assistant Director, Food, Civil Supplies and Consumer Affairs, Bijni. The same was followed by the order dated 05.01.2013 issued by the In-charge Joint Director, Food, Civil Supplies and Consumer Affairs by which the agent of the petitioners' Society which were within the BTC area were tagged with Respondent No.7 with immediate effect. 2. I have heard Shri S. Bhuyan, learned Counsel for the petitioner. I have also heard Ms. R.B. Bora, learned State Counsel for Respondent Nos. 1 and 2, Shri A.K. Bhuyan, learned Standing Counsel, BTC appearing for Respondent Nos. 3 to 6 and Shri A.D. Choudhury, learned Counsel appearing on behalf of the Respondent No.7. 3. This Court while issuing notice vide order dated 14.02.2013 had passed an interim order staying the operation of the impugned order dated 02.01.2013 and 05.01.2013 which is in operation till date. In fact the connected Misc. Case being MC 826/2013 was filed by the Respondent no. 7 for modification/vacation of the ex-parte interim order and it was submitted that the averments made in the I.A. should be treated to be the stand of the Respondent No.7 so far as writ petition is concerned. 4. Shri S. Bhuyan, the learned Counsel for the petitioner submits that the challenge has been made broadly on two grounds. The first ground of challenge is on the issue of jurisdiction and the second is on violation of the principle of natural justice. 5. 4. Shri S. Bhuyan, the learned Counsel for the petitioner submits that the challenge has been made broadly on two grounds. The first ground of challenge is on the issue of jurisdiction and the second is on violation of the principle of natural justice. 5. Elaborating on his submission, Shri Bhuyan, the learned counsel submits that though under the amended provision of the Sixth Schedule of the Constitution of India by the paragraph 3B (viii) has been inserted in which Food & Civil Supply Services is one of the subjects which has been transferred to the BTC enabling it to make laws unless specific law was enacted, there is jurisdictional failure in issuing the impugned communication and the subsequent order dated 05.01.2013. Shri Bhuyan submits that the amendment is actually an enabling provision and without a consequent legislative Act the BTC on the subjects, the action could not have been taken and this point goes to the root of the matter vitiating the entire action. 6. As regards the second submission, the learned Counsel for the petitioners submits that apparently because of the impugned action, prejudice as well as loss have been caused to the petitioners and there is a requirement of affording an opportunity of hearing or giving a notice before taking such action and admittedly in the instant case no such hearing or opportunity was afforded to the petitioners. Consequently, it is the submission of the petitioners that there have been gross violation of the principle of natural justice which renders the entire action nugatory. 7. Countering the submission of the petitioners, Shri A.K. Bhuyan, the learned Standing Counsel for the BTC submits that when the amendment of the Constitution itself specifically provides the aforesaid two subjects, namely, Food & Civil Supplies as well as Co-operation to be under the BTC, the requirement of framing of further law does not arise at all. The learned Counsel tries to make a distinction with the Office Memoranda which has been issued so far as the other two Sixth Schedule areas are concerned, namely, N.C. Hills Autonomous Council and Karbi Anglong Autonomous Council wherein vide two Office Memoranda subjects have been transferred to the respective Councils. However so far as the BTC is concerned, the transfer is not by Office Memorandum but by the Constitution itself and in view of said Constitutional provision, there is absolutely no requirement of further legislation. However so far as the BTC is concerned, the transfer is not by Office Memorandum but by the Constitution itself and in view of said Constitutional provision, there is absolutely no requirement of further legislation. The learned Standing Counsel accordingly submits that the issue of jurisdiction will not warrant any consideration on merits. 8. On the submission regarding violation of the principles of natural justice, the learned Standing Counsel, BTC submits that the impugned action are only, the effect and consequence of a legislative action and therefore the question of giving individual notices to the petitioners did not arise. He further submits that there is no dispute on the factual part that the agent which have sought to be removed from the petitioners' Society and tagged with the Respondent No.7 are admittedly within the territorial limits of the BTC and it is not the case that all the agents have been removed. The learned Standing Counsel specifically submits that so far as the petitioner no.1 is concerned, 24 nos. of agents so far as the petitioner no.2 is concerned 6 nos. and so far as the petitioner no. 3 is concerned 10 nos. and it is only those 40 nos. of agents which have been curved out as they are within the territorial limits of the BTC and tagged with the Respondent No.7 which is in the interest of public and the convenience of the consumers. 9. Shri A.D. Choudhury, the learned Counsel for the Respondent No.7 while endorsing the submission of the learned Standing Counsel, BTC submits that the decision taken on 02.01.2013 which had culminated into the order dated 05.01.2013 are mere effects of the Constitutional amendment whereby paragraph 3B has been introduced in the Sixth Schedule of the Constitution of India and therefore the question of lack of jurisdiction to issue such order cannot arise. In this regard, Shri Choudhury, the learned Counsel relies on a decision of the Hon'ble Apex Court in the case of Vodafone India Ltd. and Others v. Telecom Regulatory Authority of India, (2016) 7 SCC 703 . The learned Counsel further submits that so far as the point of violation of principle of natural justice is concerned, the facts and situation of the case is such that no change otherwise will have caused even if the notice is given to the petitioner. The learned Counsel further submits that so far as the point of violation of principle of natural justice is concerned, the facts and situation of the case is such that no change otherwise will have caused even if the notice is given to the petitioner. By relying upon the case of Aligarh Muslim University & Ors. v. Mansoor Ali Khan, (2007) 7 SCC 529, Shri Choudhury submits that it would be a useless formality to issue notice at this stage inasmuch as admittedly all the agents which are subsequently curved out are within the territorial limits of the BTC after the situation as well as client is also within the territorial limits of the BTC. The further submission of the learned Counsel for the Respondent No.7 is that on creation of the BTC and on introduction of paragraph 3B in the Sixth Schedule of the Constitution of India the rights of the petitioners to retain agents who had admittedly fallen within the territorial limits of BTC stood extinguished and therefore no vested right is available to the petitioners to make the present prayer. 10. Ms. R.B. Bora, the learned State Counsel submits that the State will not have any role to play in the present case. 11. The rival submission of the learned counsels have been duly considered and the materials placed before this Court have been carefully perused. 12. Referring to the first submission made by the learned Counsel for the petitioners on the jurisdictional aspect, this Court is of the opinion that the impugned action taken is a consequence of introduction of paragraph 3B in the Sixth Schedule of the Constitution of India wherein there is specific reference of the subjects in question and therefore further enactment would not be necessary for taking the impugned action. Once the territory of the BTC was finalised and it was necessary that the agents which were within the territorial limits of the BTC be tagged with a Cooperative Society within the territorial limits of the BTC for the administrative convenience and in the interest of public. Taking that view of the matter this Court is unable to accept the first submission that there is any jurisdictional error in issuing the impugned communication dated 02.01.2013 and the order dated 05.01.2013. 13. Taking that view of the matter this Court is unable to accept the first submission that there is any jurisdictional error in issuing the impugned communication dated 02.01.2013 and the order dated 05.01.2013. 13. Referring the contention of violation of the principles of natural justice, this Court is inclined to accept the submission made on behalf of the respondents that affording an opportunity would not have served any fruitful purpose in the instant case inasmuch as both the 40 nos. of agents who are sought to be curved out as well as the Respondent No.7 fall within the territorial limitation of BTC and there is no dispute to that factual position. Therefore issue of notice could not have served any fruitful purpose. Further, taking into account the aspect of public interest, where in large number of consumers are connected, the individual rights of the petitioners in the form of principles of natural justice have to give way to the overwhelming public interest of the consumers attached to the 40 nos. of agents. 14. In view of the aforesaid discussion, this Court is of the opinion that there is no merit in this writ petition and accordingly the same stands dismissed. 15. Interim order dated 14.02.2013 stands vacated.