Dipak Kumar Gogoi vs State of Assam and Others

D.N. Choudhury, J.—The writ petition is directed and arises against the order of the Government nullifying the statutory power exercised by the statutory authority. The case relates to settlement of Dibrugarh Vegetable Market Zone-B. The market in question was first settled in the year 1995-96 for the period from 1.4.1995 to 31.3.1996 with the Petitioner under the prescribed Rule and procedure by life Executive Officer Dibrugarh Municipal Board Dibrugarh Town, Dibrugarh. The settlement of the said market was extended as per bearing No. DAA. 162/94/163-A dated Guwahati, the 30th March, 96. The Petitioner thereafter prayed for extension of lease for the period 1997-98 by the authority did not grant his prayer and ending no other alternative, Petitioner moved this Court for an appropriate direction on the Respondents to dispose of this application. The said application of the Petitioner for extension as finally disposed of by the Secretary to the Govt. of Assam. MAD Deptt on 31.3.1997 (Annexure-9) of the Writ Petition. In terms of the order Petitioner was asked to pay kist money advance either in cash or in Bank Draft. Petitioner paid part kist money and prayed (sic) time to deposit the balance amount. In the meantime the urgned W.T. Message was issued by the Secretary, MAD Dispur to the Executive Officer, Dibrugarh M.D. asking him to communicate the Govt. decision whereby the Government reviewed the order and decided not to give any further extension to the Petitioner and accordingly advised the Executive Officer Pibrugarh, M.D. to take immediate steps to invite tenders and take necessary action for fresh settlement of the market as per existing procedures which is the subject-matter of this Writ Petition and hence the Writ Petition.

Mr. K.K. Mahanta, the learned Counsel for the Petitioner has assailed the impugned order as arbitrary, discriminatory and violative of principle of natural justice.

The State Government though did not file any affidavit but contested the case seriously and the learned Addl. Sr. Govt. Counsel in support of his contention produced the relevant records before me. Before entering into the debate it would be pertinent to refer to the relevant provisions of the Assam Municipal Board and Town Committee, The Act contemplates markets, managed and controlled by the relevant provisions of the Rules which are as follows:

147 Function in regard to pounds - Every Municipal Board shall. In regard to the establishment, maintenance and management of pounds, perform such function as may be transferred to it by notification u/s 31 of the Catele Trespass Act, 1871 (Act 1 of 1871), and lease out pounds, when so transferred, according to rules framed under this section.

Rents, tolls and fees - (1) The Board at a meeting may use their own land or building or, purchase take on lease or otherwise acquire any land or building for the purpose of establishing a municipal market or improving any existing municipal market.

(2) The Board at a meeting may levy rents, tolls and fees at such rates as it may think proper for the right to expose goods for sale in a municipal market and for the use of shops, stalls and standing therein and also may regulate such rates in respect of private markets or places used or declared by the Board as a market place by public notice in the locality.

(3) The Board may grant a lease according to rules under this section for a period not exceeding three years for the collection of rents, tolls and fees in municipal markets at the rates prescribed by the Board under Sub-section(2).

(4) A lessee of a municipal market appointed under Sub-section (3) may refused to allow any person to expose goods for sale in the market or to use shops, stalls and standings therein until the proper rents, tolls and fees have been paid.

(5) Whoever, having rendered himself liable to the payment, of rents, tolls or fees refuses to pay the same shall be liable to fine which may extend to fifty rupees and shall also be liable to be evicted from the place, shop, stall or standing in the market used by him.

(6) When resistance is offered to any person authorised to collect rents tolls or fees, any police officer whom he may call to his aid, shall be bound to assist him, and such police officer shall, for that purpose, have the same power as he has in the exercise of his ordinary police duties.

(7) Whoever realizes rent, tolls or fees at rates higher than the rates fixed under Sub-section (2) shall be liable to a fine not exceeding fifty rupees.

Power of State Government to make Rule (1). The State Government may make rules for the purpose of carriying out the provisions of this Act....

In terms of Sections 147 and 148 the State Government framed a set of Rules for the sale of pounds and markets by Municipal Boards and town committees in Assam. Under Rule (1) of the Rules all markets established by vested in or placed under the control and administration of the Municipal Board are to be framed by tender subject to observance of rules and procedure for inviting tenders; provided that the Board may, in its discretion, and for reasons to be recorded reserved any such pound or market from lease and administer it direct. Rule (2) of Section 147 envisages that the period of the lease for a pound or market shall be one year provided that the Board may, if it thinks fit, with the previous approval of the Commissioner of Plains Division or Commissioner, Hill and Appeals, as the case may be, extend the period of lease for a total period of two years but not exceeding one year at a time. The said Rule (2) is amended by enlarging the period by three years and eigth the approval of the Secretary, Municipal Administration Department. Under the Scheme of the Act and Rules the settlement as well as extension of Municipal Market is to be made as per pervision contained in the statute. In the instant case, the Deperment was made by the Municipal Board and extension was even for the period 1996-97 by the Director, Municipal Administration, Assam, Guwahati. The Petitioner was the sitting (sic) of the market for the year 1996-97. He applied for extension of the lease before the Board, Board forwarded the same to the Secretary, Municipal Administration but no order was passed in that regard. On the other hand the Secretary issued instruction to the Board vide communication dated 7.3.1997 to initiate the process of inviting tenders for settlement. The Petitioner moved the High Court by way of a Writ Petition impinging the above action in Civil Rule No. 1215 of 1997. The High Court disposed the petition on 14.3.1997 with the following directions:

Having heard the learned Counsel for the parties I dispose of this Writ Petition with a direction that the Executive Officer, Dibrugarh Municipal Board shall pass appropriate orders on the application of the Petitioner dated 3rd February, 1997 (Annexure 4) and dated 13.2.1997 (Annexure 5) after obtaining approval either from the Director of Municipal Administration, Assam Guwahati or from the Secretary to the Government of Assam, Municipal Administration Deptt., Dispur, Guwahati, as the case may be, before the 31.3.1997 and until disposal of the applications filed by the Petitioner for extension of time, the tenders in respect of the vegetable market Zone. B. Dibrugarh shall not be finalised.

In compliance of the order of the High Court the matter was placed before the Secretary who passed a reasoned order extending the lease in favour of the Petitioner. The records that was produced by the learned Addl. Sr. Govt. Advocate Mr. K.H. Choudhry, it appears that after issuance of the order dated 31.3.1997, one Shri Shaukat Mazid, son of late Abdul Mazid submitted before the Minister concerned, for settlement of the Dibrugarh Vegetable market as a temporary measure from 1.4.1997. The case of Sri. Mazid was processed, the Secretary submitted his report recounting the facts. The Minister concerned expressed his disapprobation in the settlement of the market in question with the previous lessee without bringing it to his notice and without his approval. The Minister referred the rules of Executive Business and observed that "under the rules of Executive Business, the Secretary acts for and on behalf of the Minister of the Department and all orders should be issued on behalf of Government of a particular department and must get the approval of the Minister''s concerned. The Minister further found fault with the order of settlement as not in conformity with the direction of High Court and accordingly Minister held that the order was not regular and was otherwise not in conformity with the direction of High Court and accordingly directed the Deputy Commissioner, Dibrugarh and the Executive Officer Dibrugarh Municipal Board not to give effect to the said order. The Deputy Commissioner, Dibrugarh and Executive Officer Dibrugarh Municipal Board were according directed to take charge of the market and arrange for departmental operation and as per the Minister''s order the impugned telegraphic message was issued cancelling the settlement. Hence this petition.

Mr. K.K. Mahanta, the learned Counsel appearing on behalf of the Petitioner has questioned the validity and legitimacy of the impugned order/telegraphic message as unsustainable. Mr. Mahanta submitted that once a settlement was lawfully made by the statutory authority the Respondents could not have reviewed the order passed in exercise of statutory power in the absence of any statutory provision of revision. The learned Counsel for the Petitioner submitted that the impugned order is a quasi-judicial (sic) nature and the Respondents are not authorised to review its order in the absence of any statutory provision. Mr. Mahanta, the learned Counsel submitted that even otherwise on merit the order could not have been lawfully passed by the Minister arrogating upon the powers and discretion of the Secretary, MAD Department who is authorised to exercise power by the statute. Mr. Mahanta, the learned Counsel in support of his case referred to a decision of the Supreme Court in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji,

Mr. K.H. Choudhury, the learned Additional Senior Government Advocate, appearing on behalf of the Respondents on the other mind submit that the Minister of the Department is the authority under whom the Secretary works. The Rules of business namely the Assam Rules of Executive Business, 1968 envisages that (sic)dinarlly all matters are to be disposed or under the authority of (sic) Minister-in-Charge. Under the Rule the Minister is to be taken (sic) confidence and all orders except those are authorised or marked by the Minister-in-charge in the specified officers. And (sic)ee in the instant case the order was passed by the Secretary without placing the matter before the concerned Minister, the Minister rightly reviewed the impugned order. Mr. Choudhury the (sic)ned Addl. Sr. Govt. Advocate further submitted that when the (sic) order of nullity there was no illegality or irregularity on the (sic) of Minister in taking the right procedure by removing the illegal (sic).

The case therfore, mainly centre one, to the extent and scope the executive power of the State. If the decision making process (sic) be read as an executive function, the contention of Mr. Choudhury, the learned Addl. Sr. Govt. Advocate can only be held.

The Constitution of India has not defined the executive power of the State. It is also not possible to define exhaustively an exposition of the Executive power generally signifies that residiuum of the Governmental function that remains after taking away of the legislative and Judicial functions of the State, subject to the constitutional provisions or of any law. Neither Article 73 nor Article 162 of the Constitution provided any definition of the executive functions and activities which brought within the sweep of the above Articles. These two Articles are mainly concerned with the distribution of the executive Power. In Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, Supreme Court made the following observations:

Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these articles are analogous to those of Sections 8 and 49(2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same analogy as it provided in regard to the distribution of legislative powers between them, Article 162 with which we ate directly concerned in this case lays down:

subject to the provisions of the constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the union or authorities thereof.

Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent li(sic) except as provided in the Constitution itself or in any law paassed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise o such rights, authority and Jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement The proviso engrafted on Clause (1) further lays down that authority with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.

Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand the States on the other. They do not mean, as Mr. Pathak seems to suggest that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them.

On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matter upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlines Article 73 of the Constitution. These provisions of the Constitution, therefore, do not lend any support to Mr. Pathak''s contention....

It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental function that remain after legislative and judicial function are taken away.

The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can contemplate assumption, by one organ or part of the State of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the Legislature.

It can also when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go Against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stared, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws....

The law laid down in the said decision is still holding the ground, Mr. Choudhury the learned Counsel for the Respondents further submitted that since Secretary is the limb of the Government any order passed by the Government must be in conformity with Rules of business and in support of his argument referred to the relevant provisions of rules. "The executive business are meant in exercise of power conferred under Clauses (2) and (3) of Article 166 of the Constitution of India. It is only concerned with conduct of the executive function of the Government. The Government however, in disguise of the Executive power cannot arrogate upon the power reposed by a Statute. The Executive cannot, however, go against the Constitution or any law. Article 154(2)(a) particularly carries the message. Article 154 of the Constitution reads as follows:

Executive power of State-

(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Nothing in this article shall-

(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or

(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor....

The source of power that was exercised by the Secretary in the case in hand statutory in character and such powers are to be exercised strictly in conditions and limitation imposed by State. Reference The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, It was purely a subject, dealt with the statutory power made in exercise of the powers conferred by the Assam Municipal Act, 1956. The Secretary was within his competence to extend the lease. The legality and validity of the extension was never in question. The only reason for setting aside the order was the reasons cited by the Minister for setting aside the order cannot be the reason for nullifying the order of Statutory power. No review power or any appellate power was also left to the concerned Ministry.

For the reasons stated above, the impugned telegraphic message bearing No. 115/97 32 dated 4.4.1997 and No. MA/97/33 dated 5.4.1997 are set aside and quashed.

The Writ Petition is allowed.

Rule is made absolute. No costs.