ORDER
A.H. Saikia, J.
1. Heard Mr. K.N. Choudhury, learned Sr. Counsel assisted by Mr. P. Bora, learned counsel for the petitioner. Also heard Mr. R. Chakravorty, learned State Counsel appearing on behalf of the State-Respondents and Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Mr. B. Sharma, learned counsel appearing on behalf of private Respondent No. 4.
2. Considering the nature of controversy involved in this writ petition as well as on consent of the learned Counsel for the parties, this petition is taken up for final termination to day itself at the motion stage.
3. The Respondent No. 4 has been settled with Parking Zone under the petitioner on 22-8-2002 for the period 2002-2003 in terms of NIT dated 17-5-2002. While the Respondent No. 4 had been enjoying the said settlement, he had been found to be in default of payment of Kist money as well as non-execution of the lease deed, for which the petitioner had to issue communication dated 8-11-2002 (Annexure-VII to the writ petition) asking him to deposit the kist money for the month of November within 11-11-2002 and to execute the lease deed with a caution that failure to take such steps may result in cancellation of the settlement. In reply to the said communication, the private respondent had filed his explanation. As the respondent failed to comply with the said direction of the petitioner, ultimately on 9-12-02, the petitioner had to issue a final show cause by directing him to deposit the kist money for the month of November/ December 2002-03 on 11-12-02 and also to execute the deed otherwise his settlement, ‘shall be cancelled’. Being aggrieved by the said show cause, the respondent No. 4 approached the learned Addl. Deputy Commissioner, Sibsagar invoking S. 296 of Assam Municipal Act, 1956 (for short ‘the Act’). The learned Addl. Deputy Commissioner after hearing the parties by exercising power under Section 296 of the Act by his order dated 31-12-2002 (communicated on 2-1-2003) in Misc. Case No. 229/02 under S. 296 of the Act allowed the prayer of the respondent quashing the show cause notice dated 9-12-02 issued by the petitioner.
4. The legality and correctness of the impugned order dated 31-12-2002 above mentioned has been questioned in this writ petition.
5. Mr. Chaudhury, learned Sr. Counsel has forcefully contended that the impugned order, on the face of it, was illegal and unwarranted inasmuch as the condition precedent involved under Section 296 of the Act had not been found in the present case and as such, the power exercised by the learned Addl. Deputy Commissioner was without jurisdiction. To bolster up his submission, the learned Sr. Counsel has relied on a decision of a Division Bench of this Court reported in (1983) 2 Gauhati LR 63 (Municipal Board, Sibsagar v. Secy. Govt. of Assam). In that case, their Lordships had the occasion to deal with the power of the Deputy Commissioner entrusted upon him by Section 296 of the Act. It was held in paragraph 4 as under :–
“4. The crucial question is how could the learned Deputy Commissioner assume the power to entertain the application without any indication whatsoever in any of the orders that the impugned resolution and/or order was violative of any of the constitutional provisions including Part III and Part IV of the Constitution. Nor is there any indication in the orders of the Deputy Com-missioner that any of the contingencies set-forth in S. 296 was violated, to enable the Deputy Commissioner to entertain the applications. However, this is our bird’s eye view of the entire matter.”
6. For the sake of convenience S. 296 of the Act may be extracted as under :–
“296. Power to suspend action under the Act.– The State Government, the Commissioner of Division, the Deputy Commissioner, the Additional Deputy Commissioner, or the Sub-Divisional Officer-in-charge of sub-division may, by order in writing, suspend the execution of any resolution or order of the Board or prohibit the doing of any act which is about to be done or is being done, in pursuance of, or under cover of this Act, nor in pursuance of any sanction or permission granted by the Board in the exercise of their powers under this Act, if in its or his opinion, the resolution, order or act militates against the fundamental rights conferred by Part III of the Constitution of India and the State Policy on the Directive Principles laid down in Part IV of the Constitution of India is in excess of the powers conferred by law, or the execution of the resolution or order, or the doing of the act, is likely to lead to a serious breach of the peace, or to cause serious injury or annoyance to the public, or to any class or body or persons.
When the Commissioner of Division or the Deputy Commissioner, the Additional Deputy Commissioner or the Sub-Divisional Officer-in-charge of a sub-division makes any order under this section, he shall forthwith forward a copy thereof, with a statement of his reasons for making it, to the State Government, which may thereupon rescind the order or direct that it continue in force with or without modification, permanently or for such period as it thinks fit”.
7. From the perusal of the aforesaid provision as well as the impugned order, it appears that there was no indication whatsoever in the impugned order to show that the said show cause notice dated 9-12-02 was violative of any fundamental rights conferred by Part III of the Constitution of India or the State Policy on the Directive Principles laid down in Part IV of the Constitution. Even there was no whisper in the order itself about the presence of any of the essential ingredients i.e. serious breach of peace or probability or causing serious injury of annoyance to the public or to any class or body or persons. In other words, in the impugned order, all the necessary ingredients essential for exercising of the power under Section 296 of the Act were found to be totally absent.
8. In support of the impugned order Mr. Sahewalla, learned Sr. Counsel appearing for the respondent No. 4 has argued that the terra of lease had been allotted for 1 year and as such, the same is going to be expired on 21-8-2003. The show cause notice which had been challenged before the Additional Deputy Commissioner was violative of the fundamental rights guaranteed to him under the Constitution and as such, the. Deputy Commissioner had correctly and rightly interfered with the same and there was no illegality or irregularity has been committed in passing the impugned order. In support of his argument he has relied on a decision of the Division Bench of this Court reported in (1984) 2 Gauhati LR 412 (Sri Lohit Chandra Saikia v. North Lakhimpur Municipal Board) wherein this Court had the opportunity to explain the power under Section.
9. After going through the cited authority this Court is of the view that the ratio of this case cannot be made applicable in this case in support of the respondent inasmuch as in this cited case also their Lordship clearly and categorically held that the Deputy Commissioner prior to exercise such power must be satisfied that there was a violation of Constitutional rights conferred by Part HI of the Constitution and the State Policy on the Directive principles contained in Part IV of the Constitution and there must be serious breach of peace or it would cause serious injury or annoyance to the public or to any class or body of persons.
10. That being the position, upon hearing the learned counsel for the parties at length and having considered the above cited cases and also on careful perusal of the impugned order, this Court is of the considered view that since, the learned Additional Deputy Commissioner has failed to spell out any of the pre-requisite conditions laid down under Section 296 of the Act in passing the impugned, order, this Court is of the view that the impugned order deserves interference by this Court. Accordingly, the impugned order dated 31-12-02 is hereby quashed and set aside.
11. However, considering the period of settlement with the respondent No. 4, this Court is of the view that ends of justice would be satisfied if the petitioner is directed to consider the grievances of the respondent No. 4, on being approached by him in this regard. Accordingly the respondent is directed to approach the Municipal authority i.e. the petitioner by presenting a Representation ventilating all his grievances within 15 days from today and the petitioner on receipt of the said Representation shall look into the matter and dispose of the same in accordance with law by 30-4-2003.
12. Till such consideration and disposal of the Representation within the time frame Indicated above, the petitioner’s settlement shall not be disturbed.
13. With the observation and direction indicated above, the writ petition stands disposed of. No costs.