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Abdul Samad Vs. the Executive Committee of the Marigaon Mahkuma Parishad and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 257 of 1979
Judge
ActsConstitution of India - Article 226; Assam Panchayati Raj Act - Sections 138, 138(1) and 138(2); Constitution of India (Amendment) Act
AppellantAbdul Samad
RespondentThe Executive Committee of the Marigaon Mahkuma Parishad and ors.
Appellant AdvocateS.N. Bhuyan and P.C. Gayan, Advs.
Respondent AdvocateP.G. Barua, S.C. Das, D. GOswami and B.B. Narzary, Advs.
DispositionPetition dismissed
Excerpt:
- - reason shown in the petition as to why the remedy was not availed of is by way of a bad statement in paragraph 14 reads: all these are questions of facts anc can be best considered by a court of appeal or revision. it is well known that the meaning of the term 'efficacious' is 'able to produce the intended resuit'.the intended result for the petitioner is to set aside the impugned order and to get a settlement in his favour. this complete remedy can be effectively given by the revisional authority. however, section 138 (1) (a) and (b) clearly provides for period of limitation for preferring appeals......the same is not 'efficacious'. the learned counsel submits that notwithstanding availability of an alternative remedy the petitioner is entitled to petition under article 226 and get relief thereunder. the relevant provision of section 138 (2) of 'the panchayat act' reads as under: '138 (2). notwithstanding anything contained in the foregoing sub-section (1), the state government may at any time call for the records in any manner from a gaon panchayat or mohkuma parishad 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.' 5. on perusal of the entire scheme of the panchayat act it appears clear that 'settling authorities' and ''confirming authorities' have been constituted by the statute to.....
Judgment:

1. This is an application under Article 226 of the Constitution of India directed against an order of the Executive Committee of the Marigaon Mahkuma Parishad, Marigaon, Settling (24) Lahorighat Bi-weekly Bazar with Ismail Hussain, respondent No. 5 in exercise of its power under the Assam Panchayati Raj Act, 1972 and the Rules framed thereunder.

2. Mr. S. C. Das, the learned counsel appearing on behalf of the Intervener (Shri Manai Basumatari) has raised a preliminary objection that the petitioner ought not to be granted any relief under the extraordinary jurisdiction as the petitioner has come to the court by skipping over his statutory remedy provided for in Section 1'38, Assam Panchayati Raj Act, 1972, 'the Panchayati Act' for short, as there is alternative and efficacious remedy provided for in Section 138 of the Panchayati Act for getting full, adequate and efficacious relief from the authority constituted to hear matters under the said section.

3. Counsel submits that at all relevant time when the impugned order was made the provision of Article 226(3) read as:

'No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.'

but by Constitution (Forty-fourth Amendment) Act, 1978 Clause (3) was substituted and there is no such bar at present. But, according to Shri S. C. Das with whom Shri P. C. Barua, the learned counsel for respondent No. 5 joins hand, submits that there is positively a ready remedy provided for in Section 138 of the Panchayati Act and the petitioner is not entitled to relief provided for in Article 226 of the Constitution unless the petitioner can bring his case within the realm of violation of his constitutional right or establishes violation of the principles of natural justice or questions the validity of the Act and/or the jurisdiction of the authority in rendering the order and/or questions the legality or validity of the Constitution of the authority and/ or the appellate or revisional authority. The petitioner's case does not fall under any of the categories. The learned counsel, in support of his contention, relies on a Division Bench decision of this Court, namely, Lachhi Ram Choudhury v. Chief Executive Councillor, Kokrajhar Mahkuma Parishad in Civil Rule No, 92 of 1978 decided on 9-11-78.

4. Mr. Section N. Bhuyan, the learned counsel for the petitioner submits that there is a remedy provided under Section 138 of 'the Panchayat Act' but the same is not 'efficacious'. The learned counsel submits that notwithstanding availability of an alternative remedy the petitioner is entitled to petition under Article 226 and get relief thereunder. The relevant provision of Section 138 (2) of 'the Panchayat Act' reads as under:

'138 (2). Notwithstanding anything contained in the foregoing Sub-section (1), the State Government may at any time call for the records in any manner from a Gaon Panchayat or Mohkuma Parishad 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.'

5. On perusal of the entire scheme of the Panchayat Act it appears clear that 'Settling Authorities' and ''Confirming Authorities' have been constituted by the Statute to settle such 'hats', 'bazars' etc. The Act provides for right of appeals/revisions against the orders of Settlement and/or confirmation. An appeal is provided for against an order of Gaon Panchayat or Mahkuma Parishad under Section 138 (1) of 'the Panchayat Act'.

There is a provision for getting relief in revision under Section 138 (2) of the Act. It shows that there is a hierarchy of authorities constituted by the Act itself to dispose of all matters touching such settlements in appeals or revisions against the orders rendered by a Gaon Panchayat or Mahkurna Parishad. There was some doubt whether Section 138 (2) provided any right to an aggrieved party to ask for revision of the orders of the Gaon Panchayat and/or Mahkuma Parishad regarding settlements of 'Hats' and 'Bazars'. The question has been resolved by a Division Bench of this Court in Pithu Ram Deka v. The State of Assam, Civil Rule 471 of 1975 disposed on 5-9-75. The Division Bench while interpreting Section 138 (2) of the Panchayat Act observed:

'..... the State Government has jurisdiction to call for the records of the settlement of the Hat in question made by the Executive Committee of the Mohkuma Parishad either suo moto or on an application by any aggrieved person.'

Therefore, an aggrieved person may approach the Government by an application for revision against an order of settlement of Bazar or Hat made by the Executive Committee of Mohkuma Parishad. This view of the Division Bench has been confirmed in Civil Rule 92 of 1978, Lachhi Ram Choudhury v. Chief Executive Councillor, Kokrajhar Mahkuma Parishad decided on 9-11-78.

6. Under these circumstances, I am constrained to hold that any person aggrieved by an order of settlement of a bazar or hat passed by Executive Committee of Mahkuma Parishad has a statutory right to file an application for revision against the impugned order.

7. It is indubitable that the petitioner has had the remedy available but he has come to this Court in its extraordinary jurisdiction skipping over the statutory remedy. Reason shown in the petition as to why the remedy was not availed of is by way of a bad statement in paragraph 14 reads:

'14. That there is no other effective and alternative remedy and the remedy sought for will be just and proper in the facts and circumstances of the case.'

8. On perusal of Section 138 (1) it appears clear that there is effective and alternative remedy provided for. The remedy provided for is just and adequate.

There is no reason why the said remedy was not availed of by the petitioner. Under these circumstances, I am constrained to hold that there is effective alternative remedy available to the petitioner and his petition could have been entertained and disposed of by the authorities constituted under Section 138 of the Panchayat Act. There is nothing in the petition that the petitioner's constitutional right has been violated, nor is there any material to hold that the principles of natural justice have been violated. The only ground strenuously urged before me is that on the facts and in the circumstances of the petitioner being the highest tenderer was entitled to get the settlement and that the Executive Committee did not take into consideration the tender of the petitioner on grounds stated in the order. All these are questions of facts anc can be best considered by a Court of appeal or revision.

9. A remedy under Article 226 of the Constitution is discretionary. Section 138 (2) provides more effective and adequate remedy. The revisional authority under Section 138 (2) may appreciate evidence, consider facts as appellate/revisional authority but this court's powers are limited. It is a case in which the petitioner can get adequate relief by an ordinary action at law. It does not appear that the relief under Section 138 (2) cannot be availed by the petitioner if he presents his application under Section 138 (2) before the authorities now. There is no limitation prescribed for presenting an application under Section 138 (2) of the Panchayat Act. Therefore, I have no hesitation in coming to the conclusion that the petitioner has had an alternative adequate and more efficacious remedy provided under Section 138 than what the petitioner might have been entitled to get under Article 226 of the Constitution. In view of the fact that there is an alternative, adequate and efficacious remedy and the said remedy is still available to the petitioner I feel that on the facts and in the circumstances of the case this is not a fit case in which the petitioner is entitled to get any relief under Article 226 of the Constitution. In this view of the matter, I hold that the application is not maintainable under Article 226 and is liable to be dismissed.

10. Mr. Bhuyan, the learned counsel for the petitioner submits that the remedy is not efficacious. It is well known that the meaning of the term 'efficacious' is 'able to produce the intended resuit'. The intended result for the petitioner is to set aside the impugned order and to get a settlement in his favour. This complete remedy can be effectively given by the revisional authority. Under these circumstances, the contention of Mr. Bhuyan must be rejected,

11. The petitioner at this stage prays for permission to file an appeal and/or application under Section 138 (2) of the Panchayat Act. No such permission is necessary from this end. The petitioner shall be at liberty to lodge an application under Section 138 (2) of the Panchayat Act against the impugned order before the State Government. It appears that there is no limitation to prefer an application under Section 138 (2) of the Panchayat Act. However, Section 138 (1) (a) and (b) clearly provides for period of limitation for preferring appeals. If the petitioner files any appeal against any order under Section 138 (1) (a) and (b) of the Panchayat Act, the authority shall undoubtedly consider the question as to whether it is barred by limitation provided in Section 138 (1) of the Act. In view of the long delay it is highly desirable that the revision, if filed by the petitioner, shall be disposed of within a month from the date of its lodgment,

12. In the result, the application is not maintainable at this stage and stands dismissed as such. There will be no order as to costs.


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