The discretionary nature of the approval for lease extension and the importance of maintaining transparency and fairness in distribution of State largesse.

JUDGMENT

Sanjay Kumar Medhi, J. - This Court vide order dated 17.11.2020, after hearing the interlocutory applications at some length, had observed that instead of deciding the application for modification of the interim order, both the writ petitions can be taken up for disposal at the admission stage. Accordingly, the same are taken up for disposal.

2. I have heard Shri PJ Saikia, learned counsel for the petitioner. I have also heard Shri G Pegu, learned Government Advocate, Assam; Shri TJ Mahanta, learned Senior Counsel assisted by Shri PP Dutta, learned counsel for the Sivasagar Municipal Board as well as Shri P Bora, learned counsel for the applicant in IA(C) No.1594/2020.

3. For better appreciation of the rival contentions, a brief narration of the facts of the case would be beneficial.

4. The petitioner was the settlement holder of the Central Market of Ward No. 8 of the Sivasagar Municipal Board (hereafter the Board) and his term was up to 31.03.2020. Being aggrieved by the inaction to consider his prayer for extension of the lease by one year, the petitioner had filed the first writ petition before this Court, being WP(C) No.1707/2020. It was the case of the petitioner that his prayer for extension was duly recommended by the Board and the said recommendation was awaiting approval of the competent authority, namely, the Director of Municipal Administration. In the course of hearing, the Board produced two letters of the authorities, namely, 28.06.2019 and 29.02.2020 whereby and wherefrom the petitioner came to know that his prayer for extension was rejected. The same led to filing of the second writ petition, being WP(C) No.2060/2020 whereby the principal grounds are that the Rules framed under the Assam Municipal Act, 1956 cannot be superseded or nullified by any Executive Instructions and that the subsequent letter dated 28.06.2019 had no manner of application in the matter of the extension prayer. The petitioner had also prayed for a direction for considering his representation dated 18.01.2020.

5. Shri Saikia, learned counsel for the petitioner submits that the impugned decision to reject the application for extension is absolutely unreasonable, arbitrary and in gross violation of the statute holding the field. Drawing the attention of this Court to the first communication dated 28.06.2019, it has been submitted that the instructions not to extend market settlement beyond the period of one year would not be applicable inasmuch, as the period of settlement had commenced from 17.07.2019. As regards the second impugned communication dated 29.02.2020, the rejection of the prayer appears to be based on the earlier communication dated 28.06.2019 and therefore, there was no application of independent mind of the Director.

6. Attention of this Court has been drawn to the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam, which were framed under Sections 147, 148 and 301 of the Assam Municipal Act, 1956. Rule 2 thereof which has been pressed into service reads as follows:

"The period of lease for a pound or market shall be one year; provided that the Board may, if it thinks fit, with previous approval of the Director of Municipal Administration extend the period of lease for a total period of two years but not exceeding one year at a time."

7. It is submitted that the Rule casts an obligation upon the respective authorities to consider the prayer for extension which in the instant case has been argued to be supported by good reasons as the petitioner had suffered loss in the lease period. However, it has been submitted that the said obligation has not been discharged in accordance with law. The consideration of the representation has not made with due application of mind from the Director who has simply relied upon an earlier communication dated 28.06.2019 which was not relevant at all. It is argued that the impugned action suffers from total non-application of mind whereby th