IMPORTANT POINT
The Executive Officer must obtain prior approval from the Director of Municipal Administration to exercise powers under the Assam Municipal Act, 1956 during the Board's dissolution.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. A. Bhattacharjee, the learned counsel appearing on behalf of the petitioners. Mr. J. Handique, the learned counsel appears on behalf of the respondent Nos.1 & 2; Mr. S. Dutta, the learned senior counsel appears on behalf of the Executive Officer, Silchar Municipal Board and Mr. D. K. Mishra, the learned senior counsel assisted by Mr. B. Prasad, the learned counsel appears on behalf of the private respondents.

2. This Court heard the instant writ petition at length on 13.08.2024 and passed the following order which is reproduced herein under:-

“13.08.2024

Heard Mr. G. N. Sahewalla, the learned Senior Counsel assisted by Ms. G. Dugar, the learned counsel appearing on behalf of the petitioners. Mr. J. Handique, the learned counsel appears on behalf of the respondent Nos. 1 & 2; Mr. S. Dutta, the learned Senior Counsel appears on behalf of the respondent Nos. 3 & 4; Mr. D.K. Mishra, the learned Senior Counsel assisted by Mr. B. Prasad, the learned counsel appears on behalf of the private respondents.

2. The issue involved in the instant writ petition pertains to as to whether the Executive Officer who has duly appointed by the Government on account of the dissolution of the Silchar Municipal Board can exercise the power under Section 177 or 321 of the Assam Municipal Act, 1956.

3. The learned Senior Counsel appearing on behalf of the petitioners submitted that after the Chairman of the Silchar Municipal Board having passed an order on 27.05.2019 thereby directing the private respondents to demolish the unauthorized construction, the Executive Officer of the Silchar Municipal Board could not have exercised the power to modify the order dated 27.05.2019. He submits that the power so exercised by the Executive Officer is a power of review which is not envisaged under the Assam Municipal Act, 1956.

4. On the other hand, Mr. D.K. Mishra, the learned Senior Counsel appearing on behalf of the private respondents submitted that this Court needs to take note of that the order impugned in the instant proceedings which has been passed at a time when the Silchar Municipal Board has been dissolved and an Executive Officer has been appointed. The learned Senior Counsel submitted that in terms with Section 299(b) of the Act of 1956, all powers of the Board whether at the meeting or otherwise shall during period of the dissolution is to be exercised by the Executive Officer or such person as the State Government may direct till the Commissioner and Chairman are elected. He therefore submitted that the petitioners herein pursuant to the order dated 27.05.2019 submitted an Appeal to the Deputy Commissioner, Silchar who endorsed the said appeal to the Executive Officer of the Silchar, Municipal Board. He therefore submits that a reading of Section 321 of the Act of 1956 shows that an Appeal lies to the Board and reading conjointly with Section 299(b) of the Act of 1956, the Executive Officer is duly empowered to exercise the powers of the Appellate Authority.

5. Mr. S. Dutta, the learned Senior Counsel appearing on behalf of the Silchar Municipal Board submitted that this is not a case of appeal under Section 321 of Act of 1956 but it is a case where the Executive Officer of the Silchar Municipal Board had exercised the power of the Board in terms with the second proviso to Section 177 of the Act of 1956, and as such, the said power could have been very well exercised by the Executive Officer in terms with Section 299(b) of the Act of 1956.

6. This Court upon hearing the learned Counsels appearing on behalf of the parties finds that a very pertinent aspect which requires to be taken note of while construing the powers under Section 299(b) of the Act of 1956 inasmuch as the power of the Board can be exercised by the Executive Officer or the officer duly empowered by the State Government only with the prior approval of the Director of Municipal Administration. As from the materials on record, it is not clear as to whethe