DEPUTY SECRETARY TO THE GOVT. OF ASSAM Vs. MOYING CH. PEGU

JUDGEMENT

(1.) THIS writ appeal is projected against the judgment and order D/27-4-1981 passed in Civil Rule No. 93 of 1981.

(2.) NATURAL justice is undoubtedly a brooding omnipresence because of the strides made by the Courts in India during the last two decades but the Courts have always struck a balance between the expansion of the Rule and the empirical socio-economic needs, public interest and the authority of the legislature. The never ending process of evolution has taken note of various checks and balances. In administrative law a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication if any of the following facts is present, singly or in combination with another: (1) Where the functions of the competent authority are held to be non-judicial; (2) Where the authority in which is vested the power to decide is entrusted with a wide discretion; (3) Where the action taken constitutes denial of a privilege as distinct from interference with a right; (4) Where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest; (5) Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedical nature; (6) Where for any other reason it is impracticable to give prior notice or opportunity to be heard; (7) Where appropriate substitutes for prior notice and opportunity to be heard are available; (8) Where legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirement for the purposes; (9) Where the matter in issue or the monetary value of the interest at stake is too trivial to justify an implication that notice or opportunity to be heard be afforded before action is taken, and (10) Where the power exercised is disciplinary (Vide Judicial Review of Administrative Action (4th Edn.) S. A. de Smith pp. 183-194). These are only illustrative cases. In Wade's Administrative Law, 4th Edition this aspect has been dealt with at page 451 onwards. Lord Denning M.R in R. v. Gaming Board for Great Britain, Ex p. Benaim and Khaida, (1970) 2 QB 417 (430) observed:

(3.) THE State Government dissolved the Dhemaji Mahkuma Parishad in exercise of its power under Section 136 of "the Act". The reason for making the order was "dead-lock in the functioning of the Mahkuma Parishad". Petitioner No. 1 moved an application under Article 226 of the Constitution claiming that he was one of the Councillors of the dissolved Mahkuma Parishad. Of course; he made the Mahkuma Parishad and the Chief Executive Councillor as co-petitioners 2 and 3, although they were non-existent, being dissolved at the relevant time. Petitioner I claimed that his right of prior notice and hearing was denied by the State Government in making the order under Section 136 of "the Act", we find that only one of the Councillors was aggrieved by the impugned order and preferred the application. No other Councillor nor any person was aggrieved by the order of dissolution. The learned single Judge held that the State Government had statutory power to dissolve the Mahkuma Parishad under Section 136. The learned Judge also held that there was a dead-lock in the functioning of the Mahkuma Parishad. The impugned order was struck down as violative of Audi Alteram Partem rule, i.e. for not giving prior notice and hearing to the petitioners. Against the order of the learned single Judge the State has preferred this appeal. The contention of the learned Advocate General, Assam is that Prior notice and hearing are provided in case of dissolution under Sections 134 and 135 of the Act, but the said rights are conspicuously absent in Section 136, where the power of dissolution has been conferred on the State Government in case of "dead-lock" in the functioning of a Mahkuma Parishad. It has been contended that in view of such a situation the right of prior notice and hearing under Section 136 stands impliedly excluded. The learned Advocate General has relied on a Division Bench decision of this Court reported in AIR 1972 Gauhati 41, Bhuban Chandra Pradhani v. State of Assam. On the above authority the learned Advocate General contends that the question, that action under section 136 does not require prior notice and hearing as the said provision has by necessary implication excluded the application of any or all the rules of principles of natural justice has been resolved. The learned Advocate General submits that the character of the power under Section 136 is to perform urgent duty in emergent situation, that is, "dead-lock" in the functioning of the Mahkuma Parishad. So the rule is not applicable in an action under section 136 of the Act.