WP(C) 4200/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. C. Baruah, learned Sr. counsel assisted by Mr. R. Goswami, lea rned counsel for the petitioner as well as Mr. N. C. Choudhury, learned counsel for the respondent Nos. 2 and 3. I have also heard Mr. S.K. Goswami, learned co unsel representing the respondent No. 5 as well as Mr. P.J. Phukan, learned coun sel representing the respondent No. 6. This writ petition has been filed making a grievance against Annexure-S notice dated 23.07.2010 issued by the Chairman, Dibrugarh Municipal Board, Dibru garh by which the petitioner has been asked to comply with the earlier notice da ted 01.07.2010. By the said notice , the petitioner was asked to shift his Works hop in the name and style M/s. Wood & Wood Craft situated at R.N.C. Path (Mancot ta Road) to some other place beyond Dibrugarh Municipal area within 30 days fro m the date of receipt of the notice. The petitioner was initially issued with Annexure-C notice dated 03.07. 08 with similar direction against which the petitioner had preferred W.P.(C) No. 3112/2008. The writ petition was entertained by order dated 18.08.08 with an in terim order to maintain status quo as regards to the petitioner’s business. Ther eafter the Executive Officer, Dibrugarh Municipality passed the Annexure-O order dated 03.09.2009. The order is reproduced below: OFFICE OF THE EXECUTIVE OFFICER: DIBRUGARH MUNICIPALITY DIBRUGARH No. DM/902/1 ORDER Seen the prayer petition of Shri Resham Singh, proprietor M/s. Wood and Wood Cra ft, Mancotta Road, dated 03.07.2009 alongwith another prayer petition to run his business. All the supportive testimonials/affidavits furnished have been verifi ed including the interim order of Hon’ble Gauhati High Courts (WP (C) 3112 of 20 08 dated 01.08.2008). From these documents, it is crystal clear that the order passed by Chair man DMB (No. DM/ESTD/2008/1048, dated 03.07.08) to shift the workshop from Manco tta Road Dibrugarh to beyond municipal road is simply erroneous and irregular wi th no specific reason. As per Hon’ble High Court above it is clear that The petitioners busine ss be maintained , hence the ban imposed on M/s. Wood and Wood Craft is hereby v acated to maintain status quo. The proprietor concern Shri Rasham Singh is allow ed to run his business. So, modifying all earlier orders, the ban imposed by DMB over this Carpe ntry Shop called M/s. Wood and Wood Craft is vacated after verification of site and papers complying Hon’ble Gauhati High Court interim order. Sd/- Executive Officer Dibrughar Municipality, Dibrugarh The writ petition was finally disposed of by order dated 19.04.2010 on t he basis of the submission made by the learned counsel for the petitioner that t he writ petition had become infructuous by lapse of time. For a ready reference the order is quoted below: Mr. C. Baruah, learned senior counsel for the petitioner, submits that this wri t petition has become infructuous by lapse of time. In that view of the matter this writ petition stands dismissed as infructuous. After the aforesaid development the impugned notice dated 01.07.2010 was issued directing the petitioner to shift his business complex to some other place follo wed by final notice dated 23.07.2010 indicated above. While it is the case of the petitioner that in view of the above quoted Annexure -O order dated 03.09.09 Dibrugarh Municipal Board could not have issued Annexure -Q and S notices dated 01.07.2010 and 23.07.2010, it is the stand of the respond ent Board that the petitioner is running the business violating the condition in the license. It is the further stand that the petitioner having withdrawn the earlier writ petition without any liberty, is not entitled to file the present w rit petition. Mr. N.C. Choudhury, learned counsel for the respondent Nos. 2 and 3 referring to Section 299 of the Assam Municipal Act, 1958, submits that that upon dissoluti on of the Municipal Board, the Executive Officer who had been conferred with jur isdiction to run the Board was required to obtain prior approval from the Direct or of Municipal Administration towards passing the above quoted Annexure-O order dated 03.09.09, but no such approval having been obtained, the said order is no nest in the eye of law. The earlier writ petition was filed challenging Annexure-L notice dated 03.07.08 by which the writ petition was directed to shift his Workshop to some other pla ce beyond the Municipal limit. As noticed above, the said order was put to chall enge by filing W.P.(C) No. 3112/08. By the order dated 01.08.08, status quo as r egards to the petitioner’s business was directed to be maintained. Thereafter, t he above quoted Annexure-O order was passed Although the said order speaks of the earlier decision being erroneous and illeg al, but no specific reason had been assigned as to why the earlier decision was erroneous and illegal. That apart, the Executive Officer, having been appointed upon dissolution of Dibrugarh Municipal Board, as per the provision of Section 2 99 of the Assam Municipal Act, 1958, the Executive Officer was required to obtai n prior approval of the Director of Municipal Administration before passing the said order dated 03.09.09. Admittedly no such prior approval was taken. In the counter affidavit filed by the respondent Board it is their specific sand that the above quoted Annexure-O order dated 03.09.09 was passed in view of the interim order passed by this Court and not for any other reason. According to t he said respondent Board, the writ petition having been dismissed being infructu ous without any adjudication, the petitioner cannot make his claim on the basis of the interim order with consequential Annexure-O order dated 03.09.09. In whatever perspective the matter is looked into, the Annexure-O order dated 03 .09.09 cannot clothe the petitioner with any right. Firstly the said order was p assed on the basis of an interim order passed by this Court, secondly the obser vation that the earlier notice was erroneous and illegal was beyond the competen ce of the Executive Officer in view of the aforesaid provision of Section 299 of the Act. The most important aspect of the matter is that the petitioner has been issued w ith the trade license for running the business Wooden Furniture Showroom. The license is under registration No. 2959/07. It is for that reason the petitioner by his Annexure-H application dated 09.06.08 addressed to the Chairman, Dibrugar h Municipal Board made a request for granting trade license which would permit him to run the Carpentry shop/unit alongwith the said showroom. According to the petitioner the Pollution Control Board upon visit to the premises of the petiti oner’s business has also expressed opinion that there is no noise pollution in the Carpentry works being undertaken by the petitioner. It is the further stand of the petitioner that in the vicinity of the business premises of the petitione r there are other business establishments like that of the petitioner which are being allowed to run the business without raising any objection as has been rais ed in the case of the petitioner. According to the petitioner , such stand on th e part of the respondents is only at the behest of the respondent No. 5. In the counter affidavit filed by the respondent Municipal Board the letter date d 12.08.08 addressed to it by the Regional Executive Engineer, Pollution Control Board has been annexed by which it was conveyed that the noise created by the works undertaken by the petitioner are not suitable and are beyond permissible l imit. It is on the above basis, when a prayer was made to this Court to modify the ear lier interim order dated 30.07.2010 by which it was provided that the petitioner should not be evicted from the business premises, the same was modified by orde r dated 03.01.2011. By the said order the petitioner was allowed to confine his business only in respect of Wood Furniture Showroom , meaning there by that he is disallowed to undertake Carpentry works. It is for the Municipal authority and Pollution Control Board to decide as to wh ether the particular business establishment in a commercial/ residential area i s conducive for the purpose for which the same has been established. According t o the respondent Board, the Carpentry works undertaken by the petitioner is beyo nd the permissible limit of noise pollution. Considering the matter in its entirety, I dispose of this writ petition providi ng that the respondent Board shall now pass a speaking order taking into account all relevant factors including the opinion of the Pollution Control Board in re spect of the prayer of the petitioner for issuance of the trade license for unde rtaking Carpentry works. As noted above, presently the petitioner is in possessi on of the trade license for running the Wooden Furniture Showroom . Thus, natur ally the petitioner cannot be permitted to undertake Carpentry works which will be beyond the permissible limit for which the trade license (Annexure-K) has be en issued to him. Till the speaking order is passed consistently with the observations made above, the modified order dated 03.01.2011 passed in this proceeding shall continue t o hold the field.