P. K. MISRA, J. ( 1 ) THE petitioner is the Advertising Agencies Association of Orissa. An agreement was executed between the petitioner-association and the Cuttack Municipal Corporation on 28-4-1998 relating to the right of exclusive display of hoardings and advertisements et cetera within Cuttack Town and on the National Highway No. 5 falling within the jurisdiction of Cuttack Municipal Corporation. The agreement was made for three years commencing from 1st April, 1998 to 31st March, 2001. The petitioner claims that the said agreement contained a renewal clause and while negotiations were being carried on between the petitioner and Cuttack Municipal Corporation, opposite party No. 2, the Chief Executive Officer of the Cuttack Municipal Corporation, was negotiating for entering into agreement with opposite party No. 3. The petitioner filed the writ application for a direction to opposite parties 1, 2 and 4 to renew the agreement as per the Minutes of Discussion between the petitioner and opposite party No. 2 and for setting aside". . . . . . . the contract, if any, made with the opposite party No. 3 by-passing Annexure-1, minutes of discussion dt. 26-3-2001 and Govt. circular and without open tender. . . . " It has been asserted in the writ application that as per Clause 13 of the agreement (Annexure-1), it was the duty and obligation of the Cuttack Municipal Corporation to remove the hoardings of defaulters and even though opposite party No. 3, who was a member of the association, had defaulted, opposite party No. 2 was not removing the unauthorised hoardings of opposite party No. 3 by adopting back-door policy ignoring the right of renewal. It was asserted that opposite party No. 2 was showing favour to opposite party No. 3 and opposite party No. 3 should not be allowed to enter into contract with Cuttack Municipal Corporation relating to displaying hoarding, advertisements by ignoring the petitioner-association. It has also been asserted in the writ application that, the petitioner had offered to pay an amount of Rs. 19. lakhs annually for three years as per the offer in Annexure-6. , ( 2 ) OPPOSITE party No. 2 has filed counter-affidavit for himself and on behalf of opposite party No. 1. It is disclosed in the counter that even though the petitioner-association had offered Rs. 19. lakhs annually for three years as per the offer in Annexure-6. , ( 2 ) OPPOSITE party No. 2 has filed counter-affidavit for himself and on behalf of opposite party No. 1. It is disclosed in the counter that even though the petitioner-association had offered Rs. 19 lakhs there was potential for payment of higher amount and accordingly communication was sent to all local advertising agencies within Cuttack Town for submitting their offers. Notice was also published in the notice-board of the Corporation and pursuant to such notice and communication, several offers had been made by different advertising agencies. While six other advertising agencies had offered Rs. 19 lakhs each, opposite party No. 3 offered Rs. 23 lakhs and further offered that it would pay increased amount of 10 per cent for the next two years and as the offer of opposite party No. 3 was higher, an agreement was executed between the municipal authorities and opposite party No. 3 on 7-4-2001. It is also claimed that the petitioner-association had defaulted in payment of the dues for the earlier three years and the default, if any, of the individual members of the association including opposite party No. 3 was an internal matter of the association. Copies of the various notices sent by the Municipal Corporation to the several advertisers have been annexed as Annexure-B series. Opposite parties 1 and 2 have also filed the copy of the notice dated 27-3-2001 stated to have been affixed on the notice-board of the Corporation on 27-3-2001 as Annexure-A/1. ( 3 ) COUNTER-AFFIDAVIT has been filed on behalf of opposite party No. 3, who has stated that offer given by opposite party No. 3 being higher has been rightly accepted. Opposite party No. 3 has also taken the plea that the petitioner was seeking to enforce a contractual right which was not permissible in a writ application and the petitioner, if aggrieved by the action of opposite parties 1 and 2 can invoke the arbitration clause. So far as the default by opposite party No. 3 is concerned, it has been stated that the alleged default had nothing to do with the subsequent contract and did not come within the scope of the writ application. The offer dated 29-3-2001 of opposite party No. 3 has been annexed as Annexure-A/3. So far as the default by opposite party No. 3 is concerned, it has been stated that the alleged default had nothing to do with the subsequent contract and did not come within the scope of the writ application. The offer dated 29-3-2001 of opposite party No. 3 has been annexed as Annexure-A/3. ( 4 ) IN the rejoinder filed by the petitioner, it has been stated that the right of renewal as contained in the original agreement had been denied illegally. It has been further submitted that while the offer relating to renewal was under consideration suddenly opposite party No. 2 had entered into an agreement with opposite party No. 3 illegally even though opposite party No. 3 was a chronic defaulter. It has been further asserted in the rejoinder :-"4. That the opposite party No. 2 has not acted fairly and lawfully because the opposite party No. 3 having accepted to the offer of renewal presented by the petitioner cannot make a fresh contract without sanction from Council and the petitioner's right of renewal is not placed before the Municipal Council who is the final authority over the contract to give sanction. "it has been further asserted that the agreement between opposite party No. 2 and opposite party No. 3 was the outcome of private deal and there was no tender and opposite party No. 2 had not acted fairly. It was further asserted :-"8. . . . . . . . . . . THE opposite party No. 2 as an authority cannot act beyond law violating statutory provision of Municipal Act and will make a contract with the opposite party No. 3 without sanction of the council so the contract vide Annexure-C/1 is illegal and void. "it has been further asserted:-"9. That the opposite party No. 2 has not stated about the previous sanction of the Council for contract with opposite party No. 3 nor the opposite party No. 2 has stated about consideration of the petitioner's renewal right by the Council which clearly establish that the opposite party Nos. 2 and 3 have acted by keeping hand with each other resorting to unfairness. 10. That there is no council sitting from 26-3-2001 to 27-4-2001 with agenda for action of the petitioner's renewal offer nor the contract dt. 7-4-2001 is sanctioned previously so the contract dt. 7-4-2001 by the opposite party Nos. 2 and 3 have acted by keeping hand with each other resorting to unfairness. 10. That there is no council sitting from 26-3-2001 to 27-4-2001 with agenda for action of the petitioner's renewal offer nor the contract dt. 7-4-2001 is sanctioned previously so the contract dt. 7-4-2001 by the opposite party Nos. 2 and 3 is illegal and void. 11. That it is stated here that the contract dt. 7-4-2001 is not sanctioned in council meeting dt. 28-4-2001 but the same contract by the opposite party Nos. 2 and 3 is rejected at page 6 decision No. 7 which is Annexure-7. So the alleged contract dt. 7-4-2001 after filing of writ application vide Annexure-C/1 is illegal and void and cannot be respected in law. So the opposite party Nos. 1 and 2 be directed to put up renewal offer before the council and then any other lawful step may be taken. " ( 5 ) AFTER the aforesaid rejoinder was filed, opposite party No. 1 has filed further affidavit, wherein it is, inter alia, indicated that the offer of opposite party No. 3 being higher has been accepted. It is also asserted that the Municipal Corporation had resolved on 27-1-2001 that the association should pay all arrears within seven days and for coming financial year tender shall be invited by 15th March, 2001. It was also further asserted that the Corporation had discussed on 31-3-2001 regarding the previous agreement which had expired. Copies of the resolution dated 27-1-2001 and 31-3-2001 had been annexed as Annexures E and F. It has been asserted :-"7. That the aforesaid resolution clearly show that there was prior decision, discussion and resolution, prior to the agreement dt. 7-4-2001 between Cuttack Municipal Corporation and the Classic Communication Pvt. Ltd. . . . . . . . "it is also pointed out that the resolution of the Municipal Corporation dated 28-4-2001 wherein the agreement had been annulled had been set aside by Government as per Annexure-G. ( 6 ) THE petitioner has filed an additional affidavit on 14-5-2001 (the date of hearing of the matter), wherein the defaults made by opposite party No. 3 have been reiterated. It has been further asserted that the tender notice as per Annexure-A/1 was illegal and had not been given sufficient publicity and was without proper intimation to all with a reasonable time gap. It has been further asserted that the tender notice as per Annexure-A/1 was illegal and had not been given sufficient publicity and was without proper intimation to all with a reasonable time gap. It has been also pointed out that the notice was for the year 2001-2002, but the agreement was for three years without any prior sanction of the Municipal Council. ( 7 ) IN the aforesaid back-drop of factual position, the learned counsel for the petitioner has harped on the question that the Chief Executive Officer has acted illegally by entering into an agreement without prior sanction of the Municipal Corporation. In this connection, the counsel has placed reliance upon Section 130 of the Orissa Municipal Act relating to entering into contract by the Executive Officer with prior sanction of the Council. The provision is quoted here-under:-"130. Executive of contract:- (1) Subject to any prescribed rule the Executive Officer may enter into and perform contracts necessary for the purpose of this Act on behalf of the Municipality. (2) Even contract made by the Executive Officer, shall be subject to the previous sanction by the Municipality and shall be sealed with the common seal of the Municipality. (3) Unless so executed, such contract shall not be binding on the Municipality. (4) The State Government shall have power to make rules as to the manner of submission and opening offenders and their acceptance and such rules shall be binding on the Municipality and its officers and servants. "in support of the aforesaid contention, the learned counsel relied upon the decision reported in ILR (1960) Cuttack 413, (Puri Municipal Council through Chairman, Puri Municipality v. Sadhu Behera ). A perusal of the aforesaid provision and the decision makes it clear that the contract can be entered into by the Executive Officer on behalf of the Corporation only after obtaining prior sanction. In the present case, it has been contended by opposite parties 1 and 2 as well as opposite party No. 3 that the resolution dated 31-3-2001 amounts to prior sanction. Copies of such resolutions have been annexed as Annexure-E and F. Annexures-E purports to be a resolution dated 27-1-2001. In the said resolution it had been indicated that for the coming year tender should be invited by 15th March, 2001. Copies of such resolutions have been annexed as Annexure-E and F. Annexures-E purports to be a resolution dated 27-1-2001. In the said resolution it had been indicated that for the coming year tender should be invited by 15th March, 2001. It has been contended on behalf of opposite parties 1 and 2 as well as opposite party No. 3 that notice under Annexure-A/1 and individual notices under Annexures-B series must be taken to be in compliance with the resolution of the Corporation regarding calling for tenders and petitioner itself having given offer of Rs. 19 lakhs cannot complain that tenders had not been invited. It is further contended that Annexure-F is the resolution dated 31-3-2001 wherein the negotiation made by the Chief Executive Officer had been accepted and, therefore, it must be taken that prior approval had been obtained before entering into contract on 7-4-2001. A perusal of Annexure-F does not clearly indicate as to whether any specific resolution approving the action of the Chief Executive Officer had been taken. The document appears to contain the minutes of discussion made by the various members, but does not purport to record any specific resolution on the matter. Even assuming that it was a resolution, it is evident from Annexure-F that the Municipal Corporation had decided to call for tenders in respect of one year, namely 2001 -2002. There is no specific resolution that the contract should be for three years. In the present case, the Chief Executive Officer has entered into contract with opposite party No. 3 for three years. Moreover, the Municipal Corporation itself has set at naught the contract by a subsequent resolution dated 28-4-2001. It is, of course, true that the said resolution has been set aside by the Director of Municipal Administration, as evident from Annexure-G. It may be noticed here that the subsequent decision of the Director, Municipal Administration under Annexure-G is being impugned by the Municipal Corporation itself by filing a writ application, which has been numbered as O. J. C. No. 5889/2001 and is pending. There cannot be any doubt that the Chief Executive Officer did not have any jurisdiction to enter into a contract for three years with opposite party No. 3 without obtaining prior sanction of the Municipal Corporation. Even the notices under Annexure-A/1 and Annexures-B series indicate that offer was being invited for one year only. There cannot be any doubt that the Chief Executive Officer did not have any jurisdiction to enter into a contract for three years with opposite party No. 3 without obtaining prior sanction of the Municipal Corporation. Even the notices under Annexure-A/1 and Annexures-B series indicate that offer was being invited for one year only. Since the previous resolution was for inviting tender for one year and even the notices were to that effect, it is not understood as to how the contract could be executed for three years and that too, without any prior sanction of the Corporation. It is, of course, true that the petitioner also had given offer for renewal of the contract for three years but that by itself would not make the action of opposite party No. 2 valid, as it is a mandatory requirement that the Executive Officer can act only with prior sanction of the Council. Since there was no prior sanction of the Council for entering into contract for three years, the contract cannot be accepted and must be taken to be illegal. ( 8 ) THE next question is as to whether the contract can be accepted, for one year. The offer of opposite party No. 3 appears to be a composite offer and also includes a commitment to clear the arrear dues. In course of hearing, opposite party No. 3 had not submitted that the agreement should be upheld for one year. Even the contract itself appears to be one composite whole for three years period. Moreover, when the Municipal Corporation had directed for calling for tenders, there could not have been any justification for confining the notices to Cuttack based advertisers. The intention is to get the maximum price for the Corporation. This may be achieved by giving wide publicity in the matter of tender call notice. In the present case, the notice under Annexure-A/1 was purported to be affixed on the notice-board on 27-3-2001 and individual notices were sent to various advertisers and were received by them either on 30th, March or 31st March and the offers had to be made by 31st March. It is thus clear that even sufficient time had not been given to the advertisers. That apart, when the resolution did not confine the question of issuing tender to only Cuttack-based advertisers, there is no justification for adopting such a course. It is thus clear that even sufficient time had not been given to the advertisers. That apart, when the resolution did not confine the question of issuing tender to only Cuttack-based advertisers, there is no justification for adopting such a course. ( 9 ) IN this context, the counsel for the petitioner has also submitted that the notice issued to opposite party No. 3 had been received by opposite party No. 3 on 30-3-2001, as apparent from the endorsement made on the notice and yet, the offer of opposite party No. 3 was made on 28-3-2001 even prior to the date of service of the notice. According to the petitioner this is a suspicious circumstance. The learned counsel for opposite party No. 3 has contended that, in fact, notices had been affixed on the office notice-board on 27-3-2001 and it is quite possible that the offer had been made pursuant to the said notice. It is, of course, seen from Annexure-A/3 that reference has been made to letter dated 27-3-2001. However, in view of the conclusion already reached, it is not necessary to delve further into this aspect. ( 10 ) LEARNED counsel for opposite party No. 3 has contended that since a contractual right was sought to be enforced, the writ application was not maintainable. In view of the illegality committed by opposite party No. 2 by entering into a contract for three years even though there was no prior sanction by the Municipal Corporation, such technical point raised by opposite party No. 3 cannot be accepted. In this connection, the decision reported in AIR 1973 SC 205 (D. F. C. , South Kheri v. Ram Sanehi Singh) may be seen. ( 11 ) IT has been contended that in the writ application, the points which were urged at the time of hearing had not been specifically raised. Even though the main point had not been specifically raised in the writ application, subsequently in the rejoinder and additional affidavit, the point had been raised, and the factual aspect is apparent from the affidavit filed by the Municipal Corporation and as such, there being no factual dispute, on the basis of legal interpretation of the provisions, the action of opposite party No. 2 is bound to be quashed. ( 12 ) FOR the aforesaid reasons, the agreement signed by opposite parties 2 and 3 dated 7-4-2001 is declared as null and void. Opposite parties 1 and 2 are directed to invite fresh tenders for the year 2001-2002. The amount paid by opposite party No. 3 may be refunded. The writ application is accordingly allowed. There will be no order as to costs. Application allowed.