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2001 DIGILAW 668 (PAT)

Sanjay Kumar v. State Of Bihar

2001-07-31

RADHA MOHAN PRASAD

body2001
Judgment 1. In this writ petition, prayer is for quashing the order dated 14.6.2001 passed by District Magistrate, Saran, Chapra {Respondent no. 2) and the consequential order dated 15.6.2001 issued by the Special Officer, Notified Area Committee. Dighwara, Chapra (Respondent no. 4) contained in Annexures - 8 & 9 respectively. By Annexure-8 Respondent no. 2 has withdrawn letter no. 337 dated 4.4.2001 whereby the settlement for collection of road cess for the entry of the vehicles mentioned therein in Dighwara Urban Area was approved with effect from 1.4.2001. 2. In short, the case of the petitioner is that on 23.3.2001 Dighwara Notified Area Committee (hereinafter referred as the Committee) published an advertisement/notice for the said settlement for the year 2001-2002 with specific clause that on good offer the period of settlement may be made for 2001-2003. Petitioner and three others applied and accordingly they participated in the bid on 31.3.2001 in the office of the Committee. Petitioner was declared highest bidder with an amount of Rs. 1,60,000/- for the period 2001-2002 and Rs. 2,40,000/- for the period 2002-2003. The total offer for both the year was Rs. four lacs. He deposited Rs. two lacs on 31.3.2001 in the office of the Committee and the Special Officer (Respondent no. 4) after taking approval of Respondent no. 3 made settlement in his favour for the period 2001-2003. On 4.4.2001 Respondent no. 2 vide letter no. 337 (Annexure-4) also approved and an agreement between the petitioner and the Committee (Respondent no. 3) was entered into on 10.4.2001 vide Annexure- 5. Accordingly Parwana has been issued in favour of the petitioner vide Annexure-6 and thereafter he started collecting road cess. However, later by the impugned order Respondent no. 2 withdrew her approval vide letter no. 337 dated 4.4.2001 on the ground that she approved the settlement in haste and further she highlighted some irregularities in the settlement. On the basis of the said order of Respondent no. 2, Respondent no. 4 issued the impugned order contained in Annexure-9 cancelling the settlement on 15.6.2001. 3. A counter affidavit has been filed on behalf of Respondent no. 2 in which it is admitted that notice was issued on 23.3.2001 by the Special Officer, but it is alleged that it was not advertised in the newspaper. 2, Respondent no. 4 issued the impugned order contained in Annexure-9 cancelling the settlement on 15.6.2001. 3. A counter affidavit has been filed on behalf of Respondent no. 2 in which it is admitted that notice was issued on 23.3.2001 by the Special Officer, but it is alleged that it was not advertised in the newspaper. It is further alleged that news was underplayed by sending notice only to four Offices that is to say the office of Block Development Officer, Circle Officer, Sub- divisional Officer and Police Station, Dighwara, of which Block Development Officer and Circle Officer are the same. It is alleged that Sub-divisional Officer was also involved in this episode. It is further alleged that there is no proof that these notices were displayed properly at least on the notice board of those offices. Another so-called irregularity pointed out is that first paragraph of notice reads that the settlement is for the year 2001-2002 and in the last paragraph it is said that the settlement can be made for two years i.e. to say for the year 2001-2003, which according to Respondent no. 2 is a gross irregularity. It is further stated that Respondent no. 2 was not aware of the bid nor she was intimated about the issuance of the notice to collect the taxes on vehicles passing through the area of the Committee. It is, thus, alleged that the Sub-divisional Officer and Block Development Officer were part of the conspiracy and connived with the petitioner and committed all kinds of irregularities whereby the National Highway was auctioned for a meagre amount. It is also stated that Respondent no. 2 never knew that the letter (Annexure-4) was issed in spite of her order that the same should not be issued as she was busy in Panchayal election and the decision would be taken only after the election. From the said counter affidavit, it appears that there was some objection raised regarding auction of the National Highways and Respondent no. 2 on receipt of communication from the S.P., Saran was under impression that some antisocial elements was collecting money by putting barrier on the National Highways. On contacting the Sub-divisional Officer he assured that barrier would be removed and never apprised Respondent no. 2 about the auction ir favour of petitioner. It is claimed by Respondent no. 2 on receipt of communication from the S.P., Saran was under impression that some antisocial elements was collecting money by putting barrier on the National Highways. On contacting the Sub-divisional Officer he assured that barrier would be removed and never apprised Respondent no. 2 about the auction ir favour of petitioner. It is claimed by Respondent no. 2 that she has the power under Section 383 of the Bihar & Orissa Municipal Act to nullify any order passed by the Special Officer if there is apprehension of breach of peace. According to her there is apprehension of law and order problem about which the Superintendent of Police warned the Sub- divisionai Officer and Block Development Officer that the entire responsibility will lie upon them if any such occasion arise. 4. In reply affidavit, petitioner has stated that notice was displayed on the notice-board of the office of Block Development Officer, Circle Officer, Sub- divisional Officer and Police Station, Dighwara and due to proper notice four persons came forward in the said auction. It is reiterated that the notice itself indicated that if good offer will come then the settlement can be made for two years which shows that the Special Officers has taken all care to fetch more revenue. Respondent no. 2 was aware of the bid and, therefore, approved the road cess vide Annexure-4. It is further stated that National Highways was not auctioned and, in fact, the area lying within the Dighwara Notified Area Committee has been auctioned for collection of road cess. According to the petitioner, since the settlement in question was done first time the Respondent no. 2 cannot say that the auction was settled with a meagre amount. It is stated that the auction was held in presence of competent Officers. Petitioner has denied about issuance of any such letter by Respondent no. 2 that letter no. 337 dated 4.4.2001 should not be issued. According to the petitioner, Government of Bihar in the Urban Development, and Housing Department has taken a decision in the year 1985 to impose road cess on the movement of vehicles in . the Municipalities/Municipal Corporation Notified Area Committee and Civil Areas in the Cantonment Board, which was also communicated to all concerned. As regards barrier, the petitioner has undertaken that he will collect road tax without putting any barrier on the National Highways. the Municipalities/Municipal Corporation Notified Area Committee and Civil Areas in the Cantonment Board, which was also communicated to all concerned. As regards barrier, the petitioner has undertaken that he will collect road tax without putting any barrier on the National Highways. It is further stated that no complaint has been made regarding breach of peace on National Highway, and, thus, the Respondent cannot proceed further merely on presumption. Petitioner has categorically denied about the alleged conspiracy or connivance with the authorities and it is stated that Respondent no. 2 after applying independent mind has approved the rate, and, therefore, the allegation of conspiracy against other officials have no basis. 5. Mr. Tara Kant Jha, learned Senior Counsel appearing for the petitioner has submitted that District Magistrate has no power to interfere either with the process of settlement in question which falls within the area of Notified Area Committee. It is submitted that the power of settlement exclusively vests in the Notified Area Committee and the Special Officer appointed under Section 386 of the Act is fully empowered to exercise and perform all the powers and duties which may under the provisions of the Act be exercised and performed by the Committee whether at a meeting or otherwise during the period of supersession. It is not disputed that in absence of the Committee the Special Officer is discharging the function of the Committee. 6. Mr. Jittu, learned Standing Counsel No. II appearing for Respondent no. 2 has submitted that under Section 383 of the Act, the District Magistrate has been vested with the power to suspend within the limits of the district the execution of any resolution or orders of the Committee or prohibit the doing within those limits of any act which is about to be done or being done, in pursuance of, or under cover of, this Act, if, in his opinion, the execution of the resolution or, order, or the doing of the act is likely to lead to a serious breach of the peace, or to cause serious injury to the public, or to any class or body of persons. According to him, the District Magistrate on consideration of the facts as mentioned in the counter affidavit was quite legally justified in passing the impugned order. According to him, the District Magistrate on consideration of the facts as mentioned in the counter affidavit was quite legally justified in passing the impugned order. It is submitted that the Government of India issued instructions not to put any barrier on National Highways, yet the Special Officer in connivance with other officials and petitioner allowed the barrier to be put on the National Highways which led to serious apprehension of breach of peace as well as injury to the public in taking their vehicle on National Highways. He also submitted that the entire facts demonstrate that there was no wide circulation of the notice for settlement and the other authorities acted in complete connivance with the petitioner in making settlement for the meagre amount. As regards the approval he submitted that the District Magistrate vide Annexure-4 simply accorded approval of the rate of road cess for different types of vehicles. It is, thus, submitted that the impugned order is quite valid and does not warrant any interference under the discretionary power of this Court* under Article 226 of the Constitution. He placed reliance on the decision of this Court in the case of Sudhir Prasad Singh & ors. V/s. The State of Bihar & ors., reported in AIR 1994 Patna 72 : 1993(2) PLJR 704. 7. On the question of wide circulation, there cannot be any dispute that wide publicity is desirable. In the case of Sudhir Prasad Singh & ors., V/s. The State of Bihar & ors. relied upon by the learned State Counsel, Division Bench was dealing with the case where tenders for allotment of works were invited and the Division Bench considering the fact of that case and the Rule relating to it viz. either by publication of advertisements in local Newspapers or by pasting in vernacular in public places, held that issuing notices and getting it pasted on Municipal Board was not sufficient, and cannot be held to be proper publication of the advertisement in order to attract the tenders in a most open and public manner. It was in the facts and circumastances, held that it was proper for the Municipal authority to have followed necessarily the first manner and/or both specially taking into consideration the cost of construction and repair work of huge amount, namely, Rs. twenty five lacs. The present case does not relate to inviting tender for construction work. It was in the facts and circumastances, held that it was proper for the Municipal authority to have followed necessarily the first manner and/or both specially taking into consideration the cost of construction and repair work of huge amount, namely, Rs. twenty five lacs. The present case does not relate to inviting tender for construction work. In the present case notices were displayed on the notice-board of the office of the Block Development Officer, Circle Officer, Sub-divisional Officer and Police Station, Dighwara, and in response to which four persons participated in the auction. Thus, in my opinion, there has been substantial compliance of the requirement of publication of notice. In any view of the matter, nothing has been brought on record to show that there was any grievance raised by any individual that there was no wide publication of notice which deprived him from participating in the auction. Under such circumstances, in my opinion, there has been substantial compliance of the requirement for publication of notice. 8. There cannot be any doubt that under Section 383 the District Magistrate has been vested with the power to suspend the execution of any resolution or order of the Committee or prohibit the doing within the limits of the district, of any act which is about to be done or is being done, in pursuance of, or under cover of, this Act, if in his/her opinion the execution of the resolution or, order, or the doing of the act is likely to lead to a serious breach of the peace, or to cause serious injury to the public, or to any class or body of persons, but nothing has been brought on record to show that there was any apprehension of breach of peace much less instances of serious breach of peace or that any serious injury was caused to the public. It is by now well settled that the order giving reasons cannot be supplemented by affidavit and has to be tested by reasons mentioned therein. Reference in this regard may be made to a decision of the Apex Court in the case of Mohinder Singh Gill & anr. V/s. The Chief Election Commissioner, New Delhi & ors., reported in A.I.R. 1978 Supreme Court 851. Reference in this regard may be made to a decision of the Apex Court in the case of Mohinder Singh Gill & anr. V/s. The Chief Election Commissioner, New Delhi & ors., reported in A.I.R. 1978 Supreme Court 851. The District Magistrate in her impugned order, contained in Annexure-8 has not taken that as a ground that there was any serious breach of peace or that any serious injury was caused to the public. Learned Standing Counsel has failed to refer any provision under which the District Magistrate has been vested with the power of superintendence over the action of the Committee or the Special Officer, except the limited power to suspend the action as vested in him/her under Section 383 and that too is to be forwarded with a statement of his reasons for making it to the State Government under sub-section (2) of Section 383 whereupon the State Government has been vested with the power to take final decision. In the present case, the District Magistrate in my opinion, has exceeded her jurisdiction by interfering with the settlement in question made with the petitioner by cancelling it. Moreover, the reasons given for passing the impugned order also do not appear to be tenable and the Special Officer who is the competent authority by his impugned order contained in Annexure-9 has simply acted at the dictates of the District Magistrate in pursuance of her order contained in Annexure-8. Thus, in my opinion, the impugned orders as contained in Annexure-8 and 9 are without jurisdiction and bad in law. 9. In the result, writ application is allowed. The impugned orders, contained in Annexures-8 & 9 are quashed. However, this order shall not come in the way of the appropriate competent authority from taking any fresh action in accordance with law, if required in future.