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2009 DIGILAW 1219 (MP)

NAGAR PALIKA PARIS HAD, BALAGHAT v. RAJESH BHOJ

2009-10-27

DIPAK MISRA, R.K.GUPTA

body2009
Judgment R.K.Gupta, J. ( 1. ) Both the writ petitions involve a common question of fact and law; therefore, they are heard together and are disposed of by this singular order. ( 2. ) The reliefs prayed for and challenge in the present petitions is to the order dated 11.8.2009, AnnexureP-1, passedby the Collector, District Balaghat whereby exercising the power under Section 323 of the Municipalities Act, 1961 (for short "the Act") he has cancelled the tender proceedings dated 16.6.2009. Be it noted, the said tender proceedings were conducted by the petitioner, Nagar Palika Parishad, Balaghat (for brevity "the Council") pursuant to auction notice dated 21.5.2009, AnnexureP-2, for collection of daily and weekly market tax, for Sarekha Bazar, lather market and also for footpath tax. In the proceedings dated 16.6.2009 the tender floated by Raja Chourasia, the petitioner in the connected writ petition, was accepted and later on approved by the Municipal Council in its meeting dated 27.6.2009, AnnexureP-6 and work order was also issued in favour of petitioner, Raja Chourasia. ( 3. ) Before the Collector one Rajesh Bhoj, respondent herein, filed an appeal under Section 323 of the Act challenging the acceptance, of tender in favour of petitioner Raja Chourasia on the ground that the persons who had participated in the tender proceedings owed huge balance to the Council but despite that no objection certificates were issued in their favour whereas the appellant who had applied for no objection certificate on 11.6.2009 as he had no dues of the Council but arbitrarily the proceedings were taken up on 16.6.2009 and he was not allowed to participate in the tender proceedings and therefore, the tender proceedings were vitiated. An objection was filed on behalf of the Council contending, inter- alia, that appellant Raja Bhoj was living with his father and brother in joint family and as per the record of the Council they had huge balance outstanding against them, therefore, no objection certificate was not issued to him. The authority considered the rival submissions advanced by the parties and on scrutiny of the record held the proceedings dated 16.6.2009 as vitiated and directed for cancellation of the proceedings dated 16.6.2009 and further directed the petitioner Council for re-auction of the same. ( 4. The authority considered the rival submissions advanced by the parties and on scrutiny of the record held the proceedings dated 16.6.2009 as vitiated and directed for cancellation of the proceedings dated 16.6.2009 and further directed the petitioner Council for re-auction of the same. ( 4. ) The moot question in the present cases is whether the Collector in exercise of powers under Section 323- of the Act has exceeded its jurisdiction or whether there had been a compliance of Section 323 of the Act by the Collector while passing the order dated 11.8.2009, ( 5. ) For ascertaining the aforesaid question in its proper perspective it will be appropriate to refer to Section 323 of the Act, which reads thus: "323. Power to suspend execution of orders, etc., of Council.-(l) If, in the opinion of the Divisional Commissioner, the Collector, of any other officer authorised by the State Government, in this behalf, the execution of any order or resolution of a Council, or of any of its Committee or any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Council, is not in conformity with law or with the rules or bye-laws made thereunder and is detrimental to the interests of the Council or the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution of such resolution or order or prohibit the doing of any such act. (2) When any order under sub-section (1) is passed, the authority making the order, shall forthwith forward to the State Government and to the Council affected thereby a copy of the order with a statement of reasons for making it; and it shall be in the discretion of the State Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Council reasonable opportunity of showing cause against the order." ( 6. ) A close scrutiny of the provisions of Section 323 of the Act makes it clear that if the Divisional Commissioner, the Collector, or any other officer authorised by the State Government in this behalf finds that the execution ojF any order or resolution of a Council, or of any of its Committee or any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Council, is not in conformity with law or with the rules or by-laws made thereunder and is detrimental to the interests of the Council or the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace then the authority as such in exercise of its power may suspend the execution of such resolution or order or prohibit the doing of any such act. Sub-section (2) further provides that when the order is passed under sub-section (1), then the order as such along with a statement of reasons for making it shall be forwarded to the State Government and the State Government may direct to rescind the order or direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit. The proviso appended to Sub-section (2) also states that the State Government shall not revise, modify or confirm the order without giving reasonable opportunity of showing cause against the order to the Council. In this background of provisions envisaged in Section 323 if the order dated 11.8.2009, AnnexureP-1, is perused then it leaves us in no doubt that the Collector has not recorded any finding that the resolution or the order as such was not in conformity with law or with the rules or by-laws made thereunder and without deciding the same the Collector has set aside the proceedings dated 16.6.2009 only on the ground that the action was not bona fide. ( 7. ( 7. ) It is further relevant to take note of the fact that Section 323 only permits the Collector to record its reasons which shall be forwarded to the State Government for taking an appropriate action but in this case the Collector himself has set aside the resolution of the Council and from a perusal of the order impugned it is not clear that the same was sent forthwith to the State Government as per the mandate of Sub-section (2) of Section 323 of the Act. However, the ultimate power is vested with the State Government to continue or annul the resolution or even to modify it. ( 8. ) in course of argument a letter dated 24.8.2009 sent by the Collector to the State Government had been produced before us but so far as the order impugned dated 11.8.2009 is concerned it does not state that the said letter along with copy of the order was sent forthwith to the State Government. ( 9. ) The word "forthwith" has been used in Sub-section (2) of Section 323 of the Act for forwarding the order passed by the authority to the State Government and a copy has also to be given to the Council affected thereby. As it is evident that the order was passed on 11.8.2009 and the same was forwarded on 24.8.2009. There is no explanation offered by the Collector why on the date when the order was passed the same was not forwarded forthwith to the State Government. Even if it could not be forwarded forthwith to the State Government to fulfill the mandatory requirement of Sub-section (2) of Section 323 of the Act then within a reasonable time the same should have been sent to the State Government. For the purposes of taking reasonable time the Collector was under a legal obligation to give some explanation for the same but in the cases at hand, there is no explanation what to say of reasonable explanation for not forwarding the order passed by the Collector to the State Government forthwith or within reasonable time. ( 10. ) The word "forthwith" has received consideration in various dictionaries and also in different judicial pronouncements. In Bidya Deb Barma etc. ( 10. ) The word "forthwith" has received consideration in various dictionaries and also in different judicial pronouncements. In Bidya Deb Barma etc. v. District Magistrate Tripura, Agartala, AIR 1969 SC323 their Lordships after quoting the Maxwell in Interpretation of Statutes (11th Edition) observed that when a statute requires that something shall be done forthwith it should be probably understood as allowing a reasonable time for doing it. In this reference, we may profitably refer to a decision rendered by the Apex Court in Gopal Mondal vs. The State of West Bengal, AIR 1975 SC1807 wherein while dealing with the expression "forthwith" their Lordships in para-3 observed thus:- "The word forthwith has been interpreted to mean "as soon as possible; without any delay". If there is some delay which is reasonably explained, then there is no violation of the mandatory requirement of the law. In the counter it has been explained that as many as seven detention orders were made by the District Magistrate on 23rd August, 1973. Reports had to be typed in all those cases and they were typed on 24th and 25th August. 26th August was a Sunday and therefore the report could not be sent earlier than 27th. We are satisfied that, on the facts stated in the counter, the report was sent forthwith, as the apparent delay of three days has been satisfactorily explained." ( 11. ) In Kamaxi Kom Bhikku Shetty vs. Vaman Thippayya Bhattageri, AIR 1976 Kant. 3,4 their Lordships were of the opinion that the expression "forthwith" means immediately or without delay. The Bouvier Law Dictionary explains the term "forthwith" as; as soon as reasonably can be; as soon as reasonably possible; as soon as the thing may be done by reasonable exertion confined to that object. In Coopers Dictionary the term "forthwith" entails; as soon as with reasonable dispatch in the ordinary course of business and further Websters dictionary defines the expression "forthwith" as; directly. ( 12. ) In view of the aforesaid, we are of the considered view that there had been no compliance of Sub-section (2) of Section 323 of the Act by the Collector as the order impugned, Annexure P-l, was not forwarded either forthwith or within a reasonable time and no explanation is offered by the Collector by filing his affidavit. It was necessary for the Collector to have explained that the delay is reasonably caused. It was necessary for the Collector to have explained that the delay is reasonably caused. The order impugned was forwarded to the State Government after expiry of 13 days and thus, for the reasons stated hereinabove the impugned order is bad in law as it was not forwarded to the State Government as per the mandate of Sub-section (2) of Section 323 of the Act. ( 13. ) In this reference, it is to be seen that the Collector in the order dated 11.8.2009, AnnexureP-1, himself has set aside the resolution passed in favour of petitioner, Raja Chourasia, was the respondent before the Collector and keeping in view the language employed in Sub-section (1) and (2) of Section 323 of the Act he has only power to stay but has no power to annul the resolution dated 16.6.2009. The resolution, as per Sub-section (2) has to be annulled by the State Government after giving due opportunity to the Council. The order impugned clearly indicates that the Collector himself has set aside the same, therefore, even otherwise we are unable to approve the order of the Collector. That apart, the reasoning given by the Collector in para-5 of the impugned order, AnnexureP-1, shows that according to the Collector, the action taken by the Council was not bona fide. The language employed in Sub-section (1) of Section 323 itself indicates that two circumstances are required to be fulfilled; the first is that the Collector is required to pass an order whether the action which is challenged is not in conformity with law or with the rules or by-laws made thereunder and thereafter also has to keep in mind that such an action is detrimental to the interests of the Council or the public or is likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace. There is nothing in the order that the Collector has recorded a finding that the action as such is not in conformity with law or the rules or by-laws. Without recording the aforesaid finding the Collector has proceeded to set aside the resolution only on the ground that the action was not bona fide. There is nothing in the order that the Collector has recorded a finding that the action as such is not in conformity with law or the rules or by-laws. Without recording the aforesaid finding the Collector has proceeded to set aside the resolution only on the ground that the action was not bona fide. There is no recording of any reason that the action as such was detrimental to the interests of the Council or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace. There are no ingredients of the aforesaid aspect in the order passed by the Collector. To say the least, there is nothing to reveal fulfillment of both the requirements whether the action is contrary to the provisions of the law, rules or bylaws and then simultaneously the Collector should also have been satisfied about the later aspect of the provision enumerated in Sub-section (2) of Section 323 of the Act. ( 14. ) In view of the aforesaid, we are of the considered view that the Collector has not properly exercised its jurisdiction in accordance with the provisions of Section 323 of the Act and the order impugned is also bereft of the reasons which were required to be given by the Collector while exercising the power under Section 323 of the Act. Therefore, the order dated 118.2009, AnnexureP-1, passed by the Collector is liable to be set aside and.it is accordingly quashed. ( 15. ) For the aforesaid reasons, the writ petitions are allowed with no order as to costs. Petition allowed.