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2016 DIGILAW 112 (GAU)

Mukid Hussain v. State of Assam

2016-02-18

A.K.GOSWAMI

body2016
JUDGMENT : Heard Mr. A Roshid, learned counsel for the petitioners. Also heard Mr. D. Mazumdar, learned Senior Counsel appearing for respondent Nos.4 and 5 and Mr. N. Upadhyay, learned State Counsel appearing for Respondent Nos.1 to 3. 2 While entertaining the writ petition and issuing notice of motion on 13.11.2015, this Court had stayed the operation of the Notice Inviting Tender (NIT) dated 02.11.2015 till the returnable date. The Respondent Nos.4 and 5 as applicants have filed an application for vacating the said interim order dated 13.11.2015 which is registered as I.A. No.2885/2015. Both the I.A. and the writ petition are listed today. Learned counsel for the parties submit that instead of taking the application for vacating the interim order, the writ petition may be taken up for disposal. It is to be noted that the writ petitioner had also filed an affidavit in the application for vacating the interim order. 3. The writ petition was filed by the petitioners, who were elected as Ward Commissioners of Goalpara Municipal Board in the election that was held in February, 2015. They had to approach this Court by filing writ petitions numbered as WP(C) No.1023/2015 and WP(C) No.1438/2015, details of which need not detain us for the purpose of this case. 4. The petitioners could not take oath and consequently, the elected body did not come into place. By an order dated 09.09.2014, in pursuance of a Government notification dated 08.09.2014, the Deputy Commissioner, Goalpara issued a notification dated 09.09.2014, allowing the Respondent No.4 to act as Executive Officer of Goalpara Municipal Board, Goalpara under Section 299(b) of the Assam Municipal Act, 1956 (for short, the Act) till the Board is reconstituted and a new Chairman is elected. 5. It is pleaded in the writ petition that the Executive Officer issued the NIT dated 02.11.2015 (Annexure-3) for allotment of 16 nos. of commercial space/rooms in the New Market Commercial Building at second floor in Goalpara Town near Assam State Transport Corporation junction fixing last date of receipt of tenders on 15.11.2015 up-to 2 P.M. and opening of the same at 3.30 P.M. on that very day. Grievance articulated is that the NIT was issued without giving the mandatory period of notice and that the Executive Officer is trying to lease out the municipal property for his vested interest. Grievance articulated is that the NIT was issued without giving the mandatory period of notice and that the Executive Officer is trying to lease out the municipal property for his vested interest. It is pleaded that the Executive Officer has no authority to lease out any property of the Municipal Board. 6. Accordingly, prayer is made in the writ petition for setting aside the NIT dated 02.11.2015. 7. In tune with the pleadings, Mr. Roshid has submitted that the Executive Officer has no authority to issue the NIT and that in any lease or contract, value of which exceeds five hundred rupees, in terms of Section 64 of the Act, Chairman or the Vice Chairman has to be necessarily a signatory. To a query of the Court, learned counsel submits that no mandatory period, though pleaded in the writ petition, is prescribed in relation to time-gap from the issuance of NIT and the last date of receipt of tenders. He has also submitted that the members have now taken oath and the elected members and the Chairman are running the affairs of the Board along with the Executive Officer. 8. By drawing the attention of the Court to the application for vacating the interim order, Mr. Mazumdar, learned Senior Counsel submits that NIT dated 02.11.2015 was issued pursuant to a meeting of the District Level Review Committee held on 17.06.2015 in the office of the Deputy Commissioner, Goalpara under his Chairmanship and thereafter, with the approval of the Deputy Commissioner, a tender/allotment committee was constituted/formed on 26.10.2015 consisting of 8(eight) members under the Chairmanship of the Deputy Commissioner, Goalpara for tendering/allotment of shop rooms. There was wide publicity and it is not correct as contended that Executive Officer had acted without any authority of law and on extraneous consideration. He has submitted that 16 numbers of commercial rooms were constructed and the tender process was initiated in the interest of public and to augment revenue of the municipality. It is also submitted that whatever apprehension petitioners had is also non-existent today as petitioners have assumed the post of Ward Commissioners and the petitioner No.7 himself has been elected as the Chairman of the Board. He has further submitted that the last date of receipt of tenders was fixed on 15.11.2015 and the copy of the interim order was received by the Respondent No.4 on 16.11.2015. He has further submitted that the last date of receipt of tenders was fixed on 15.11.2015 and the copy of the interim order was received by the Respondent No.4 on 16.11.2015. Though opening of tenders was also initially fixed on 15.11.2015, as 15.11.2015 happened to be a Sunday, last date was automatically extended to 16.11.2015 and as before opening of the tenders, Respondent Nos.4 and 5 came to know about the interim order of this Court, tenders were not opened and these are in the same state. He has also submitted that 47 persons had taken forms for submission, but as the tender box has not been opened, he is unable to say in reality how many of them had submitted tender. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 10. That the petitioners are functioning as Chairman/Ward Commissioners as on today is not in dispute. Section 53 of the Act provides for appointment of Executive Officer. Section 53(2) of the Act as inserted by Assam Municipal (Amendment) Act, 2011, provides that Executive Officer shall function under the overall control of the Board and under the direct supervision of the Chairman. Section 299(b) provides that all the powers and duties which may be exercised and performed by the Board whether at a meeting or otherwise shall, during the period of dissolution, be exercised and performed by such person as the State Government may direct till Commissioner and Chairman are elected. 11. In the instant case, though the Board was not dissolved, fact remains that the elected Chairman and Commissioners could not take oath in terms of Section 25 of the Act, which provides that every person who is elected to be Commissioner of the Board or who becomes Commissioner of the Board by virtue of his office, shall, before taking his seat at a meeting of the Board first attended, makes an oath of affirmation of his allegiance to the Union of India in the form prescribed. In absence of the oath, the elected Commissioners and the Chairman could not discharge their functions as contemplated under the Act. 12. The Respondent No.4, in the facts and circumstances of the case, was conferred with power in terms of Section 299(b) of the Act. Notification conferring such power is not under challenge before this Court. 13. In absence of the oath, the elected Commissioners and the Chairman could not discharge their functions as contemplated under the Act. 12. The Respondent No.4, in the facts and circumstances of the case, was conferred with power in terms of Section 299(b) of the Act. Notification conferring such power is not under challenge before this Court. 13. In the interlocutory application for vacating the stay, it is stated as follows: “6. That the applicants state that the said NIT dated 02.11.2015 was issued pursuant to the Minutes of District Level Review Committee Meeting held on 17.06.2015 in the Officer of the Deputy Commissioner under his Chairmanship. Thereafter, with the approval of the Deputy Commissioner a Tender/Allotment Committee was constituted/formed on 26.10.2015 consisting of 8 members under the Chairmanship of the Deputy Commissioner, Goalpara for tendering/allotment of shop rooms at New Market Commercial complex/E-Toilets/Bus-Q-Shelter. The said NIT was published in different local news papers, viz. ‘The Assam Tribune’ dated 02.11.2015, ‘The Asomia Pratidin’ dated 02.11.2015, ‘The Asomia Khabar’ dated 02.11.2015, ‘The Ami Asomar Janagan’ dated 03.11.2015, ‘The Dainandin Barta’ dated 03.11.2015 and ‘The News 30’ dated 01.11.2015. Further, the tender process was initiated by following due process and giving wide publicity to inform interested persons about the process. A copy of one of such news papers is annexed herewith below. The applicants crave leave of the Hon’ble Court to produce the copies of other news papers before the Hon’ble Court at the time of hearing. x x x x x x x x x x x x x x 8. That the appointment of the Executive Officer in each and every Municipal Board and Town Committee was made to ensure proper implementation of schemes of the Municipality. The Goalpara Municipal Board has not been functioning since 16.09.2014 and as would be evident from the writ petition itself that the elected Ward Commissioners have not taken their oath and also were yet to select the Chairman/Vice-Chairman of the Goalpara Municipal Board. Thus, the writ petitioners though elected have no locus to challenge the NIT asmuch as they have not even assumed office. Further, the allegations are that the petitioners are apprehending that the deponent/applicant No.2 may misuse Government funds. Such apprehension has no basis, more so when the applicant No.2 has taken steps in terms of decision of the said DLRC presided over by the Deputy Commissioner, Goalpara, who is its Chairman. Further, the allegations are that the petitioners are apprehending that the deponent/applicant No.2 may misuse Government funds. Such apprehension has no basis, more so when the applicant No.2 has taken steps in terms of decision of the said DLRC presided over by the Deputy Commissioner, Goalpara, who is its Chairman. x x x x x x x x x x x x x x x x x x x x x x x x x x x x 14. That the applicants reiterate that they are interested to decide the allotment of aforesaid 16 Nos. of commercial rooms in the 2nd floor of New Commercial Building, near ASCT junction, at Goalpara town through tender process particularly in view of the fact that in earlier occasion, i.e. on 02.02.2009 some of the commercial rooms in the 1st floor of Fish Market, New Market, near ASTC, at Goalpara Town were allotted without any tender process in favour of some persons and the kith and kin of some persons having financial and political powers and such allotment was made at a very low rate of rent, i.e. Rs.500(Rupees Five Hundred) only per month as against the present monthly rental fixed at Rs.40.00(Rupees Forty) only per square feet at the minimum. A few copies of such allotment of commercial rooms in the 1st floor of Fish Market, near ASTC, at Goalpara Town dated 02.02.2009 are annexed herewith below. The applicants crave leave of the Hon’ble Court to produce the copies of earlier allotment of commercial rooms in the 1st floor of Fish Market before the Hon’ble Court at the time of hearing. Copies of allotment of commercial rooms in the 1st floor of Fish Market are annexed herewith and marked as Annexure-G, (series). x x x x x x x x x x x x x x x x x x x x x x x x x x x x 17. That in terms of Section-25 of the Act, 1956 the elected Commissioners have to take oath before taking his/her seat at a meeting of the Board and admittedly the writ petitioners are yet to take their oath. Under Section 26 of the Act, 1956 the tenure of the Board starts from the date of first meeting of a newly constituted Board after general selection at which quorum is present. Under Section 26 of the Act, 1956 the tenure of the Board starts from the date of first meeting of a newly constituted Board after general selection at which quorum is present. As such even till date the Board has not been constituted and therefore there is no question of any infirmity or illegality in the initiation of the tender process on 02.11.2015. The tender process was initiated in the interest of the public and the revenue of the Municipality and the loss to public exchequer in terms of rent of 16 Nos. of commercial rooms/premises in the New Market Building shops at Goalpara Town accrue by the month. It was because of uncertainty in the formation of the Board that the tender process had to be initiated to avoid any recurring loss to public exchequer and revenue. As such it is humbly prayed that the order dated 13.11.2015 may be modified/altered/vacated in the interest of public revenue and exchequer.” 14. None has come before this Court complaining that because of lack of publicity of the notice, he was unable to submit tender. Grievances of the petitioners are focused with regard to competency of the Executive Officer to issue the NIT. On the facts situation presented before this Court and having regard to Section 53(2) and the authority of the Executive Officer under Section 299(b), I am of the considered opinion that NIT cannot be faulted on the ground that Executive Officer did not have any competence to issue the same. 15. Considering the matter in its entirety and also noting that the present petitioners are discharging functions of the Board along with the Executive Officer, I am not inclined to interfere with the NIT dated 02.11.2015. 16. The Board may now proceed with the NIT in accordance with law. The writ petition stands disposed of. 17. Interim order, needless to say, shall stand vacated.