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2017 DIGILAW 410 (GAU)

Om Prakash Shah v. State of Assam

2017-03-30

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. H. Rahman, learned senior counsel, assisted by Ms. S. Sultana, learned counsel appearing for the petitioner. Also heard Ms. D.D. Barman, learned State counsel for all the respondents. 2. Pursuant to the NIT dated 1.6.2016, the petitioner had participated in the process for settlement of the public bus stand (MJBT) under the Dibrugarh Municipal Board. Accordingly, upon the tender given by the petitioner being accepted, the concerned bus stand was settled with the petitioner by an order dated 4.7.2016 for a period of 9 months from 1.7.2016 to 31.3.2017 for the bidded amount of Rs. 15,64,812. It is the case of the petitioner that for certain factors beyond his control, the petitioner could not collect the parking fees from the vehicles, as required and contemplated under the terms of the settlement. Due to certain incident, the buses were not parked within the parking stand allotted to the petitioner, but the same were parked outside the parking space and as a result of which, the petitioner could not duly collect the parking fees. Accordingly, the petitioner had made an application before the respondent, Dibrugarh Municipal Board and by the Resolution No. 2 dated 17.2.2017 of the Dibrugarh Municipal Board, a decision was taken to extend the settlement made in favour of the petitioner by another 1 year. 3. However, in spite of such resolution of the Board, the petitioner was taken by a surprise when the NIT dated 9.3.2017 was issued by the Municipal Board for settlement of the same bus stand. 4. Being aggrieved, the petitioner prefers this writ petition. 5. By the earlier order dated 22.3.2017, this court had required the respondent-Dibrugarh Municipal Board to produce the original records containing the minutes of the resolution No. 2 dated 17.2.2017 taken in the meeting held on 17.2.2017. 6. Accordingly, the learned State counsel had produced the records in original and on a perusal of the said records, it can be seen that there is a resolution No. 2 dated 17.2.2017, which provides for extension for a period of one year in favour of the petitioner. 7. The learned counsel for the respondent-Dibrugarh Municipal Board by referring to the original records also points out that there is another resolution dated 9.3.2017 of the Municipal Board which had cancelled and reversed the earlier decision of 17.2.2017 to grant extension in favour of the petitioner. 8. 7. The learned counsel for the respondent-Dibrugarh Municipal Board by referring to the original records also points out that there is another resolution dated 9.3.2017 of the Municipal Board which had cancelled and reversed the earlier decision of 17.2.2017 to grant extension in favour of the petitioner. 8. It is the submission of the learned counsel for the respondent-Dibrugarh Municipal Board that it is on the basis of the said resolution of 9.3.2017 that the impugned NIT had been issued. In the aforesaid premises, the question before this court is as to whether the subsequent decision cancelling the decision of the earlier resolution of 17.2.2017 to grant extension to the petitioner had been made by following due procedure of law and also as to what would be the legal effect of the impugned NIT dated 9.3.2017. 9. From the records, as well as the materials produced before this court and also on the submission of the learned counsel for the parties, including that of the learned counsel for the respondent-Dibrugarh Municipal Board, it is noticed that prior to the resolution dated 9.3.2017, cancelling the earlier decision to give extension, no opportunity of hearing was given to the petitioner and nor any relevant material was taken into consideration by the respondent-Board, while arriving at the decision in its meeting of 9.3.2017 to cancel the extension. 10. In the absence of the opportunity being given to the petitioner for a hearing and also in the absence of any relevant material justifying the earlier order of cancellation, this court deems that the resolution dated 9.3.2017 is vitiated and not sustainable. The same is, firstly, in violation of the principles of natural justice. Secondly, there is no discussion in the meeting dated 9.3.2017 as to why the earlier decision of granting extension to the petitioner had been reversed and cancelled. 11. Any decision by an administrative authority to either withdraw or cancel a benefit earlier given to a person can be withdrawn or cancelled only upon there being a reliable and a cogent reason, supported by relevant materials on record. In the absence of any such reason supported by materials on record, any such withdrawal or cancellation would be arbitrary, unreasonable and whimsical. 12. In the absence of any such reason supported by materials on record, any such withdrawal or cancellation would be arbitrary, unreasonable and whimsical. 12. It needs no mention that the earlier decision to grant the extension was made after deliberating upon the question that the petitioner, because of reasons beyond his control, was unable to operate the settlement of the parking space, in the manner, he was required to operate under the terms of the allotment. 13. In such view of the matter, this writ petition, as agreed by the parties, is disposed of with a direction that the respondent-Dibrugarh Municipal Board shall give an opportunity of hearing to the petitioner to show cause as to why the extension granted to him in the resolution dated 17.2.2017 shall not be reversed and cancelled. While granting such opportunity, the petitioner shall be informed of the reasons for the intended withdrawal or cancellation and the respondent-authority shall also enable the petitioner to produce any material and document that he may desire to produce in his support. Upon such hearing being given to the petitioner, the respondent-Municipal Board shall be at liberty to take a fresh decision on the matter. 14. Till such opportunity is given and fresh decision is taken, the decision to cancel the extension taken in the meeting dated 9.3.2017 and also the tender notice dated 9.3.2017 shall not be given effect. 15. The aforesaid exercise be carried out within a period of 2 months from the date of receipt of a certified copy of this order. 16. In terms of the above, this writ petition stands disposed of. 17. It is, however, clarified that this court by providing that the resolution dated 9.3.2017 shall not be given effect to means that the earlier extension granted to the petitioner in the resolution dated 17.2.2017 continues to be in force, till the fresh decision is taken.