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2018 DIGILAW 1503 (GAU)

Moniruddin Ahmed v. State of Assam

2018-10-04

UJJAL BHUYAN

body2018
JUDGMENT : 1. Heard Mr. G.N. Sahewalla and Mr. D. Das, learned senior counsel assisted by Mr. B. Gogoi, Mr. A. Chetia and Mr. M. Sahewalla, learned counsel for the petitioners; Mr. M. Choudhury, learned senior counsel assisted by Mr. M. Mahanta, learned counsel for Mangaldoi Municipal Board. Also heard Mr. T.C. Chutia, learned Government advocate, Assam. 2. Subject-matter of all the writ petitions are interconnected and, therefore, those were heard together on 25.9.2018 and are being disposed of today by this common order. 3. In all the writ petitions, challenge has been made to the Notice Inviting Tender (NIT) dated 6.8.2018, issued by the Executive Officer, Mangaldoi Municipal Board for settlement of fisheries, markets, parking lots, etc. Petitioners in all the cases were granted extension and as per the last extension, their lease period is up-to 31.3.2019 at enhanced revenue. Notwithstanding such extension of lease till 31.3.2019, impugned NIT was issued; legality and correctness of which has been assailed in all the writ petitions. Primary contention of the petitioners is that as Mangaldoi Municipal Board had extended their respective settlements for further period from 1.4.2018 to 31.3.2019 at enhanced revenue, without cancelling such extension, Executive Officer, Mangaldoi Municipal Board could not have issued the impugned NIT which has violated their rights accruing from the extension. 4. In WP(C) No. 5585/2018, settlement relates to Bhebarghat Bus Stand; in WP(C) No. 5590/2018, the settlement in question is Mangaldoi Fist Market; WP(C) No. 5593/2018 relates to Bhebarghat Bus Stand (small vehicles); Mangaldoi Municipal Board Wednesday Market is the subject-matter in WP(C) No. 5634/2018; in WP(C) No. 5635/2018 Mangaldoi Municipal Board Sunday Market is the concerned market; and WP(C) No. 5636/2018 relates to Mangaldoi Municipal Board Kharupetia-Khoirabari Majikuchi Bus Stand (both big and small vehicles). 5. When the writ petitions were moved, court had posed a question as to whether Mangaldoi Municipal Board has any power to grant extension of lease. That apart, State counsel was directed to produce the relevant record from the Mangaldoi Municipal Board. 5. When the writ petitions were moved, court had posed a question as to whether Mangaldoi Municipal Board has any power to grant extension of lease. That apart, State counsel was directed to produce the relevant record from the Mangaldoi Municipal Board. Identical interim orders were passed in all the cases permitting the individual petitioners to participate in the NIT dated 6.8.2018 without prejudice to their rights and contentions advanced in the writ petitions with further direction that till finalization of the tender process, petitioners may continue with the extended period of settlement and Executive Officer, Mangaldoi Municipal Board may proceed with the NIT dated 6.8.2018 but should not finalize the same in the meanwhile. 6. For ready reference, relevant portion of the order dated 20.8.2018, passed in WP(C) No. 5585/2018 is extracted hereunder: “Petitioner has assailed the Notice Inviting Tender (NIT) dated 6.8.2018, issued by the Executive Officer, Mangaldoi Municipal Board for settlement of fisheries, markets, parking lots, etc. This writ petition is concerned with Bhebarghat Bus Station, which is also included in the NIT dated 6.8.2018. According to the petitioner, he was the previous lessee of Bhebarghat Bus Station. By a resolution adopted on 14.3.2018, Mangaldoi Municipal Board extended the period of settlement of the said bus station with the petitioner for a further period from 1.4.2018 to 31.3.2019 at enhanced revenue. Question is whether Mangaldoi Municipal Board has any power of extension of lease. Rule 2 of the Rules for Procedure for the Sale of Ponds and Markets by Municipal Boards and Town Committees in Assam empowers the Municipal Board to extend the period of lease of ponds or markets for a total period of 2 years but not exceeding 1 year at a time, but such extension of lease must have the previous approval of Director of Municipal Administration. On the next date, Ms. M. Bhattacharjee, learned Government advocate, Assam shall produce the relevant record from the Mangaldoi Municipal Board relating to extension of Bhebarghat Bus Station for year 2018-19. In the meanwhile, petitioner may participate in the NIT dated 6.8.2018 without prejudice to the rights and contentions advanced in the writ petition. Till finalization of the tender process, petitioner may continue with the extended period of settlement of the Bhebarghat Bus Station. Executive Officer, Mangaldoi Municipal Board may proceed with the NIT dated 6.8.2018 but shall not finalize the tender in the meanwhile.” 7. Till finalization of the tender process, petitioner may continue with the extended period of settlement of the Bhebarghat Bus Station. Executive Officer, Mangaldoi Municipal Board may proceed with the NIT dated 6.8.2018 but shall not finalize the tender in the meanwhile.” 7. Learned counsel for the petitioners submits that extension of lease was granted by Mangaldoi Municipal Board; on the basis of which they have subsisting rights till 31.3.2019. Without cancellation of extension, Mangaldoi Municipal Board could not have issued the impugned NIT. On this count itself, impugned NIT is liable to be set aside. 8. Per contra, Mr. M Choudhury, learned senior counsel appearing for the Mangaldoi Municipal Board submits that record does not disclose submission of any proposal by the Mangaldoi Municipal Board before the Director of Municipal Administration, Assam, seeking approval for extension of lease. Without prior approval of the Director, such extension could not have been granted. Referring to WP(C) No. 5636/2018, he submits that petitioner in this case was granted settlement in 2003-04 and since then, he has been granted one extension after another for as many as 16 times. None of these extensions had any prior approval of the Director. Likewise, in other cases, initial settlements were made prior to 3 years. As a matter of fact, Executive Officer, Mangaldoi Municipal Board had brought to the notice of the Chairman, Mangaldoi Municipal Board vide letter dated 9.7.2018 that such extension without any prior approval of the Director was in gross violation of the provisions of the Assam Municipal Act, 1956. It was only thereafter that meeting of the Mangaldoi Municipal Board was convened whereafter, decision was taken to issue the impugned NIT. 9. In reply, learned counsel for the petitioners submits that for failure of the authorities of Mangaldoi Municipal Board to obtain approval, petitioners cannot be penalized and their subsisting leases should not be cancelled. 10. Mr. M. Mahanta has produced the record. 11. Submissions made by learned counsel for the parties have been considered. Also perusal the materials on record. 12. From the record, it is seen that petitioner in WP(C) No. 5585/2018 was granted settlement in 2013-14 whereafter, his settlement was extended at enhanced revenue. Petitioner in WP(C) No. 5590/2018 was first granted settlement in 2013-14 and had continued since then. In WP(C) No. 5593/2018, petitioner was granted settlement in 2013-14 whereafter, he has been granted extension on regular basis. From the record, it is seen that petitioner in WP(C) No. 5585/2018 was granted settlement in 2013-14 whereafter, his settlement was extended at enhanced revenue. Petitioner in WP(C) No. 5590/2018 was first granted settlement in 2013-14 and had continued since then. In WP(C) No. 5593/2018, petitioner was granted settlement in 2013-14 whereafter, he has been granted extension on regular basis. In WP(C) No. 5634/2018, first settlement was made in favour of the petitioner in 2015-16 and thereafter, he has been granted extension. Likewise, in WP(C) No. 5635/2018, petitioner was first granted settlement in the year 2015-16 and since then, he has been granted extensions. Petitioner in WP(C) No. 5636/2018 was first granted settlement in the year 2003-04 and since then he has been continuously granted extension one after another. For small vehicles, petitioner was granted settlement in 2006-07 and since then, he has continued on being granted extension after extension. As noticed above, this court while issuing notice had posed a question as to whether Mangaldoi Municipal Board has any power of granting extension of lease. 13. In exercise of powers conferred by sections 147, 148 and 301 of the Assam Municipal Act, 1956, Government of Assam has framed Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam. As per rule 1, all ponds and markets are required to be settled by inviting tender. As per rule 2, the period of lease for a pond or a market shall be one year; provided that the Municipal Board may, if it thinks fit, with the previous approval of the Director of Municipal Administration extend the period of lease for a total period of two years but not exceeding one year at a time. 14. On a careful analysis of rule 2 as discussed above, what comes to the fore is that following a tender process, a pond or a market can be settled for one year. However, the concerned Municipal Board may extend the period of settlement (lease) for a total period of two years not exceeding one year at a time but with the previous approval of the Director of Municipal Administration. Thus, only extensions for two years can be granted by a Municipal Board and not beyond, that too, one year at a time. However, the concerned Municipal Board may extend the period of settlement (lease) for a total period of two years not exceeding one year at a time but with the previous approval of the Director of Municipal Administration. Thus, only extensions for two years can be granted by a Municipal Board and not beyond, that too, one year at a time. The sine qua non for exercising the power of extension is obtaining of previous approval of the Director of Municipal Administration. 15. Mr. M Choudhury, learned senior counsel appearing for the Mangaldoi Municipal Board candidly admitted that none of the extensions had any previous approved of the Director. 16. I have also carefully perused the record and I do not find any proposal of Mangaldoi Municipal Board seeking approval of the Director of Municipal Administration prior to grant of extension, not to speak of any previous approval granted by the Director of Municipal Administration. If that be the position, all extensions granted by the Mangaldoi Municipal Board and enjoyed by the petitioners beyond the period of 2 years after expiry of the initial settlement were contrary to the legal requirement. Therefore, all the extensions granted beyond the extension of two years are illegal and Mangaldoi Municipal Board had committed this illegality. 17. Insofar claim of the petitioners that they have a subsisting right at least till 31.3.2019 to continue their respective Mahals and that noncancellation of their settlement had vitiated the impugned NIT, it goes without saying that no right flows or can flow from an illegality; illegal order of extension cannot confer any right on the beneficiaries. In such a situation, there cannot also be any equity in favour of the beneficiaries of illegal orders. Contention that extensions have not been cancelled would also be of no consequence because such extensions beyond two years of extension, that too, without the previous approval of the Director of Municipal Administration are non est in the eye of law. 18. In such circumstances, court finds no good ground to interfere with the impugned NIT dated 6.8.2018. All the writ petitions are accordingly dismissed. Interim orders passed earlier stand vacated. Record produced by Mr. Mahanta, learned counsel is returned back.