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2021 DIGILAW 226 (JK)

Zakir Hussain v. Union Territory of J&K

2021-05-17

SANJEEV KUMAR

body2021
JUDGMENT : Sanjeev Kumar, J. 1. The petitioner claims that he is a registered PWD contractor of Class-DEE for the purposes of executing civil works, which certificate was issued in his favour in the year 2009-10 and is still in force. On 20.10.2018, the petitioner was elected as member from Ward No. 10 of Municipal Committee, Basohli. The Executive Engineer, PW(R&B) Division Basohli vide e-NIT 32 of 2020-21 dated 28.09.2020 invited tenders for and on behalf of the Lt. Governor of the Union Territory of J&K for execution of six different works, which included the construction of lane and drain and R/Wall from the house of Ram Lal to the house of Baldev Raj at Ward No. 12, Basohli. The petitioner was found successful bidder and was, accordingly, allotted the said work by the Executive Engineer concerned vide allotment order No. 6406-13 dated 18.01.2021. The allotment, too, was made in favour of the petitioner for and on behalf of the Lt. Governor of the Union Territory. 2. The petitioner claims that he has executed the work allotted to him to the satisfaction of the Executive Engineer concerned and there is no dispute with regard to the execution of the aforesaid work. The grievance of the petitioner, as projected in this petition, however, is that the respondent No. 2 vide his communication No. DULBJ/2021/2225-27 dated 30.03.2021 served upon the petitioner a show cause notice purportedly issued in terms of Section 16 of the J&K Municipal Act, 2000 (hereinafter referred to as "the Act"), calling upon the petitioner to show cause as to why he should not be disqualified as member of Municipal Committee, Basohli from Ward No. 10 for having executed the construction work of lane and drain on behalf of the Municipal Committee, Basohli. 3. The petitioner responded to the aforesaid show cause notice and explained his position. He categorically denied having executed any work for or on behalf of the Municipal Committee, Basohli. It is submitted by the petitioner that the work, which he has executed, for which he has been issued a show cause notice, was a work notified by the Public Works Department for and on behalf of the Lt. Governor of the Union Territory of J&K and not on behalf of the Municipal Committee, Basohli. It is submitted by the petitioner that the work, which he has executed, for which he has been issued a show cause notice, was a work notified by the Public Works Department for and on behalf of the Lt. Governor of the Union Territory of J&K and not on behalf of the Municipal Committee, Basohli. Relying upon the contents of the NIT issued by the Executive Engineer and letter of allotment, the petitioner in his reply claimed that he has not executed any work for and on behalf of the Municipal Committee, Basohli, as would attract disqualification in terms of Section 16(1)(j) of the Act. Respondent No. 2 did not accept the explanation tendered by the petitioner and vide order No. 207/DULB of 2021 dated 10.04.2021 disqualified the petitioner as member from Ward No. 10, Municipal Committee, Basohli. It is this order the petitioner is aggrieved of and has challenged the same primarily on the ground that disqualification in terms of Section 16(1)(j) is not attracted in the case, for, the petitioner has not directly or indirectly any share or interest in any work done by the order of Municipality nor has he executed any contract under or on behalf of the Municipality. The work, which has been made basis for his disqualification by respondent No. 2 is the work executed by the petitioner for and on behalf of Lt. Governor of the Union Territory of J&K, which was notified through e-NIT by the Executive Engineer, PW(R&B) Division, Basohli. 4. The respondents have contested the petition and have filed detailed objections. In the objections filed by the respondents, it is claimed that the work allotted to the petitioner by the Public Works Department was a work under IDMT scheme for the year 2020-21 and, therefore, the petitioner being a member of the Municipal Committee, Basohli could not have executed the same without incurring disqualification under Section 16(1)(j) of the Act. It is, thus, submitted that the Executive Engineer, PW(R&B) Division, Basohli was only the executing agency and the aforesaid work was to be executed for and on behalf of the Municipal Committee, Basohli. It is, thus, submitted that the Executive Engineer, PW(R&B) Division, Basohli was only the executing agency and the aforesaid work was to be executed for and on behalf of the Municipal Committee, Basohli. Reference has also been made to the action plan under IDMT for the year 2020-21 formulated by the Municipal Committee, Basohli wherein the work allotted to the petitioner for construction of lane and drain and R/Wall from the house of Ram Lal to the House of Baldev Raj, Ward No. 12, Basohli has been included. It is, thus, submitted that the work, which the petitioner has executed, was the work of Municipal Committee, Basohli and, therefore, by participating in the tendering, getting the work allotted and by its execution the petitioner has incurred disqualification to be a member of the Municipal Committee, Basohli. 5. During the course of arguments, Mr. S.S. Nanda, Sr. AAG appearing for the respondents also placed strong reliance on Section 57 of the Act to contend that all public sewers, drains, culverts and watercourses in or under any public street, or constructed by or for the municipality alongside any public street etc. are vested in the Municipality and, therefore, any work executed in relation to the property of the Municipality is executed for and on behalf of the Municipality. The petitioner being a member of the Municipal Committee, Basohli should have been aware of this fact and avoided to be engaged in the execution of any work pertaining to the Municipal Committee, Basoli of which he was an elected member. 6. Having heard learned counsel for the parties and perused the record, it is necessary to first set out Section 16(1)(j) of the Act, which is at the core of controversy in the instant case. Section 16(1)(j) of the Act reads thus:- "16. Disqualification (1) A person shall be disqualified for being chosen as and for being an office bearer of a Municipality.------- (a) xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx (j) if, save as hereinafter provided, he has directly or indirectly any share or interest in any work done by an order of a municipality, or in any contract or employment with, or under or by, or on behalf of the municipality; or .............................................................." 7. From a bare reading of Section 16(1)(j) of the Act, it is clear that a person shall be disqualified from being chosen as and for being an office bearer of a municipality, if he incurs any of the disqualifications enumerated in different clauses including Clause (j) of Sub Section (1) of Section 16 of the Act. I am not sure whether a member of the Municipal Committee/Municipal Council constituted under the Act is an office bearer or the term "office bearer" only refers to Chairman and Vice Chairman of the Municipal Committee/Municipal Council. If the term "office bearer" of a Municipality is restricted to the elected office bearers like Chairman and Vice Chairman of the Municipal Committee/Council then perhaps there would be no provision under the Act laying down disqualification for being chosen as and for being a member of a Municipality. 8. I am not entering into this debate for the simple reason that no such point has been agitated before me in this petition. It is, however, an issue, which needs to be looked into by the respondents, so that appropriate remedial measures are taken by the competent authority to avoid any future dispute or complications. Reference in this regard is invited to Article 243-V of the Constitution of India, which clearly provides for disqualification for being chosen as and for being a member of the municipality without any reference to the office bearer of the municipality. 9. Be that as it is, respondent No. 2 in the instant case has invoked Clause (j) of Sub Section 1 of Section 16 of the Act, which provides that a person who has directly or indirectly any share or interest in any work done by an order of a Municipality or in any contract or employment with, or under or by, or on behalf of the Municipality, shall be disqualified from being chosen as and for being an office bearer of a Municipality. For our purposes, we take a member of municipal committee also as an office bearer. It is in light of this provision; the controversy raised in this petition is required to be analyzed. 10. Admittedly, the e-NIT issued by the Executive Engineer, PW(&B) Division, Basohli dated 28.09.2020 does not make any reference to Municipal Committee, Basohli nor it is purported to have been issued for execution of works of local bodies including the Municipal Committee, Basohli. 10. Admittedly, the e-NIT issued by the Executive Engineer, PW(&B) Division, Basohli dated 28.09.2020 does not make any reference to Municipal Committee, Basohli nor it is purported to have been issued for execution of works of local bodies including the Municipal Committee, Basohli. A bare reading of the e-NIT makes it abundantly clear that the NIT was issued by the Executive Engineer concerned for and on behalf of the Lt. Governor of the Union Territory of J&K. With regard to the position of funds, the NIT indicates that the funds for the works are available under CAPEX budget. Similarly, while making allotment of the work in favour of the petitioner, the Executive Engineer concerned, in the allotment letter dated 18.01.2021 has categorically mentioned that the work has been allotted to the petitioner for and on behalf of Lt. Governor of Union Territory of J&K. Again there is no reference to any local body including Municipal Committee, Basohli. 11. In that view of the matter, there was absolutely no occasion for the petitioner or for anybody else to know that the work in question was actually part of the action plan of the Municipal Committee, Basohli and was being executed through the agency of Public Works Department. 12. From the documents on record and the reply affidavit filed by the respondents, it is difficult to establish any privity of contract between the petitioner and the Municipal Committee, Basohli qua the execution of the work in question. It is, thus, difficult for this Court to come to a conclusion that the work which was executed by the petitioner pursuant to the allotment made by the Executive Engineer of Public Works (R&B) Department, Basohli was by or on behalf of the Municipal Committee, Basohli. 13. The reliance placed by Mr. Nanda on Section 57 of the Act is also of no avail to the respondents. It may be true that amongst various properties vested in the Municipality, public sewers, lanes and drains within municipal limits of the Municipality are vested in the municipality concerned but that does not mean that no work within the municipal limits of a particular municipality can be executed by the Govt. through its other agency/agencies. Without delving much into this collateral aspect, suffice it to say that a democratically elected member of the municipality cannot be disqualified and thrown out so casually. 14. through its other agency/agencies. Without delving much into this collateral aspect, suffice it to say that a democratically elected member of the municipality cannot be disqualified and thrown out so casually. 14. The object of Section 16, particularly clause (j) of Sub Section (1) is to ensure that the members of the municipality do not indulge in profit making ventures connected with the municipal committee of which they are member. The provision is intended to avoid clash of interests. 15. Viewed from any angle, the execution of work by the petitioner, which was notified by the Public Works (Road & Building) Department for and on behalf of the Lt. Governor of the Union Territory, cannot visit the petitioner with his disqualification as a member of the municipal committee. 16. In view of the aforesaid analysis, I find merit in this petition. The same is, accordingly, allowed and the impugned order passed by respondent No. 2 is quashed.