Gauhati High Court
Dipak Das vs The State Of Assam And 6 Ors on 4 December, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010070842018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2193/2018
1:DIPAK DAS
S/O SRI DANDIRAM DAS
R/O MILANNAGAR, WARD NO. 1
DIST. JORHAT, ASSAM,
PIN- 785001.
VERSUS
1:THE STATE OF ASSAM AND 6 ORS.
THROUGH THE SECRETARY TO THE GOVT OF ASSAM, URBAN
DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI-06.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
URBAN DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI -06.
3:THE SECRETARY
MUNICIPAL ADMINISTRATION DEPARTMENT
DISPUR
GUWAHATI-06.
4:THE DIRECTOR
MUNICIPAL ADMINISTRATION DEPARTMENT
GOVT.OF ASSAM
DISPUR
GUWAHATI -06.
Page No.# 2/11
5:THE MUNICIPAL BOARD
JORHAT
REP. BY ITS CHAIRPERSON
JORHAT
ASSAM
6:THE CHAIRPERSON
JORHAT MUNICIPAL BOARD
JORHAT
7:SRI NITUL DAS
S/O LT. KIRAN DAS
R/O MACHARHAT
WARD NO.1 4
P.S. JORHAT
P.O. JORHAT
DIST. JORHAT
ASSA
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For petitioner : Mr. N. Dutta, Senior Advocate.
For State respondents No. 1 to 4 : Mrs. D.D. Barman, Addl. Senior Govt. Advocate.
For respondent No.5 and 6 : Mr. B. D. Das, Senior Advocate.
For respondent No.7 : Mr. A.D. Choudhury, Advocate.
Date of judgment and order : 04.12.2018.
JUDGMENT AND ORDER (ORAL)
Heard Mr. N. Dutta, learned Senior Advocate for the petitioner, Mrs. D.D. Barman, learned Addl. Senior Govt. Advocate for the State respondents No.1 to 4, Mr. B. D. Das, learned Senior Advocate for the Jorhat Municipal Board, respondent No.5 and 6, and Mr. A.D. Choudhury, learned Advocate for the respondent No.7.
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2) By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed to (i) set aside and quash the resolution adopted in the Special General Meeting dated 03.02.2018 by the Jorhat Municipal Board, amongst others, providing for extension of the lease period of two and four wheeler parking stand with the previous lessee, i.e. respondent No.7 for a period of 12 (twelve) months; (ii) to set aside and quash the approval granted by the Director of Municipal Administration, Assam vide letter under Memo No. DMA 49/2005/Pt-1/361 dated 29.03.2008, granting approval to the Jorhat Municipal Board for extension of the various markets/ stands/ parking area for the period 2018-19; (iii) to set aside and quash the impugned order under Memo No. 9790 dated 31.03.2018 granted to the respondent No.7 in respect of two and four wheeler parking stand for a period of 12 months; (iv) direction to the respondents to forbear from giving effect to the resolution adopted in the Special General Meeting dated 03.02.2018 by the Jorhat Municipal Board, amongst others, providing for extension of the lease period of two and four wheeler parking stand with the previous lessee, i.e. respondent No.7 for a period of 12 (twelve) months; (v) direction to the respondents to forbear from giving effect to the approval granted by the Director of Municipal Administration, Assam vide letter under Memo No. DMA 49/2005/Pt- 1/361 dated 29.03.2008, granting approval to the Jorhat Municipal Board for extension of the various markets/ stands/ parking area for the period 2018-19; (vi) direction to the respondents to cancel/ rescind and/or forbear from giving effect to and to set aside and quash the impugned order under Memo No. 9790 dated 31.03.2018 granted to the respondent No.7 in respect of two and four wheeler parking stand for a period of 12 months; and (vii) for a direction to the Jorhat Muncipal Board to issue fresh NIT with respect to the two and four wheeler parking as directed by this Court by order dated 13.02.2018 in W.P.(C) No. 3672/2017.
3) For settlement of parking two and four wheeler parking stand for the year 2017-18, bids were invited by the Jorhat Municipal Board. In the tender process, the petitioner was settled with the same at the bid amount of Rs.8,80,750/-. The private respondent No. 7 had challenged the settlement by filing W.P.(C) No. 2226/2017 on the Page No.# 4/11 ground that despite his bid for a sum of Rs.17,09,500/-, the petitioner was given lease of the said parking stand by order dated 31.03.2017. It is projected in the writ petition that in their Affidavit- in- opposition filed by the Jorhat Municipal Board, the said respondents No.5 and 6 took a stand that the rates quoted by the respondent No.7 was exorbitant. However, this Court, by judgment and order dated 23.05.2017 passed in W.P.(C) No. 2226/2017 (Nitul Das Vs. State of Assam & 4 others) along with a batch of other 6 similar writ petitions, had set aside the settlement order dated 31.03.2017 in favour of the petitioner by issuing directions to the Jorhat Municipal Board to constitute a five member Tender Evaluation Committee to act in consonance with the directions contained in the said order.
4) The Jorhat Municipal Board, by an order under Memo No. J.M.B/1995 dated 03.06.2017, allotted the two and four wheeler parking zone to the respondent No.7 for the financial year 2018-19, directing the respondent No.7 to deposit Rs.3,38,292/-, being 1/4th of Rs.14,33,170/- fixed by Jorhat Municipal Board for the period from June, 2017 to March, 2018. Hence, the petitioner herein had challenged the said settlement made by the Jorhat Municipal Board, which was registered as W.P.(C) No. 3672/17, this Court by order dated 13.02.2018, while closing the writ petition had directed that after the completion of the period of settlement, the Jorhat Municipal Board may take appropriate steps in accordance with the Rules for issuing fresh NIT.
5) However, without calling for the NIT, the Jorhat Municipal Board took a decision in its General Meeting held on 03.02.2018 to extend the period of the existing lease for financial year 2018-19. Accordingly, approval was granted by the Director of Municipal Administration, Assam vide letter under Memo No. DMA 49/2005/Pt-1/361 dated 29.03.2008, to the Jorhat Municipal Board for extension of the various markets/ stands/ parking area for the period 2018-19. Hence, this present writ petition.
6) The Jorhat Municipal Board, i.e. Respondents No.5 and 6 as well as the respondent No.7 lessee, namely, Nitul Das have filed their separate affidavit- in- opposition Page No.# 5/11 and have defended the extension of lease.
7) The learned senior advocate for the petitioner has submitted that the Sub- Committee (Market) of Jorhat Municipal Board had held its meeting on 24.01.2018, and the members raised the issue of NIT for parking, etc., but the Committee accepted the suggestion made by the President that there were defects in the NIT and that the NIT should be prepared properly and the next meeting was deferred to 27.07.2018. Next meeting fixed on 27.07.2018 [Minutes prepared and signed on 17.03.2018 Thereafter, the Special General Meeting of Jorhat Municipal Board was held on 03.02.2018, where a decision was taken to extend the existing lease for various markets, parking stands, bus stand, auto stand, etc. for financial year 2018-19 ending 31.03.2018. By referring to the said minutes of the Meeting of Sub- Committee (Market) of Jorhat Municipal Board held on 24.01.2018, it is submitted that the said minutes were prepared and signed on 17.03.2018, as such, there is no way that the said minutes were laid before the Special General Meeting held on 03.02.2018 and in the said context, it is submitted that the intention of someone at the helm of affairs of the Jorhat Municipal Board did not want the said minutes to be placed either before the Special General Meeting held on 03.02.2018, which is one of the reasons to presume that the minutes was not immediately prepared and signed, but was prepared on 17.03.2018 to avoid it being disclosed to this Court when the W.P.(C) No. 3672/17 was being heard. It is also submitted that the Jorhat Municipal Board had withheld the information about their decision to extend the existing leases upto 31.03.2019 when this Court was hearing W.P.(C) No. 3672/17 and was disposed of by order dated 13.02.2018 and, as such, the direction by this Court to take steps in accordance with the Rules for issuing fresh NIT, which had attained finality is binding on them.
8) Moreover, it is submitted that the directions issued to the Jorhat Municipal Board vide order dated 13.02.2018 in W.P.(C) No. 3672/17, was not placed before the Director, Municipal Administration and, as such, the approval given by the said authority on 29.03.2018 is vitiated by non- disclosure of material facts, which would otherwise have a bearing on the decision making process by the said authority. It is submitted that there is no Page No.# 6/11 mention in the approval order by the Director of Municipal Administration that the order dated 13.02.2018 passed by this Court in W.P.(C) No. 3672/17 was brought to his notice, therefore, it is submitted that the approval of Director, Municipal Administration is non est in the eye of law.
9) Moreover, it is submitted that while in connection with W.P.(C) No. 2226/2017, the stand of the Jorhat Municipal Board in their affidavit- in- opposition was that the bid of Rs.17,09,500/- quoted by the respondent No.7 was exorbitant, the same authority by letter dated 31.03.2018 to the respondent No.7 had informed him about the extension of the lease upto 31.03.2019 at 1.50% higher than his previously quoted bid.
10) It is also submitted that the Rules for Procedure for the Sale of Pounds, etc., provides for tender, Rule 2 provides power to extend the period of settlement, but Section 148 of the Assam Municipal Act, 1956 only provides for market, but it does not provide for settlement of parking lot. Hence, it is submitted that as there is no Rule provided in the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam in respect of settlement of parking stand/ lot, there is no way that the period of settlement of parking lot can be validly extended and, as such, it is submitted that the use of word 'may' in the order dated 13.02.2018 passed by this Court in W.P.(C) No. 3672/2017 should be read as 'shall'.
11) Hence, it is submitted that the Jorhat Municipal Board has acted mala fide in the matter of extension of lease, and that by not tendering the lease by issuing NIT, it had favoured the respondent No.7 in the matter of allotment of state largesse.
12) The learned Senior Advocate appearing for the Jorhat Municipal Board had made his submissions in support of the extension of the lease of parking area under Jorhat Municipal Board. It is submitted that the extension was made at a higher rate than the previous lease rent and, as such, there is no financial loss to the Board. Moreover, it is submitted that the power to settle parking by the Jorhat Municipal Board is not under Page No.# 7/11 challenge and in the present writ petition, there is no plea that there is no power to extend the period of settlement of the lease. Hence, it is submitted that the submissions made by the learned Senior Advocate for the petitioner was beyond pleading. It is also submitted that the power to extend the period of lease was an independent act and therefore, in the absence of any prohibition by this Court, there was no restriction on power of the Jorhat Municipal Board to take a decision to extend the lease of the parking lot. In other words, it is submitted that there was hindrance on the power of the Board under Rule 2 of the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam, which was never curtailed. In this context, it is submitted that a specific stand had been taken in their affidavit - in - opposition that the Board had the power to extend the lease and that such power was exercised as per law. Moreover, it is submitted that in the present case all other similarly lessees are operating, save and except the lease under challenge. Hence, it is submitted that the challenge to the decision taken on 03.02.2018 by the Jorhat Municipal Board cannot survive without impleading all the lessees who might be affected if the decision taken on 03.02.2018 is interfered with by this Court.
14) The learned counsel for the respondent No. 7 has supported the decision by the Jorhat Municipal Board for extension of the lease. It is submitted that the present writ petition is not maintainable for non-joinder of necessary parties and in this regard it is submitted that the order of extension was applicable for sixteen existing lessees where terms were extended up to 31.03.2019. As the said decision by the Jorhat Municipal Board taken on 03.02.2018 was challenged, the extension of lease of the two and four wheeler parking lot cannot be singled out for challenge because if the said decision is interfered with, it would have the effect of dislodging other fifteen lessees, who are not the parties to this writ petition. The learned counsel for the respondent No.7 had submitted that the respondent No.7 had quoted a bid of Rs.17,09,500/- and the present extension of lease was granted with 1.5% increase in revenue. Referring to the judgment and order dated 05.05.2017, passed by this Court in WP (C) 2268/2017 (Minku Hazarika Vs. State of Assam & Ors.), it is submitted that there was a direction of this Court to the technical evaluation Committee of Jorhat Municipal Board to evaluate the bids by following the evaluation criteria notified in the tender Page No.# 8/11 document with due regard to the provisions of their relevant Rules and in the present case in hand, the settlement of parking lot to the respondent No.7 was challenged by the petitioner by filing WP(C) 3672/2017 and, as such, the order dated 13.02.2018, passed by this Court in the said writ petition constituted a fresh decision. It is also submitted that the Government had the power to relax and therefore, the direction contained in order dated 13.02.2018 in WP(C) 3672/2017 cannot be treated as a mandamus. It is also submitted that as Rule 2 of the Rules for Procedure for the Sale of Pounds and Markets by Municipal Board and Town Committees in Assam provided for power of the Municipal Board to extend the lease with previous approval of Director of Municipal Administration up to a period of two years, but not exceeding one year at a time, the order dated 13.02.2018 in WP(C) 3672/2017 cannot be constitute to be a mandamus debarring the Jorhat Municipal Board to follow Rule 2 of the aforesaid Rules.
15) It is further submitted that the action of the board was not mala fide and in this context, it is submitted that although mala fide the alleged in the writ petition, but when the concerned persons who had allegedly committed the malicious act have not been impleaded by name, there cannot be a presumption of a malicious act by the Board. By referring to the case of Union of India Vs. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453 , it is submitted that the powers conferred under Article 226 of the Constitution of India has designed to effectuate and to ensure that several authorities and instrumentalities of the State act in accordance with law and, as such, the said power cannot be invoked for directing the authorities not to exercise power in accordance with Rule 2 of the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam.
16) Having considered the submissions made by the learned Senior Counsel and counsel for all sides, this Court in the case of Sri Achintya Das Vs. State of Assam and Ors., WP(C) 5572/2016 and other analogous case decided on 15.02.2017, which was placed by the learned counsel for respondent No.7, it is seen that this Court while interpreting the scope of Section 148 (2) of the Assam Municipal Act, 1956 and the Rules for Procedure for the Sale of Page No.# 9/11 Pounds and Markets by Municipal Boards and Town Committees in Assam had held that though parking lot is not specifically mentioned in the rule, it is noticed that Section 148 speaks about parking lots and therefore, it will not be incongruous to hold that even for parking lot, NIT has to be issued by the same yardstick as in the case of pounds and markets. Under the circumstances, this Court is bound by the ratio laid down in the case of Sri Achintya Das (supra), where, it is held that the power to settle parking lots is also covered by the provisions of Section 148 of the Assam Municipal Act, 1956 and, as such, Jorhat Municipal Board, derive power and authority to settle the lease of parking lots and also have power under the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam and also to invoke the provisions of Rule 2 thereof.
17) It is seen that this Court while issuing notice of motion by order dated 09.04.2018 had formulated the following questions: whether in view of the order dated 13.02.2018, passed by this Court, it would be open for the Jorhat Municipal Board to grant order of extension?
18) In this context, it is seen that although the Jorhat Municipal Board in the meeting of the Sub-Committee (Market) of Jorhat Municipal Board held on 24.01.2018 had taken a decision to prepare a proper NIT and the next meeting was defer to 27.07.2018, but the minutes, as annexed with this writ petition discloses that the same was prepared and signed on 17.03.2018. There appears to be no reason assigned as to why the said minutes of 24.01.2018 by the Sub- Committee (Market) was not placed in the Special General Meeting of Jorhat Municipal Board held on 03.02.2018. This Court would presume that the minutes was never placed before the Special General Meeting held on 03.02.2018 as the minutes of proceedings dated 03.02.2018 does not refer to the said decision. Moreover, there appears to be no reason assigned by the Jorhat Municipal Board that why the minutes of Special General Meeting held on 03.02.2018 could not be placed before this Court in connection with WP(C) 3672/2017. Under the circumstances, this Court had issued a specific directions by order dated 13.02.2018 that after the completion of the period of settlement, the Jorhat Municipal Board may take appropriate steps in accordance with rules by issuing fresh NIT, the order of Page No.# 10/11 this Court dated 13.02.2018 in WP(C) 3672/2017 would override the decision taken by the Jorhat Municipal Board in the Special General Meeting held on 03.02.2018.
19) Accordingly, this Court is inclined to accept the submissions made by the learned Senior counsel for the petitioner that the approval by the Director of Municipal Administration, Assam was without the order by this Court in WP(C) 3672/2017, having not been placed before it, the decision by the Director of Municipal Administration in form of approval given on 29.03.2018 is held to be vitiated by non-disclosure of material facts because the said order does not disclose anything about the order dated 13.02.2018, passed by this Court in WP(C) 3672/2017. In the present case in hand, this is not a case where this Court is placing any feters on the powers of the Jorhat Municipal Board to exercise its power and authority to act in accordance with Rule 2 of the Rules for Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam, but this is a case where this Court had issued a direction contained in order dated 13.02.2018 to take appropriate steps for settlement in accordance with the extant Rules for issuing fresh NIT and, as such, it was open to the Jorhat Municipal Board to apply before this Court for modification of the said order and if they desired to act to the contrary. However, when the said order dated 13.02.2018, passed by this Court in WP(C) 3672/2017 had attained finality, it was not open to the Jorhat Municipal Board to ignore the order of this Court and to proceed in furtherance to their resolution taken on 03.02.2018 in the Special General Meeting held on 03.02.2018.
20) Under the circumstances, notwithstanding the use of "may" in the order dated 13.02.2018, as the Jorhat Municipal Board and all other concerned authorities had permitted the order dated 13.02.2018, passed by this Court in WP(C) 3672/2017 to attain finality, it is not open to the Jorhat Municipal Board to ignore the said order dated 13.02.2018, passed by this Court to proceed with the extension of the lease of the parking lot to the respondent No.7. Hence, the submission made by the learned counsel for the respondent No.7 that the word "may" appearing in order dated 13.02.2018 should not be constitute to be read as "shall", cannot be accepted in this case in hand.
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21) In view of the discussion above, this Court is inclined to allow this writ petition by partly setting aside the decision dated 03.02.2018 taken by the Jorhat Municipal Board in the Special General Meeting insofar as it relates to only to the extension of lease of two and four wheeler parking lots in favour of the respondent No.7, without interfering with the said decision in respect of extension of other leases as the present challenge only relates to the two and four wheeler parking lots. Consequently, the order under Memo No. 9790 dated 31.03.2018 for extension of lease to the respondent No.7 only in respect of the parking lot for two and four wheeler is set aside without interfering with the extension of lease insofar as several other lease settlements are concerned. Resultantly, the approval by the Director of Municipal Administration, Assam vide letter under Memo No. DMA 49/2005/Pt-1/361 dated 29.03.2018 is partly set aside only with regard to the extension of lease for the parking area for the period 2018-19 without interfering with the same in respect of extension of other leases.
22) Before parting with the records, this Court would like to clarify that this order in the present writ petition is confined to the extension of settlement of the parking lot for two and four wheeler to the respondent No.7 and as this Court has only interfered with the said lease alone, in the opinion of this Court, the present writ petition does not suffer from bias of non- joinder of necessary parties.
23) The Jorhat Municipal Board shall now pass consequential orders to settle the "Two Wheeler and Four Wheeler Parking Lot under Jorhat Municipal Board" by way of NIT.
JUDGE Comparing Assistant