Andhra HC (Pre-Telangana)
Kakinada Municipal Contractors ... vs Collector, Kakinada, East Godavari ... on 19 December, 2000
Equivalent citations: 2001(1)ALD293, 2001(1)ALT318
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT
1. Kakinada Municipal Contractors Sankshema Sangham represented by its President, Dhulipudi Mohana Rao, who is a contractor, filed this writ petition in a representative capacity for safeguarding and protecting the interests of the contractors of Municipal Council of Kakinada, which is having 108 members, though he did not give their particulars, it is stated that all of them have registered as contractors with the Municipal Council of Kakinada, aggrieved by the resolution passed by the Municipal Council to execute the drainage work through Department, the present writ petition was filed to issue a writ of mandamus declaring the action of the first respondent in deciding and directing that the construction of the drainage work from Recharlapeta Railway Gate to Salt Creek Railway Gate on the Railway Property along the Railway line in Kakinada Municipality to be carried out departmentally and the respondents 2 and 3 following the said direction and adopting the Resolution No.410 dated 25-10-2000 and their action in carrying out the aforesaid work departmentally, as illegal, null and void and without jurisdiction and to consequentially direct the respondents to invite tenders for the aforesaid work and entrust the work to the eligible contractors after due selection of the members of the petitioner's association and to pass such other orders which are deemed fit and proper in the circumstances of the case.
2. The main grievance of the petitioner herein is that the second and the third respondents are not acting as per the provisions of the A.P. Municipalities Act, 1965 and the Rules framed thereunder and various bye-laws and Government Orders issued from time to time. The members of petitioner Association have registered their names as contractors with the second respondent - Municipal Council to execute the works depending upon the estimated value of the works as Class I to Class IV, after payment of necessary fee prescribed by the Government. The petitioners Contractors Sangham is registered with the second respondent and after election of the Municipal Council, new body assumed charge and with a view to deprive the petitioners from executing contracts, adopted a policy decision to execute the municipal works through Department, which action of the second respondent is detrimental to the interests of the petitioners Sangham.
3. The petitioners alleged that in pursuance of the above decision of the Municipal Council to execute the municipal works departmentally, some important works viz., maintenance of Municipal Travellers Bungalow and maintenance of Municipal Office were undertaken through Department eliminating the contractors. Similarly, the works of construction of drainage is also decided to be executed departmentally. In this connection, it is submitted that the Municipal Council has decided to construct storm water drain on 17-5-1999 for the purpose of protecting the health of the residents and the proposed drain was to be constructed from Railway gate at Sambamurthy Nagar to Recherlapeta Railway Gate and also upto Sarvaraya Textiles and Salt Creak, that the original cost was estimated at Rs.70.00 lakhs and the estimate was later increased to Rs.107.48 lakhs. Accordingly, a meeting was held on 25-10-2000 under the Chairmanship of the 3rd respondent. It is further submitted that the first respondent - District Collector, herein has conducted meeting with all officers, some of the Councillors and contractors who supplied the material for construction of the drain which includes the quarry contractors and sand suppliers, etc. In that meeting, the first respondent has directed that the works should be divided into three parts for the purpose of convenience and should be executed only through Department, and the matter was finally discussed on that day and the second respondent Municipality has adopted Resolution No.410 in the meeting held on 25-10-2000 accepting the proposals made by the first respondent and directed execution of the work through the Department.
4. Aggrieved by the above-said decision taken "in the above-said meeting convened by the first respondent and directing the Municipality to get the works executed departmentally and dividing it into three parts, the present writ petition is filed.
5. It is the further allegation of the petitioner that the above said decision was taken by the respondents with a view to eliminate all the contractors by benefiting the underlings of the third respondent and also to certain officials by asking them to engage private contractors and labourers. It is further contended that the above decision of the Municipal Council in passing the Resolution as directed by the District Collector is nothing but abdicating the functions and powers to the District Collector, which is illegal and without jurisdiction and it will cause loss to the contractors, who are registered with the 2nd respondent.
6. The main thrust of the arguments of the learned Counsel for the petitioners is that the Municipal Council is acting at the dictates of the District Collector to split the work into three parts, further undertaking to do the work Departmentally will cause loss to the contractors, who registered with the second respondent. The Municipal Council has not acted independently as per the provisions of the Act and, thus, abdicated their powers to the District Collector. Therefore, the entire action of the second respondent is in utter violation of the provisions of the Municipalities Act, 1965. Therefore, it has to be held illegal and in their interest, the writ petition has to be allowed.
7. On the other hand, the respondent No.2 filed counter-affidavit denying the allegations made by the petitioners. It is further stated that the Municipal Council has executed the work in both ways i.e., by calling tenders and also by executing departmentally, depending upon the urgency and necessity of work, as per the rules in force. It is further stated that the Municipal Council has resolved to construct a storm water drain from Sambamurthy Nagar Railway Gate to Salt Creak Railway Gate at disposal point for the purpose of protecting 70,000 people covering 7 Municipal Wards residing along the Kutcha drain with the funds available in Building Regularisation Scheme (BRS) Account, that after thorough inspection by the Municipal Engineer and Superintending Engineer, Public Health, it has been decided to take up the construction in the land belonging to Railway Department from Racherlapeta Railway Gate by extending the length of drain than proposed earlier where kutcha drain starts to Salt Creek. Accordingly the estimates were revised from Rs. 70.68 lakhs to Rs. 107.48 lakhs and the railways authorities were requested to accord permission for construction of the above-said drain. It is further stated that in the presence of local Member of Parliament, Member of Legislative Assembly, Chairperson of the Municipal Council, the 3rd respondent, ward members and officials of the Municipality including suppliers/contractors of various items including the members of petitioner sangham the final decision was taken to execute the work departmentally, that the petitioners who have participated in the meeting and extended their consent, cannot now turn down and say that the decision taken by the respondents is illegal and contrary to law.
8. It is also submitted that earlier the petitioner sangham filed writ petition 388 of 2000 when tenders were called for two drain works and the said writ petition was dismissed by this Court on 23-8-2000. The petitioners have initiated legal proceedings in order to delay the works, which are undertaken by the Municipal Council. The proposed works are executed by the Municipal Council through Department and also proposed Janmabhoomi works and NSDP. It is further submitted that then drain is proposed to be constructed with the Building Regularisation Funds and administrative sanction has to be accorded by the District Collector. It is further submitted that the Municipality has not abdicated its powers to the District Collector, but the Municipal Council after having elaborate discussion in the matter, came to the conclusion to execute the works departmentally. Therefore, it cannot be said that the decision taken by the Municipal Council is contrary to law and in violation of the provisions of A.P. Municipalities Act. On the other hand, if the petitioners have registered their names in the Municipal Council, as contractors, they have no right to claim that the works have to be entrusted to them.
9. To appraise the rival contentions raised on behalf of the petitioner and the respondents, let us have a glance of the provisions which have a bearing on the subject matter.
10. Chapter IV of the Act deals with the Controlling Authorities and their powers. Section 59 of the Act deals with the powers of the Government to cancel or suspend the resolutions, etc., passed by the Municipal Council; whereas Section 65 of the Act deals with the Government's power to undertake the work with the consent of the Council or on its behalf the construction of water supply, drainage or other works, appoint persons to carry out construction of such works and direct that the expenses including the pay of such persons be paid from the Municipal Fund and thereafter the provisions of sub-sections (3) and (4) of Section 64 shall apply and this action has to be initiated by the Government after consultation with the Council, constitute planning committees for any Municipality, consisting of such members as may be appointed by them for the purpose of preparing plans in respect of such developmental works as may be approved by the Government for execution within the Municipality; and the Council shall undertake all such works, the expenses incurred towards the planning committees, the preparation of plans and the execution of developmental works thereof shall be paid from the Municipal Fund.
11. Further Section 66 empowers the District Collector to enforce the execution of Resolutions etc., when it appears to him that the Chairperson or the Commissioner, has made default in carrying out any resolution of the Council, the said Collector shall, after giving the Chairperson or the Commissioner, as the case may be, a reasonable opportunity of explanation, send a report on such resolution together with the explanation if any received, to the Government at the same time forward a copy of the same to the Council, and the Government shall, as soon as may be, after the receipt of the report of the Collector, under sub-section (1) consider the same and the explanation, if any, received therewith and, if necessary, take action under sub-section (2) of Section 164.
12. Further Section 67 of the Act provides that the District Collector may enter on and inspect, or cause to be entered on and inspected, any immovable property or any work, in progress under the control of any Municipal Authority in his district - the District Collector may call for any document in the possession, or under the control, of any Council' or the Chairperson or the Commissioner; he may require any Council the Chairperson or the Commissioner to furnish any return, plan, estimate, statement, account or statistics; he may require any Council the Chairperson or the Commissioner to furnish any information or report on any Municipal matter and he may record in writing, for the consideration of the Council, the Chairperson or the Commissioner, any observations they or he may think proper in regard to its or his proceedings or duties.
13. Important section is Section 68 which deals with the Emergency powers of the District Collector. It envisages that the District Collector, may, in case of emergency, direct or provide for the execution of any work or the doing of any act which the Council or the Commissioner is empowered to execute or to do and the immediate execution or the doing of which is, in his opinion, necessary for the safety of the public and may direct that the expenses incurred for executing such work or doing such act, as the emergency may require, shall be paid from the Municipal fund.
14. Under Section 70 of the Act, the District Collector may suspend a resolution, order, licence, permission or act, as the case may be, if in his opinion, immediate action is necessary on any of the grounds referred to in clause (c) of sub-section (1) of Section 59, and report to the Government who may thereupon either record the Collector's order or, after giving the authority or person concerned a reasonable opportunity of explanation, direct that it shall continue in force with or without modification permanently or for such period as they think fit.
15. The Andhra Pradesh Municipalities (Municipal Works) Rules, 1967 deals with the preparation of plans and estimates of Municipal Works and the Andhra Pradesh Municipalities (Registration of Contractors) Rules, 1978 deals with the procedure for registration of contractors ith the Municipal Council as Class I, II, II and IV, depending upon the value of the works.
16. On a perusal of the abovesaid provisions, it is evident that its machinery is under the control of both the Government and the District Collector, in whose jurisdiction it is situated.
17. Apart from other provisions of the Act, Section 68 empowers the District Collector, in case of emergency, to direct or provide for execution of any work or the doing of any act which the Council or the Commissioner is empowered to execute or to do and the immediate execution or the doing of which, is, in his opinion, necessary for the safety of the public and may direct that the expenses incurred for executing such work or doing such act, as the emergency may require, shall be paid from the Municipal Fund; and if the expenses are not so paid, such Collector may make an order directing the person having the custody of the Municipal Fund to pay them in priority to any other charge against the funds. Every case, in which the powers conferred by this section are exercised shall be forthwith reported to the Government by the District Collector with the reasons in full, for the exercise of such powers; and a copy of the letter shall at the same time be sent to the Council for information.
18. As submitted by the Municipal Commissioner in his counter-affidavit, the work undertaken by the Municipal Council is the construction of storm water drain to safeguard the interests of as many as 70,000 people who are living on the side of kutcha drain and they have also taken consent of the Railway Department for construction of the drainage on their land. As per the provisions of the Act, both the Government and the District Collector are having control over the activities of the Municipal Council to the extent enumerated under those provisions. The District Collector who is having powers to supervise the records and activities of the Municipality, can give direction to the Municipal Council to execute the emergency works. It is also evident from the counter that the Collector has held meeting with the local Member of Parliament, Member of Legislative Assembly, Officials of the Municipality, members of the petitioner sangham, Municipal Councillors and directed the Municipal Council to split the work into three parts and execute the same through Department. Therefore, the Collector has got the power under Section 68 of the Act to direct the Municipal Council for execution of the emergent works like the instant one. It is also evident that for getting the works done departmentally, the Building Regularisation Funds are spent, the custodian of which is the District Collector. Evidently, while sanctioning the abovesaid funds for the construction of the drainage, certainly, the District Collector has to give guidelines to the Municipal Council. Therefore, it cannot be said that the Municipal Council has abdicated its powers to the District Collector and passed resolution at the dictate of the District Collector. Though the petitioners have registered their names as contractors with the second respondent, that does not confer any fundamental right to claim that the works should be entrusted to them, on the other hand, the Municipal Council has the option either to execute their works through contractors or through the Department, taking into consideration the financial position of the Municipal Council and to avoid the delay in execution of the emergency work like the construction of drainage, as the area is very often affected by cyclones, as it is situated on the banks of Bay of Bengal. Therefore, when the Municipal Council has taken a decision to execute the work departmentally, having regard to the financial implications on it, it cannot be held, at the instance of the petitioners, that the impugned decision is contrary to the provisions of the Municipalities Act, particularly when the District Collector has advised the Council how to execute the work in the interest of public without interfering with the autonomy of the Municipal Council - a local body, which has acted within the framework of the provisions of the Act. Therefore, this exercise cannot held to be abdication of the powers. Accordingly, I see no reasons to interfere with the decision taken by the Municipal Council through Resolution No. 410 dated 25-10-2000 to execute the works departmentally.
19. The writ petition accordingly fails and is dismissed. No costs.