Allahabad High Court
President, Nagar Palika Parishad, ... vs State Of U.P. Thru Prin. Secy. Urban ... on 15 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2407
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 25966 of 2019 Petitioner :- President, Nagar Palika Parishad, Sultanpur, Babita Jiaswal Respondent :- State Of U.P. Thru Prin. Secy. Urban Devpt. & Ors. Counsel for Petitioner :- Virendra Mishra Counsel for Respondent :- C.S.C.,Ashutosh Mishra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
(1) Heard Sri Virendra Mishra, learned counsel for the petitioner and Sri H.A.B. Sinha, learned Standing Counsel for respondent nos. 1 to 4.
(2) At the outset, it would be relevant to mention that earlier the petitioner has filed a writ petition, bearing No. 24902 of 2019 (M/B): President, Nagar Palika Parishad, Sultanpur Vs. State of U.P. and others, which was dismissed as not pressed with liberty to file a fresh petition on the same cause of action vide order dated 12.9.2019 on the ground that relevant documents have not been annexed with the aforesaid writ petition.
(3) After passing the order dated 12.9.2019 (supra), a resolution has been passed by the Nagar Palika Parishad, Sultanpur, authorizing the President to challenge the order dated 02.09.2019 passed by the respondent no.3 and the order dated 14.09.2018 passed by the respondent no.2 by filing a fresh petition before this Court. Therefore, Babita Jaiswal, being the President of the Nagar Palika Parishad, Sultanpur, has filed the present writ petition.
(4) By this writ petition under Article 226 of the Constitution of India, the petitioner, President, Nagar Palika Parishad, Sultanpur Babita Jaiswal, is praying for quashment of the order dated 02.09.2019, whereby directions have been issued by the District Magistrate, Sultanpur to the Executive Officer, Nagar Palika Parishad, Sultanpur to conduct fresh proceedings for registration/renewal of Contractors in Nagar Palika Parishad, Sultanpur after publication of the notification in newspaper for the financial year 2019-20 so that the orders dated 16.3.2016 and 18.3.2016 passed by this Court as well as Government Order dated 14.9.2018 be complied with. The petitioner is also assailing the Government Order dated 14.9.2019 passed by the State Government, granting approval to the proposal submitted by the State Government to the extent of cancelling the bye-laws published on 24.9.1994 relating to registration of Contractors in Nagar Palika Parishad, Sultanpur.
(5) By means of public notice dated 23.05.2018, Nagar Palika Pairshad, Sultanpur invited applications for registration/renewal of Contractors for financial year 2018-2019. On 5.7.2018, list of registered/renewed Contractors of Nagar Palika Parishad, Sultanpur for financial year 2018-2019 has been declared after making due consideration on each applications. Thereafter, on 23.08.2018, 29.08.2018 and 01.09.2018, tender notices were published for works relating to construction and condition was also imposed to maintain the quality of work.
(6) The aforesaid public notice dated 23.5.2018 and declaration of list of registered/renewal of Contractors of Nagar Palika Parishad dated 5.7.2018 were challenged by M/s Indian Constructions, M/s Praveen Construction, M/s Asmeer Traders, M/s R.S. Enterprises, Mohammad Nasir Siddiqi, M/s Kashish Enterprises and M/s Gomti Construction, by filing a writ petition, bearing No. 26158 of 2018 (M/B) : M/s Indian Constructions and others Vs. State of U.P. and others, wherein a Co-ordinate Bench of this Court, vide judgment and order dated 12.09.2018, has disposed of the aforesaid writ petition by passing the following order :
"Heard learned Counsel for the petitioners, Sri Siddharth Dhaon, learned Additional Chief Standing Counsel and Sri Virendra Mishra, learned Counsel representing respondent Nos.5, 6 and 7.
Insofar as respondent Nos.8 to 23 are concerned, their interest would be well-protected in the directions issued by us, as such we are not issuing notices to them.
The limited relief pressed before us by the learned Counsel for the petitioners is that the petitioners' representations dated 02.06.2018 and 28.05.2018 to the Collector, Sultanpur, filed as Annexure - 5 to the petition, which are said to be still pending, may be decided within a fixed time-frame.
Considering the facts and circumstances of the case, we dispose of this petition with a direction to the respondent No.4 to take an appropriate decision, on the pending request of the petitioners, referred to above, strictly in accordance with law, after affording due opportunity of hearing to the parties concerned, within a period of four weeks from the date of production of a certified copy of this order."
(7) Grievance of the petitioner is that in spite of the aforesaid order dated 12.09.2018, the State Government, vide order dated 14.9.2018, approved the reference made by the District Magistrate Sultanpur dated 30.7.2018, whereby the District Magistrate, Sultanpur, requested from the State Government to conduct fresh proceedings for registration/renewal of Contractors after publication of the notification inviting applications for registration in newspaper and further requested to cancel the bye-laws dated 24.09.1994 with immediate effect.
(8) It has been stated that on 24.9.1994, the State of Uttar Pradesh published by-laws for Nagar Palika Parishad, Sultanpur for registration of Contractors and for execution of work.
(9) After passing the order by the State Government dated 14.9.2018, the petitioner has filed a representation dated 15.9.2018 before the District Magistrate, Sultanpur. The Additional District Magistrate (Finance & Revenue), Sultanpur, vide communication dated 15.9.2018, informed the Executive Officer, Nagar Palika Parisahd, Sultanpur with regard to the order of approval of reference of the State Government dated 14.9.2018 as well as the reference of the District Magistrate, Sultanpur dated 30.07.2018 and directed to conduct fresh proceedings for registration/renewal of contractors in Nagar Palika Parishad, Sulntpuar with certain conditions.
(10) On 15.9.2018, the Executive Officer, Nagar Palika Pairshad, Sultanpur was also directed that fresh renewal/registration process should be made and condition of person being resident of Sultanpur should not be imposed. His contention is that the Additional District Magistrate (Finance & Revenue), Sultanpur has no right to direct the Executive Officer, Nagar Palika, Parishad, Sultanpur to cancel its bye-laws, which has been published on 14.09.1994. Further, the impugned order dated 14.9.2018 has been passed without giving opportunity of hearing to the petitioner and without complying with the procedure prescribed under Section 301-A of the Uttar Pradesh Municipalities Act, 1916.
(11) It has been alleged that for financial year 2019-20, on 28.05.2019, notice regarding renewal of Contractors have been done and list of renewed Contractors have been prepared and on 22.06.2019, Contractors have got there certificate. On 22.07.2019, tenders and e-tenders have been invited by Nagar Palika Parishad, Sultanpur. Tenders have been applied after completing all formalities and also bids were submitted but the same has not been finalized.
(12) Learned counsel for the petitioner has submitted that the District Magistrate has no authority under law to interfere in the matter and pass the impugned order dated 2.9.2019 (Annexure No.3 to the writ petition). He has submitted that it is only in circumstances enumerated under Section 34 of the Uttar Pradesh Municipalties Act, 1916 that the District Magistrate can interfere but in the present case, the said circumstances do not exist and, as such, the orders passed by the District Magistrate is wholly without jurisdiction and are liable to be quashed.
(13) Elaborating his submission, learned counsel for the petitioner has submitted that the powers, authority and responsibility of municipalities have been defined in Article 243W of the Constitution of India. Twelfth Schedule of the Constitution provides for such duties, which are to be performed by the municipalities, the Nagar Palika Parishad, Sultanpur but the respondents are interfering in the functioning of Nagar Palika Parishad, Sultanpur, which cannot be done by them as they have no jurisdiction to pass an orders beyond their jurisdiction. In these backgrounds, he prays that impugned orders be quashed.
(14) A counter affidavit has been filed on behalf of respondent nos. 3 and 4. As per counter affidavit, vide letter dated 30.7.2018, proposal was sent by the District Magistrate, Sultanpur to the State Government to the extent that the condition of registration/renewal of Contractors should not be confined to the urban area and the bye-laws relating to that (published on 24.9.1994) should be cancelled. The State Government, vide order dated 14.9.2018, approved the proposal. Section 34 of the U.P. Municipalities Act, 1916 (hereinafter referred to as "Act, 1916") provides that the State Government or the Prescribed Authority or the District Magistrate have power to prohibit execution or further execution of resolution or order of municipality. Section 34(1A) of the Act, 1916 envisages the conditions under which the District Magistrate can exercise power, whereas Section 34 (1B) of the Act, 1916 envisages the conditions under which the State Government can exercise the power.
(15) Learned Standing Counsel has submitted that impugned orders dated 2.9.2019 and 14.9.2018 clearly indicates that the conditions enumerated in Section 34 (1A) and 34 (1B) of the Act, 1916 was existing for exercise of powers by the District Magistrate as well as by the State Government. Therefore, it cannot be said that the impugned orders are wholly without jurisdiction or the District Magistrate is not competent to pass the aforesaid impugned orders.
(16) In respect of bye-laws, the stand of the respondent nos. 3 and 4 in the counter affidavit is that the bye-laws (Annexure 10 to the writ petition) providing for registration and execution of works and the same was published under Section 300 of the Act, 1916 inviting objections, which is the previous publication under Section 300 of the Act, 1916. However, the bye-laws in question was never published in the official gazette as required under Section 301 of the Act, 1916. Thus, the bye-laws in question cannot be said to have any effect in view of the fact that it has never been published in the official gazette as required under Section 301 (2) of the Act, 1916.
(17) Learned Standing Counsel has contended that Section 300 (1) of Act, 1916 specifically provides that the power of the State Government to make rules or regulations under this Chapter, which is subject to the condition of the rules and regulations being made after previous publication and of their not taking effect until they have been published in the official gazette. The bye-laws in question was never published in the official gazette and, therefore, has no effect and is in fact redundant.
(18) Learned Standing Counsel has further contended that while registration/renewal of the contractors for the financial year 2019-20, no notification was published in the newspapers inviting applications for registration which is gross irregularity and speaks of the state of affairs of the Nagar Palika Parishad.
(19) Learned Standing Counsel has next contended that in earlier round of litigation i.e. writ petition No. 5431 (M/B) of 2016 decided on 16.3.2016 and writ petition No. 5868 (M/B) of 2016, decided on 18.3.2016, a statement was made by the counsel for the Nagar Palika Parishad that the condition with respect to the territorial restriction on issuance of solvency certificate by the Nagar Palika Parishad, has been modified and the word 'regulated area' has also now been included which not only in respect of any commercial activity relating to the Nagar Palika Parishad but also in relation to all such general matters relating to contracts, tenders etc. by the Nagar Palika Parishad. The orders dated 16.3.2016 (supra) and 18.3.2016 (supra) reads as under :-
"Order dated 16.3.2016 :
Heard Sri Satish Chandra Shukla, learned counsel for the petitioner and Sri Sanjay Tripathi, learned counsel for the respondent nos. 2,3 and 4 as well as learned Standing Counsel for the respondent no.1.
This petition has been filed praying for quashing the publication dated 26.02.2016 and 28.02.2016 contending that the territorial restriction placed on issuance of solvency certificate by the respondent-Nagar Palika Parishad adversely affects the petitioner, on account of her residence being at the border of the limits as prescribed by the respondents by limiting it only to the urban area.
Today when the matter was taken up, Sri Sanjay Tripathi learned counsel for the Nagar Palika Parishad states on the basis of instructions received that the said condition has been modified and the word "regulated area" has also now been included which redresses the grievance of the petitioner, not only in respect of any commercial activity relating to the Nagar Palika Parishad involved in the present writ petition but also in relation to all such general matters relating to contracts, tenders etc. by the respondent-Nagar Palika Parishad.
The aforesaid statement of Sri Sanjay Tripathi, therefore categorically now redresses the grievance of the petitioner and the petitioner according to Sri Sanjay Tripathi has been permitted now to apply and her application will be considered for grant of solvency certificate. Consequently, we dispose of this writ petition, keeping in view the aforesaid submission made by the learned counsel for the respondents.
Sri Tripathi may inform about this orders to respondent-Nagar Palika Parishad."
Order Dated : 18.3.2016 "Heard Sri Satish Chandra Shukla, learned counsel for the petitioner and Sri Sanjay Tripathi, learned counsel for the respondent nos. 2,3 and 4 as well as learned Standing Counsel for the respondent no.1.
This petition has been filed praying for quashing the publication dated 26.02.2016 and 28.02.2016 contending that the territorial restriction placed on issuance of solvency certificate by the respondent-Nagar Palika Parishad adversely affects the petitioner, on account of her residence being at the border of the limits as prescribed by the respondents by limiting it only to the urban area.
Today when the matter was taken up, Sri Sanjay Tripathi learned counsel for the Nagar Palika Parishad states on the basis of instructions received that the said condition has been modified and the word "regulated area" has also now been included which redresses the grievance of the petitioner, not only in respect of any commercial activity relating to the Nagar Palika Parishad involved in the present writ petition but also in relation to all such general matters relating to contracts, tenders etc. by the respondent-Nagar Palika Parishad.
The aforesaid statement of Sri Sanjay Tripathi, therefore categorically now redresses the grievance of the petitioner and the petitioner according to Sri Sanjay Tripathi has been permitted now to apply and her application will be considered for grant of solvency certificate. Consequently, we dispose of this writ petition, keeping in view the aforesaid submission made by the learned counsel for the respondents.
Sri Tripathi may inform about this orders to respondent-Nagar Palika Parishad."
(20) It has been pointed out that Sri Ashutosh Mishra, Advocate, has filed an application for preliminary objection (C.M. Application No. 112406 of 2019 as well as application for intervention/ impleadment (C.M. Application No. 112873 of 2019) on behalf of applicants. In the aforesaid applications, it has been stated that the applicants are the Corporators of the Municipal Board, Sultanpur and all the initiatives and actions have been taken by the authorities on the representation raised by the applicants. On 14.9.2019, the petitioner had called an emergency board meeting of the Corporators on 16.9.2019 and a resolution has been passed by means of which the petitioner has been illegally authorized to file the present writ petition. According to the applicants, resolution dated 16.9.2019 has been prohibited vide order dated 19.9.2019, therefore, the present writ petitioner has no right to file the present petition. Further, the impugned order dated 2.9.2019 has been passed for compliance of the order dated 16.3.2016 (supra) and 18.3.2016 (supra) passed by this Court and order dated 14.9.2018 passed by the respondent no.2 but without disclosing the orders dated 16.3.2016 (supra) and 18.3.2016), the present writ petition has been filed by the petitioner.
(21) It has also been asserted by the applicants in the aforesaid applications that on complaints made by the applicants and other Corporators to the State Government, an inquiry was conducted by a five member committee and a report has been submitted to the District Magistrate on 12.10.2018, wherein the petitioner was found guilty. For taking action on such report, a writ petition, bearing No. 870 of 2019 (M/B) : Smt. Manju Singh Vs. State of U.P. and others, has been filed, which was disposed of vide judgment and order dated 9.5.2019 with a direction to the State Government that after receiving the reply from the private respondents therein and affording opportunity to respondent nos. 5 and 6 therein, the matter may be decided expeditiously without granting unnecessary time to the respondent nos. 5 and 6, in accordance with law.
(22) Applicants have also stated in the aforesaid applications that a show cause notice dated 2.5.2019 has also been issued to the petitioner by the State Government but the petitioner has not submitted her reply in response to the show cause notice dated 2.5.2019. According to them, the petitioner has neither brought on record the facts of issuance of show cause notice dated 2.5.2019 nor the order passed by this Court dated 9.5.2019 (supra). Furthermore, the applicants have not been impleaded as respondents. In these backgrounds, applicants prays that the writ petition is liable to be dismissed.
(23) In order to appreciate the rival submissions of the learned counsel for the parties, it would be appropriate to reproduce Section 34 and 301 of the Act, 1916, which reads as under :-
"34. Power of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution or further execution of resolution or order of [Municipality]. - (1) [The Prescribed Authority may], by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee [if in its opinion] such resolution or order is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed [* * *] and may prohibit the doing or continuance by any person of any act in pursuance for or under cover of such resolution or order.
[(1-A) The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order.
[(1-B) the State Government may, on its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee, if in its opinion such resolution or order is prejudicial to the public interest, [or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force,] and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.] [(2) Where an order is made under sub-section (1) or (1-A)] [* * *], a copy thereof with a statement of the reasons for making it, shall forthwith be forwarded by the Prescribed Authority or the District Magistrate through the Prescribed Authority, as the case may be, to the State Government which may thereupon, if it thinks fit, rescind or modify the order.] (3) [* * *] (4) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1), (1-A) or (1-B) and continuing in force, it shall be the duty of the [Municipality], if so required by the authority making the order under the said sub-sections to take any action which it would have been entitled to take, if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under cover of the resolution or order of which the further execution is prohibited."
301. Regulations and bye-laws to be published. - (1) The power of the municipality to make bye-laws under Section 298 shall be subject to the condition of the bye-laws being made after previous publication.
(2) The regulations made under Section 297 and U.P. Primary Education Act, 1919 and the bye-laws made under Section 298 shall be published in the Official Gazette.] 301A. State Government may modify or repeal bye-laws. - (1) If, at any time, it appears to the State Government that any bye-law should be modified or repealed either wholly or in part, it shall cause its reasons for such opinion to be communicated to the municipality and prescribe reasonable period within which the municipality may make any representation with regard thereto which it shall think fit.
(2) After receipt and consideration of any such representation or, if in the meantime no such representation is received, after the expiry of the prescribed period, the State Government may at any time, by notification in the Official Gazette, modify, or repeal such bye-law either wholly or in part.
(3) The modification or repeal of a bye-law under sub-section (2) shall take effect from the date of the publication of the notification in the Official Gazette.]"
(24) From a bare reading of said Section 34, it is clear that the District Magistrate has power to interfere with only such resolutions or orders of the Nagar Palika Parishad if the same are likely to cause or tend to cause 'obstruction, annoyance or injury to the public......' or 'danger to human life, health or safety or a riot or affray'. Awarding a contract in favour of a person cannot be matter, which may cause obstruction, annoyance or injury to the public or danger to human life, health or safety etc. Even directions to make payment with regard to contract given by the Nagar Palika Parishad or execution of resolutions passed by the Nagar Palika Parishad, which include cleaning of drains and repairing of roads etc. also would not fall in the category of cases enumerated under Section 34 of the Act under which the District Magistrate can invoke the powers under Section 34 of the Act.
(25) The Constitution of India as well as the Uttar Pradesh Municipalities Act, 1916 envisage that the Nagar Palika Parishads are to work independently and carry on the functions and duties, which it is obliged in law to perform. Interference by the District Magistrate or the State Government would only be permissible if the circumstances enumerated under Section 34 of the Act prevail.
(26) The bye-laws dated 24.09.1994, as annexed with the writ petition as Annexure no.10, providing for registration and execution of works was published under Section 301 of the Act, 1916 inviting objections which is the previous publication envisaged under Section 300 of the Act, 1916. In the counter affidavit, it has been stated that the bye-laws in question was never published in the official gazette as required under Section 301 of the Act, 1916. This fact is not correct. The previous publication as envisaged under the aforesaid provision has been complied with and publication was made in the official Gazette inviting objections/suggestions from the general public. The State has failed proved that thereafter no final publication was made in the Official Gazette under Section 301 (2) of the Act, 1916.
(27) In our considered opinion, the power, which has been exercised by the District Magistrate in the present case, would not fall within the ambit of provisions of Section 34 of the Act. The members of the Nagar Palika Parishad are duly elected and interference by the executive would only be to the extent permissible in law. Since we are of the opinion that the orders passed by the District Magistrate are outside the purview of the provisions of Section 34 of the Act, 1916 and the learned Standing Counsel has not placed any other provision of law under which the District Magistrate could have passed the said orders, which clearly interfere with the functioning of the Nagar Palika Parishad, the said orders would be liable to be quashed.
(28) Be that as it may, if any statutory dictate provides for the State Government to take appropriate decisions after complying the provisions of Section 34 and 301 of the Act, 1916. Interference by the District Magistrate or the State Government will only be permissible if the circumstances enumerated in the aforesaid provisions have been complied with. Here, such circumstances as enumerated in the aforesaid provisions has not been complied with while passing the order dated 2.9.2019.
(29) Considering the aforesaid, we allow the writ petition and quash the orders dated 14.9.2018 and 2.9.2019 passed by the respondent nos. 2 and 3, respectively. However, we may only mention that the State Government or any other authority provided in law shall have liberty to proceed against the petitioner-Nagar Palika Parishad in accordance with law, if, after following the prodedure as provided in the Act, 1916, it is found that the Nagar Palika Parishad is misusing the funds or not performing its duties prescribed in law or contravening any provision of law.
(Irshad Ali, J.) (Pankaj Kumar Jaiswal, J.)
Order Date :- 15.10.2019
Ajit/-