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RAMESH KUMAR versus ADMINISTRATOR (D.M.) N.P. SAHARANPUR & ANOTHER

High Court of Judicature at Allahabad

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Ramesh Kumar v. Administrator (D.M.) N.P. Saharanpur & Another - WRIT - C No. - 29675 of 1992 [2007] RD-AH 15570 (14 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 29675 of 1992

Ramesh Kumar....Vs....Administrator (District Magistrate), Nagar Palika,

Saharanpur & another.

---------------

Hon'ble Anjani Kumar, J.

Hon'ble Sabhajeet Yadav,J.

By this petition, the petitioner has sought relief in the nature of writ of certiorari for quashing the communication order dated 27.6.1992 passed by Executive Officer, Nagar Palika, Saharanpur, contained in Annexure-4 of the writ petition, whereby the petitioner was communicated that the District Magistrate/Administrator of Nagar Palika, Saharanpur vide order dated 24.6.1992 has quashed the resolution no. 1818 dated 7.9.1991 in respect of allotment of Tube-well House No. 3 to the petitioner on hire-purchase basis.

2. The relief sought in the writ petition rests on fact that the Room of Old Pump House No. 3 situated at Gandhi Park in Saharanpur was initially allotted in the name of the wife of petitioner on 19.11.1984 and later on it was allotted in the name of the petitioner on 28.6.1989 on a monthly rent of Rs. 30/- and the petitioner alongwith his family is residing in the said house since 19.11.1984. It is stated that the petitioner is also employee of Nagar Palika, Saharanpur. Similarly Suresh Chandra Agrawal and Irfan Ahmad Shamsi are also residing in house Nos. 2 and 4 of the old Tube-well House and the petitioner alongwith Suresh Chandra Agrawal and Irfan Ahmad Shamsi made an application to the President Municipal Board, Saharanpur on 6.2.1991 to sell the aforesaid old three Tubewell houses on hire purchase to the petitioner and other two in the same way in which the houses at Chilkana Road in the Municipal Colony were sold and one instalment had already been paid by the residents of the Colony. The application aforesaid was recommended by most of the members of the Board. A true copy of the said application is enclosed as Annexure No.1 to the writ petition. The estimate of the aforesaid three old pump houses was called for and was prepared by the Junior Engineer of Municipal Board on the order of Municipal Engineer and was submitted on 12.3.1991. A true copy of the report is enclosed as Annexure no.2 to the writ petition. The President, Municipal Board, Saharanpur put the aforesaid matter before the House as resolution no. 1818 dated 7.9.1991. The said resolution was passed unanimously. A true copy of the resolution is enclosed as Annexure-3 to the writ petition. It was further stated in the writ petition that due to internal disturbances in the Municipal Board, Saharanpur, the Board was suspended in April, 1992 and the District Magistrate, Saharanpur was appointed Administrator of the Board under Section 30 of the U.P. Municipalities Act 1916, hereinafter called as the Act. According to the provision of the Act, all powers of the Board are vested in the Administrator. According to Section 94(6) of the Act if the aforesaid resolution dated 7.9.1991 was not cancelled or modified within 6 months, then thereafter on expiry of six months, the said resolution could not be cancelled; but the respondent no.1 without following the provisions of Section 94 cancelled the said resolution vide order dated 24.6.1992 after expiry of a period of more than six months from the date of the said resolution and the cancellation was communicated to the petitioner by respondent no.2 vide letter dated 27.6.1992. A true copy of the letter is enclosed as Annexure no.-4 to the writ petition. According to the petitioner, the respondent no.1 acted illegally in cancelling the resolution dated 7.9.1991 passed by duly constituted Board without following the procedure set forth in section 94(6)(i)(ii) of the Act and that too after expiry of a period of more than six months from the date of said resolution. The respondent no. 1 did not consider the case of the locality of Chilkana Road, Saharanpur who are also the similarly situated persons. Petitioner has been discriminated from them and denied the protection of Article 14 of the Constitution. The respondent no.1 acted erroneously in cancelling the resolution dated 7.9.1991, wherein the provisions of Section 34(I) (IA) and (IB) are not attracted.

3. Besides the averments made in the writ petition, the petitioner has also filed a supplementary affidavit in the writ petition in February 2003 but the copy of which is not on record, therefore, learned counsel for the petitioner was asked to supply a typed copy of the aforesaid supplementary affidavit dated 18.2.2003 and the same is made part of record. By this supplementary affidavit the petitioner has brought a copy of the order of District Magistrate, Saharanpur dated 24.6.1992 which was referred to in communication letter dated 27.6.1992 and in fact was not supplied to the petitioner along with the aforesaid communication letter dated 27.6.1992 of Executive Officer, Nagar Palika, Saharanpur. By this order dated 24.6.1992 the District Magistrate, Saharanpur purporting to act as Administrator Nagar Palika, Saharanpur has cancelled the resolution No.1818 dated 7.9.1991 whereby the allotment of Tube-well house Nos. 2, 3 and 4 were made to Sri Suresh Chandra Agrawal, Sri Ramesh Kumar (petitioner) and Sri Irgan Ahmad Shamsi and is marked as Annexure SA-1 to this supplementary affidavit. The petitioner has sought relief for quashing the order dated 24.6.1992 passed by Administrator Nagar Palika Saharanpur contained in Anneuxre SA-1 to this affidavit. In para 6 of this supplementary affidavit it is also stated that Nagar Palika Parishad, Saharanpur passed a resolution No.339 dated 265.1996 to the effect that price of land proposed to be sold may be the same which was fixed earlier, a copy of which is on record as Annexure SA-2 to this affidavit. Thereafter the petitioner has filed another supplementary affidavit, termed as second supplementary affidavit, whereby he has brought a Government Order dated 24.5.2000 contained as Annexure SA-1 to this affidavit. In para 3 and 4 of this supplementary affidavit it is stated that the Government has chalked out a policy and prescribed procedure for disposal of property of Nagar Palika Parishad on the basis of which the Director of the Local Bodies and all the District Magistrates and Divisional Commissioners and Chief Executive Officers of Nagar Nigam were directed to take action in accordance with the said procedure.

4. A detailed counter affidavit has been filed by Sri Badarul Zaman, Clerk in Nagar Palika Parishad, Saharanpur on behalf of Nagar Palika Parishad, Saharanpur, whereby the action taken by the respondents is sought to be justified. In para 3 of the counter affidavit it is stated that the contents of para 2 of the writ petition are not admitted as stated. Sri Suresh Chandra Agrawal has not been given possession till date in Tube-well House No.2 and is not residing there. The allotment in favour of Sri Irfan Ahmad Shamsi relates to Tube-well House No.2 which has been cancelled and proceeding under the Public Premises Eviction of Unauthorised Occupant Act are pending against him, however, Irfan Ahmad Shamsi has also preferred a writ petition in the High Court but no interim order has been passed in the said writ petition. In para 4 of the counter affidavit it is stated that the contents of para 3 of the writ petition are not admitted as stated. The true facts are that petitioner and other two employees of Nagar Palika Parishad, Saharanpur had moved a joint application on 6.2.1991for taking the accommodation on hire purchase. On this application, contrary to what has been stated in para under reply, there is no signature of any member of Nagar Palika Parishad, Saharanpur. The proposal of the Board for hire purchase of the Municipal Colony at Chilkana Road has been rescinded by the then Administrator. In para 6 of the counter affidavit it is stated that the Board was superseded in April 1992 and an Administrator was appointed. In para 8 of the counter affidavit the interpretation given by the petitioner in respect of provisions of Section 94(6) of the Act has been refuted and it is stated that resolution dated 7.9.1991 was not confirmed and it was cancelled by the letter dated 26.7.1992. In para 11 of the counter affidavit it is stated that by resolution dated 7.9.1991 it was proposed to allot on hire purchase basis the Municipal Colony at Chilkana Road to its occupants and in pursuance of said resolution one and two instalments were also accepted. Subsequently, Administrator cancelled the above resolution and the allotees were informed accordingly.

5. We have heard learned counsel for the parties and also perused the record.

6. Sri L.N. Pandey, learned counsel appearing for the petitioner has submitted that the Board of Municipality is empowered to transfer the property vested in it under Section 124 of the U.P. Municipalities Act and since the Board has passed resolution transferring the property in question in favour of petitioner on hire purchase basis and resolution passed by the Board has not been rescinded within a period of six months according to the procedure prescribed under Section 94(6) of the Act, therefore, the impugned order passed by the Administrator exercising the power of Board after expiry of six months from the date of resolution without observing the procedure, cannot be sustained.

7. In support of his submission learned counsel for the petitioner has also placed reliance upon a decision of Hon'ble Apex Court rendered in Municipal Board, Kannauj Vs. State of U.P. and others A.I.R. 1971 SC 2147, wherein the Hon'ble Apex Court was confronted with a controversy arisen under Section 34 (1-B) of the Act. The fact of the aforesaid case, in brief, was that the Executive Officer of Municipal Board, Kannauj dismissed 74 sweepers of Municipal Board, Kannauj from 9th April 1964 under Section 76 of the Act. It was alleged that the dismissal of the aforesaid sweepers was illegal and improper because the procedure prescribed under the Uttar Pradesh Municipal Karmachari Niamawali was not followed and they were not given opportunity of being heard. The State Government was of the opinion that the order dated 9th April 1964 passed by Executive Officer, Municipal Board, Kannauj was adverse to the public interest and order had been passed in definance of the rules of Uttar Pradesh, Municipal Karmachari Niamawali, accordingly the Governor of the Uttar Pradesh in exercise of power under Section 34 sub Section (1-B) of the Act prohibited the execution of aforesaid order dated 9th April 1964 and any act done by the person in pursuance of that order and continuance of that order. In the aforesaid factual backdrop of the case, the Hon'ble Apex Court has held that since the order of dismissal of employee of Municipality was self operative and nothing remained for execution or further execution which could be prohibited by the State Government under Section 34 of the Act, therefore, the action of the State Government prohibiting the execution of order of dismissal could not be sustained but the facts of the instant case are quite distinct and distinguishable from the aforesaid case. Here in this case the order has not been passed by the State Government or Prescribed Authority under Section 34 of the Act, rather it has been passed by Administrator on supersession of Municipality by virtue of Section 30/31 of the Act, therefore, the decision of the aforesaid case can be of no assistance to the case of the petitioner.

8. So far as another limb of the submission of learned counsel for the petitioner that resolution dated 7.9.1991 could not be cancelled by the Administrator after expiry of period of six months from the date of the resolution and that too without observing the procedure prescribed under Section 94(6) of the Act is concerned, it is to be pointed out that it is not in dispute that the Municipality was superseded under Section 30 of the Act in April 1992 and an Administrator was appointed to perform the functions, discharge the duties and exercise the powers of Municipality under the Act, therefore, we have to examine as to whether the action taken by Administrator is justified under the provisions of the Act or not?

9. In this connection for better appreciation of controversy we would extract the provisions of Sections 30, 31, 94 and 124 of the Act as under:-

" [30 Power of State Government to dissolve the municipality- If at any time the State Government is satisfied that a municipality persistently makes default in the performance of duties imposed upon it by or under this Act or any other law for the time being in force or exceeds or abuses more than once its powers, it may, after having given the municipality a reasonable opportunity to show cause why such order should not be made, by order, published, with the reasons therefor in the official Gazette, dissolve the municipality.]

[31-A- Consequences of dissolution of municipality:- Where a municipality is dissolved under Section 30, the following consequences shall follow:

(a) All members of the municipality including the President shall, on a date to be specified in the order, vacate their offices as such but without prejudice to their eligibility for re-election or re-nomination;

(b) Until the constitution of the new municipality-

(i) all powers, functions and duties of the municipality, its President and Committees shall be vested in and be exercised, performed and discharged by such person or persons as the State Government may appoint in that behalf and such person or persons, shall be deemed in law to be the municipality, the President or the Committee, as the occasion may require;

(ii) such salary and allowances of such person or persons as the State Government may by general or special order in that behalf of fix, shall be paid out of municipal fund;

(iii) the State Government may, from time to time, by notification in the official Gazette, make such incidental or consequential provisions, including provisions for adapting, altering or modifying any provisions of this Act, without affecting the substance, as may appear to it to be necessary or expedient for carrying out the purposes of this Section.]

"94. The minute book and resolution-: (1) The names of the members present, and the proceedings held and resolutions passed, at a meeting of a Municipality shall be entered in a book to be called the minute book.

(1-A) The Executive Officer or where there is no Executive Officer, the Secretary of the Municipality shall maintain a register of attendance of members and every member shall sign it before taking his seat at any meeting of the Municipality.

(2) The minutes shall be read out at the meeting or the next ensuing meeting and, unless objected to by a majority of such of the members, if any, present at the reading as were also present at the proceedings recorded in such minutes, shall be certified as passed by the signature or the President of the meeting at which they are read.]

(3) Every resolution passed by a Municipality at a meeting, shall, as soon thereafter as may be, [be published in Hindi in any paper approved by he State Government for purpose of publication of public notices, published in the district, or if there is no such paper, in the district, in the division, in which the municipality concerned is situate and where there is no such paper, be posted upon the notice boards of the municipal office and Collectorate Office for three consecutive days].

(4) Copies of every resolution passed by a Municipality at a meeting shall, within tend days from the date of the meeting, be forwarded to the [Prescribed Authority] and the District Magistrate.

(5) When, subsequent to action being taken in respect of any resolution under sub-section(3) or (4), but before the minutes recording the resolution are signed as required by sub-section (2), any alteration is made in the wording of such minutes, the alteration shall be notified by publication or communication to the [Prescribed Authority] and the District Magistrate, as the case may be.

(6) A resolution of a Municipality shall not be modified to cancelled within six months after the passing thereof-

(a) unless previous notice has been given setting forth fully the resolution which it is proposed to modify or cancel and the motion or proposition for the modification or cancellation of such resolution; and

(b) except by a resolution supported by not less than, one half of the total number of members of the Municipality for the time being."

"124. Power of Municipality to transfer property.- (1) Subject to any restriction imposed by or under this Act, a Municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the Municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer.

(2) Notwithstanding anything contained in sub-section (1), the Municipality may with the sanction of the State Government, transfer to Government, any property vested in the Municipality but not so as to affect any trust or public rights to which the property is subject.

(3) Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act."

10. From a plain reading of the provisions of Section 124 of the Act, it is clear that subject to any restriction imposed by or under the Act the Municipality is empowered to transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in it not being property held by it on any trust, the terms of which are inconsistent with the right to so transfer. Therefore, there can be no doubt about the power of Municipality to transfer the property vested in it if the property is not held by it on any trust, the terms of which are inconsistent with the right to transfer or the property in question could not be transferred otherwise on hire-purchase basis. In the counter affidavit filed on behalf of the respondents, there is nothing to indicate that the property in question was either held by the Municipality on any trust, the terms of which are inconsistent with the right to so transfer or the property in question was otherwise not transferable. Thus, there can be no difficulty in holding that the property in question could be transferred by the Municipality on hire purchase basis in favour of petitioner.

11. Under Section 31-A of the Act on dissolution of Municipality until new Municipality is constituted, all the powers, functions and duties of Municipality, its President and Committees are vested in and are to be exercised by the Administrator and in law shall be deemed to be of Municipality, its President and its Committees, as the occasion may arise. But so far as the provisions pertaining to the meeting of Municipality under the Chapter III of the Act which deals with the conduct of business of Municipality is concern, it is to be pointed out that on dissolution of Municipality, the members of the Municipality are liable to vacate their offices, without prejudice to their re-election or re-nomination, by virtue of Section 31-A of the Act, therefore, the provisions of Section 94 including sub-section (6) of Section 94 of the Act, as it stands, in our considered opinion, cannot be attracted but the Administrator can still exercise those powers which are vested in Municipality by substantially observing the provisions of the Act without holding any meeting of the Municipality for conducting the business of Municipality. Thus, a further question arises to be considered is that in case the Municipality would not have been dissolved or superseded, in that eventuality, as to whether it could cancel the resolution dated 7.9.1991 after expiry of a period of more than six months from the date of aforesaid resolution?

12. In this connection we may refer a decision of Hon'ble Apex Court rendered in Dr. D.C. Wadhawa and others Vs. State of Bihar and others A.I.R. 1987 S.C. 579, wherein it has been observed by the Hon'ble Apex Court that a constitutional authority cannot do indirectly what it is not permitted to do directly. The pertinent observations made in para 7 of the decision are as under:-

"7. .......... It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Mukharji, J. speaking for the Court in K.G. Gajapati Narayan Deo V. State of Orissa (1954)1 SCR1 : (AIR 1953 SC 375):

"In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method."

13. In view of aforesaid legal position, we have no hesitation to hold that the thing which could not be done by Municipality directly when it was in session, the same cannot be permitted to do indirectly also through the Administrator, thus, in view of the provisions of Section 94(6) of the Act since resolution passed earlier by Municipality could not be modified or cancelled by it on expiry of more than six months from the date of said resolution, therefore, in our considered opinion, the thing which could not be done by Municipality itself, the same could not be done by Administrator also while exercising the very same power of Municipality, otherwise it would be permitting the Administrator to exercise those powers indirectly which could not be exercised by the Municipality itself directly under the Act. Therefore, we have no hesitation to hold that the Administrator could also not cancel the said resolution after expiry of a period of more than six months from the date of said resolution. Accordingly, the order dated 24.6.1992 passed by the Administrator cancelling the resolution No.1818 dated 7.9.1991 passed by Municipality is beyond the scope of authority under law, thus without jurisdiction and cannot be sustained, therefore, the impugned order dated 24.6.1992 and 27.6.1992 are hereby quashed. In the result writ petition succeeds and is allowed.

14. There shall be no order as to costs.

Dt.14.09.2007

SL/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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