Zila Panchayat Balrampur Throu ... vs Commissioner Devi Patan Division ...
2015 Latest Caselaw 3518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 4
 

 
Case :- MISC. BENCH No. - 7716 of 2015
 
Petitioner :- Zila Panchayat Balrampur Throu Its Chairperson
 
Respondent :- Commissioner Devi Patan Division Gonda And Another
 
Counsel for Petitioner :- Mohd.Aslam Khan,Atul Kumar Singh,Ripu Daman Shahi
 
Counsel for Respondent :- C.S.C.,Prashant Kumar
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Attau Rahman Masoodi,J.

Heard Sri Mohd. Arif Khan, learned Senior Counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel III for the State.

Supplementary counter affidavit filed on behalf of respondent no. 2, is taken on record.

This petition has been filed by a democratically elected local body Zila Panchayat, Balrampur through its Chairperson, Smt. Huma Rizwan assailing the order dated 23.09.2015 as well as the orders dated 08.08.2015 and 10.08.2015 whereby the tender proceedings for the purpose of execution of certain work pursuant to a resolution passed by the Zila Panchayat have been annulled by the District Magistrate/Collector, Balrampur on the ground of irregularities with a further direction to re-invite tenders as stipulated therein.

The matter had been heard earlier by us and the learned Counsel for the State had been called upon to file an appropriate affidavit relating to any further developments in the matter.

Today an affidavit has been filed in compliance of our earlier order dated 27.10.2015 bringing on record the order dated 26.10.2015 whereby the impugned order dated 23.09.2015 has been annulled and withdrawan. The affidavit has been taken on record. Thus one of the main reliefs claimed by the petitioner stands exhausted with the withdrawal of the said order.

Sri Mohd. Arif Khan, learned Senior Counsel for the petitioner, however vehemently urges that withdrawal of the said order does not suffice inasmuch as the second respondent namely Collector / District Magistrate, Balrampur has malafidely exercised powers by restraining the opening of tenders and as such the orders date 08.08.2015 and 10.08.2015 staying the tender process also deserves to be quashed, keeping in view the nature of the withdrawal order dated 26.10.2015 that in a guarded way proposes an action to be taken by the learned Commissioner.

While proceeding with the matter, we called upon the learned Counsel to address the Court on the availability of the powers with the District Magistrate and the Prescribed Authority as contemplated under Sections 225 and 228 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 to resolve the jurisdictional issue. It appears realising the impact of the same, the second respondent passed the withdrawal order dated 26.10.2015.

Learned Additional Chief Standing Counsel for the respondent-State relied upon a Division Bench judgment in the case of Smt. Gajala Chaudhary vs. State of U.P. and others rendered in Writ Petition No. 9505 (M/B) of 2014, on 23.09.2014 to contend that the said Division Bench judgment clearly indicates the powers being available to the District Magistrate and as such the contention raised on behalf of the petitioner does not conform to the aforesaid legal proposition as laid down in the said judgment.

She also submits that even otherwise the present writ petition has become academic and as a matter of fact has become infructuous with the withdrawal of the impugned order dated 23.09.2015.

It is on this issue that we have to consider the rival submissions as to whether the District Magistrate possessed any such power for restraining the opening of tenders as has been attempted through the impugned communications dated 08.08.2015 and 10.08.2015 that have not been withdrawn by her.

The background in which the dispute arose appears to be the availability of a huge amount of funds for the Zila Panchayat from the State Finance Commission through the communication dated 27.02.2015. The Zila Panchayat had already passed resolution nos. 4 and 5 on 27.12.2014 for utilization of the grants that were proposed to be made available to the Zila Panchayat for seventy eight projects. Part of the grant was utilized on being approved after following the due process of tender and award of contracts. For the other projects, the tenders and contracts are stated to have been approved by the Chairman where after an advertisement was published in two local newspapers as well as other newspapers of repute inviting tenders / bids. Permission was sought from the competent authority through proper channel namely the Chief Development Officer and during this period a query was made by the respondent no. 2 i.e. the Collector in relation to publishing of such tenders and award of contracts.

The petitioner urges that even before any reply could be submitted to the query, the District Magistrate passed an order sitting in office on a second Saturday i.e. 08.08.2015, that is officially not a working day, alleging that she had received some complaints that the funds are to be misutilized for award of such contracts which have already being executed by adopting dubious methods of splitting the amount of such contracts. She therefore imposed a restraint on the opening of the tenders through the order dated 08.08.2015 and 10.08.2015, appointing a three member committee to enquire into the said allegations.

A three member committee was accordingly appointed to make a fact finding inquiry with regard to the said process having been adopted upon which the matter was inquired into and a report is said to have been submitted. It is in this background that the Upper Mukhya Adhikari sent a letter dated 10.08.2015 stopping the entire tender process pursuant to the impugned orders of the District Magistrate.

A representation was filed by the Chairperson alleging that this was being done on account of an alleged political rivalry and personal malice, as the Chairperson had contested the election against Sri Rakesh Yadav, son of a minister in the State Government Sri S.P. Yadav and, therefore, in order to impede the functioning and carrying out of the execution work of the Zila Panchayat, this method was adopted and the District Magistrate / Collector surrendered her jurisdiction in favour of such persons so as to annul the aforesaid tender process.

This writ petition was filed and an interim order for holding the tenders in custody was passed by the Division Bench that had entertained the writ petition on 01.09.2015. The petition proceeded on the aforesaid allegations and affidavits were exchanged. When the matter appeared before us, upon hearing, learned Counsel and the Court were faced with the question with regard to the availability of the power with the District Magistrate to proceed in the matter as indicated in our order dated 15.10.2015. It is in the said light that the matter was heard by us and the questions so arising were framed to be answered vide our order dated 27.10.2015.

It is in the aforesaid context that the matter now remains alive for consideration, as the powers of the District Magistrate to intervene and stay the tender process that was an outcome of the resolution dated 27.12.2014 is still surviving for challenge. The reason is that while withdrawing the order dated 23.09.2015 on 26.10.2015, the District Magistrate / Collector has proceeded to make further recommendations to the Commissioner of the division who is the Prescribed Authority to take appropriate action in the matter and has left the orders dated 08.08.2015 and 10.08.2015 intact.

Sri Mohd. Arif Khan, learned Senior Counsel submits, in our opinion rightly so, that in the said background the matter does not remain merely academic on the issue involved as to whether the District Magistrate continues to have the power to either restrain the tender process or even make a recommendation to the Commissioner for taking any appropriate action in exercise of powers under Section 225 or Section 228 of the Act.

Before we deal with this matter it would be appropriate to first consider the impact of the Division Bench judgment in the case of Smt. Gajala Chaudhary (supra), where the Court has proceeded to presume that the power under Section 228 of the Act can be exercised by the District Magistrate / Collector as well. With all due respect to the ratio of the Division Bench judgment the same is not an authority for the proposition involved herein as what we find is that neither the comparative assessment of Section 225 and Section 228 of the Act relating to the specific scope and powers of the Collector / District Magistrate and that of the Prescribed Authority have been taken into consideration, nor the distinction of the status of the two authorities have been noticed or discussed as they appear to have neither been pointed out nor does it appear to have been a matter of debate or consideration.

The Prescribed Authority as under Section 225 and 228 of the Act is an authority as defined under Section 2 (20) of the 1961 Act, the same is reproduced below:-

(20) "Prescribed Authority" means any person or authority notified by the State Government in the Gazettee as prescribed authority for any purpose under this Act;

Thus the District Magistrate and the Prescribed Authority are not interchangeable synonymous terms or a substitute for each other. They enjoy concurrent powers under Section 225 but under Section 228 the powers to be exercised are exclusively vested in the Prescribed Authority only and not in the District Magistrate. This distinction is clearly evident from the notification dated 13.02.1963 that has been placed on record which categorically notifies the Prescribed Authority to be a Commissioner who is a higher authority than the District Magistrate / Collector. This statutory notification has completely gone unnoticed in the Division Bench judgment of Smt. Gajala Chaudhary (supra). The question before us is as to whether the judgment at all applies in this case on account of such an omission in the judgment viz-a-viz the aforesaid provisions.

Sri Khan, learned Senior Counsel for the petitioner, submits that it would not be necessary to refer the matter, as, the per incuriam rule is clearly attracted and the said Division Bench decision, therefore, cannot be treated to be a binding precedent. Sri Khan relied upon on three judgments for the said proposition. The first is in the case of State of U.P. & another vs. M/s Synthetics and Chemical Ltd. & another reported in JT 1991 (3) 268 and also reported in (1991) 4 SCC 139 and the other judgment is by the full Bench of this Court reported in 2008 (26) LCD 987 in the case of Tuples Educational Society and another versus State of U.P. and another. Another decision of a full Bench of this Court reported in 2013 (96) ALR 872 in the case of Arun Kumar Singh and others vs. State of U.P. and others has also been placed before us.

Learned Counsel has invited the attention of the Court to paragraphs 19 to 27 of the case reported in Arun Kumar Singh (supra) and urged that applying the principles that have been consistently followed in the aforesaid decisions, the Division Bench judgment in the case of Smt. Gajala Chaudhary (supra) is per incuriam. With due and respectful deference to the judgment in Smt. Gajala's case, we are inclined to accept the said arguments of Sri Khan having noticed the provisions discussed herein above. The Division Bench judgment in the case of Smt. Gajala Chaudhary (supra) does not apply on the facts of this case as also because it completely omits to notice the distinction between the powers of the Prescribed Authority and the District Magistrate as well as the notification dated 13.02.1963.

The question as to whether the District Magistrate / Collector enjoys the power to restrain the opening of the tenders is still a hurdle. Section 225 of the 1961 Act is extracted here under:-

225. Powers of inspections, etc. of prescribed authority or District Magistrate over Parishad.

(1) The prescribed authority or the District Magistrate may, with the limits of its or his jurisdiction or district, as the case may be -

(a) inspect, or cause to be inspected, any movable property used or occupied by a Zila Panchayat or any Committee or joint Committee thereof, or any work in progress under the direction of any of them;

(b) by order in writing call for and inspection a book or documents in the possession or under the control of a Zila Panchayat or any Committee or joint Committee thereof;

(c) by order in writing require a Zila Panchayat, or any Committee or joint Committee thereof to furnish such statements, accounts, reports (including monthly reports of progress) or copies of documents, relating to its proceedings or duties as he thinks fit to call for; and

(d) record in writing, for the consideration of Zila Panchayat, or any Committee or joint Committee thereof any observations he thinks proper in regard to its proceedings or duties.

(2) Every officer appointed by the State Government in this behalf may, within the limits of this jurisdiction, exercise, the powers conferred upon the prescribed authority or District Magistrate by sub-section (1) in respect of any matter affecting his department and may inspect or cause to be inspected, the administration of a Zila Panchayat in respect of such matter."

A perusal of the said provisions clearly indicates the scope and extent of the powers of the District Magistrate who can upon assessment after inspection of such matters as are mentioned therein, record his opinion in writing and call upon the Zila Panchayat to consider the same for rectification of any such act which may require to be done in accordance with law.

The said powers of the District Magistrate are supervisory in nature but at the same time when it comes to interfering with any incorrect exercise of power by the Zila Panchayat then the controlling authority is the Prescribed Authority under Section 228, which is extracted hereunder:-

"228 Powers of Prescribed authority to suspended action under the Act-

(1) The prescribed authority may, within the limits of its jurisdiction by order in writing, prohibits the execution or further execution of a resolution or order passed or made under this or any other enactment by a Zila Panchayat, or Committee of a Zila Panchayat, or a joint committee, or servant of a Zila Panchayat or a Committee, if in its opinion such resolution or order is patently illegal or ultra vires or inconsistent with any order or direction given by the State Government under this Act or is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body or person lawfully employed, or 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.

(2) Where an order is made under sub-section (1) a copy thereof, with a statement of the reasons for making it, shall forthwith be forwarded by the prescribed authority to the State Government which may, after calling for an explanation from the Zila Panchayat and considering the explanation, if any, made by it, rescind, modify or confirm the order.

(3) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1) and continuing in force, it shall be the duty of the Zila Panchayat or the Committee of the Zila Panchayat or the joint committee or any officer or Servant of the Zila Panchayat or of the Committee of the Zila Panchayat or of the joint committee, if so required by the authority making the order under the said sub-section, 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."

Thus there is a clear distinction between the scope and powers of the Prescribed Authority and the District Magistrate viz aforesaid two sections. The aforesaid issue also does not appear to have been either argued or dealt with in the Division Bench judgment in the case of Smt. Gajala Chaudhary (supra). The Commissioner only has the power to annul the action taken by the Zila Panchayat in his capacity as the Prescribed Auhoritiy. There is yet another reason for the same, namely, the Zila Panchayat is a democratically elected local body constituted under the statute and the resolution passed by the Zila Panchayat is an expression of the will of the elected representatives of the public large at the district level. In such a situation the control over Zila Panchayat obviously was intended to be by an authority higher than the District Magistrate / Collector and it is for this reason that the Commissioner was notified as the Prescribed Authority by virtue of a notification.

The said control for annulling a resolution passed by the Zila Panchayat is thus in terms of the aforesaid statutory provisions where the Collector does not appear to have any role to play. If that is the position, then in that event, if the Collector / District Magistrate does not have the power to exercise any such authority as envisaged under Section 228, then the authority to pass an interim order is also out of question inasmuch as what cannot be permitted to be done directly, cannot also be permitted to be done indirectly. The Collector neither has the power to pass final orders nor can the same be done by virtue of an interim direction.

We are, therefore, of the opinion for the aforesaid reasons that the District Magistrate / Collector could not have exercised powers for restraining the Zila Panchayat from opening of the tenders pursuant to the resolution dated 27.12.2014 nor could the said resolution have been declared to be illegal. Thus the same also suffers from malice in law.

The third question is that can the Collector/District Magistrate be said to be a toothless tiger even if the Zila Panchayat transgresses the norms within which it is entitled to function.

It is here that we may observe that the power to inspect and to indicate in writing for the consideration of Zila Panchayat under Section 225 comes into play. The District Magistrate / Collector, therefore, in our opinion if arrives at the conclusion that the Zila Panchayat has acted deviantly he / she can always make its recommendations to the Commissioner for taking an appropriate action if the Zila Panchayat does not respond to the recommendations made by the District Magistrate as per the provisions of Section 225 of the 1961 Act.

This in our opinion, would be a purposive interpretation of the powers available in the hands of the Collector / District Magistrate in order to supervise the functioning of the Zila Panchayat and make such recommendations to the Zila Panchayat that may be necessary for discharge of its obligations under the 1961 Act.

The District Magistrate also has emergency powers for urgent work as per Section 229 but such powers nowhere clothe him / her with powers of Section 228 which are exclusively with the Prescribed Authority who under the notification is the Commissioner.

Consequently for all the aforesaid reasons, the District Magistrate / Collector on the basis of any material that may be relevant for consideration of Commissioner for exercise powers under Section 228 can make such recommendations for an independent assessment . This can also be preceded by a preliminary fact finding enquiry.

Sri Khan, learned counsel contends that in the instant case, this is the second round of harassing the petitioner as in the previous year the Zila Panchayat had been harassed in a same fashion and the repeated action is malafide. He further submits that so far as setting up of a three member committee is concerned by the Collector even that committee has not adversely reported against the petitioner. Thus there was no material for the Collector to make any recommendations to the Commissioner as has now been done under the communication dated 26.10.2015. In our opinion it is upon the Commissioner to take an independent decision if there is no adverse material against the petitioner.

We, therefore, allow this petition and we also strike down the orders dated 08.08.2015 and 10.08.2015 passed by the Collector restraining the Zila Panchayat from opening of the tenders. This should not be construed as the tenders being approved by us and shall however be subject to any action which may be taken by the Commissioner in exercise of the powers under Section 228 of the 1961 Act or any other provisions under the Act if permissible without prejudice to the rights of the Zila Panchayat and its authorities to take appropriate lawful steps in respect of the tenders. The tenders shall be forthwith handed over to the Executive Officer of the Zila Panchayat that is in the custody of a Magistrate as per the orders of this Court.

The writ petition is allowed.

Order Date :- 28.10.2015

I.A. Siddiqui