Union Territory Of J&K And Anr vs Zakir Hussain
2021 Latest Caselaw 1571 j&K

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU


                                              Pronounced on:- 01.12.2021


                                             LPA No. 73/2021
                                             CM No. 5734/2021


Union Territory of J&K and Anr.                   .....Appellant(s)/Petitioner(s)



                      Through: Mr. S.S. Nanda, Sr. AAG.


                 Vs


Zakir Hussain                                                ..... Respondent(s)


                      Through: Mr. Aditya Gupta, Advocate.


Coram:    HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
          HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                   ORDER

Per:-Thakur-J

1. The present Letters Patent Appeal has been preferred against the

judgment and order dated 17.05.2021, whereby the writ petition filed by the

petitioner-respondent herein was allowed and the impugned order dated

10.04.2021 passed by the Director, Urban Local Bodies, Jammu, disqualifying

the respondent/petitioner as a member of the Municipal Committee, Basohli

was set aside.

Briefly stated the material facts are as under:-

2. The respondent came to be elected as a member of the Municipal

Committee, Basohli. The Executive Engineer, PW(R&B) Division Basohli vide

e-NIT No. 32 of 2020-21 dated 28.09.2020 invited bids from eligible

contractors, inter alia, for construction of lane, drain and retention wall in

Ward No. 12 Basohli for an estimate cost of Rs. 3.43 lacs. The work was

subsequently allotted in favour of the respondent vide Allotment Order No.

6406-13 dated 18.01.2021. The said order is purported to be one issued on

behalf of the Lt. Governor of the Union Territory of J&K. Subsequently, upon

the execution of the work by the respondent and the matter having been

brought to the notice of the Director Urban Local Bodies, Jammu, that the

respondent had obtained a contract for execution of work within the

municipal limits, a show cause notice was served upon the respondent to

show cause as to why he should not be disqualified as a member of Municipal

Committee, Basohli, from Ward No. 10.The said show cause notice was

replied, primarily, on the ground that the work executed by him had not been

allotted by the Municipality. Finally, not being satisfied with the explanation

rendered, the Director, Local Bodies by virtue of order dated 10.04.2021,

exercised powers under Section 16(2)(ii) of the Jammu and Kashmir

Municipal Act, 2000 (hereinafter referred to as the "Act of 2000") and

disqualified the petitioner as such member from the Municipal Committee,

Basohli. This order was challenged by the respondent before the Writ Court

by way of writ petition bearing WP(C) No. 767/2021, which came to be

allowed vide judgment and order dated 17.05.2021, which is impugned in the

present appeal.

3. The basis of allowing the aforesaid writ petition and quashing of the

order dated 10.04.2021, primarily, rest on the following grounds:-

(i) That the e-NIT issued by the Executive Engineer,

PW(R&B) Division, Basohli dated 28.09.2020 did not

make a reference to Municipal Committee, Basohli nor

was the same purported to have been issued for

execution of works for the Municipal Committee, Basohli.

(ii) That the e-NIT was issued by the Executive Engineer,

PW(R&B) Division, Basohli for and on behalf of the

Lt. Governor of the UT of Jammu and Kashmir and the

allotment order dated 18.01.2021 further reflected that

the work was allotted to the respondent/petitioner for

and on behalf of the Lt. Governor of the UT of Jammu

and Kashmir without any reference to the Municipal

Committee, Basohli.

(iii) That it was difficult to establish any privity of contract

between the respondent/petitioner and the Municipal

Committee, Basohli qua execution of the work in question.

4. Since Section 16(1) of the Act of 2000 has been invoked for

purposes of disqualification of the respondent/petitioner, it is necessary to

reproduce the same.

16. Disqualification

(1) A person shall be disqualified for being chosen as and for being an officer bearer of a municipality,-

          (a)       ..............................

          (b)       .............................

          (c)       .............................

          (d)       ..............................

Explanation.-For the purposes of this clause, the expression "beneficiary" shall include the spouse and legal heirs of the encroacher; or

(e) ..........................

         (f)    ..........................

         (g)    ..........................

         (h)    if he is in the employment or service under any
                 municipality or of any other local authority or
                 Co-operative Society or the State Government or

Central Government or any Public Sector Undertaking under the control of the Central or the State Government;

Explanation.-For the purposes of this clause the expression "service" or "employment" shall include persons appointed, engaged, or employed on whole time, part time, casual, daily or contract basis; or

(j) if, save as hereinafter provided, he has directly or indirectly any share or interest in any work done by an order of a municipality, or in any contract or employment with, or under or by, or on behalf of the municipality; or

5. Two issues arise for consideration at this stage. Firstly, whether

Section 16 of the Act of 2000, at all, applies to the respondent, who has been

elected as a member of the Municipal Committee, Basohli and whether an

elected member by virtue of his election is also an office bearer in the

Municipality and secondly, whether in executing any contract within the

municipal limits of Municipal Committee, Basohli, Clause (j) of Section 16 (1)

of the Act of 2000 would be attracted, i.e., whether the respondent would be

liable for disqualification, inasmuch as, he could be said to be having directly

or iindirectly any share or interest in any work done by an order of a

municipality, or in any contract or employment with, or under or by, or on

behalf of the municipality.

6. Insofar as first proposition is concerned, the learned Single Judge

dealt with the issue in the following manner:-

".....7.I am not sure whether a member of the Municipal Committee/Municipal Council constituted under the Act is an office bearer or the term "officer bearer" only refers to Chairman and Vice Chairman of the Municipal Committee/Municipal Council. If the term "office bearer" of a Municipality is restricted to the elected office bearers like Chairman and Vice Chairman of the Municipal Committee/Council, then perhaps there would be no provision under the Act laying down disqualification for being chosen as and for being a member of the Municipality.

8. I am not entering into this debate for the simple reason that no such point has been agitated before me in this petition. It is, however, an issue, which needs to be looked into by the respondents, so that appropriate remedial measures are taken by the competent authority to avoid any future dispute or complications. Reference in this regard is invited to Article 243-V of the Constitution of India, which clearly provides for disqualification for being chosen as and for being a member of the municipality without any reference to the office bearer of the municipality."

7. Even when according to the judgment, the issue had not been

agitated before the Writ Court, learned counsel for the respondent/petitioner

did raise the issue during the course of the present Letters Patent Appeal that

provisions of Section 16 of the Act of 2000 could not have been invoked for

purposes of disqualifying an elected member and that the said provision was

applicable only in the case of those elected members, who are holding office

like a Chairman or Vice Chairman in the Municipal Committee/Council.

8. The Act of 2000 does not specifically define as to who is an "office

bearer", however, Section 13 of the Act of 2000 envisages the "term of

office" of the elected member to be five years from the date appointed for the

first meeting of the municipality.

9. Section 15 of the Act of 2000 deals with the resignation of a

member of municipality, while Section 16 deals with the disqualification for

being „chosen as‟ and for "being an office bearer" of a municipality.

10. Section 17 of the Act of 2000 envisages a bar for a member to hold

more than one office and prescribes that any person, who is chosen as a

member of a municipality becomes inter-alia a Member of the House of the

People, the Council of States, the State Legislative Assembly, then at the

expiration of a period of fifteen days from the date of publication of the

election result or as the case may be within fifteen days from the date of the

commencement of term of the new office, his seat in a municipality shall

become vacant unless he has previously resigned his seat in the House of

People, the Council of States.............., as the case may be.

11. According to the Oxford Dictionary, an "office bearer" is a person

who holds an office. "Office" is, in turn, defined as „performance of a task‟. A

duty attached to a person‟s position or employment; a person‟s business,

function or part; duty towards others; a moral obligation.

Thus, there appears to be little difference between the „holder of an

office‟ or an „office bearer‟ in the scheme of things.

12. Applying the definitions according to the English Dictionary in the

absence of any specific definition of an officer bearer in the Act of 2000 and

considering the scheme of the Act, it would be safe to hold that during the

term of office of an elected member, such a member could be said to be an

office bearer of the municipality and could be disqualified, if he fell under any

of the clauses of Section 16(1)(a) to (o) of the Act of 2000.

The scheme of disqualification so provided has to be all

encompassing to include both the elected members and even those, who may

be holding additional responsibilities like those of the office of the Chairman

and Vice Chairman in the Municipal Committee. Any other interpretation

would defeat the very purpose of applying stringently the provisions of

disqualification to those holding additional responsibilities while condoning or

totally ignoring the same for the elected members.

13. In regard to the second issue as to whether Clause (j) of Section 16

(1) was applicable in the case of the petitioner or not, it can be been that the

contract in question was allotted, no doubt, pursuant to e-NIT issued by the

office of Executive Engineer, PW(R&B) Division Basohli and not directly to the

Municipal Committee, Basohli. Not only this, even the order of allotment in

favour of the respondent was issued by the Executive Engineer, PW(R&B)

Division, Basohli for and on behalf of the Lt. Governor of the UT of Jammu

and Kashmir, yet the fact remains that the works were executed for the

benefit of the Municipal Committee, Basohli within the territorial limits of the

Municipal Committee.

14. Section 57 of the Act of 2000 clearly prescribes that all property

within the municipal area would vest in and be under the control of the

Municipality. Any works executed within the municipal limits either by way of

construction of lanes, drains or retention walls, as had been allotted to the

respondent, would be an accretion to the property of the Municipal

Committee, Basohli. The decision to raise new construction within the

territorial limits of the Municipal Committee, or to effect repairs to existing

property situated within such territorial limits, would be a decision to be

taken by such said Municipal Committee. Any construction activity, therefore,

within such territorial limits would not be possible without the approval and

permission of the Municipal Committee, Basohli. All contracts allotted for

executing such works within the municipal territorial limits of the Committee,

would be for the benefit and on behalf of the Municipal Committee,

irrespective of whether the execution of the contracts were by the Municipal

Committee itself, through a contractor employed directly by such Municipal

Committee or through the involvement of another department like PW(R&B).

While the contract in question may not be a contract between the respondent

under the municipality, it can certainly be said to be a contract between the

respondent allotted by the PW(R&B) on behalf of the Municipality.

15. Record has been produced before the Court to show that it was the

Municipal Committee, Basohli, which had submitted the action plan under

Integrated Development for Medium Towns (IDMT) for the year 2020-21,

which, inter alia, contained a proposal for construction of the land and drain,

which became the subject matter of the allotment. Subsequently, the

proposal was processed for administrative approval and the administrative

approval was accorded by the Executive Officer, PW(R&B) Division, Basohli

vide Communication dated 28.09.2020. According to the administrative

approval, the work was to be taken up for execution, for which funds were to

be provided by the Director, Urban Local Bodies, Jammu. In the meantime,

the Government vide order No. 43-JK (HUD) of 2020 dated 04.02.2020

abolished the engineering wings of the Directorate of Urban Local Bodies of

Jammu and Directorate of Urban Local Bodies of Kashmir and ordered the

execution of civil works through respective divisions/sub-divisions of

PW(R&B) department. Basohli was one of the areas, which figured in the

annexure to the aforementioned Government order, where all works, which

were till then being executed through the engineering wings of the

Directorate of Urban Local Bodies would henceforth be executed through the

respective PW(R&B) department.

16. It would, thus, be clear that the proposal for execution of the work

was envisaged and approved by the Municipal Committee, Bosohli, while its

execution was a subject, which was entrusted to the government

department, which, in turn, floated tender, inviting bids from the eligible

contractors and finally allotted the contract to the respondent, who was an

elected member of the Municipal Committee, Basohli. The fact remains that

the entire work was executed for and on behalf of the Municipal Committee,

Basohli and none else.

17. The fact that the NIT, as also the letter of allotment was issued by

the Executive Engineer PW(R&B) department for and on behalf of the

Lt. Governor of the Union Territory of J&K was nothing, but a compliance to

the constitutional requirement of Article 299 of the Constitution of India,

which mandates all contracts made in the exercise of executive power of the

Union Territory or of a State shall be expressed to be made by the President

of India or by the Governor of the State, as the case may be. Expressing an

NIT or a letter of allotment to have been issued in the name of the Lt.

Governor would, therefore, not dilute the rigour of disqualification, as

prescribed under Section 16(1)(j) of the Act of 2000.

19. Be that as it may, we are of the opinion that the order dated

10.04.2021 passed by the Director, Urban Local Bodies, Jammu was legally

valid. Consequently, the judgment and order impugned dated 17.05.2021 is

set aside.

20. Appeal is, accordingly, disposed of, along with connected CM.

                     (Puneet Gupta)                (Dhiraj Singh Thakur)
                         Judge                              Judge
Jammu
01.12.2021
Ram Krishan

                                 Whether the judgment is speaking?   Yes/No
                                 Whether the judgment is reportable? Yes/No