Zakir Hussain vs Union Territory Of J&K And Others
2021 Latest Caselaw 557 j&K

         IN THE HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                      (Through virtual mode)

                                             Reserved on : 06.05.2021
                                             Pronounced on :17.05.2021

                                           WP(C) No.767/2021
                                       CM Nos.3372/2021 & 3729/2021


Zakir Hussain                                               .... Petitioner(s)

                   Through: Mr. Aditya Gupta, Advocate
       Versus

Union Territory of J&K and others                         ......Respondent(s)

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

CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE



                               JUDGMENT

1. The petitioner claims that he is a registered PWD contractor of

Class-DEE for the purposes of executing civil works, which certificate was

issued in his favour in the year 2009-10 and is still in force. On 20.10.2018,

the petitioner was elected as member from Ward No.10 of Municipal

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

vide e-NIT 32 of 2020-21 dated 28.09.2020 invited tenders for and on behalf

of the Lt. Governor of the Union Territory of J&K for execution of six

different works, which included the construction of lane and drain and

R/Wall from the house of Ram Lal to the house of Baldev Raj at Ward

No.12, Basohli. The petitioner was found successful bidder and was,

accordingly, allotted the said work by the Executive Engineer concerned

vide allotment order No.6406-13 dated 18.01.2021. The allotment, too, was 2 WP(C) NO.767/2021

made in favour of the petitioner for and on behalf of the Lt. Governor of the

Union Territory.

2. The petitioner claims that he has executed the work allotted to

him to the satisfaction of the Executive Engineer concerned and there is no

dispute with regard to the execution of the aforesaid work. The grievance of

the petitioner, as projected in this petition, however, is that the respondent

No.2 vide his communication No.DULBJ/2021/2225-27 dated 30.03.2021

served upon the petitioner a show cause notice purportedly issued in terms

of Section 16 of the J&K Municipal Act, 2000 (hereinafter referred to as

"the Act"), calling upon the petitioner to show cause as to why he should not

be disqualified as member of Municipal Committee, Basohli from Ward

No.10 for having executed the construction work of lane and drain on behalf

of the Municipal Committee, Basohi.

3. The petitioner responded to the aforesaid show cause notice and

explained his position. He categorically denied having executed any work

for or on behalf of the Municipal Committee, Basohli. It is submitted by the

petitioner that the work, which he has executed, for which he has been

issued a show cause notice, was a work notified by the Public Works

Department for and on behalf of the Lt. Governor of the Union Territory of

J&K and not on behalf of the Municipal Committee, Basohli. Relying upon

the contents of the NIT issued by the Executive Engineer and letter of

allotment, the petitioner in his reply claimed that he has not executed any

work for and on behalf of the Municipal Committee, Basohli, as would

attract disqualification in terms of Section 16(1)(j) of the Act. Respondent

No.2 did not accept the explanation tendered by the petitioner and vide order 3 WP(C) NO.767/2021

No.207/DULB of 2021 dated 10.04.2021 disqualified the petitioner as

member from Ward No.10, Municipal Committee, Basohli. It is this order

the petitioner is aggrieved of and has challenged the same primarily on the

ground that disqualification in terms of Section 16(1)(j) is not attracted in

the case, for, the petitioner has not directly or indirectly any share or interest

in any work done by the order of Municipality nor has he executed any

contract under or on behalf of the Municipality. The work, which has been

made basis for his disqualification by respondent No.2 is the work executed

by the petitioner for and on behalf of Lt. Governor of the Union Territory of

J&K, which was notified through e-NIT by the Executive Engineer,

PW(R&B) Division, Basohli.

4. The respondents have contested the petition and have filed

detailed objections. In the objections filed by the respondents, it is claimed

that the work allotted to the petitioner by the Public Works Department was

a work under IDMT scheme for the year 2020-21 and, therefore, the

petitioner being a member of the Municipal Committee, Basohli could not

have executed the same without incurring disqualification under Section

16(1)(j) of the Act. It is, thus, submitted that the Executive Engineer,

PW(R&B) Division, Basohli was only the executing agency and the

aforesaid work was to be executed for and on behalf of the Municipal

Committee, Basohli. Reference has also been made to the action plan under

IDMT for the year 2020-21 formulated by the Municipal Committee,

Basohli wherein the work allotted to the petitioner for construction of lane

and drain and R/Wall from the house of Ram Lal to the House of Baldev

Raj, Ward No.12, Basohli has been included. It is, thus, submitted that the 4 WP(C) NO.767/2021

work, which the petitioner has executed, was the work of Municipal

Committee, Basohli and, therefore, by participating in the tendering, getting

the work allotted and by its execution the petitioner has incurred

disqualification to be a member of the Municipal Committee, Basohli.

5. During the course of arguments, Mr. S.S.Nanda, Sr. AAG

appearing for the respondents also placed strong reliance on Section 57 of

the Act to contend that all public sewers, drains, culverts and watercourses

in or under any public street, or constructed by or for the municipality

alongside any public street etc. are vested in the Municipality and, therefore,

any work executed in relation to the property of the Municipality is executed

for and on behalf of the Municipality. The petitioner being a member of the

Municipal Committee, Basohli should have been aware of this fact and

avoided to be engaged in the execution of any work pertaining to the

Municipal Committee, Basoli of which he was an elected member.

6. Having heard learned counsel for the parties and perused the

record, it is necessary to first set out Section 16(1)(j) of the Act, which is at

the core of controversy in the instant case. Section 16(1)(j) of the Act reads

thus:-

"16. Disqualification (1) A person shall be disqualified for being chosen as and for being an office bearer of a Municipality.-------

(a) xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx

(j) if, save as hereinafter provided, he has directly or indirectly any share or interest in any work done by an order 5 WP(C) NO.767/2021

of a municipality, or in any contract or employment with, or under or by, or on behalf of the municipality; or .............................................................."

7. From a bare reading of Section 16(1)(j) of the Act, it is clear

that a person shall be disqualified from being chosen as and for being an

office bearer of a municipality, if he incurs any of the disqualifications

enumerated in different clauses including Clause (j) of Sub Section (1) of

Section 16 of the Act. I am not sure whether a member of the Municipal

Committee/Municipal Council constituted under the Act is an office bearer

or the term "office 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 a 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.

9. Be that as it is, respondent No.2 in the instant case has invoked

Clause (j) of Sub Section 1 of Section 16 of the Act, which provides that a 6 WP(C) NO.767/2021

person who 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, shall be disqualified from

being chosen as and for being an office bearer of a Municipality. For our

purposes, we take a member of municipal committee also as an office

bearer. It is in light of this provision; the controversy raised in this petition is

required to be analyzed.

10. Admittedly, the e-NIT issued by the Executive Engineer,

PW(&B) Division, Basohli dated 28.09.2020 does not make any reference to

Municipal Committee, Basohli nor it is purported to have been issued for

execution of works of local bodies including the Municipal Committee,

Basohli. A bare reading of the e-NIT makes it abundantly clear that the NIT

was issued by the Executive Engineer concerned for and on behalf of the Lt.

Governor of the Union Territory of J&K. With regard to the position of

funds, the NIT indicates that the funds for the works are available under

CAPEX budget. Similarly, while making allotment of the work in favour of

the petitioner, the Executive Engineer concerned, in the allotment letter

dated 18.01.2021 has categorically mentioned that the work has been

allotted to the petitioner for and on behalf of Lt. Governor of Union

Territory of J&K. Again there is no reference to any local body including

Municipal Committee, Basohli.

11. In that view of the matter, there was absolutely no occasion for

the petitioner or for anybody else to know that the work in question was

actually part of the action plan of the Municipal Committee, Basohli and was

being executed through the agency of Public Works Department.

7 WP(C) NO.767/2021

12. From the documents on record and the reply affidavit filed by

the respondents, it is difficult to establish any privity of contract between the

petitioner and the Municipal Committee, Basohli qua the execution of the

work in question. It is, thus, difficult for this Court to come to a conclusion

that the work which was executed by the petitioner pursuant to the allotment

made by the Executive Engineer of Public Works (R&B) Department,

Basohli was by or on behalf of the Municipal Committee, Basohli.

13. The reliance placed by Mr. Nanda on Section 57 of the Act is

also of no avail to the respondents. It may be true that amongst various

properties vested in the Municipality, public sewers, lanes and drains within

municipal limits of the Municipality are vested in the municipality

concerned but that does not mean that no work within the municipal limits of

a particular municipality can be executed by the Govt through its other

agency/agencies. Without delving much into this collateral aspect, suffice it

to say that a democratically elected member of the municipality cannot be

disqualified and thrown out so casually.

14. The object of Section 16, particularly clause (j) of Sub Section

(1) is to ensure that the members of the municipality do not indulge in profit

making ventures connected with the municipal committee of which they are

member. The provision is intended to avoid clash of interests.

15. Viewed from any angle, the execution of work by the petitioner,

which was notified by the Public Works (Road & Building) Department for

and on behalf of the Lt. Governor of the Union Territory, cannot visit the

petitioner with his disqualification as a member of the municipal committee.

8 WP(C) NO.767/2021

16. In view of the aforesaid analysis, I find merit in this petition.

The same is, accordingly, allowed and the impugned order passed by

respondent No.2 is quashed.

(Sanjeev Kumar) Judge

JAMMU 17.05.2021 Vinod Whether the order is speaking: Yes Whether the order is reportable: Yes