Afr vs State Of Odisha And Others
2022 Latest Caselaw 1318 Ori

                       ORISSA HIGH COURT: CUTTACK

                           W.P.(C) No. 24940 of 2021

          In the matter of an application under Article 226 of the
          Constitution of India.
                                 ---------------

AFR Rama Chandra Mohapatra ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For Petitioner : M/s. Basudev Pujari and P.K. Sahoo, Advocates.

              For Opp. Parties :     Mr. A.K. Mishra,
                                     Addl. Government Advocate
                                     (Opp Parties 1 to 4, 6 & 8)

                                     Mr. O. P. Sahu, Advocate
                                     (Opp Parties 9 & 10)

          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON'BLE MR. JUSTICE V. NARASINGH

Date of hearing and judgment: 15.02.2022

DR. B.R. SARANGI, J. The petitioner, who is the Ex-Chairman of

Notified Area Council (NAC), Pipili and also a local

inhabitant, has filed this writ petition to quash the order

dated 31.05.2021 passed by opposite party no.4-

// 2 //

Collector-cum-District Magistrate, Puri in Annexure-5, by

which the Executive Officer, Pipili NAC was instructed not

to execute the projects sanctioned earlier in favour of him

and to refund Rs.237.50 lakh to the Project Director,

District Rural Development Agency (DRDA), Puri for re-

release of funds to B.D.O., Pipili for execution of the

projects. He further seeks to quash Annexure-10 series,

the work orders dated 02.07.2021 issued by opposite

party no.8-Block Development Officer, Pipili for execution

of various projects. He also seeks direction to opposite

party no.4 to pass an order to execute the works under

the list of Annexure-5 through line department, i.e.

Housing and Urban Development Department by e-

tendering process as per the Special Problem Funds (SPF)

guidelines under Annexure-2. The further prayer of the

petitioner is to direct opposite party nos. 4 and 5 to

execute the 94 numbers of projects through tender

process basing on the letters of the learned Advocate

General and opposite party no.1, based on the judgment

of this Court vide Annexure-9 series.

// 3 //

2. The background facts leading to filing of the

present writ petition, succinctly put, are as follows:-

2.1 For development of the inhabitants of NAC,

Pipili in the district of Puri, 94 numbers of development

works had been sanctioned by opposite party no.4 under

the Special Problem Funds (SPF) scheme. But due to the

by-election for the Pipili Assembly Constituency, model

code of conduct was imposed. As a consequence thereof,

execution of the works was stopped. Due to the death of a

candidate of a National Political Party, the election

process was deferred for indefinite period and the model

code of conduct was also withdrawn. For taking up small

and essential projects of local importance involving

special nature of problems, in the absence of which the

development process would remain incomplete, the

Government of Odisha had introduced a scheme styled as

Special Problem Funds in the year 1997-98.

2.2 The scheme aimed at taking up small and

essential projects of local importance involving special

nature of problems. The works were of the nature of // 4 //

providing missing links to the existing development

infrastructure as well as repair, modernization and

expansion works, particularly for the purposes of

improvement of existing educational institutions- both

Government as well as Private-, roads, culverts, bridges,

embankments, public religious places, cultural

organizations as well as construction of new projects

which would contribute to the overall development of

community and well being of the general public for which

funds are not available. The funds for the Scheme

"Special Problem Funds" were to be provided in the State

Plan Budget of the Planning and Coordination

Department in the form of grant-in-aid each year. The

rules and procedures laid down thereunder would be

applicable to sanction and utilization of funds under the

scheme provided in the State Budget from 2003-04 and

onwards.

2.3 After due approval and sanction from the

department of Planning and Convergence, Government of

Odisha for implementation of various approved projects // 5 //

under Special Problem Funds (SPF)-11th Phase during the

year 2020-21, the works were going to be executed within

NAC, Pipili. For approval from the Accountant General

(A&E) Odisha, Bhubaneswar, the department of Planning

and Convergence had issued a letter on 13.02.2021 with

some specific terms and conditions for execution of

works. Serial No. 1 of the specific terms and conditions

indicates that the approved projects should be

implemented through executing agencies as per the

approved rules. The Executive Officer, NAC, Pipili-

opposite party no.7, due to dearth of manpower, issued a

letter on 24.05.2021 to the Project Director, DRDA-

opposite party no.5 with a request to withdraw and place

the sanctioned funds under SPF 2020-21 with some other

agency for smooth implementation of work.

2.4 Coming to know about the incapacity, inability

and inefficiency and also inadequate staff of opposite

party no.7, i.e., Executive Officer, NAC, Pipili to execute

the work under the scheme of SPF, the Collector, Puri

passed an order on 31.05.2021 that 94 numbers of // 6 //

projects worth Rs. 185.00 lakhs and Rs. 52.50 lakhs

respectively are to be executed through BDO, Pipili,

instead of Executive Officer, NAC, Pipili, for smooth

execution of projects. The projects were going to be

executed under the scheme of SPF. Therefore, the

Collector, Puri-opposite party no.4 also instructed the

Executive Officer, NAC, Pipili-opposite party no.7 not to

execute the projects sanctioned earlier in favour of him

and refund the sanctioned fund to the tune of Rs.237.50

lakhs to the Project Director, DRDA-cum,-DUDA, Puri,

opposite party no.5 for re-release of the funds to Block

Development Officer, Pipili-opposite party no.8. It was

further stated that the projects need to be executed

adhering to the guidelines of SPF and the Financial

Procedures of the State Government and all the terms and

conditions to remain unaltered. As per the direction of the

Director, Municipal Administration- opposite party no.3 in

its letter dated 03.01.2018, the works under all the

Municipalities and NACs will have to be executed by

following the procedure of e-tendering, if the project // 7 //

amount is Rs.1.00 lakh to Rs.2.00 lakhs, which shall also

come into force with immediate effect by modifying the

earlier instructions issued to the above extent. A guideline

was issued by opposite party no.1-the Housing and Urban

Development Department, vide letter dated 10.10.2017

addressed to all the Collectors and District Magistrates of

the State of Odisha, for release and utilization of grants

under UNNATI programme by urban local bodies of the

State, clause-3 whereof was meant for selection of

executing agencies. The scheme of SPF indicates that the

urban area works can be entrusted on their

recommendation. Therefore, there is no distinction

between the process of selection of executing agencies

under both UNNATI Scheme and Scheme of SPF. But

without adhering to the same, the works have been

allotted by Block Development Officer, Pipili-opposite

party no.8 by issuing work orders in Annexure-10 series.

Hence this writ petition.

3. Mr. Basudev Pujari, learned counsel appearing

for the petitioner contended that since projects had been // 8 //

sanctioned under the SPF scheme of Housing and Urban

Development Department, the Collector, Puri is not the

competent authority to pass an order in Annexure-5

dated 31.05.2021. Rather as per the conditions stipulated

under the Scheme of SPF, it is the NAC, who is the

competent authority to pass an order. As the NAC has

been superseded and the Sub-Collector has remained in

its charge as Administrator, as such he is the competent

authority. Thereby, the Collector, Puri has no jurisdiction

to issue such an order dated 31.05.2021 to stop the

projects sanctioned under the scheme of SPF 2020-21. It

is further contended that since the projects, which were

sanctioned, come under the jurisdiction of the NAC, Pipili,

which is an urban area, it should be routed through the

Line Department, namely, Housing and Urban

Development Department by following due procedure of

law, and for transparency, it should be through a process

of tender. The same having not been done, the order

impugned cannot be sustained in the eye of law. It is

further contended that the stand taken by the State // 9 //

authorities in their counter affidavit that it should be

done by the Panchayat Samiti or Gram Panchayat, cannot

also be sustained, as the projects come under the

jurisdiction of the NAC Pipili. Thereby, reliance placed on

the resolution dated 13.07.2018 of the PR & DW

Department for execution of developmental works of

Panchayat Samiti or Gram Panchayat, has no application

to the present context. Hence, he seeks for quashing of

the office order dated 31.05.2021 under Annexure-5 and

also the consequential work orders dated 02.07.2021

issued under Annexure-10 series.

4. Mr. A.K. Mishra, learned Additional

Government Advocate for the State raised a preliminary

objection with regard to the locus standi of the petitioner

and emphatically submitted that pursuant to the

resolution dated 13.07.2018 of PR & DW Department on

the subject- revised guidelines on "execution of

developmental works at Panchayat Samiti and Gram

Panchayat level", the work orders were issued in favour of

the Junior Engineer of Pipili Block for departmental // 10 //

execution of works as the cost of each of the projects was

less than Rs.10.00 lakhs. Thereby, justifying the order

under Annexure-5 issued by the Collector, Puri and the

consequential work orders issued by the Block

Development Officer, Pipili under Annexure-10 series, he

contended that the Collector, Puri has got the authority to

pass order impugned, which does not warrant

interference by this Court at this stage.

5. This Court heard Mr. Basudev Pujari, learned

counsel for the petitioner and Mr. A.K. Mishra, learned

Additional Government Advocate appearing for the state

opposite parties by hybrid mode, and perused the record.

Pleadings having been exchanged between the parties,

with their consent this writ petition is being disposed of

finally at the stage of admission.

6. Before delving into the core issues involved in

this case, it is worthwhile to mention here that for smooth

running of the Municipal Council, NACs and Urban Local

Bodies an Act had been enacted called "Orissa Municipal

Act, 1950" (Orissa Act 23 of 1950). In exercise of the // 11 //

powers conferred by clauses-(i) and (ii) of sub-Section (2)

of Section 387 of the Orissa Municipal Act, 1950, the

Governor of Orissa was pleased to frame the Orissa

Municipal Rules, 1953. Chapter-VI thereof dealt with

public works and Rule 338, which comes under the said

chapter and has been substituted vide OGE No. 2251

dated 12.12.2008, reads as follows:-

"All municipal works to be executed by the Urban Local Bodies either out of their own fund or with the funds received from the Government including SRC grants and Finance Commission Grants will be only through publication of the open tender.

Provided that the Urban Local Bodies may take up any work departmentally during an urgent and calamitous situation such as flood, drought, cyclone and fire accident for maintenance and restoration of the public safety/service in the interest of the State, with prior approval of the Collector of the District which is subject to his satisfaction that the same is in the exigency of public service to be recommended for ex-post facto Government approval without calling for tender, as provided in the Appendix-VII, Volume-II of the OPWD Code.

Provided further that for the purpose of the Developmental Works to be undertaken by the Urban Local Bodies in such situation, the financial limit for the Municipality would be Rs. 3 lakh and for the Notified Area Council Rs. 2 lakh."

7. In exercise of powers conferred by sub-Section

(1) of Section 387 of the Orissa Municipality Act, 1950,

the State Government in Housing & Urban Development // 12 //

Department made further amendment to the Orissa

Municipal Rules, 1953 in the year 2017, vide notification

dated 22.11.2017, and formulated "The Odisha Municipal

(Amendment) Rules, 2017". Clause-11 of the said

notification is extracted hereunder:-

"11. In the said rules, in rule 352,-

a) for sub-rule (1) including the proviso thereto, the following sub-rule shall be substituted, namely-

(1) Any contract or the execution of the work or the supply of any materials or goods which will involve an expenditure exceeding such sum, as the Government may specify, from time to time, the Executive Officer, shall invite tender for such contract.

Provided, that the Council shall have the power to dispense with tenders if the work is emergent in nature.

(b) in sub-rule (2), in the proviso thereto, for the words and figure "Rs.1,500 (fifteen hundred)", the words and figure "Rs.10,000 (ten thousand)" shall be substituted."

In terms of the aforesaid statutory provisions governing

the field, the developmental works within the Municipal or

NAC area are to be executed.

8. The "Rules and Procedures for sanction of

funds under the Scheme of Special Problem Funds",

which have been annexed to this writ petition as // 13 //

Annexure-2, specifically prescribe the procedure, as per

which the funds for the projects shall be sanctioned and

released, and the mode, in which the executing agencies

shall be selected, respectively under the headings

"Sanction and Release of Funds" and "Executing Agency",

which are extracted hereunder:-

"Sanction and Release of Funds: Once the priority list of projects is approved by the Government, the projects in order of their priority shall be sanctioned keeping in view the provision of funds available under the scheme in the State budget. Requisite funds relating to such of the projects pertaining to a district shall be released to the District Rural Development Agency (DRDA) of that district / other Government Departments / Govt. Agencies. However, release of funds in respect of projects costing more than RS. 10.00 lakhs shall be made in instalments from the State level keeping in view the resource position of the State. The Project director, DRDA shall draw the amount in grant-in-aid bill with the counter- signature of the District Collector and keep the same necessarily in PL account of the DRDA.

Executing Agency: As soon as the sanction order is received from Government, the District Planning Officer shall follow the established procedures of the State Government, process the proposals, select the executing agencies and issue work orders in their favour with the approval of the Collector. For projects located in rural areas, the procedure followed by DRDAs shall be followed which lays down that executants shall be selected by the Pallisabha. However, Pallisabha has to keep these guidelines in view in selecting an executant Established procedures of the Government shall be followed when execution of a project is entrusted to an organisation under a line Department. However, for projects / works covering more than one // 14 //

district, their execution shall be entrusted to an appropriate agency / Department to which the property belong by the Planning and Coordination Department.

As regards work / Projects relating to urban areas priority would be given to urban local bodies. On their recommendations, such works can be entrusted to Government line Departments or to a registered non-Governmental agency having adequate professional expertise, proven track record."

9. Adhering to the above mentioned scheme and

with the concurrence of the Planning and Convergence

Department, sanction of funds, for implementation of

various approved projects under the Special Problem

Fund (SPF)-11th Phase during the year 2020-21, was

accorded on 13.02.2021, which includes the approved

projects sanctioned under SPF 2020-21 to NAC Pipili, vide

letter dated 24.05.2021 issued by the Executive Officer,

NAC, Pipili in Annexure-4. But due to dearth of

manpower to implement the work, by observing financial

procedure of the NAC, the Executive Officer, NAC, Pipili,

vide letter dated 24.05.2021, intimated to the Project

Director, DRDA-cum-DUDA, Puri for withdrawal of

sanctioned funds and to place the same with some other

agency for smooth implementation of the work. As such, // 15 //

the said letter has also been communicated to the

Administrator-cum-Sub-Collector, Puri, as the elected

body of the NAC has completed its tenure and the Sub-

Collector, Puri being the Administrator has remained in

charge. As a consequence thereof, the Collector, Puri,

vide letter dated 31.05.2021, instructed the Executive

Officer, NAC Pipili not to execute any projects which were

sanctioned earlier in favour of him and to refund

Rs.237.50 lakhs to P.D. DRDA Puri for re-release of funds

to B.D.O., Pipili for execution of the projects. The projects

need to be executed adhering to the guidelines of SPF and

financial procedure of the State Government, remaining

all other terms and conditions unaltered. The Scheme of

SPF is only applicable to the urban areas. Therefore, the

Collector, Puri could not and should not have diverted the

same in favour of the B.D.O., Pipili, instead of carrying

out the same through the concerned department, namely

Housing and Urban Development Department. More so,

as per letter dated 03.01.2018, the Government in

Housing and Urban Development Department had been // 16 //

pleased to enhance the financial limit from Rs.1.00 lakh

to Rs.2.00 lakhs for e-tendering of all works in respect of

the Urban Local Bodies. Without adhering to the said

letter, the Collector, Puri, by passing an order on

31.05.2021 under Annexure-5, diverted the same to the

B.D.O., Pipili as an Executing Agency for utilization of

Special Problem Funds 2020-21. As has already been

stated, as per the Scheme of SPF 2020-2021, as regards

execution of the works/ projects relating to urban areas,

priority should have been given to the urban local bodies.

On their recommendations, such works can be entrusted

to Government Line Departments, namely, Housing and

Urban Development Department or to a registered non-

Governmental agency having adequate professional

expertise and proven track record. The Collector, Puri,

without adhering to the Scheme of Special Problem Funds

2020-21, diverted the same to the B.D.O., Pipili, who

cannot be an executing agency under the said scheme

Thereby, the action taken by the Collector, Puri, choosing

B.D.O., Pipili as the executing agency, by passing order // 17 //

dated 31.05.2021 under Annexure-5, is without

jurisdiction, as he is not the competent authority to do so

and also the B.D.O., Pipili is not the competent executing

agency to implement the work within the Pipili NAC,

which comes under the jurisdiction of urban local bodies.

10. It is well settled principle of law that the term

"jurisdiction" generally means the authority of an officer

to act in the matter. In Anisminic Ltd. v. Foreign

Compensation Commission, (1969) 2 AC 147, it is held

that the jurisdiction is a verbal coat of many colors.

"Jurisdiction" originally seems to have had the meaning,

i.e. the entitlement to enter upon the enquiry in question.

The same view has also been taken by the apex Court in

M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427. In Anowar

Hussain v. Ajay Kumar Mukherjee, AIR 1965 SC 1651,

the apex Court held that the expression "jurisdiction"

does not mean the power to do or order the act impugned,

but generally the authority of the Judicial Officer to act in

the matter.

// 18 //

11. Since the Collector, Puri has no jurisdiction to

nominate the B.D.O., Pipili as the executing agency to

execute the projects sanctioned under the Scheme of

Special Problem Funds 2020-21, and the B.D.O., Pipili

has also no authority to do so, the impugned order dated

31.05.2021 under Annexure-5 cannot be sustained in the

eye of law. As a consequence thereof, the work orders

issued by the B.D.O., Pipili under Annexure-10 series for

construction of some projects, without following due

procedure, also cannot be sustained.

12. Mr. A.K. Mishra, learned Additional

Government Advocate though raised the question of locus

standi of the petitioner stating that he is the Ex-Chairman

of the NAC, Pipili and also a local inhabitant and at his

instance the application cannot be maintained, but the

same cannot have any justification for the following

reasons. "Locus standi" means a place of standing; a right

of appearance in a Court of justice; right to bring an

action and to be heard. Therefore, the meaning of word

"locus standi" for the purpose of maintaining the writ // 19 //

petition has been widened very much. In exceptional

cases, a person who has been prejudicially affected by an

act or an omission by an authority can file a writ petition

even though he has no proprietary or fiduciary interest in

the subject matter thereof. Rather a person must have a

sufficiency of interest to sustain his standing to sue. In

view of such proposition of law and applying such

rationale to the facts of the present case, it cannot be said

that the petitioner has no locus standi to file this writ

petition.

13. The argument, which has been advanced with

reference to the counter affidavit filed by the opposite

parties 4, 5 and 6 relying upon the resolution dated

13.07.2018 of the P.R. & D.W. Department on the

subject- revised guidelines on "execution of developmental

works at Panchayat Samiti and Gram Panchayat level", is

not acceptable, as the projects belonged to NAC, Pipili,

which is an urban area. Therefore, the reliance placed on

the resolution dated 13.07.2018 is misconceived in the // 20 //

factual matrix of the case at hand and the stand so taken

is liable to be rejected.

14. It is brought to the notice of this Court that,

out of 94 projects, which had been sanctioned under

Special Problem Funds 2020-21, 35 projects have already

been completed. Since those 35 projects have been

completed in all respect, at this stage, this Court does not

want to dislodge the same in any manner, even though

certain irregularities had been committed during the

process of allotment of such work. But for execution of

rest of the projects, the competent authorities should

strictly adhere to the Scheme of Special Problem Funds

2020-21 and utilize the funds, for the purpose for which

they were sanctioned, in conformity with the provisions of

law and also within the time specified.

15. In view of the discussions made above, this

Court is of the considered opinion that the order dated

31.05.2021 passed by the Collector, Puri in Annexure-5

and the consequential work orders dated 02.07.2021

issued by the B.D.O., Pipili vide Annexure-10 series // 21 //

cannot be sustained in the eye of law. Accordingly, the

same are liable to be quashed and hereby quashed. As a

consequence thereof, this Court directs the competent

authorities to execute the rest 59 projects [94 (sanctioned

projects) - 35 (projects already completed)] adhering to

the Scheme of Special Problem Funds 2020-21 and the

government rules applicable thereto, so far as NAC, Pipili

is concerned, by issuing work orders through the

competent authority.

16. In the result, the writ petition is allowed. No

order as to costs.

..................................

                                              DR. B.R. SARANGI,
                                                  JUDGE


V. NARASINGH, J.     I agree

.................................. V. NARASINGH, JUDGE

Orissa High Court, Cuttack The 15th February, 2022, Arun/GDS