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Awnish Kumar Gupta v/s State of U.P. & Others

    Civil Misc. Writ Petition No. 8835 of 2014

    Decided On, 17 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE VIVEK KUMAR BIRLA & THE HONOURABLE MR. JUSTICE AMRESHWAR PRATAP SAHI

    For the Appellant: Chhaya Gupta, Sujeet Kumar, Advocates. For the Respondents: Sunil Kumar, Advocate.



Judgment Text

1. Heard Sri Sujeet Kumar, learned counsel for the petitioner, Sri Sunil Kumar, learned counsel appearing for the respondent-Nagar Palika Parishad, Etah and learned Standing Counsel for the State. The present petition has been filed for quashing the auction announced by the respondent, Nagar Palika Parishad, Etah to award a contract vide tender notice dated 29.1.2014 for realisation of licence fee for advertise

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ments.

2. The petitioner has filed a supplementary-affidavit today disclosing his locus indicating that the petitioner has deposited the advertisement fee before the respondent and, therefore, he is directly affected by the auction proposed to be tender taken by the respondent for realization of such fee through a contractor.

3. Sri Sujeet Kumar, learned counsel for the petitioner, contends that the respondent-Nagar Palika Parishad itself has not passed a resolution nor any bye-laws exit authorising the holding of such auction, and in the absence of any such statutory provision allowing the Nagar Palika Parishad to do so, the auction or to hold the auction for such purpose is clearly out side the preview of the U.P. Municipalities Act, 1916, hence the impugned tender notice deserves to be set aside.

4. Sri Sujeet has relied upon the Government Order dated 29.3.2012 as against which Sri Sunil Kumar, learned counsel for the Nagar Palika Parishad has today placed before the Court the Government Order dated 5th April, 2012, whereby the Government Order dated 29.3.2012 has been withdrawn and the provision existing prior to that appears to have been restored with further directions.

5. Learned counsel for the Nagar Palika Parishad submits that there is no such provision in the Act, bye-laws or Rules preventing the Nagar Palika Parishad for engaging a contractor to collect fee.

6. Having heard learned counsel for the parties and having considered the submissions raised the auction, which is to be conducted, is in relation to realisation of certain fee which in the present case, is advertisement fee. There is no dispute that such fee is leviable under valid bye-laws and can also be collected by the Nagar Palika Parishad.

7. The only dispute which is sought to be raised is the mode of such collection, as the petitioner alleges that this can only be performed directly by the Nagar Palika Parishad and its officials and not through any other private agency. The submission appears to be that this function of collection of fee being necessarily of the Nagar Palika Parishad, the mode of collection also is the function of the Nagar Palika Parishad which cannot be delegated to a private agency.

8. The aforesaid argument overlooks the distinction between a sovereign function of the Nagar Palika Parishad of imposing fee and the ministerial Act of realization the same through collection. The auction is for collection of the fee and not for imposition.

9. The submission of the learned counsel for the petitioner is that the contractor who may be awarded such contract is likely to misuse the said authority by compelling for payments which may not be due to the Nagar Palika Parishad.

10. In our opinion, this contention is misconceived as the realisation can only be to the extent of the imposed amount and not beyond the same. In the aforesaid circumstances, the apprehension expressed by the learned counsel for the petitioner is not founded on any plausible ground.

11. The auction of collection of the said fee being a purely ministerial and administrative act, does not fall within the criteria of legislative act or policy making decision. In such circumstances, the execution can be implemented by the Executive Officer and it is not necessary that even if for such purpose there should be a resolution on the Nagar Palika Parishad.

12. Consequently, having considered the submissions so raised and having considered the provisions of the Uttar Pradesh Municipalities Act, 1916, we do not find any good ground to interfere with the said advertisement on the submissions so raised before us. The writ petition is dismissed.
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