Susanta Ghosh vs Bhadreswar Municipality & Ors

Protik Prakash Banrjee, J

The writ petitioner seeks cancellation of the order dated November 16, 2016 passed by the Board of Councillors of the respondent No. 1. A mandamus has also been sought for payment of Rs.14,11,829.85 together with interest at the appropriate rate. No copy of the affidavit in opposition has been filed in Court though a copy of the same was served on the petitioner who has affirmed a reply thereto and filed the same in Court today.

Learned counsel for the respondent No. 1 submits that he has taken a change from the erstwhile learned advocate on record only on July 25, 2019 but he has not with him any copy of the affidavit in opposition or original thereto. He has requested that a copy of the reply be supplied to him. He has however, stated that he has been instructed in writing to submit that the writ petition seeks a money relief by way of mandamus and involves disputed questions of fact.

I have chosen to take up the matter since the respondent No. 1 has addressed me on the maintainability of the writ petition. If I proceed to issue a direction in terms of prayer d) the question would arise of whether I was allowing the money claim in the writ jurisdiction. That prayer is consequential and incidental to the main relief which seeks quashing of the impugned order dated November 16, 2016 which has been annexed as part of Annexure P/15 of the writ petition. The records show that the said decision was taken on the basis of observations of the Chairman of the respondent No. 1 though the respondent No. 1 had been directed in earlier round of litigations inter parties not to give any weightage thereto and that the said decision does not consider the written notes of arguments and the records of the petitioner. The petitioner wanted that the respondent carry out actual measurement after considering the materials supplied to them and utilised by them but the respondents have not given satisfactory answer to the same as shall appear from the order itself inter alia, at pages 223 and 224. The respondents are seen to have come to the conclusion that the challans which were submitted at the time of the earlier round of litigations contained signatures which were inconsistent and suspicious and that the challans and bills were submitted by way of the writ petition or the supplementary affidavit did not contain the particulars of the bills, registration number or the number of the vehicles; which materials were supplied and that these were not on record with the respondent No. 1. On such basis the respondent No. 1's Board of Councillors have come to the conclusion that the claims of the petitioner is inconsistent with the records of the respondent No. 1 and suspicious and thus the representation was rejected and it was held that according to the Municipal records only Rs.19885.35/-was due and payable to the petitioner. The basic principle of natural justice demands that all the questions raised by the petitioner must be answered when disposing of his representation. All questions certainly include the points raised in the written notes of arguments. In the instant case Annexure P/15 does not show how the questions raised in the written notes of argument were dealt with and to that extent it is an unreasoned order which grossly violates the basic principles of natural justice.

That apart no reason has been assigned why fresh measurement based on the materials sought to have been supplied by the petitioner and utilised was not undertaken except for the omnibus allegatioins that the challans and bills submitted by the petitioner in support of the claim for supply were suspicious because they did not have any signature or particulars of the vehicle. There is no assertion that such supply was not made. In that view of the matter, I am afraid that I cannot sustain the decision making process behind Annexure P/15 which appears to have been rendered in gross violation of the basic principles of natural justice particularly the rule as to passing of a speaking order as aforesaid. Since the respondent No. 1 was discharging the function not merely as the Municipality under Article 243 A read with Article 243 Q of the Constitution of India but also under orders of the Court to pass a reasoned order as shall appear from the earlier round of litigations and recitals contained in the impugned order itself the duty to pass a reasoned order cannot be disputed by the respondent No. 1.

In such view of the matter, the impugned order at Annexure P/15 is set aside.

The respondents are directed to decide the matter afresh without being influenced by anything contained in any of the orders set aside by this Court including the impugned order and to ignore the observations made therein about the alleged disparities of the nature of challans and bills submitted and to specifically deal with the request of the petitioner to hold a fresh actual inspection on the basis of the materials supplied by the petitioner and utilised by the respondent No. 1 and after fully dealing with the contentions raised in the written notes of argument. This shall not prevent the writ petitioner from being paid the amount of Rs.19855.35 which is admitted to be payable to him by the respondent No. 1 under the impugned order which I have set aside; but the same shall be subject to the final result of the decision taken after completion of the exercise as I have directed above. I piously hope that the entire exercise shall be completed within a period of one month from the date of communication of this order after giving all reasonable opportunities of being heard to the petitioner. Needless to mention all consequential reliefs shall be granted to the writ petitioner in case his representation is allowed without any further order of this Court within a further period of seven days from the date of decision.

The writ petition is allowed in terms of the aforesaid reliefs.

In view of the order that I have passed I do not require to consider any disputed question of fact in the writ petition since I have dealt with the decision making process behind the order impugned and not whether the amount is actually payable to the petitioner or not.

The respondent No. 1 shall consider its own records including the extracts from the inspection book including the measurement book and the exact cost of works.

There shall be no order as to costs.

Photostat certified copy of the order, if applied for, be given to the parties on compliance of requisite formalities.