ORDER :

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner – Sarvodaya Charitable Trust has prayed for quashing and setting aside the order dated 15.11.2017 passed by respondent No.1 – Joint Secretary (Appeals), Urban Development and Urban Housing Department.

2. The facts in brief are as under:

2.1. It is the case of the petitioner that the petitioner is a Public Trust. The Palanpur Municipality constructed various pay and use toilets in the year 2008-09 and maintenance of 11 pay and use toilets was given to respondent No.5 – Maa Samajik Seva Sansthan.2.2. A work order was also issued by the Palanpur Municipality. The case of the petitioner is that since it was found that the respondent No.5 was not maintaining the toilets and various complaints were received, notices were issued to the respondent No.5 on 26.8.2016, 25.10.2016 and 30.11.2016 for proper maintenance of pay and use toilets.

2.3. The notice further stated that the work order of respondent No.5 – Sansthan will be cancelled if no maintenance is carried out.

2.4. Since the respondent No.5, according to the petitioner, did not take steps for improvement of the maintenance of the toilets, the Palanpur Municipality in its meeting dated 7.3.2017 resolved to cancel the work order of the respondent No.5 for maintenance of the 11 toilets and decided to give work order to the petitioner. Despite this resolution, the petitioner was not handed over possession of the toilets. However, a work order in favour of the petitioner was issued on 7.4.2017 and a contract was entered into by a letter dated 7.4.2017 between the petitioner and the Municipality. The Municipality on 10.4.2017 issued a notice to the respondent No.5 to handover the possession of the 11 toilets to the Municipality.

3. Aggrieved by the Resolution dated 7.3.2017 passed by the Municipality, the respondent No.5 approached the Collector, Banaskantha challenging the resolution of awarding the contract to the petitioner. By an order dated 26.4.2017, the resolution of the Municipality by an interim order was stayed.

4. After the final hearing based on the report of the Collector on 26.6.2017, the Collector by a final order dated 11.10.2017 dismissed the appeal preferred by the respondent No.5 and approved the resolution of the Municipality dated 7.3.2017 awarding the contract to the petitioner.

5. Being aggrieved by the order of the Collector, the respondent No.5 approached the Deputy Secretary (Appeals) by filing a revision application and by the impugned order dated 15.11.2017, the revision application was allowed and the work order dated 7.4.2017 issued in favour of the petitioner and the result awarding such contract dated 7.3.2017 in favour of the petitioner was set aside.

6. Mr. Dipen Desai, learned counsel for the petitioner made the following submissions:

The State Government has not considered the resolution dated 7.3.2017 was required to be passed because the respondent No.5 had remained completely negligent in managing and cleaning the toilets. Notices were issued where it was specifically stated that the possession of the toilets would be taken over by the Municipality and given to any other agency.

(a) The notices were issued in line with Clause 22 and 24 of the contract.

(b) It cannot be said that the notices of the termination of contract was in violation of principles of natural justice.

(c) Reliance placed on Clause 25 by respondent No.5 was misconceived. Clause 25 will have application only when after commencement of the contract work, the Municipality had decided not to carry out the whole of the said work. Mr. Desai drew the attention of this Court to Clause 15, 16 and 17 of the contract to submit that the ownership of the blocks shall vest with the Municipality and only maintenance and operation was to be done by respondent No.5.

The State Government committed serious error in considering subsequent development for considering the legality of the Resolution dated 7.3.20