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2017 Supreme(J&K) 711
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
RAMALINGAM SUDHAKAR, J.
HAJI MOHAMMAD MAQBOOL DAR - Appellant
Vs.
STATE OF JAMMU AND KASHMIR AND OTHERS - Respondents
OWP No. 205 of 2017 & MP No. 01 of 2017
Decided On : 03-03-2017
For the Appellants :Ms. Shakir Mahmood, Advocate.
For the Respondents: Mr. M.A. Beigh, AAG.
Headnote:
Writ Petition - Municipal Contract Extension - [Jammu and Kashmir Municipal Act, 2000, Section 45(1)(a), Section 45(1)(b), Section 45(1)(c), Section 45(1)(d), Section 45(1)(e), Section 45(1)(f)] - The court discussed the provisions of the Jammu and Kashmir Municipal Act, 2000, particularly Section 45(1)(a) to Section 45(1)(f), which govern the extension of municipal contracts and the authority of the Director Urban Local Bodies to recommend extensions and relief measures. The court highlighted the discretion of the government in considering such recommendations and the binding nature of the contract terms between the petitioners and the Municipal Authorities.
Fact of the Case:
The petitioners, who held municipal contracts to collect Adda entry fee, sought relief due to financial losses incurred during unrest in the valley. The Director Urban Local Bodies recommended an extension, but also directed the initiation of fresh tenders. The petitioners filed a writ petition seeking relief.
Finding of the Court:
The court found that the Director's recommendation did not bind the government, and the contract terms were binding on the parties. It directed the government to take a decision on the issue by a specified date and allowed the tender proceedings to continue.
Issues: The issues involved the binding nature of the Director's recommendation, the discretion of the government in considering relief measures, and the contractual obligations of the parties.
Ratio Decidendi: The court held that the Director's recommendation did not bind the government, and the contract terms were mutually binding on the parties. It emphasized the government's discretion in considering relief measures and the need for timely tender proceedings.
Final Decision: The relief sought by the petitioners was declined, except for one prayer which was allowed. The government was directed to take a decision on the issue by a specified date, and the writ petition was disposed of accordingly.
1. The Writ petition has been filed for the following relief :
(a) That the Writ of Certiorari may be passed whereby the impugned order/impugned Circular No. DULB/G/560/17-18/3538-3585, dated 25.02.2017, passed by the respondent No. 03 may be quashed.
(b) That the writ of mandamus may be passed whereby the respondent No. 1 & 2 may be directed to permit the petitioners to continue and hold Municipal Posts till 30.06.2017 as recommended by respondent No. 03.
(c) That a writ of mandamus may be passed whereby the respondent No. 1 and 2 may be directed to give effect to the recommendations given by the respondent No. 3 in substitution of their loss incurred by the petitioners during the period of unrest in the valley in the year 2016 by way of giving extension to their contracts for the year 2017-2018, from the date of expiry of financial year 2016-2017 for a period of three (03) months as recommended by respondent No. 03/Director Urban Local Bodies, Srinagar.
(d) That the writ of mandamus whereby the respondent No. 1 & 2 may be directed to take a decision forth with on the recommendations passed by respondent No. 03.
2. The petitioners, seven in number hails from different districts, namely Budgam, Pulwama, Bandipora and Ganderbal. They are the beneficiaries of a contract with their respective Municipal Committees to collect Adda entry fee in an auction conducted by the respective Municipal Authorities for the financial year 2016-2017. These petitioners were found to be higher bidders and the contract was given to them to collect the above stated Adda entry fee, taxes etc. for the financial year 2016-17, w.e.f., 01.04.2016 to 31.03.2017. The condition of auction provides deposit of amounts as specified therein. On being declared successful bidders, petitioners have executed an agreement as required by the condition imposed and they have started collecting the Adda fee in respect of their Municipal areas.
3. An unfortunate event happened in the month of July 2016, which caused severe disturbance in the valley. The petitioners herein plead that their business of collecting the Adda entry fee was greatly affected. They state that they have deposited substantial amount and therefore, they are suffering from financial loss as there is no collection due to the turmoil.
4. In the month of February 2017, Youth Contractors Association, Kashmir made a representation to the Director Urban Local Bodies, Kashmir/respondent No. 3 herein, ventilating their grievance that due to turmoil in the valley between July 2016 to November 2016, their business had been greatly affected and therefore, they prayed for various remedial measures. One of the request was for the extension of period of contract beyond 31st March 2017. The further request was that subject to additional payment, the said period could be further extended. They quoted similar extension done previously. This was considered by the Director Urban Local Bodies, Kashmir and in his proceedings dated 2nd February 2017, addressed to Commissioner Secretary to Government Housing and Urban Development Department, Civil Secretariat, Jammu vide No. DULB/G/1206/2084-87, pointing out the difficulties that was faced by the contractors during the period of turmoil, the decrease in collection of entry fee both by the contractors as well as by the Department. He stated that because of curfew, imposed by the District Authorities, these contractors suffered great loss. He also mentions that there has been steep decline in the collection of entry fee. In the said recommendation, Director Urban and Local Bodies, Kashmir has pointed out a similar situation which arose consequent to the devastating floods of September 2014 and the benefit given by the Government. Referring to the stand taken by the Government Administrative, Department in the flood situation he suggested certain measures to alleviate the grievance of the contractors in the present scenario. The recommendations are as follows :-
(a) Only th
