UDAY RAI @ UDAY YADAV v. THE STATE OF BIHAR through Secretary, Urban Development Department, Bihar, Patna

-------------- Respondents ----------- For the Petitioners: - Mr. R.S. Pradhan, Senior Adv. For the Corporation: - Mr. A.B. Sinha, Adv. For the State: - Mr. Ambrish Kr. Jha, J.C. to G.A. 4

10.12.2008 Heard learned counsel for the parties. ---------------- The petitioner seeks issuance of a direction to the respondents to issue Parwana in favour of the two petitioners for the extended period of settlement for the years 2006-07, 2007- 08 and 2008-09 in respect of Tempo stand situated under the Rajendra Nagar over bridge and People’s Co-operative Colony, Kankarbagh, Tempo stand. The aforesaid two Tempo stands were settled respectively in favour of the petitioner no. 1 and petitioner no. 2 for the years 2002-03, 2003-04 and 2005-06 for which Parwana had also been issued in their favour. Subsequently, the petitioners filed separate applications for extending - 2 - settlement period of the two Tempo stands for the next three financial years in the month of December, 2005 undertaking to follow all the terms and conditions as may be fixed by the Corporation. It is stated that the matter was examined internally by the department and ultimately the Deputy Chief Executive Officer put up the note in favour of the petitioner. The said notes were recommended to the Mayor by the Chief Executive Officer and ultimately the Mayor by his orders in the file dated

11.2.2006 and 29.12.2005 directed the settlement of the two Tempo stands in favour of the petitioners on the same settlement amount in the case of Rajendra Nagar Tempo stand and with an increase of 10% in the case of People’s Co-operative Tempo stand. The contention of the petitioners is that despite such orders in the file, no action has been taken in respect of the settlement by the Municipal authorities. Learned counsel for the petitioner submits that the orders have been passed by the Mayor in favour of the two petitioners a long time back and it was incumbent upon the authorities of the Municipal Corporation to act in terms of the said orders and issue settlement orders in favour of the petitioners and therefore they should be directed to issue Parwanas in favour of the petitioners even now. Learned counsel for the Patna Municipal Corporation, on the other hand submits that no order in accordance with law - 3 - has been passed in favour of the petitioner on the basis of which any direction can be sought by the petitioner in the writ jurisdiction. It is submitted that the petitioner is merely relying upon certain notings made in the file which do not confer any right on him. It is also submitted by learned counsel for the Corporation that the Mayor is not a competent authority to pass any such final orders in the matter. It is further the contention of learned counsel on the basis of the stand taken in the counter affidavit that on 19.6.2007 an auction took place with respect to the Rajendra Nagar Tempo stand and the settlement was made for a sum of Rs. 4.55 lakhs in which the petitioner no. 1 did not participate. It is thus submitted that the Corporation would be put to a severe financial loss if the settlement was made with the petitioner on Rs. 90,000/- per annum for which the settlement has been made in the earlier year. Learned counsel also points out that recently on 11.9.2008 also an auction was held with respect to the Rajendra Nagar Tempo stand on the basis of which the settlement was made for the period of six months for an amount of Rs. 2,63,531/-. These according to learned counsel for the respondent Corporation go to show that it would be against the financial interest of the Corporation to make settlement with the settlee of previous years on the basis of the much less amounts on which the settlement had been made in their favour. Learned counsel for the petitioner was unable to show - 4 - any provisions before the Court on the basis of which it can be held that the Mayor is the competent authority to pass order of settlement in such matters. He was also unable to meet the contention that a writ can issue only on the basis of any right conferred in favour of the person by issuance of an order in a legal manner, and no writ can lie merely on the basis of certain internal notings made in the file. It is an established proposition that such notings in file do not confer any right upon any person until they have been communicated in the form of a valid and legal order (Vide the Constitution Bench decision in Bachhittar Singh V. State of Punjab & Anr.: AIR 1963 SC 395, Para 10). Further this Court finds that the reliefs sought by the petitioners pertain to the three financial years 2006-07, 2007-08 and 2008-09 and even the last of the same is coming to an end. For the said reason also it does not appear that any purpose can be served by issuing any writ in favour of the petitioner at the fag end of the last of the three financial years. On a consideration of the facts and circumstances of the case and in the light of the legal issues discussed above, this Court finds that no writ can be issued in favour of the petitioner merely on the basis of certain notings made in the file by an authority who has not been shown to be the competent authority under the statutory provisions. Hence there is no merit in the writ application and it is, accordingly, dismissed. Learned counsel for the petitioner at this stage - 5 - expresses an apprehension that the authorities may not hold fresh auction at the conclusion of the present financial year and try to favour the person with whom the settlement has been made currently. In view of the stand of the authorities of the Corporation themselves, it is expected that they would follow appropriate procedure in the public interest in such matter. P. Kumar (Ramesh Kumar Datta, J.)