WPA(P)/403/2022 v. THE STATE OF WEST BENGAL & Ors.

misconceived. Firstly, Section 66 starts with the non- obstanti clause and it states that notwithstanding anything contained in this Act or in any other law for the time being in force, the Municipality may, if it is of 5 opinion that it is necessary so to do in the public interest transfer by contract or otherwise with prior approval of the State Government, any function or functions of the Municipality under the Act to any individual or organization. Thus, the important aspect to be noted is that the public interest should be involved to take a decision to transfer by way of contract and such transfer has to be done with the prior approval of the State Government. Admittedly, a process of beautification cannot be put under the straight jacket formula of public interest but maintenance of hygiene and upkeep of the Municipal area is undoubtedly a public interest. The work allotted to the 7th respondent speaks of beautification and maintenance of the Municipal area and it is not for cleaning the Municipal area or upkeep. That apart the action of the Municipality by awarding a contract to the 7th respondent by private negotiation by compromising with the Municipal Fund for a period of 10 years only for the sake of beautification of the municipal area cannot be said to be in the public interest. Therefore, the contract awarded to the 7th respondent cannot be construed to be in public interest. Rather, it may be that the work, if completed, may be pleasing in the eyes of the local public but whether it is in public interest is a larger question which has to be left open. In any event there is no prior approval of the Government for 6 transfer of such obligatory function. Above all, the Municipality is the guardian of public finances and substantial income of the Municipality is from taxes and licence fee collected from the property owners and other licencees including vehicles which may pass through the Municipal area and had been parked to load and unload goods set off and set in passengers etc. Thus, if the funds of the Municipality are public fund, the question would be as to how the Municipality would be entitled to expand those funds. In terms of the provisions of the Act the Municipality is bound by the directions issued by the State Government in terms of Section 429B of the Act. Further, Chapter VII of the Act deals with finance and Section 67 defines what is a Municipal fund, Section 68 says about the custody of Municipal fund, Section 69 states how the Municipal fund is to be applied etc. All moneys realized or realizable under the 1993 Act and all moneys otherwise received by the Municipality shall be credited to the Municipal Fund as contemplated under Section 67. Section 123 of the Act provides for levy of Licence Fee on advertisement by the Municipality. Therefore, amounts realized or realisable in terms of Section 123 is an important source of the Municipal Fund. In terms of sub-section (1) of Section 69 all moneys credited to the Municipal Fund from time to time shall be applied for payment of all sums, charges and costs necessary 7 for carrying out the purposes of this Act and the rules and the regulations made thereunder or for payment of any sums payable out of the Municipal Fund under any other law for the time being in force. Sub-section (2) places an embargo that no payment of any sum shall normally be made out of the Municipal Fund unless such expenditure is covered by a current budgetary grant and a sufficient balance of such budgetary grant is available for the purpose. No doubt the Act will also provide for emergency expenditure. Undoubtedly, beautification of the town, installaing of fountains is not a work to be completed on emergent basis. The Municipality is bound by the directions issued by the State Government more particularly with regard to the manner in which the funds of the Municipality have to be expanded. There is a clear embargo to award any work or contract without inviting e-tenders or tenders above the minimum value of Rs.5 lakhs. Thus, the respondent Municipality has clearly flouted Government Order and consequently the award of the work in favour of the 7th respondent is held to be illegal and accordingly all actions initiated by the Municipality in awarding the work to the 7th respondent including entering into the Memorandum of Agreement dated 22nd July, 2022 are quashed. The respondent Municipality is directed to call for e-tenders and invite fresh proposals and carry out the entire exercise in a 8 transparent manner. The 7th respondent will be entitled to participate in the said tender as and when it is notified.

7. The learned Advocate appearing for the petitioner submitted that even after the interim orders granted in this writ petition the 7th respondent has not removed the hoardings.

8. The learned Advocate appearing for the 7th respondent submitted that after the interim order they have not displayed the hoardings. In any event we have allowed the writ petition. Therefore, if the hoardings are remaining they shall be dismantled by the 7th respondent within ten days from the date of receipt of server copy of this order failing which the respondent Municipality shall remove the same at the risk and cost of the 7th respondent.

9. With the above direction, the writ petition is allowed. (T. S. SIVAGNANAM) ACTING CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)