Case Note & Summary
The High Court of Judicature at Bombay, Nagpur Bench, decided two public interest litigations together, challenging communications dated 13 June 2016 issued by the Under Secretary to the Government of Maharashtra, which directed the Collector, Buldhana, to get works under the Special Scheme and Special Road Grant Scheme executed through the Public Works Department. The petitioners were a co-opted member of the Municipal Council, Malkapur, and a councilor of the Municipal Council, Nandura. The State Government had issued Government Resolutions dated 16 January 2016 and 28 March 2016 outlining the implementation of Special Road Grants. The latter resolution designated all municipal councils and nagar panchayats as implementing agencies, except 15 specifically named local bodies. Malkapur and Nandura were not among the excluded 15, thus making them the designated implementing agencies. The Municipal Councils had passed resolutions to undertake works, invited tenders, and in the case of Nandura, had completed 80% of the work. The petitioners contended that the impugned communications, issued at the behest of the local Member of Legislative Assembly, were high-handed, arbitrary, and would cause chaos if works were transferred to the Public Works Department mid-way. The State argued that under the earlier Government Resolution dated 16 January 2016, the Government retained power to fix implementing agencies for special projects, and alleged that Nandura had acted without proper administrative approval. The Court perused the Government Resolutions and held that the 28 March 2016 resolution clearly made the Municipal Councils the implementing agencies. It observed that the communications dated 13 June 2016 were contrary to this resolution and could not override it. The Court further invoked Section 90 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, noting that once grants were credited to the municipal fund, they vested exclusively with the Council for disbursal. The communications, issued by an Under Secretary at the instance of an MLA, were declared illegal per se. The Court distinguished its own decision passed on the same day in Writ Petition No. 2608 of 2016, where similar directions were upheld because the funds had been credited to the Collector and not the Municipal Council, thus not becoming part of the municipal fund. Ultimately, the Court quashed the impugned communications and allowed the petitions, directing the Municipal Councils to undertake the works in accordance with the applicable Government Resolutions.
Headnote
A) Municipal Law - Implementing Agencies for Special Road Grants - Designation under Government Resolution - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; Government Resolutions dated 16.1.2016 and 28.3.2016 - The Government Resolution dated 28.3.2016 specifically provided that except 15 named local authorities, all other Municipal Councils shall be implementing agencies for Special Road Grants. Malkapur and Nandura not being in the excluded list, they were the designated implementing agencies. The impugned communications dated 13.6.2016 directing execution through Public Works Department were contrary to this resolution. Held that the communications were illegal and without authority (Paras 9-11). B) Municipal Law - Municipal Fund - Vesting and Disbursal - Section 90, Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Grants sanctioned to Municipal Councils form part of the municipal fund upon credit, and the Council has exclusive domain over disbursal. The Government cannot by a mere letter redirect implementation. Held that the impugned communications violated the statutory scheme under Section 90 (Paras 12). C) Administrative Law - Executive Instructions - Hierarchy of Norms - The impugned communications were issued by an Under Secretary at the instance of a local MLA, purporting to override a Government Resolution. An ordinary communication cannot nullify a Government Resolution. Held that such communications are illegal per se and amount to arbitrary exercise of power (Paras 10-11). D) Constitutional Law - Legislative Privileges - MLA Interference - The Court noted that the impugned communications were issued on the request of the local MLA. The Court deprecated the practice of interference by MLAs in administrative decisions contrary to statutory instruments. Held that such interference undermined local self-government (Paras 10-11). E) Precedent - Distinguishing Factual Scenarios - Writ Petition No.2608 of 2016 - In that case, the Court had upheld similar directions because the grant amount was credited to the Collector, not the Municipal Council, thus not becoming part of municipal fund under Section 90. In contrast, in the present case, the amount was directly credited to the Municipal Councils. Held that the present impugned communications are illegal (Paras 13-14).
Issue of Consideration
Whether the communications dated 13.6.2016 directing that the works under Special Scheme and Special Road Grant Scheme be executed through the Public Works Department are legal and valid
Final Decision
Communications dated 13.6.2016 quashed and set aside. Petitions allowed. Municipal Councils directed to undertake works in accordance with the Government Resolutions.
Law Points
- Legal points not extracted
- grants credited to Municipal Fund vest with Municipal Council
- Government cannot override Government Resolution by ordinary communication
- Section 90 of Maharashtra Municipal Councils
- Nagar Panchayats and Industrial Townships Act
- 1965
- power to determine implementing agency under Government Resolution
- per incuriam if communication contrary to Resolution
