JUDGMENT
B.P. Das, J.
1. As common questions of law and fact are involved in both these writ petitions, with the consent of learned counsel for the parties, they were heard together and are being disposed of by this common judgment.
2. O.J.C. No. 8795/99 has been filed by a member of this Bar, namely, Shri Sidheswar Mallik, claiming himself to be a concerned resident and representing the residents of the Cuttack Municipal Corporation in espousing their cause. Similarly, the other writ petition, O.J.C. No. 6919/99, has been filed by one Shri B. K. Mohanty, General Secretary of the Cuttack Chamber of Commerce, the Orissa Byabasayee Mahasangha, the Cuttack Nagar Byabasayee Mahasangha and the Orissa Rice Merchants’ Association, on behalf of the above organisations as well as the general public of Cuttack City. Both the writ petitions have been couched as public interest litigation.
3. O.J.C. No. 8795/99 : In this writ petition, the petitioner has alleged that the decision of the Cuttack Municipal Corporation (in short “Corporation”) to open a Degree Engineering College in the name and style “The Cuttack Municipal Corporation College of Engineering and Technology” (hereinafter called “Engineering College”) by constituting creating a trust by name “Cuttack Municipal Corporation College of Engineering and Technology Trust” is only a colourable transfer of the properties of the Corporation to the said Trust, which, according to him, is a private one and such action of the Corporation is against the interest of the general public. Hence, the petitioner has, inter alia, prayed for direction (i) to the State Govt. to take action under Section 401 of the Orissa Municipal Act, 1950 (in short “the Act”); and (ii) to the All India Council for Technical Education (in short “AICTE”) to withhold approval to establish the Engineering College and to quash the same if already granted.
Learned Counsel for the petitioner has submitted that the Trust created by the trust deed dated 29.5.1999, vide Annexure-1, is totally a private Trust. On the other hand, the AICTE granted permission for opening the Engineering College by the Corporation. Even from the trust deed, it appears that the Corporation in the guise of making a public trust has, in fact, constituted a Trust which has no character of being a public trust: According to the petitioner, the Trust has no fund except Rs. 1001/-, which was donated by the Corporation. Learned Counsel for the petitioner at this point has taken us through the agreement dated 21.5.1999 (Annexure-M) signed by Shri Ashirbad Behera as the Chairman of the Corporation and questioned the validity and legality of the said agreement because in that agreement there is neither any donor or donee nor is there any first party or second party. It is only in the form of a declaration that the Chairman of the Corporation in pursuance of the irrevocable resolution of the Municipal Council dated 24.4.1999 put the Trust in possession of a land measuring an area of 15 acres in Mouza Brajabiharipur, Cuttack, out of an area of Ac. 57.25 allotted by the Collector, Cuttack, in favour of the Corporation; declared the full right of ownership of the Trust over the said land and permitted the Trust to erect construction thereon pending execution of a regular deed of permanent lease. It is submitted by the Petitioner that this agreement (Annexure-M) can never be said to be a valid agreement for the simple reason that the Chairman of the Corporation was not empowered to execute such an agreement nor can the said agreement be said to be one which will bind the Corporation as well as the Trust. Learned Counsel . has further submitted that in the said agreement, Shri Ashirbad Behera as the Chairman of the Corporation (O.P. No. 10) has put the Corporation’s property in the hands of the Trust of which he himself is also the Chairman (O.P. No. 5). Hence, avers the petitioner, this is only a camoutlage to grab the public property, i.e., the property of the Corporation, through the so-called Trust.
The second plank of argument of the petitioner is that the so-called irrevocable resolution dated 24.4.1999 adopted by the Municipal Council of the Corporation for opening the Engineering – College through a Trust is illegal because there is no concept of “irrevocable resolution” in the Act. During the pendency of the
writ petition, the trust deed (Annexure-1), which was executed on
29.5.1999 and registered on 7.7.1999, was amended (vide Annexure-E/14)
wherein certain persons were excluded and certain others were
included as the trustees in the’reconstituted Trtist besides making
certain other changes in the terms and conditions of the trust deed.
The aforesaid amended trust deed (Annexure-E/1.4) has also been
challenged by the petitioner on the grounds that’the same could
not be amended and the manner in which the trust deed has been
amended gives rise to suspicions which may be true in future leading
to existence of two trust deeds and the members of the Trust may,
out of the two, adopt any one that would basuitable to them. That
apart, since the trust deed (Annexure-1) has been amended and
another trust deed (Annexure-E/14) has come into existence, it
would mean, the original trust deed was not existence on the
day the AlCTE granted permission.fcor ‘opening the Engineering
College. The fact remains that the date on which the AICTE granted
permission to open the Engineering College, the Trust which was
created by virtue of the trust deed in Annexure-E/14 was not in
existence and the same came into being later on, i.e., on 20.7.1999.
From the permission granted by the AlCTE, it can be seen that
the same has been granted to the Corporation. According to the
petitioner, the permission to open the Engineering College was
granted by the Industries Department to the Corporation on 31.8.1998
on which date there was no Trust, as it was constituted only on
29.5.1999.
According to the petitioner, it is an admitted fact that though initially the Corporation had only donated a sum of Rs. 1001/- to the Trust, later on, a further sum of Rs. 50 lakhs was deposited by the Corporation on behalf of the Trust with the AlCTE in shape of fixed deposit and Rs. 54,000/- with the Utkal University for obtaining affiliation to the Engineering College. The petitioner has further alleged that municipal fund has been spent for Engineering College which is not permissible in law. The further allegation of the petitioner is that the Corporation has got nothing to do with the Trust because of the simple reason that the contents of the trust deed indicate that it is absolutely a private Trust and it is only the Chairman of the Corporation who, for his own benefit and for the benefit of the members of the Trust, has utilised his official power to divert the funds and property of the Corporation in favour of a private body .with an oblique motive to grab the same by some way or the other. One of the legal questions raised by the petitioner is that there is nothing in the Orissa Municipal Act, 1950 authorising the Municipal Corporation to run a technical college.
Relying on the decision of the Apex Court in Unnikrishnan J.P. Vrs. State of A.P., AIR 1993 SC 2178, it is contended that no technical college can be opened except by a trust or by a society. On the day the AICTE granted permission to open the Engineering College, there was no Trust in existence nor was there any body corporate registered under the Societies Registration Act to open the Engineering College, Hence, the AICTE should not have granted permission to the Corporation as, for all practical purposes, the Corporation itself could not have run the institution imparting technical education. It is alleged by the counsel for the petitioner that the requirements indicated by the AICTE in its letter of viability (Annexure-A/14) not having been satisfied by the Corporation, the permission granted by the AICTE to open the Engineering College is void ab initio. Counsel for the petitioner has drawn our attention to Annexure-C/14, the letter dated 31.5.1999 of the Syndicate Bank addressed to one P.K. Misra describing him as the Director of the Engineering College. As per the original trust deed dated 29.5.1999, said P. K. Misra was one of the members of the Trust while in the amended trust deed, the post of Director, Cuttack Municipal Corporation of Engineering and Technology, was brought into existence.
As per Clause 15 of the amended trust deed (Annexure-E/14), the absolute power is vested with the Board of Trustees to invest any part of the Trust fund in any profit-making device to acquire and dispose of properties, appoint committees with specific duties, which, according to the petitioner, is contrary to the Act and the Rules, i.e., the Orissa Municipal Rules, as the statute does not provide any room for any profit-making device. That apart, 15-A of the amended trust deed provides that the “Trustees with approval of the Municipal Council shall be at liberty to sell such portion or portions of the movable or immovable properties forming part of the Trust Estate either by public auction or private contract at such price or prices and in such terms and conditions relating to title or otherwise in all respect as they may in their absolute discretion think fit and to rescind or vary and contract for the sale thereof and to resell the same without being answerable for any loss occasioned thereby…….” Clause 15-F provides that the “Trustees may join, co-operate and amalgamate the Trust created by these presents or any portion thereof with any trust or institution having allied and/or similar objects upon such terms as they may in their absolute discretion think, fit, subject to the approval of the Municipal Corporation.”
Petitioner’s case is that the Trust, which has already been bestowed with the properties of the Corporation by way of loan and cash, has been armed with ample power, as would appear from the above provisions, to dispose of the same with the approval of the Municipal Council. It may be noted that 20 members of the Corporation including its Chairman have been appointed as the trustees and Shri Ashirbad Behera, Chairman of the Corporation, has been appointed as the Chairman and Managing Trustee of the Trust Board. Petitioner’s apprehension is that the Chairman of the Trust being the head of the Corporation may allow to sell the properties of the Corporation through the Trust with the help of the other trustees, who are mostly the Councillors, and in that way, they may, dispose of the properties of the Corporation, which may ultimately cause loss to the Corporation for which they would not be answerable. This is a peculiar clause and the apprehension of the petitioner cannot be said to be unfounded. According to the petitioner, his apprehension gets strength from Clause 15-F of the trust deed, as quoted above. So, ultimately, submits the petitioner, the power vests with the trustees to allow the Trust to amalgamate with any trust or institution having allied or similar objects and, as per the trust deed, that can even be done without due resolution of the Corporation. According to the petitioner, as it appears from the recitals of the trust deed, the main source of acquiring property by the Trust is by way of donation from the Corporation, and if the trustees are allowed even to sell away to or amalgamate the same with any other trust, a situation may arise where another trust may be created by some persons with similar object and the present trust can be amalgamated with that trust along with the trust properties, which actually belong to the Corporation.
According to the petitioner, if Clauses 15-A, 15-F and 15-K are read together, the irresistible conclusion would be that the trustees are the sole authorities of the Trust properties and they are free to deal with the same in any manner they like and the Corporation has no control over the same and, therefore, the Trust under the trust deed cannot be said to be a public trust.
It is further contended by way of repetition that the so-called transfer of land made by the Chairman of the Corporation by virtue of the agreement (Annexure-M) is illegal. It may be mentioned here that by the aforesaid agreement, the Chairman of the Corporation has donated 15 acres of land on permanent lease basis in favour of the Trust for establishment of the Engineering College and also put the said Trust in possession thereof.
It is further alleged that the Corporation along with its Chairman and other functionaries have transferred property worth Rs. 20 crores which action is illegal and against the interest of the general public and the Corporation.
4. O.J.C. No. 6919/99 : In this writ petition, the petitioner, apart from making similar allegations and prayers as made in the other writ petition, has prayed for directing an enquiry into the improper functioning of the Chairman and the Executive Officer of the Corporation, who have joined together and functioned in a manner that is prejudicial to the interest of the Corporation and the public.
7. On going through the writ petitions and the counter affidavits as well as various affidavits along with documents filed by the parties’in both the cases, the questions that emerge for our decision are as follows ;
(i) Whether the Corporation can, under the scheme of the Act, open a technical college ?
(ii) Whether the Trust so constituted by the trust deed, which was subsequently amended to run the Engineering College, is a valid one ?
(iii) Whether the Trust in question is a “public trust” or a Trust created by the Corporation, purely private in character ?
(iv) Whether the Corporation should run a college when it is totally at bankruptcy and has failed to provide the minimum basic amenities to its tax-payers ?
(v) Whether the tra’nsfer of 15 acres of land in favour of the Trust by virtue of the agreement dated 21.5.1999, vide Annexure-M, is legal and valid ?
(vi) Whether the Chairman of the Corporation can unilaterally execute the agreement dated 21.5.1999 (Annexure-M) and transfer the property of the Corporation in favour of the Trust ?
(vii) Whether the Corporation can use “Saheed Bhawan” for the purpose of running the Engineering College ?
8. Question No, (1): Whether the corporation can, under the Scheme of the Act, open a technical college ?
It is stated by the counsel for the petitioners that the Act does not empower the Corporation to set up/establish an Engineering College (degree), which is one of the functions of the State Govt., The power and functions of the Municipalities and management with regard to educational institutions are prescribed under Chapter XXV of the Act and, according to the counsel for the petitioners, the duty of the Corporation is confined only to Primary, Middle and High Schools and not degree college. That apart, the Municipality is only responsible for maintenance and management of such schools recognised by the State Govt. within the municipal areas, as provided in Section 358 of the Act. Neither the Act nor the Rules empowers the Corporation even to establish any such school of its own accord. Chapter IV of the Rules deals with the subject “Education”, Rule 217 of which prescribes that the municipal funds shall not, without the prior sanction of the Education Department, be applied to the purposes of maintaining or aiding any educational institution which is not recognised by the State Govt. Therefore, as per the counsel for the petitioners, the power of Municipality as regards establishment of educational institutions is only limited to the schools and not to the degree college. Hence, the question of establishment of a professional or technical college (degree) by the Corporation does not arise at all.
The learned counsel for the Corporation while disputing the aforesaid position drew our attention to Article 243-W under Part IX-A of the Constitution of India. By the 74th Amendment of the Constitution, a new Part IX-A was inserted into the Constitution and Article 243-W thereof deals with the powers, authority and responsibilities of Municipalities, etc. Clause (b) of Article 243-W speaks as follows :
“243-W. Powers, authority and responsibilities of Municipalities, etc. – Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow :
(a) *** *** *** (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule." According to the learned counsel for the petitioners, Entry 13 of the Twelfth Schedule speaks of "Promotion of cultural, educational and aesthetic aspects". The argument of the learned counsel for the opposite parties is that in view of the amendment made to the Constitution by incorporating Part IX-A by the 74th Amendment, the Act had also undergone an amendment by virtue of the Orissa Act 11 of 1994, which came into force on the 31st of May, 1994, wherein Section 374-A has been inserted, which provides thus : "374-A. Other powers of municipality: Without prejudice to the generality of the powers and functions of Municipality provided in this Act, every municipality shall subject to such conditions and limitations as the State Government may, in the public interest, deem fit to impose, have powers with respect to ; (a)*** *** *** (b) the performance of functions and implementation of schemes in relation to : (i) to (vi) *** *** *** (vii) promotion of cultural, educational and aesthetic aspects, (vijj) *** *** ***
So, according to the opposite parties, the Corporation has the power to enter into the field of higher education including technical education. Moreover, there is no condition imposed by the State Govt. and no limitation has been prescribed. The power of Municipalities, in regard to clause (vii) of Sub-section (b) of Section 374-A, it is submitted, is unfettered and could be implemented at its will.
The learned counsel for the Corporation further argued that the permission for opening the technical college was duly granted by the Industries Department and once the permission is granted by the Industries Department, it shall be deemed to have been allowed by the State Govt. and no further permission from the Housing and Urban Development Department (in short “HUD Department”) is necessary. Hence, no irregularity or illegality has been committed by the Corporation in deciding to open the technical college on the basis of such permission granted by the Industries Department. However, it is stated by the learned counsel for the opposite parties that it is within the guidelines set out by the Supreme Court in Unnikrishnan’s case (supra).
Counsel for the State submitted that a technical education is covered by Entry 25 of the Concurrent List of the Constitution. So, both, the Central and the State Govts., can perform their part harmoniously. Establishment and functioning of technical institutes is governed by the AICTE guidelines and the regulations made therefor. The State’s role is limited to give a “no-objection” before approval by the AICTE. According to the Orissa Government Rules of Business, under Rule 4, the business of the Govt. shall be transacted in the Departments specified in the First Schedule and shall be classified and distributed between those departments and their branches as laid down therein. “Technical Education……” at SI, No. 6 of State Subject has been assigned to the Industries Department under Entry XI of the First Schedule. Therefore, the requirement of State’s consent for opening a technical institution is to be granted by the Industries Department and in the instant case, that has been done. It is also submitted that HUD Department has not passed any order contrary to the decision of the Industries Department in refusing the Corporation to open the Engineering College. But, according to the Counsel for the State, the HUD Department asked the Corporation to satisfy the State Govt. on certain public interest and legal aspects. In course of argument, our attention was invited to the letter dated 29.51999 issued by the HUD Department (Annexure-D series to OJC 6919/99), wherein it is stated thus :
“Besides, the resolution of the Council dated 24.4.99 where the question of starting of Engineering College was discussed does not give much information and the role to be played by the Cuttack Municipal Corporation in providing Municipal funds for such institution overlooking much more urgent needs of the town for providing services to the tax payers. Moreover, the Municipal Act does not empower the Municipal Bodies to set-up Engineering & Technology College (Degree), which is otherwise the function of the State Government.”
Hence, it was argued by the counsel for the State that the parent department, i.e., HUD Department, requested the Corporation to spell out the details before investing any municipal fund for opening the Engineering College and the role to be played by the Corporation in providing municipal fund for such institution overlooking the much more urgent needs of the town for providing services to the tax-payers. The learned State Counsel further stated that the local Govt., that is to say, the constitution and powers of Municipal Corporation etc. for the purpose of local self-Govt. is State Subject finding place under Entry 5 of List II. The 74th Amendment of the Constitution specifically provided for constitution of Municipalities under Article 243-Q. Article 243-W provides that the State Legislature may, by law, endow the Municipalities with such powers and authority and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to the performance ot functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; and promotion of educational aspect is covered by Entry 13 of the Twelfth Schedule of the Constitution. The constitution and power of Municipal Corporations, Municipalities, etc. at SI. No. 1 of State Subject has been assigned to the Housing & Urban Development Department under Entry XXII of the Rules of Business of the State Govt. and, therefore, the HUD Department is the appropriate department for the Municipal Corporations. So, according to the learned counsel for the Slate, the HUD Department is the Administrative Department so far as the Cuttack Municipal Corporation is concerned and, therefore, the HUD Department is entitled in examining the feasibility and viability of the proposal of the Corporation for opening the Engineering College.
Considering all these aspects, we are to see whether the Corporation could at all open a technical college without prior permission or approval of the HUD Department, which is undisputedly the Administrative Department of the Corporation. It is not disputed that after the 74th Amendment of the Constitution of India, as per Article 243-Q read with Entry 13 of the Twelfth Schedule, the Municipalities are empowered to do certain things for promotion of cultural, educational and aesthetic aspects. That these things are in the interest of the public or not, the Corporation is bound to satisfy the Govt. in that regard.
That apart, even if for the sake of argument it is assumed that the Corporation can open a college by spending municipal funds,’can it do so while the Corporation, due to paucity of funds, is not in a position to provide the basic amenities to its tax-payers and the “Millennium City” is fast becoming a slum ? Now, as per the contention of the learned (counsel) amicus curiae, most of the roads maintained by the Corporation are in bad shape and the drainage system, for want of which, most parts of the city get flooded when it rains. That apart, the Ring road is also not being repaired by the Corporation. As per the counter affidavit of the Corporation, certain roads belong to the State Govt. which are to be maintained by the Govt. and not the Corporation. This being the position, when the Corporation is not able to provide the basic amenities to its tax-payers, can the Corporation open a technical college by spending the municipal funds ?
In a case of similar nature, i.e. Municipal Council, Ratlam V. Vardhichand, AIR 1980 SC 1622, the Apex Court held :
“……..A responsible Municipal Council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-Governing bodies. Similarly, providing drainage systems – not pompous and attractive, but in forking condition and sufficient to meet the needs of the people – cannot be evaded if the Municipality is to justify its existence. A bare study of the statutory provisions makes this position clear.”
Reverting to the case at hand, the situation faced by the public within the limits of the Corporation during the last Super Cyclone is still fresh in their mind. The entire city remained flooded with rain and drain water for nearly seven days for want of drains . and drainage systems. It was found that the drainage system was practically non-existent since there was no proper discharge of rain water for which the residents of the entire city suffered great hardship. When the Corporation is not able to provide such basic amenities, like drainage systems, to its tax-payers on account of non-availability of funds, and when even some roads lack street lights and there is no filteration or water-treatment plant, can it be said that the Corporation is justified in setting up a technical college by spending a huge amount of more than Rs. 55 lakhs (on a project), which, according to the Corporation, is a profitable project and to be run by a Trust manned and managed by the Corporation only in name.
.9. In our considered opinion, the State Govt. in HUD Department was duty bound to examine the feasibility of the Corporation’s project and whether or not the same can be done in the interest of the public, when the residents of the city are not getting the basic civil amenities from the Corporation.
10. In course of argument, learned counsel for the petitioners also drew our attention to Annexure-D series to OJC No. 6919/99, more particularly the letter dated 6.7.1999 addressed by the Chief Executive of the Corporation to the Director, Municipal Administration & Ex-Officio Additional secretary to the Govt. In the HUD Department. This letter was issued after issuance of the letter dated 29.5.1999 seeking clarification from the Corporation. In the letter dated 6.7.1999, the Corporation informed the State Govt. that the Corporation has appointed one Shri P. K. Mishra, a retired Govt. servant, as the Project Co-ordinator for a period of six months to co-ordinate the activities at various levels for opening the Engineering College at a consolidated remuneration of Rs. 6.500/- per month. Added to that, the opening of an Engineering College in the present context “has become a profitable source of business and in no way shall be burden on Cuttack Municipal Corporation.” In our considered opinion, it cannot be comprehended by any stretch of imagination that the Corporation shall be allowed to make itself a profitable source of business. The concluding part of the aforesaid letter reads thus :
“In view of the above context, the matter may be placed before the Government for sanction of opening of Engineering College by Cuttack Municipal Corporation from the year 1999-2000 in the interest of the public.”
This itself indicates that the authorities of the Corporation were aware of the fact that permission of the Govt. was necessary before entering into the venture. Therefore, the argument of the learned counsel for the opposite party-Corporation as well as the Chairman goes contrary to the facts on record. That apart, during the course of hearing, learned counsel for the State has drawn our attention to the counter affidavit filed on behalf of the Corporation and its authorities being sworn to by Shri B. C. Biswal, the Executive Officer, in OJC No. 6919/99, which discloses the financial state of affairs of the Corporation. It is stated therein that there was over-drawal of an amount of Rs. 1,75,00,OOO/- from the current account of the Corporation for which justification has been given in paragraph 12 in the following way ;
“…….. Even the State of Orissa most often overdraws from the Reserve Bank and the Union Government had to pledge its Gold reserve with foreign Banks to save its economy from collapsing. Therefore, no fault can be found with the Corporation when it overdrew a sum of Rs. 1,75,00,000/- (One Crore Seventyfive Lakhs) from its current account to meet its immediate necessity……”
This sort of justification is never expected of a Govt. official, which shows his over-zealousness to benefit the Trust of which he has been made a member to cover up the irregularity committed by the Corporation for the reasons best known to him. In paragraph 22 of the said counter affidavit, it is categorically stated thus ;
“That Sri Ashirbad Behera, Sri Bishnu Charan Biswal, Sri Biranchi Narayan Mishra, in their personal capacity together with two other gentlemen of the town, (one Chartered Accountant and one Advocate) proposed to establish an Engineering College in the city under the auspices of the Cuttack Municipal Corporation, Involvement of the Municipal Corporation was felt necessary in order to acquire land for the institution. …………..”
(Emphasis provided)
This lets the cat out of the bag, as it reveals that this profit-making institution was proposed to be run and managed by private individuals like Shri B. C. Biswal, Executive Officer, Shri Ashirbad Behera, Chairman of the Corporation, and others in their personal, and private capacity and involvement of the Corporation was felt necessary only for the purpose of acquiring land for the proposed Engineering College. As we have already indicated, the land has been donated by the Chairman of the Corporation-Shri Ashirbad Behera to Shri Ashirbad Behera himself as the Chairman of the Trust. We shall deal with this aspect later on. This counter affidavit filed on behalf of the Executive Officer and other authorities of the Corporation reveals that instead of protecting the interest of the Corporation and its tax-payers, the Executive Officer had become a party to the acts of omission and commission, which were not in the interest of the Corporation as well as its tax-payers. Therefore, the plea that the Engineering College is by the Corporation is an after-thought and with the only molive to use its name for personal gain from the “profitable source of business”.
In our view, the HUD Department of the State Govt. was justified in directing the Corporation not to invest the funds of the Corporation in the project of proposed Engineering College and the said project should not be given priority over and above the services to be rendered by the Corporation to its tax-payers in the interest of the general public. Further, we are of the opinion that the interest of the public must be safeguarded and without the permission of the Administrative Department, i.e., the Housing and Urban Development Department, the Corporation could not take up the project of opening the proposed Engineering College. In the instant case, the Administrative Department has already refused to grant permission to enter upon such a venture. Hence, any action taken by the Corporation in regard to opening of the proposed Engineering College after 29.5.1999 is totally illegal and without any authority of law. Of course, there is no impediment in the Statute for opening an Engineering College provided consent/permission is given by the State Govt. to the Corporation to do so. The Housing and Urban Development Department being the Administrative Department of the Corporation, whether or not establishment of such a college is in the interest of genera! public is a question to be examined by that Department and its permission is also necessary for the purpose. Therefore, the argument advanced by the learned counsel for the opposite parlies that consultation with the HUD Department is absolutely not necessary is totally misconceived. Of course, had the HUD Department given permission to venture the project, the question of sanction from AICTE would have arisen.
As earlier mentioned, the 74th Amendment to the Constitution introduced Part IX-A dealing with the Municipalities. Article 243-W contained in Part-IX-A empowers the State Legislatures to endow the Municipalities with such law for devolution of powers and responsibilities subject to such conditions as may be specified therein. According to the Rules of Business of the Govt. of Orissa, HUD Department is the appropriate Administrative Department so far as Municipal Corporations are concerned. Hence, there is no doubt that the HUD Department is entitled to examine the feasibility and viability of the proposal of the Corporation to open an engineering College and to allow or disallow the proposal to take up the project. As it appears from the letter dated 29.5.1999 contained in Annexure-D series to the counter affidavit in OJC No. 6919/99, the Director, Municipal Administration and the ex-officio Additional Secretary to the Govt. in HUD Department objected to the establishment of the Engineering College by the Corporation. Significantly, this letter was issued on 29.5.1999 on which day overlooking the above objection raised by the State Govt., the first trust deed was executed. This was because in the Regulations of the AICTE, there is no provision allowing a Municipal Corporation to run a technical college and it is only a Trust which can run such a college.
11. So, in our considered opinion, there being no provision under the Regulations of the AICTE to allow a Municipal Corporation to run a technical college, it is not desirable on the part of the Corporation or its authorities to circumvent the procedure and form a Trust, create a trust fund from out of the funds of the Corporation in order to run a technical college. Thus, in substance, it amounts to doing something indirectly which cannot be done directly. Therefore, the Corporation under the scheme of the Act cannot open a technical college.
12. Question No. (II) : Whether the Trust so constituted by the trust deed, which was subsequently amended to run the Engineering College, is a valid one ?
It is-admitted that the trust deed (Annexure-1) was created on 29.5.1999. From its preamble, it appears that on acceptance of the proposal of the founder/members, the Corporation agreed to establish an educational trust for imparting and expanding technical and other education in the society and for that purpose an unanimous resolution was adopted on 24.9.1997 (sic. 27.9.1997), in part compliance whereof the Corporation deposited the initial sum of Rs. 1001/-and has farther executed an agreement through its Chairman for transfer of an area of 15 acres of land in favour of the Trust. By virtue of the said trust deed dated 29.5.1999, the Trust was created in the name and style “Cuttack Municipal Corporation College of Engineering and Technology Trust.” From the trust deed it further appears that there are three categories of members. Category “A” contains the founder members, who are named and are to continue in perpetuity. Category “B” relates to ex-off icio members and category “C” refers to other members. As per the trust deed, the Trust shall be in perpetuity and irrevocable. Later on, during the course of hearing of the case, it was brought to the notice of the Court that the aforesaid trust deed dated 29.5.1999 has been superseded/ modified by another trust deed dated 20.7.1999 executed by Shri Ashirbad Behera. While in the original trust deed there were three categories of members, namely, founder members-cum-life members, ex-officio members and other members, each category having five members, in the amended trust deed there are two categories of members, namely, Category “A” containing 22 fo.under members and Category “B” containing 4 ex-officio members. Certain clauses of the original trust deed have also been amended. According to the learned counsel for the petitioners, the amended trust deed dated 20.7.1999 has been executed by Shri Ashirbad Behera in his individual and personal capacity. The amended trust deed has been annexed as Annexure-E/14 to the counter of O.P. No. 14 in OJC 8795/99, and Annexure-F/3 to the counter of O.P. No. 3 in OJC No. 6919/99. On a bare reading of the aforesaid trust deed, it appears that the same has been signed by Shri Ashirbad Behera in contravention of the provision of Section 87 of the Act. We are in agreement with the contention of the learned counsel for the petitioners that the Trust, if created by the Corporation, ought to have been registered by its Executive Officer in pursuance of the provisions contained in Section 87 of the Act, because under the said provisions, resolutions of the Corporation are to be carried into effect by its Executive Officer with whom the executive power of the Corporation is vested. In the original trust deed there is also no seal indicting that Shri Ashirbad Behera put his signature on behalf of the Corporation as its Chairman, Hence, a conclusion can safely be drawn that the Trust cannot be said to have been created by the Corporation and thus the same is not a public trust.
So far as the other part of the question, whether the trust deed once created and executed can be superseded and/or modified is concerned, it is contended by the learned counsel for the petitioners that the’Trust being created otherwise than by a will and being in perpetuity and irrevocable, the same could not have been superseded, revoked or modified, in the joint counter affidavit filed by O.P. Nos. 3, 5, 6, 7, 10, 11 and 19 in OJC No. 8795/99, which was sworn to by Shri B. C. Biswal, Executive Officer of the Corporation, it has been stated that when the idea of a Trust was first mooted, there was a proposal that the five founder members would hold office for life, but subsequently as they themselves declined to accept the said proposal, the Council adopted a resolution on 22.6.1999 recommending amendment of the Trust deed with regard to constitution of the Board and certain other conditions. The counsel for these opposite parties in course of their argument tried to make out a case that the Trust is a Municipal Trust and a Public Trust and the trustees thereof have all the right to modify the trust deed and accordingly the trust deed has been modified in pursuance of the resolution of the Municipal Council.
Before going to the facts, it is profitable to have a look at Chapter VIII of the Indian Trusts Act, 1882, which deals with the provisions of extinguishment of trust. Sections 77 and 78 contained in the aforesaid chapter, which are relevant for our purpose, are extracted hereunder:
“77. Trust how extinguished : A trust is extinguished :
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or
(d) when the trust, being revocable, is expressly revoked.”
“78, Revocation of trust: A Trust created by will may be revoked at the pleasure of the testator.
A Trust otherwise created can be revoked only :
(a) where all the beneficiaries are competent to contract -by their consent;
(b) where the trust has been declared by a non-testamentary instrument or by word of mouth – in exercise of a power of revocation expressly reserved to the author of the trust; or
(c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.”
As it appears, a Trust created otherwise than by a Will can only be revoked as per Clauses (a) to (c) of Section 78. In the present situation, the Trust is in perpetuity and irrevocable and hence, in our view, it could not be revoked or superseded or modified save and except in accordance with the provisions contained in Chapter VIII of the Trusts Act. The manner in which the original trust deed was substituted by the amended trust deed is not within the scope and ambit of Chapter VIII of the Trust Act and, therefore, the amended trust deed is of no consequence and ineffective.
Let us now see the nature and the contents of both the trust deeds. Admittedly, in both the trust deeds private parties are trustees. Clause 7 of the original trust deed describes “trust property” to be fifteen acres of land situate in Mouza Brajabiharipur in Bidanasi. Clause 8 dealing with the objects of the Trust states that “it is however open to the Trust to open or take over the other educational institution of any kind as may be appropriate in the opinion of the Trustees”. The said clause further goes to state – “Provided always that the Trust shall augment its own resources to found and fund any such educational institution/institutions without in the least being a burden on the Cuttack Municipal Corporation. This, however, does not debar the Corporation from making occasional gifts and donations at its sole discretion, to the Trust. …,..” Clause 15 and 15-A of the said trust deed provide as follows :
“15. Supplemental: In generality and without prejudice to the above the board of trustee shall have the power to invest any part of the trust fund in any profit making device to acquire and dispose of properties, appoint committees, with specific duties and to take any decision for which no specific provision is made herein.
15-A. The Trustees shall be at liberty to sell such portion or portions of the movable or immovable properties forming part of the Trust Estate either by public auction or private contract at such price or prices and in such terms and conditions relating to title or otherwise in all respect as they may in their absolute discretion think fit and to rescind or vary and contract for the sale thereof and to resell the same without being answerable for any loss occasioned thereby and to execute all conveyances or other assurances and to pass valid and effectual receipts and discharges for all money received by them.”
Clause 15-F empowers the trustees to amalgamate the trust with any other trust or institutions, and clause 15-L provides that “All proceedings and questions and matters arising at the meeting of the trustees shall be decided by a majority of votes and in case of equality of votes the Chairman shall have a second or casting vote Provided However that notwithstanding anything herein stated, no question dealing with the disposal of the corpus of any of the trust properties and/or investment out of the trust corpus shall be decided except with the consent of the Chairman of the Trust.’ In the amended trust deed, self-same provisions have also been incorporated. In paragraph 3 of the aforesaid counter affidavit, the main features of the trust deed have been highlighted and under sub-para (I) it is stated that the money so sanctioned shall be handled by the Principal-cum-Secretary of the College in which neither the Trust nor the Municipal Corporation has any direct connection. Thus, the position as admitted by the opposite parties, is that even the Corporation shall have no control over its fund. The Corporation and its Chairman and Executive Officer in their counter affidavit filed in OJC No. 6919/99, in paragraph 32 have stated that -“Sri Ashirbad Behera, Sri Bishnu Charan Biswal, Sri Biranchi Narayan Mishra, in their personal capacity together with two other gentlemen of the town, (One Chartered Accountant ana one Advocate) proposed to establish an Engineering College in the city under the auspices of the Cutback Municipal Corporation. Involvement of the Municipal Corporation was felt necessary in order to acquire land for the institution.” The entire purpose of the Trust, as it appears from its nature and character, as enumerated in the trust deed, in our view, is to take away the Corporation’s money and properties to the trust fund to be dealt with at the free will of some individuals in their personal capacity as their personal property. The Trust created by the original trust deed can never be said to be a Trust run by the Corporation. The said Trust is purely in the nature of a private trust created by the Chairman, Executive Officer and other Councillors in the guise of a public trust in order to reap the benefits at the cost of the Corporation and to run the college oh their own will without the Corporation having any control over the college. Therefore, it can safely be concluded, keeping in view the manner in which the Trust has been created, that the Corporation has no control over the same and further the original trust deed is not in essence a trust deed and the said Trust is not “public” in nature and created by the Corporation.
13. This also answers Question No. (iii)
14. Question No. (iv) :Whether the Corporation should run a college when it is totally at bankruptcy and has failed to provide the minimum basic amenities to its tax-payers ?
Argument was advanced by the learned counsel for the petitioners that the Corporation has miserably failed in its duty to provide the minimum basic amenities to the general public including its taxpayers, who are paying tax, and it is not proper to allow the Corporation to run the Engineering College for which the Corporation has already spent a huge amount and has also handed over a valuable piece of land, which was earmarked for disposal of waste and garbages. It is contended that the State Govt. has rightly indicated in its letter dated 29.5.1999 not to proceed with the project of establishment of the Engineering College at the cost of minimum basic needs of the tax-payers. Counsel for the opposite parties vehemently argued that there will be no financial burden on the corporation and in reply to certain allegations regarding the poor maintenance of the roads and drainage systems, on account of the fact that the Corporation has almost come to a bankruptcy, it is submitted that most of the roads within the Corporation belong to the State Govt., more particularly, to the Public Works Department, Irrigation Department, National Highways Authority, and Railways, and only 30% of the lanes and by-lanes belong to the Corporation while the rest belong to the State and the Central Govts. So, there can be no gain-saying that the Corporation is perfectly maintaining the lanes and by-lanes. In this connection, the attention of the Court was invited to Article 243-W of the Constitution which requires performance of functions and implementation of schemes including matters listed in the Twelfth Schedule, item No. 4 of which states “Roads and Bridges”. Therefore, the enactment of the Statepursuant to the aforesaid Article 243-W of the Constitution casts a duty on the Corporation to maintain the roads within its limits. The Corporation authorities, in our view, cannot absolve themselves from their responsibility to maintain the roads, whether they belong to the Public Works Department, Irrigation Department, Railways or National Highways Authority, within the limits of the Corporation. In our view, therefore, it is the statutory duty of the Corporation to maintain all the roads within its limits.
Our aforesaid view is fortified by the provisions of Section 3(29) of the Act which defines “Public road” to mean “any street, road, square, court, alley-passage or riding path over which the public have a right of way, whether a thoroughfare or not, and….” Section 117 of the Act prescribes the purpose to which Municipal Fund is applicable, suti-clauses (i) and (ii) of Sub-section (1) of which include/the construction, diversion, maintenance and improvement of roads, tramways, bridges, ……” and “the watering and cleaning of roads”. Hence, keeping in view the 74th Amendment of the Constitution and item No. 4 of the Twelfth Schedule, Chapter XVI dealing with “Public Road” has been amended requiring the Municipalities to maintain and repair roads. In fact, under Section 121, all properties within the Municipal area of the nature specified therein other than the private property or property maintained by Government or any other local authority shall vest in and belong to the municipality. In our opinion, when the list of roads as per Annexure-G to the counter affidavit filed by O.P, No..1-State in OJC No. 6919/99 is taken, Section 121 of the Act comes into operation, that is to say, that all roads, which are not maintained by the Government, shall vest in the Corporation. But Sections 117 and 234 of the Act do not make any such difference. A specific statutory/public duty is cast on the Corporation to maintain the roads and public roads within the municipal areas. Hence, the Corporation cannot at all absolve itself from discharging its duty to maintain/repair the roads merely because they do not belong to the Corporation.
Hence, when the Corporation is practically bankrupt, as per its own admission, it was not at all proper on its part to spend a huge amount of more than Rs. 55 lakhs for opening the Engineering College and nearly Rs. 34 lakhs towards repair of the Saheed Bhawan in order to make it suitable for holding the office of the proposed Engineering College from out of the municipal fund and at the same time not to give proper attention to provide the minimum basic needs to the tax-payers/general public of the city. In fact, the Corporation has miserably failed to maintain the roads and drainage system in the city. In this connection, we may refer to the decision of the Apex Court in Ratlatn Municipality’s case (supra), wherein it was held as follows :
“12. The statutory setting being thus plain, the municipality cannot extricate itself’from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. This ‘alibi’ made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical, basis. The Criminal procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part – III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the Municipal Council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.”
In the present case from the materials on record, it is clear that the Corporation is least interested in performing its statutory functions in providing the minimum basic needs of the tax-payers for which it is constituted and instead, it is diverting itself to such activity which, according to their own admission, is a profitable and money making project which is absolutely beyond the scope and ambit of the Act as well as the scheme of the amended provisions of the 74th Constitutional Amendment.
15. To sum up, it may be stated that there is no occasion for the Corporation to open an Engineering College when the State is absolutely not agreeing to the said proposal and there is allegation of financial irregularity in the Corporation for which the Government has directed the Collector, Cuttack, to enquire into such allegation. In other words, technical education and the affairs of the Corporation cannot be juxtaposed. That apart, the Corporation has no authority to transfer a land, which has been allotted to it by the State Govt. for utilisation thereof as a dumping-yard, and the attempt of the Corporation to change the purpose for which the land was allotted to it even without prior permission or approval of the State Govt., can be termed as a breach of public faith. Apart from that, the fixed deposit of Rs. 50 lakhs in the joint names of the Trust and the Regional Officer of the AICTE for a period of ten years (on or before 29.5.1999) should not have been made when the Trust itself was absolutely not in existence. The aforesaid indicates the manner in which the Executive Officer, a responsible officer of the Corporation, and its Chairman and Councillors conducted themselves and their oblique motive is apparent from their actions. In our view, when the Corporation has failed to provide the basic amenities to its tax-payers, there is no occasion at all for the Corporation to open an Engineering College, a profit-making agency, as admitted by the opposite parties, through a Trust, which does not have the characteristic of a public trust.
16. Question No. (v): Whether the transfer of 15 acres of land in favour of the Trust by virtue of Annexure-M, i.e., the agreement dated 21.5,1999, is legal and valid ?
As we have already held, the land was allotted for a specific purpose by the State Govt. to the Corporation for utilisation as a dumping-yard. As it has been stated earlier, the aforesaid 15 acres of land has been handed over to the Trust by an agreement dated 21.5.1999 {Annexure-M to OJC No. 8795/99), executed by Shri Ashirbad Behera, the Chairman of the Corporation, putting the Trust in full control and right of ownership thereof with effect from 21.5.1999, whereas the Trust was created on 29.5.1999 and was registered on 7.7.1999. It is, therefore, apparent that the property of the Corporation was handed over to the so-called Trust before the said Trust came into existence. This action speaks for itself and is nothing but an act to hoodwink the tax-payers – a breach of public faith. It is worthwhile to mention here that Shri Behera, who was the Chairman of the Corporation, has handed over the property of the Corporation to the so-called Trust of which he himself (Shri Behera) is the Chairman and Managing Trustee. This property of the Corporation has been handed over to a private trust created in an illegal and clandestine manner in exercise of the powers and functions of the Chairman of the Corporation. The same is opposed to public policy.
17. Considering all these aspects, it can safely be construed that the transaction made by virtue of the aforesaid agreement (Annexure-M) is a transaction which has no legal sanction or legal sanctity. The land still belongs to the Corporation for the purpose of utilising it as a dumping-yard. No right, title or interest of the Corporation over the said land has vested in the so-called Trust which had not come into existence on the date the same was transferred.
18. Question No. (vi): Whether the Chairman of the Corporation can unilaterally execute the agreement dated 21.5.1999 (Annexure-M) and transfer the property of the Corporation in favour of the Trust ?
As discussed earlier, in view of the provisions contained in Section 87 of the Act, it is the Executive Officer, who is authorised to carry out the resolutions of the Corporation. As such, the Chairman of the Corporation could not unilaterally execute the agreement dated 21.5.1999 and transfer the property of the Corporation to himself in another capacity.
19. Question No. (vii) : Whether the Corporation can use ‘Saheed Bhawan’ for the purpose of running the Engineering College ?
Learned counsel for the petitioners alleged that the Corporation has mortgaged the buildings of Saheed Bhawan and its adjacent Municipal garage and the Municipal Schools with the Urban Cooperative Bank Ltd., Cuttack, and has obtained a loan of Rs. one crore, which the Corporation authorities could not do because Saheed Bhawan is not the property of the Corporation but is that of the State Govt. It may be stated that the citizens of Cuttack city have a special sentiment attached to this Saheed Bhawan since the same was built in the memory of those who had laid down their lives during the freedom struggle against the British Empire.
In paragraphs 7, 8 and 9 of the counter affidavit filed by the Executive Officer (Shri B. C. Biswal) in OJC No. 8795/99, it has been categorically stated that Saheed Bhawan was built by the State Govt. in 1952-53 on Municipal land to hold public meetings and that the State Govt. had handed over the said building to the Municipality in 1978-79 and since then the Municipality is only controlling and managing the building. The same fact is also admitted by the Chairman of the Corporation in paragraphs 21 and 22 of his affidavit filed in OJC No. 6919/99. So, it is admitted that Saheed Bhawan was constructed by the State Govt. by spending money from out of the State exchequer and later it was handed over to the Corporation for its management, i.e., for utilising the same for library, reading room and auditorium. The same fact is also admitted in the counter affidavit filed on behalf of the State. So, from the counter affidavits filed by the opposite parties, more particularly, the Executive Officer and the Chairman of the Corporation, it is clear that Saheed Bhawan was built by the State Govt. and the same was placed at the disposal of the Corporation for specific purposes which have been mentioned in Annexures A and B to the
counter filed by the State and Annexure-G/3 series to the counter affidavit filed by the Chairman of the Corporation in OJC No. 6919/99. It is also clear that the State Govt. had not at any point of time agreed to deviate from the purposes for which Saheed Bhawan was kept under the Control of the Corporation. Hence, the decision of the Corporation to run the Engineering College office in the premises of Saheed Bhawan by spending a huge sum of money from out of the Municipal funds at the cost of the civic amenities and to the detriment of the general public of Cuttack City, is totally unwarranted and uncalled for in view of the fact that the so-called Trust which was created to run the Engineering College is totally a separate entity and has no connection with the Corporation except, as we have observed earlier, to use its name for obtaining the land and funds for the trust.
20. From the above, the irresistible conclusion would be that the Corporation, without discharging its constitutional and statutory obligations and duties towards the general public and tax payers of the City in regard to maintenance of roads, drainage system, etc. has started functioning in a manner which is not expected of a civic body and has also started spending the municipal funds for a purpose for which the same was not meant and towards a project which is not beneficial to the general public and specially at the cost of the civic amenities, which are lacking in the city. We can, therefore, safely conclude that Saheed Bhawan is a property of the State Govt. and the Corporation is only empowered/authorised to control and manage the same for certain specified purposes. The Corporation has no legal right or authority either to mortgage the said building or to utilise the building for any purpose other than the purposes for which the same was handed over to the Corporation by the State Govt.
21. Besides, the discussions made above, the other submission made by the counsel for the petitioners, which we are called upon to consider in these writ applications, is regarding the misappropriation of the municipal fund and/or non-maintenance of certain roads.
22. In course of hearing, a further affidavit was filed in OJC No. 8795/99 on 29.11.1999 wherein a xerox copy of a book-let titled “Works Programme of Cuttack Municipal Corporation from 1.1.97 to 28.2.99” purported to have been prepared and circulated by the Corporation, has been annexed by the petitioner as Annexure-2. Said book-let contains only from pages 43 to 46 and in a tabular form, serial number, name of work, file number, amount and Ward
number have been indicated. A total sum of Rs. 69,11,000/- has been shown as the amount spent towards different works in respect of Ward No. 12 during the aforesaid period. Serial Nos. 1075 and 1089 indicate that a sum of Rs. 7 lakhs and Rs. 1,20,100/- to have been spent towards development of the open space adjacent to Orissa High Court Bar Association. According to the petitioners, this is a blatant lie and the amounts have been misappropriated in the name of the Bar Association.
The petitioner in OJC No. 6919/99 has filed a petition being M. C. No. 139/2000 for initiating a proceeding under the Contempt of Courts Act against Shri Ashirbad Behera, Chairman of the Corporation for issuing an advertisement under his signature in a local Oriya daily dated 17.12.1999 (Annexure-X) justifying his action in spending the municipal funds on different construction works, while the matter was subjudice before this Court. In the said advertisement (Annexure-X), it has been stated by Shri Behera that during the period from 1.1.1997 to 28.2.1999, though a total sum of Rs. 47 crores was estimated for different developmental works in 35 wards, only a sum of Rs. 25.35 crores has been spent for the purpose. Learned counsel for the Corporation speaks of a works programme involving a total sum of Rs. 69.11 lakhs in respect of Ward No. 12, whereas counsel for the petitioners along with a further affidavit has filed a booklet containing the works programme undertaken by the Corporation in respect of Ward No. 12 wherein it has been stated that though an amount of Rs. 69.11 lakhs has been shown to have been spent in Ward No. 12, in fact, the said amount has not been spent for the purpose. It is further stated by the petitioners’ counsel that this itself casts a grave doubt regarding the genuineness of the expenditures said to have been made by the Corporation for different developments in different wards of the Corporation.
23. Be that as it may, it clearly appears that there are irregularities and illegalities as, while the Executive Officer has given an account of 38 wards and for central project Rs. 13,76,83,377.00, the Chairman declared in the advertisement in question that an amount of Rs. 25.35 crores has been spent for 35 wards. During the course of hearing, the book-let prepared and published by the Corporation was produced before us by Shri A. B. Mohanty, learned (oounsel) amicus curiae, wherefrom it can be finally found that quite a huge amount has been spent for the purpose for which the same ought not to have been spent by the Corporation as it does not relate to civic amenities to tax-payers that was to be undertaken. Some such items of work have been indicated at serial Nos. 1101 to
1104, i.e. construction of foot-paths and parapet walls from Jalaram Ghat to Sishu Bhawan Ghat, from Sishu Bhawan Ghat to Treasury Ghat, Hatigada Ghat to Talaram Ghat and Treasury Ghat to Astosambhu temple, to have been undertaken by the Corporation with a total cost of Rs. 6,13,500/-, which ought not to have been done by it.
The Corporation has categorically stated that the Ring Road, on which foot-paths and parapets were made, belongs to the Irrigation Department. Even if this road was covered by the works programme, the Corporation has refused to repair the same on the plea that the road belongs to the Irrigation Department and not to the Corporation, So, according to the Corporation, it has no responsibility or liability to repair the same. On the other hand, as it appears, the Corporation has spent a sum of Rs. 6.13 lakhs on the aforesaid work, which is solely on the road side margin of the Ring road which, as per the Corporation, belongs to the Irrigation Department. These amounts were not spent for civic amenities and have actually been spent at the cost of repairing roads and cleaning the drains for which the general public of the city are suffering and amounts spent for the purpose not included in the civic amenities is improper even though that is passed by the Council of the Corporation.
During the course of hearing, it was urged that the Corporation had turned a deaf ear to the complaints made by the public in not repairing the roads and in not cleaning the drains. There is no proper street-light facility for which the general public of the city are suffering a lot. That apart there were encroachments on the roads. The Corporation has not taken any step for removal of the encroachments. To these, in the counter affidavit filed by the opposite party Nos. 3, 5, 6, 7, 10, 11 and 19, sworn to by Shri B. C. Biswal, Executive Officer, of the Corporation, in OJC No. 87957 99, it has been stated that there are two types of roads within the limits of the Corporation – one is public roads and the other is the roads of lanes and by-lanes. So far as the public roads are concerned, they are managed and maintained by the State Govt. as well as the Union Govt. through Public Works Department, Irrigation Department, Railways and National Highway Authority. These roads consist of 70 per cent of the total roads. The remaining 30 per cent belongs to the Corporation. It has been categorically stated that unless the Govt. roads are transferred to the control of the Corporation, the responsibility of maintenance of the same cannot be fixed on the Corporation. So, any negligence on the part of the State Govt. agencies to maintain or repair the main roads cannot be attributed to the Corporation. So, on one hand, the Corporation has denied
its liability and responsibility to repair the roads which belong to the State Govt., while on the other hand, it has spent a huge sum of money over the same road for the purpose of constructing footpaths and parapets. In course of argument, learned counsel for the State submitted that the pavements/foot-paths and parapets were built during the construction of Ring Road by the State Govt. and not by the Corporation, as claimed.
So far as the cleaning of drains and swearages is concerned, the counter affidavit filed by the Corporation speaks that the cleaning of drains and swearages is the joint responsibility of the Corporation and the Public Health Department and unless there is complete co-operation between the two, nothing in this regard can be done. It is further stated, “Everyone knows how cooperative is a Government Department”.
24. So far as the unauthorised construction is concerned, the Executive Officer in para 26 of the counter filed by the Corporation and its authorities in OJC No. 8795 of 1999, has stated that there is no co-operation from the Cuttack Development Authority to proceed against unauthorised constructions and in the said paragraph, it has been stated further that “In the recent years Cuttack Town has been mushroom growth of club houses, temples, Puja Mandaps and all on Government land. There has been atrocious encroachments on public property in the name of religion and no appreciable step has been taken by the appropriate Department to check this malady”. In para 27 thereof, it is stated “… it is the cumulative effect of negligence, nay wishful negligence of all wings. It appears that no one is really attentive to this practical problem. It will be appreciated if a public interest petition is moved to compel the Government, its different wings and the Cuttack Development Authority to discharge their obligations”.
25. From the above averments, it is crystal clear that the Corporation is trying to make out a case that it has no responsibility either to repair the roads or to clean the drains and swearage and it is the State Govt. which is responsible for the encroachments and mushroom growth of club houses, temples and Puja Mandaps on Govt. land. But, from the book-let prepared and supplied by the Corporation, it is found that Corporation has provided funds for the construction of club houses, temples and Puja Mandaps on the Govt. lands. From this, it reveals that the Corporation is a party to the encroachment of public roads and the affidavit which has been filed by the Executive officer of the Corporation is not
proper and is an attempt to absolve the Corporation and its authorities from discharging their statutory and constitutional obligations towards the general public. It is unfortunate that such an affidavit was filed by Shri B. C. Biswal, the then Executive Officer of the Corporation, who is a Govt. servant.
26. On a consideration of the matter and the averments made and looking at the counter affidavits, the documents and the advertisement made in the local newspapers, the position that emerges is somewhat contradictory as regards the amount that has been spent for the purpose of providing civic amenities to the tax-payers of the City whose money has been handled by the Corporation in a very casual and whimsical manner. We, therefore, think it appropriate and desirable to direct :
(i) The State Government to appoint/depute a Special Audit Team to have a detailed audit of the entire account and expenditure of the Corporation for a period of five years preceding the date of dissolution of the last Municipal Council to submit a report to this Court within three months;
(ii) The Trust, its Chairman and all the Trustees to deposit the entire amount, which has been taken out of the Corporation’s fund including the amount deposited with the AlCTE/University, within three months from today, failing which the aforesaid amount shall be recovered from the Trust, its Chairman and the Trustees jointly and severally in accordance with law; and
(iii) That if after the audit report, it is found that any amount meant to be spent by the Corporation authorities for providing any civic amenity has been spent towards some other purpose, like construction of club houses, temples, Puja Mandaps, etc., appropriate steps be taken for realisation of the said amount from the concerned persons, under the law.
27. The writ petitions are disposed of with the above directions and observations. No cost.
P.C. Naik, J.
28. I agree.