Bureaucrats Can't Bypass Local Bodies While Calling Tenders For Matters Reserved For Local Administration: Madras HC [Read Order]

Holding thus, the bench of Justice GR Swaminathan quashed a tender notification issued by the Block Development Officer, Thiruppuvanam, for it ought to have been proposed by the panchayat union.

"While the District Collector is the authority competent to accord administrative sanction for tender works valued more than Rs.50,000/-, the proposals must emanate from the local body concerned. If there is no elected local body, the Block Development Officer can submit proposals. Unless it is a case of emergency, it is the local body that must deliberate and make the proposals," the Court held.

The direction has come in a writ petition, seeking to quash BDO's tender notification, allegedly colored in political considerations.

Though the Court did not comment on the allegations of political influence, it clarified that "If a duly elected local body is bypassed, it cannot discharge the functions statutorily mandated."

The BDO had attempted to defend his actions under Section 86 of the Tamil Nadu Panchayats Act, 1994 which stipulates that the Executive Authority may direct the execution of any work which requires the sanction of the Panchayat Union Council in cases of emergency, and the immediate execution of which may be necessary for the health or safety of the public.

Rejecting this "flimsy" argument, the bench held that the District administration can resort to Section 86 of the Act only in cases of emergency.

"The Commissioner must also opine that the execution of the work is necessary for the health or safety of the public. In the case on hand, neither of the requirements are satisfied. A mere look at the nature of the works is enough to show that they are not emergent," the bench remarked.

It observed that the tender notification was originally issued on June 9, 2020. However, the process could not take off since and even the records placed on record did not indicate anywhere that the BDO had contemporaneously opined in the files or anywhere that the works are emergent in nature and that their immediate execution is necessary for the health or the safety of the public.

"Such a justification cannot be formulated subsequently in pleadings or during arguments before the Court. The impugned action has to be justified only on the strength of the original position… Permitting agencies to invoke belated justifications, on the other hand, can upset the orderly functioning of the process of review," the Court observed.

The BDO had also relied on Section 261-A of the Act which stipulates that the Government may by notification appoint Special Officers to exercise the powers and discharge the functions of the panchayat union councils until the day on which the first meeting of such Council is held.

This provision, the bench said, conferred the powers of the Panchayat Council on the district administration only until the first meeting of the Council is held.

In the present case, even though the Chairman and Vice-chairman of the panchayat union council had not been elected, the Court held that the meeting dated January 6, 2020 where the ward members of the Council were administered oath was to be considered as the "first meeting" for the purposes of Section 261-A.

"Section 261-A stipulates that the Block Development Officer will be the Special Officer for the panchayat union till the first meeting is held after the election

The election was held in December, 2019. The votes were counted on 02.01.2020. 06.01.2020 was the first meeting. The sun had set on the said date for the Special Officer. The belief of the third respondent that even thereafter, he is entitled to continue to function as Special Officer is unfounded," the Court held.

It added,

"Even a casual look at the statutory scheme set out in Tamil Nadu Panchayats (Election) Rules, 1995, would clearly show that the first meeting is the one when the members take oath or affirmation and the election to the post of Chairman and Vice-chairman take place subsequent to the first meeting."

Lastly, the Court rejected the argument that the Petitioner, a ward member, did not have the locus standi to maintain the writ petition.

"In my view, the locus standi of the petitioner cannot be questioned. He is an elected ward member. He can certainly call the local administration to account, more so when the matter pertains to his panchayat union," the bench observed.

Case Details:

Case Title: Ramu v. Secretary, Municipal Administration & Water Supply Department & Ors.

Case No.: WP (MD) No.7444/2020

Quorum: Justice GR Swaminathan

Appearance: Advocates G. Prabhu Rajadurai and J. Anandkumar (for Petitioner); Special Government Pleaders S. Srimathy and J. Padmavathi Devi (for Respondents)

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