1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.428 of 2011 V.P.Sankar : Appellant Vs. 1.The Commissioner, Manapparai Municipality, Manapparai, Tiruchirappalli District. 2.M.Saroja Mary : Respondent PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 04.03.2011 made in W.P.(MD).No.3569 of 2010 on the file of this Court. Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the records relating to the order in Na.Ka.No.4472/2008/C1 dated 22.2.2010 on the file of the First Respondent. For Appellant : Mr.G.R.Swaminathan JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is filed as against the order dated 04.03.2011 passed in W.P.(MD).No.3569 of 2010. 2. The said Writ Petition was filed challenging the order dated 22.02.2010 passed by the first respondent herein and for a direction to the first respondent to refer the case of the second respondent's disqualification for determination before the concerned District Collector. 3. The case of the appellant is that he is an elected Councillor of the first respondent Municipality. He had submitted a representation dated 18.04.2007 before the first respondent Municipality pointing out an alleged disqualification as against the Vice - Chairman of the first respondent Municipality, the second respondent herein. The grievance of the appellant is that the husband of the second respondent had a subsisting interest in the contract relating to certain matters of the first respondent Municipality, i.e., according to the learned counsel for the appellant, the husband of the second respondent was a contractor of the first respondent Municipality prior to the second respondent assumed office as Vice - Chairman of the first respondent Municipality. However, according to the learned counsel for the appellant, when a tender was called for, the husband of the second respondent had also participated and he became a successful bidder, consequently, relying on Section 49 of https://hcservices.ecourts.gov.in/hcservices/ 2 the Tamil Nadu District Municipalities Act, 1920, it is the stand of the learned counsel for the appellant that since the second respondent's husband had also submitted his tender schedule for the said contract, the husband of the second respondent has got subsisting interest in the said contract, and therefore, there was an act of disqualification. 4. As far as the said submission of the learned counsel for the appellant is concerned, even as per the stand of the learned counsel for the appellant, the second respondent assumed office as Vice - Chairman only on 25.10.2006, the date on which, her husband was an existing contractor. It is also an admitted fact that the husband of the second respondent had also participated in the tender and he also became a successful bidder. However, subsequently, he has given up his claim. Basing on this, the same was given to the second highest bidder and the status of the second respondent's husband as an existing contractor with the first respondent Municipality was also terminated. But, according to the learned counsel for the appellant, since the second respondent's husband had participated in the tender, a disqualification arises. But, the wordings used in Sections 49(2)(c) and 50(1)(c)(d) is a subsisting contractor, which read as follows:- 49(2)(c)(d) - interested in a subsisting contract made with, or any work being done for, the municipal council except as a shareholder (other than a director) in a company, 50(1)(c)(d)- applies to be adjudicated or is adjudicated, a bankrupt or insolvent; (d) subject to the proviso to clause (c) sub-section (2) of Section 49, acquires any interest in any subsisting contract made with, or work being done for the council except as a shareholder (other than a director) in a company. 5. As per the argument of the learned counsel for the appellant and also as per the wordings in the order impugned in the Writ Petition, the second respondent's husband was a successful bidder. But, no contract was entered into between him and the first respondent Municipality and not only his status as an existing contractor was terminated, but also, he himself has withdrawn the same. When the wordings used in Sections, referred to above, is subsisting contract and when no such contract is entered into between the first respondent Municipality and her husband, in our considered view, mere making his offer to the tender notification will not amount to a disqualification. Consequently, this argument of the learned counsel for the appellant will not hold good. 6. The second argument of the learned counsel for the appellant is that for the work completed by the second respondent's husband as a contractor, he was paid a sum of Rs.2,00,000/-, which amounts to subsisting interest, consequently, the second respondent gets disqualification. Even according to the learned counsel for the appellant, as far as the second respondent's husband is concerned, he was an existing contractor prior to the second respondent assumed the office as vice – chairman of the first respondent Municipality and even according to him and also as per the impugned order, the work was completed prior to the second respondent assumed office as Vice – https://hcservices.ecourts.gov.in/hcservices/ 3 Chairman. As on 25.10.2006, the date on which the second respondent assumed office, no contract was existing between the Municipality and her husband and what had been made is only payment for the work completed by her husband as a Contractor of the first respondent Municipality and the said work was completed prior to the second respondent assumed office of the first respondent Municipality. Therefore, the second argument of the learned counsel for the appellant also will not hold good. 7. For the foregoing reasons, the order dated 04.03.2011 in passed in W.P.(MD).No.3569 of 2010 is confirmed and the Writ Appeal is dismissed with costs of Rs.2,000/-, [Rupees Two Thousand Only]. Sd/- Assistant Registrar (P&A) /True copy/ Sub Assistant Registrar To The Commissioner, Manapparai Municipality, Manapparai, Tiruchirappalli District. +1CC TO MR.G.R.SWAMINATHAN, ADVOCATE SR.13803 NB SR : 10.06.2011 : 3p/3c JUDGMENT MADE IN W.A.(MD).No.428 of 2011 11.04.2011 https://hcservices.ecourts.gov.in/hcservices/