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1993 DIGILAW 86 (GAU)

Rahimuddin Sheikh v. State of Assam and Ors.

1993-04-01

S.K.HOMCHAUDHURI

body1993
This petition is directed against the appellate order dated 5.2.93 passed by the Govt. setting aside the settlement of Patiladaha Hat under Manikput Anchalik Panchayat in favour of the petitioner for the period from 1.8.92 to 30.6.93. 2. In response of a notice intiating tenders, the petitioner along with other submitted his tender for settlement of the hat offering Rs. 1,27,501/-. The petitioner's bid was the highest. The Anchalik Panchayat after scrutiny of the tenders prepared a comparative statement and being satisfied that the petitioner's tender was in order, settled the bazar with the petitioner. After getting settlement order, the petitioner deposited Rs. 95.000/- towards kist money out of Rs. ],27.501/-. The unsuccessful bidder, namely the respondent No. 4 who offered Rs. 81,001/-, challenged the order before the appellate authority by preferring an appeal. The appellate authority afier hearing the parties by order dated 28.10.92, allowed the appeal and set aside the order of settlement with the petitioner and directed the Anchalik Panchayat to settle the bazar in favour of respondent No. 4 at his bid of Rs. 81,001/-. The petitioner challenged the said order dated 28.10.92 passed by the appellate authority before this Court in Civil Rule No. 2259 of 1992. By order dated 18.12.1992, this Court set aside the appellate order and remanded the matter back to the appellate authority. While disposing of the writ petition, this Court found that the appellate authority set aside the settlement on the ground that petitioner failed to execute deed of lease as provided under Rule 58 (8) (ii) of the Assam Panchayati Raj (Financial) Rules, 1990 and that the petitioner also failed to submit tax clearance certificate. In the aforesaid order dated 18.12.92, this Court however, observed :- "Under the foot note to Rule 58 (8), the Panchayat concerned shall provide the forms of lease and stamp papers at the concerned lessee's cost. But the Panchayat neither informed the petitioner not supplied the form. Therefore, the petitioner was disabled from performance of his part, and, for no fault of the petitioner, the settlement of the hat in question was illegally cancelled. Lastly, tax clearance certificates were filed along with the tender. To support this contention, the petitioner has filed a receipt dated 27.7.92 for clearance of tax for the period from 1.7.92 to 30.6.93. The petitioner has also drawn my attention to the comparative list of all the tenders. Lastly, tax clearance certificates were filed along with the tender. To support this contention, the petitioner has filed a receipt dated 27.7.92 for clearance of tax for the period from 1.7.92 to 30.6.93. The petitioner has also drawn my attention to the comparative list of all the tenders. Column 7 of the comparative list indicate that all required certificates were furnished along with the tender". 3. After remand, the appellate authority by the impugned order dated 5.2.93 allowed the appeal. Operative part of the appellate order is as follows : "After hearing all the parties and going through the records available in the case, it is felt that as only a few months are left for expiry of lease period of the bazar and Shri Rahim Uddia Sheikh did not fulfil, all the conditions laid down in the tender notice, and the Anchalik Panchayat concerned violated the provision of Rule 58 (8) while settling it with Shri Rahimuddin Sheikh the settlement given to Shri Rahimuddin Sheikh is not acceptable and hence the Patiladaha hat may be settled with Shri B. P. Das at proportionate rate offered by Shri Rahim Uddin Sheikh for the remaining period of 1992-93.... … ..." Feeling aggrieved, the petitioner has again approached this Court in this writ petition. 4. I have head Mr. S. Kataki, learned counsel for the petitioner, Mr. BL Singh learned Govt. Advocate and also Mr. KC Das, learned counsel for private respondent No. 4. 5. The learned counsel for the petitioner submits that the impugned order has been passed arbitrarily and illegally. The appellate authority has not stated any reason as to how the petitioner did not fulfil the condition laid down in the tender notice. Learned counsel for the petitioner further submits that the tax clearance certificate was submitted and the same was very much on the records. 6. Mr. Das, learned counsel for the respondent No. 4 on the other hand submits that the petitioner was a defaulter in respect of payment of tax and he having not fulfilled all the conditions as per the tender notice, the appellate authority has rightly allowed the appeal of the respondent No. 4 and set aside the order of settlement in favour of the petitioner. Mr. Das further submits that as per the conditions stipulated in the tender, the tax clearance certificate was to be submitted along with the tender. Mr. Das further submits that as per the conditions stipulated in the tender, the tax clearance certificate was to be submitted along with the tender. That not being done, the appellate authority has rightly held that petitioner did not fulfil the conditions of tender notice. 7. I have considered the submissions made on bihalf of the petitioner and respondent No. 4 and have perused the materials on records. I find sufficient force in the submission made on behalf of the petitioner. The impugned order is ex-facie arbitrary and illegal. The appellate authority has not stated any reason as to how the petitioner did not fulfil the conditions laid down in the tender notice. The allegation that the petitioner is a defaulter, was not made in the appeal and as such, this point cannot be urged in this petition to sustain the impugned order. If the Anchalik Panchayat concerned has violated the provision of Rule 58 (8), the petitioner cannot be responsible for not executing the lease within the stipulated period. When the Anchalik Panchayat concerned could not provide the form in time as per provision of the Rules, the petitioner cannot be made to suffer and the settlement order in his favour cannot be set aside for fault of the Anchalik Panchayat which disabled the petitioner to execute the lease within 7 days. Admittdly the tax clearance certificates being before the appellate authority, the settlement in favour of the patitioner could not be set aside taking super technical view that the certificate was not submitted along with the tender. 8. The order of the appellate authority settling of the Bazar in favour of the respondent No. 4 at the amount offered by the petitioner, is illegal and is in violation of the settled law laid down by this Court in the case of Moanjan.Paul vs-State of Assam, reported in AIR 1971 Gauhati 142. For the reasons stated above, the impugned order-dated 5.2.93 aside the settlement of thereof with –bazar with-the petitioner and settling thereof with the, respondent, No.4 at the- amount-offered by the petitioner cannot be sustained The .petition is, therefore , allowed and the impugned appellate order is set aside and consequently .the order settling-the bazar with the petitioner is restored. The petitioner shall be .allowed to enjoy the fruits of the settlement for the rema ning period on payment of proportionate amount of his bid money 4Rd; (Rs. The petitioner shall be .allowed to enjoy the fruits of the settlement for the rema ning period on payment of proportionate amount of his bid money 4Rd; (Rs. 1,2/,501|/-)after -adjusding the amount already paid. I make no order to costs.