Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 81 (GAU)

Md. Abdul Rahim v. State af Assam and Ors.

1995-04-05

A.DEB, V.K.KHANNA

body1995
V.K. Khanna, C. J.— This writ appeal has been filed against the judgment of the learned Single Judge dated 1st March, 1995 in Civil Rule No.3407 of 1994. 2. We have heard Mr. DN Choudhury, learned counsel appearing for the appellant Md. Abdul Rahim and Mr. Sharma Baruah, learned counsel appearing for the contesting respondent Md. Idris Ali and we have also heard Mr. Sharma, Additional Senior Govt Advocate appearing for the State-respondent. 3. The controversy in the present appeal centers around the question of settling the Balistra Bi-weekly Bazar under the provisions of the Assam Panchayati Raj (Financial) Rules, 1990, (hereinafter referred to as Rules, 1990) for the year 1994-95. 4. The undisputed facts are that for settling aforesaid Bi-weekly Bazar, an advertisement was made by the concerned Anchalik Panchayat inviting tenders. A copy of the notice inviting tenders has been annexed to the Civil Rule as Annexure 2. (Notice No.DAP. 2/94-95/314 dated 11.5.1994). In pursuance of the aforesaid tender notice, several applicants including the appellant Md. Abdul Rahim and respondent-petitioner Md. Idris Ali submitted their tenders and were received by the Anchalik Panchayat. Admittedly, Anchalik Panchayat rejected many of the tenders and sent its recommendation to the Mahakuma Parishad which settled the bi-weekly bazar in favour of respondent No.5 Md. Mafizuddin for an amount of Rs. 17,251.25 on ad hoc measure till the approval of the State Govt. Certain appeals were filed before the State Govt. including the appeal by the appellant Md. Abdul Rahim. The Joint Secretary to the Govt. of Assam, Panchayat and Rural Development Department by its order dated 30th August, 1994 decided the appeals and in exercise of power given under Section 73 (3) (proviso 4) of the Assam Panchayati Raj Act, 1986 read with Rules, 58 (7) of the Assam Panchayati Raj (Financial) Rules, 1990 settled the Balisatra Bi-weekly Bazar in favour of the appellant Md Abdul Rahim for an amount of Rs,25,551 per month. The aforesaid order passed by the Joint Secretary to the Govt. of Assam was challenged by filing Civil Rule No.3407 of 1994 by respondent No.6 Md. Idris Ali. The learned Single Judge quashed the aforesaid order and ordered settlement of the bazar in favour of respondent No.6 Md. Idris Ali for an amount of Rs.23, 525. The present special appeal has been filed against the aforesaid order of the learned Single Judge by Md. Idris Ali. The learned Single Judge quashed the aforesaid order and ordered settlement of the bazar in favour of respondent No.6 Md. Idris Ali for an amount of Rs.23, 525. The present special appeal has been filed against the aforesaid order of the learned Single Judge by Md. Abdul Rahim-appellant in whose favour, the order had been passed by the State Govt. settling the bazar for an amount of Rs.25,551. It may be mentioned that at this stage that as far as Idris Ali is concerned, in his tender he had offered an amount of Rs.23,525 per month. 5. The crucial question which has arisen for determination in the present appeal is as to whether the State Govt. in deciding the appeal has taken correct view of clauses 6, 7 and 13 of the notice inviting tenders (Annexure 2 to the Civil Rule No.3407 of 1994). A bare perusal of the impugned order passed in the appeal would show that the appellate authority while examining the tender of the appellant Md. Abdul Rahim has observed that there is an express intention to pay me bid money and as such the Settlement Committee cannot reject his offer. The authority was of the view that as Md. Abdul Rahim was ready to pay the instalment whatever could not be covered by surety, nothing wrong could be found in his intention and the expression of his intention would be treated to be compliance of the clauses 6,7 and 13 of the notice inviting tender dated 11.5.94. 6. The first question which has arisen for determination is as to whether at the time of inviting tender, the condition of surety can be put by the Anchalik Panchayat publishing the notice, in view of the provisions of Rules 1990. Rule 58 (2) (ii) clearly stipulates that the tender notice shall state: "58. (2) (ii) Conditions for submission of tenders including the amount of surety money for the purpose." (emphasis provided). It is, therefore, clear in our opinion that in view of the aforesaid statutory provisions such condition can be put, so that surety can be asked for assuring that in case the person in whose favour the bazar is settled fails to deposit the bid money, the same would be realised from the surety. It is, therefore, clear in our opinion that in view of the aforesaid statutory provisions such condition can be put, so that surety can be asked for assuring that in case the person in whose favour the bazar is settled fails to deposit the bid money, the same would be realised from the surety. In our opinion, therefore, the conditions No.6,7 and 13 mentioned in the notice are mandatory and violation of these conditions would make the tender liable for rejection. The view taken by the appellate authority that only an expression of intention that the tenderer would pay the amount in cash should be treated to be a valid compliance of clauses 6,7 and 13 of the tender notice, in our opinion is perverse. Such a view, in our opinion cannot be spelled out either from Rule 58(2)(ii) of Rules, 1990 or from the tender notice. In our opinion, therefore, the order passed by the appellate authority is liable to be quashed. 7. Next question which has arisen for consideration is as to whether the learned Single Judge is right in allowing the respondent No.6 to operate the bi-weekly bazar only on the ground that his tender was found to be valid. In our opinion, the proper course of action which has to be followed after finding that the order of the appellate authority is bad was to remand the matter to the appellate authority to take fresh decision in accordance with law and in the light of observation made in the judgment so that the appellate authority may examine all the tenders in accordance with law and in accordance with the conditions laid down in the notice and take a decision in favour of the person who has offered highest amount of bid in tender and his tender is found to be valid. 8. In view of what we have observed above, the order of the learned Single Judge is also liable to be set aside which we hereby do. 9. For the purpose of running the bi-weekly bazar, we have passed the following interim order on 3.4.95 : "List this appeal alongwith Civil Rule No.2613 of 1994 on 5.4.95 showing the cases separately and the names of the counsel appearing in those cases separately. Heard Mr. DN Choudhury and Mr. S. Ali, learned counsel for the parties. 9. For the purpose of running the bi-weekly bazar, we have passed the following interim order on 3.4.95 : "List this appeal alongwith Civil Rule No.2613 of 1994 on 5.4.95 showing the cases separately and the names of the counsel appearing in those cases separately. Heard Mr. DN Choudhury and Mr. S. Ali, learned counsel for the parties. From the month of April, 1995 the respondent-petitioner Idris Ali will be entitled to run the Bazar for the remaining period only on the condition that he shall deposit within a period of one week, the entire amount of Rs.35,000. Any amount which may have been deposited towards the instalment for the month of April, 1995 will be taken into account for the purposes of compliance of this condition. In case the amount is not deposited within the aforesaid period, the petitioner-respondent will be restrained from running the market and the appellant will be entitled to run the market on the same conditions and terms by depositing Rs.35,000 per month." 10. A certified copy of our order will be filed by the parties within a period of one week before the competent authority person who shall accept the same and will adjudicate the appeals within a period of 3 weeks from the date of filing of the certified copy and will decide the question in accordance with law and subject to the observations made in this judgment. For the reasons stated above, the appeal is allowed. The order of the learned Single Judge dated 1.3.95 in Civil Rule No.3407 of 1994 is set aside. However, looking to the entire facts and circumstances of the case, parties shall bear their own costs. ------------------------