This writ application has been filed challenging the legality and validity of the order dated 4.11.95 passed by the Deputy Secretary to the Government of Assam, Panchayat and Rural Development Department setting aside the settlement of the petitioner, further settling the Langla Bazar with the respondent No. 7, that is, Annexure IX to the writ application. . 2. The findings of the appellate authority are, inter alia as follows : (i) The Anchalic Panchayat settled the bazar with prior approval of Mahakuma Parishad concerned and thus violated the procedure prescribed under the relevant rules meaning thereby, the Assam Panchayati Raj (Finance) Rules, 1990 vide Condition No.6 of the tender. (ii) The Bazar Settlement Committee did not do wrong by rejecting the tenders of the tenderers at serial Nos. l, 2, 4, 5, 8 and 10. (iii) As per the record of the comparative statement Md. Azaharul Islam to whom the Mahakuma Parishad recommended for settling the bazar does not appear to have submitted income tax clearance certificate and name of the Zamindar as required as per Condition No.29 of the tender notice. (iv) The tender of Azaharul Islam was not a valid tender. 2A. Having arrived at this findings the settlement order passed by Ruposhi Anchalik Panchayat in favour of Azaharul Islam was set aside and the settlement was made in favour of Md. Yunush Ali at the rate of Rs.3,75,000/-. 3. The brief facts are as follows : On 17.4.95 a sale notice was issued by Ruposhi Anchalik Panchayat inviting tenders for settlement of Langla Weekly Bazar for the year 1995-96 with effect from 1.7.95. As many as 12 tenders were submitted by different persons by giving different bid money. The bid of the petitioner was Rs.3,33,000/- and the bid of the respondent No.7 was Rs.3,25,800/-. The minimum bid amount fixed by the authority was Rs.3,24,500/-. On 8.6.95 the Standing Committee of the Anchalik Panchayat settled the bazar with the respondent No.7 at Rs.3,25,802/- which was a lowest tender subject to approval of Mahak Uma Parishad, that is, Annexure I to the writ application. On 30.6.95 the Mahakuma Parishad refused to accord approval and sent back the matter to Anchalik Panchayat for making settlement of the bazar at a higher amount offered by the other tenderer. On 30.6.95 the Mahakuma Parishad refused to accord approval and sent back the matter to Anchalik Panchayat for making settlement of the bazar at a higher amount offered by the other tenderer. On 30.6.95 the Standing Committee of the Panchayat on further scrutiny found the tender of the petitioner and respondent No.7 to be valid and accepted tender submitted by the petitioner at his offer of Rs.3,33,000/-. On 3.7.95 the bazar was settled with the petitioner at his tendered amount by the Anchalik Panchayat. On 5.7.95 and 6.7.95 the amount of Rs.33,000/- and Rs.83,250/- were deposited by the petitioner against this settlement. On 6.7.95 the lease was granted by the Anchalik Panchayat in favour of the petitioner. Thereafter, on different dates different amounts were deposited by the petitioner in connection with the settlement. On 1.9.95 a judgment was passed by this Court on a writ application filed by respondent No.7 against the settlement by observing that respondent No.7 may prefer an appeal before appellate authority within a period of 15 days. That was in Civil Rule No.2778 of 1995. Thereafter the impugned order vide Annexure IX was passed by the Appellate Authority: Hence this writ application. 4. I have heard Shri SN Medhi, learned Advocate for the petitioner and Shri N. Dutta, learned Advocate for the respondent No.7. An affidavit-in-opposition has been filed on behalf of respondent No.7. An affidavit-in-reply also has been filed against that affidavit-in-opposition. No affidavit was filed on behalf of respondent Nos. 1 to 6. But the record was produced by the State Government at the time of hearing. It may be stated herein that against the refusal to vacate the stay order passed by this Court a writ appeal being Writ Appeal No.495 of 1995 was filed. But that writ appeal was rejected. 5. The following points are urged on behalf of the petitioner : (i) That the appeal was heard by one officer and the judgment was passed by another officer and in that view of the matter it is violative of the principle of natural justice. (ii) That even if the documents were not produced at the time of filing the tender k was produced at the subsequent point of time and the Appellate Authority has not given any findings regarding the documents produced subsequently and as such the findings of the Appellate Authority regarding non-production of the documents is perverse. (ii) That even if the documents were not produced at the time of filing the tender k was produced at the subsequent point of time and the Appellate Authority has not given any findings regarding the documents produced subsequently and as such the findings of the Appellate Authority regarding non-production of the documents is perverse. (iii) That the respondent No.7 was given the settlement by way of negotiation at a price not offered by him, but no negotiation was made with the petitioner and as such the settlement is bad and illegal. 5A. On the other hand Shri Dutta submits as follows : (i) That regarding negotiation, negotiation can be made only with a person whose tenders are found to be valid. In the instant case it is the findings of the Appellate Authority that the tender of the petitioner was not a valid one and as a matter of fact in the field there was the only valid tender of respondent No.7 and in that view of the matter a negotiation with the other tenderers does not arise. (ii) Regarding documents he submits that in the notice inviting tender certain things were made obligatory and this obligation cannot be thrown to the windby allowing filing of documents at a subsequent point of time inasmuch as, if that is allowed, that will create an utter chaos and will cause prejudice to the other persons, who filed the documents along with the tender. He further submits that though the income tax documents were available in the record from a perusal of the comparative statement, it is clear that these documents were not produced when the Anchalik Panchayat considered the validity of the tender. (iii) Regarding hearing it is submitted that though hearing was taken by one officer and the judgment was delivered by the other officer, that will not cause any prejudice to the parties, inasmuch as it is an administrative matter and any officer can decide the matter on the basis of record if that officer takes into consideration all the objections raised by the parties. (iv) Basically it is the power of the Anchalik Panchayat to make the settlement and there is no necessity to sent all the papers to Mahakuma Parishad. (iv) Basically it is the power of the Anchalik Panchayat to make the settlement and there is no necessity to sent all the papers to Mahakuma Parishad. The Mahakuma Parishad has no role to play and the Mahakuma Parishad cannot give a direction to the Anchalik Panchayat to make a settlement because that will amount usurping the power of another authority. (v) The rule does not provide which officer is to hear the matter. There is no need to give personal hearing at the time of disposal of the appeal, that is, not the requirement of the rule and as such an officer on the basis of record can dispose of the matter even without giving a personal hearing. 6. Before we take up the points, it is to be noted that this matter is governed by the Assam Panchayat Act, 1994 and this Act came into force on 6th of May, 1994. No rule has been framed under this particular Act. Section 131 (l)(a)(c) provides as follows : "131. Repeal of previous Act : (1) On and from the date on this Act cames into force, the Assam Panchayati Raj Act, 1986 shall be deemed to be repealed. Provided that: (a) till such time when new rules are framed before the expiry of one year from the coming into force of 73rd Amendment of the Constitution Act the rules framed under 1986 Act, shall remain valid; (c) all rules and bye-laws, notifications, orders, appointments made, permissions and sanctions granted, taxes, cess, fees, or rates levied, contract entered into, suits instituted and proceedings taken under the Assam Panchayati Raj Act, 1986 and in force immediately before the commencement of this Act, shall continue to be in force and so far as they are not inconsistent with this Act, shall be deemed to have been retrospectively made, granted, levied, entered into, instituted and taken under this Act until new provisions are made under this Act." 7. Section 105 provides for the settlements of Hats by Anchalik Panchayat, that is quoted below : "105. Settlement of Hats by Anchalik Panchayat : (1) All Hats within the territorial jurisdiction of Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by its President. Settlement of Hats by Anchalik Panchayat : (1) All Hats within the territorial jurisdiction of Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by its President. (2) Detailed procedure for inviting and submission of such tenders shall be such as may be prescribed. (3) The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee referred to in section 52 (1) (a). (4) All settlement made under sub-section (3) shall be subject to the confirmation of the Zilla Parishad: Provided that in case of any dispute, the Anchalik Panchayat may refer such case to the Government and the aggrieved party may appeal to Government whose decision in this regard shall be final." 8. So a bare perusal of section 105 will show that this section does not require that such a settlement made by the Anchalik Panchayat should be subject to the approval of Mahakuma Parishad. It speaks of confirmation by the Zilla Parishad and the admitted position is that as on today there is no Zilla Parishad. Section 52 of the Act provides for Standing Committee of Anchalik Panchayat and there are three Standing Committees. (i) General Standing Committee. (ii) Finance Committee and Planning Committee. (iii) Social Justice Committee. 9. Sub-section (3) of section 105 provides that the power of examination and final acceptance of such tender shall be vested in the Standing Committee referred to in section 52 (1) (a). So, the question of approval by the Mahakuma Parishad as sought for by order dated 8.7.95 vide Annexure I does not arise as that is not the necessity under the Act. Annexure I, II and III are quoted below to appreciate the facts of this case. " Annexure I: Today dated 8.6.95 the Standing Committee after scrutinising all the 12 tenders in respect of Langla Bazar found and declared only one tender as valid. As per unanimous decision of the Standing Committee the aforesaid Langla Bazar was settled with Md. Eunus Ali at Rs.3,25,802/- (Repees three lakhs twenty five thousand eight hundred and two) only which is above the estimated bid money of the Government. As per unanimous decision of the Standing Committee the aforesaid Langla Bazar was settled with Md. Eunus Ali at Rs.3,25,802/- (Repees three lakhs twenty five thousand eight hundred and two) only which is above the estimated bid money of the Government. Annexure II : Resolution No. l adopted in the meeting of the Committee constituted by the Rupsi Anchalik Panchayat in connection with settlement of Hat.Ghat/Fisheries within the said Panchayat, held on 30.6.95. Resolution No. l : On scrutiny of 12 tenders for Langla Bazar it is found that 10 tenders are defective and 2 tenders are found to be proper. Out of the said 2 proper tenders, the tenders submitted by Md Azaharul Islam offering Rs.3,33,000/-(Rupees three lakhs thirty three thousand) is accepted for settlement of the bazar. Although the Committee of the Anchalik Panchayat initially wanted to settle the bazar with the lowest tender, Md Eunus Ali at his tendered amount of Rs.3,25,802/-, and the decision was forwarded to the Mahakuma Parishad for approval, the Parishad made its approval to the settlement to be given at the amount Higher than the amount offered by him. Sd/- Shri J Ahmed, President Barpeta Mahakuma Parishad, Barpeta. 30.6.95." Annexure III : As the settlement of Langla Bazar made by the Standing Committee on 8.6.95 with Shri Eunus AH at Rs.3,25,802/- was not confirmed by the Mahakuma Parishad the matter again was discussed in its today's meeting and decide to settle with Shri Azaharul Islam at Rs.3,33,000/- as per confirmation of the Mahakuma Parishad. As per decision of the Standing Committee sits on today decided to return the kist money and security to Sri Eunus Ali, by cancelling his settlement and as per confirmation of the Mahakuma Parishad on 30.6.95 the Langla Bazar has been settled with Sri Azaharul Islam by the Standing Committee and directed Shri Azaharul Islam to deposit the kist money along with the security money and to submit the other documents. The Secretary was empowered with authority to do so." 10. So it appears that Annexure III the order dated 3.7.95 quoted above, was passed at the behest of Mahakuma Parishad which has no role to play in the matter and as such this .order is absolutely without jurisdiction and must be deemed to be nullity in the eye of law. The Secretary was empowered with authority to do so." 10. So it appears that Annexure III the order dated 3.7.95 quoted above, was passed at the behest of Mahakuma Parishad which has no role to play in the matter and as such this .order is absolutely without jurisdiction and must be deemed to be nullity in the eye of law. Section 105 of the Act gives the absolute power to the Anchalik Panchayat and it speaks only of confirmation by Zilla Parishad. Constitution of Zilla Parishad is provided by Chapter VI of the Act of 1994 and as indicated above no Zilla Parishad ha$ been constituted. In the new Act of 1994 there is nobody like Mahakuma Parishad. It speaks of only three Panchayati Raj Bodies as is evident from section 2 (7) and these Panchayati Raj Bodies means the Gaon Panchayat, the Anchalik Panchayat and Zilla Parishad and the admitted position further is that on the date of settlement the new Act was holding the field and the old rules also cannot be deemed to hold the field in view of section 131 (1) (a) of the Act. In the old Act of 1986 the following were the bodies : Gaon Panchayat, Anchalik Panchayat and Mahakuma Parishad and section 2 (6) provided that the Panchayati Raj Bodies means, the Gaon Panchayat, Anchalik Panchayat and Mahakuma Parishad. But in the new Act there is no existence of Mahakuma Parishad. In the earlier Rules, that is, Assam Panchayati Raj (Financial) Rules, 1990 provided for the procedure for the sale and settlement of markets, ferries, fisheries and Paunds. But that rule no longer holds the field. So the question of referring the matter of Mahakuma Parishad does not arise and Annexure III by which the settlement was made with the petitioner as indicated above is without authority of law. Once this view is taken there is no necessity to decide other questions raised by the learned Advocate for the petitioner inasmuch as this petition can be disposed of on this short ground alone. Yet I have heard the learned Advocate for the petitioner on the other points I will like to give my decision on the other points urged by the learned Advocates for the parties. 11. Let us take up the point No. 1 urged by Shri Medhi and resisted by Shri Dutta. Yet I have heard the learned Advocate for the petitioner on the other points I will like to give my decision on the other points urged by the learned Advocates for the parties. 11. Let us take up the point No. 1 urged by Shri Medhi and resisted by Shri Dutta. Shri Medhi in support of his contention relied on AIR 1959 SC 308 (Gullapalli Nageswara Rao & others vs. Andhra Pradesh State Road Transport Corporation & another, B. Somasankara Sastri, Intervener) and he relies in paragraph 31 which is the majority judgment. Paragraph 31 is quoted below: “31 The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the rules impose a duty on the Secretary to hear and the Chief Minister lo decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by personal argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure." 12. A bare perusal of the paragraph itself will show that the Act and the Rules with regard to that case imposed a duty to give a personal hearing: In the instant case the proviso to section 105 provides that an aggrieved party may appeal to Government whose decision in this regard shall be final. The question of giving a personal hearing is not provided in the Act itself. The Dictionary meaning of the word 'Appeal' is application for re examination of a case, to consider again with a view to change, action or context. It is an application to re-hear, re-open request another decision, request re-examination, request re­opening of a case, (see AIR 1956 SC 367 , Mala Ram & Sons vs. CIT). 13. The right of hearing has not been conferred by the statute. It is an application to re-hear, re-open request another decision, request re-examination, request re­opening of a case, (see AIR 1956 SC 367 , Mala Ram & Sons vs. CIT). 13. The right of hearing has not been conferred by the statute. In a particular case the authority may decide to give a personal hearing or it may not give a personal hearing, but may decide the matter on the basis of the materials on record. In this connection Shri Dutta relies on (1989) 4 SCC 264 (Ossein and Gelatine Manufacturers Association of India vs. Modi Alkalies and Chemicals Ltd), and he relies on paragraphs 5 and 6 which are quoted below : "5. On the issue of natural justice, we are satisfied that no prejudice has been caused to the appellant by any of the circumstances pointed out by the appellant. It is true that the order has been passed by an officer different from the one who heard the parties. However, the proceedings were not in the nature of formal judicial hearings. They were in the nature of meetings and full minutes we're recorded of all the points discussed at each meeting. It has not been brought to our notice that any silent point urged by the petitioners has been missed. On the contrary, the order itself summarises and deals with all the important" objections of the petitioner.' 6. There was some discussion before us on a larger question as to whether the requirements of natural justice can be said to have been complied with where the objections of parties are heard by one officer but the order is passed by another, Sri Salve, referring to certain passages-in Local Government Board vs. Alridge, Ridge vs. Baldwin, Ragina vs. Race Relations Board, Exparte Selvarajan and in de Smith's Judicial Review of Administrative Action (4th Edition pp 219-220) submitted that this was not necessity so and that the contents of natural justice will vary with the nature of the enquiry, the object of the proceeding and whether the decision involved is an 'institutional' decision or one taken by an officer specially empowered to do it. Sri Divan, on the other hand pointed out that the majority judgment in Dullapalli Nageswara Rao vs. APSRTC has disapproved of Alridge case and that natural justice demands that the hearing and order should be by the same officer. Sri Divan, on the other hand pointed out that the majority judgment in Dullapalli Nageswara Rao vs. APSRTC has disapproved of Alridge case and that natural justice demands that the hearing and order should be by the same officer. This is a very interesting question and Alridge case has been dealt with by Wade. We are of the opinion that it is unnecessary to enter into a decision (sic discussion) of this issue for the purposes of the present case. Here the issue is one of grant of approval by the Government and not any particular officer statutorily designated. It is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forwarded by the petitioners. We are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case." 14. In the instant case also the appeal lies to the Government and the decision of the Government is final. It appears in the instant case that hearing was taken by one G. Patowari and from the record it appears that he note down the points and thereafter the matter was put up before the Commissioner and the Commissioner did not agree with the findings and he put up a separate note. Thereafter the matter was put up before the Minister and the Minister agreed with the note of the Commissioner and passed an order to make the settlement in terms of the subsequent order dated 4.11.95 passed by the Deputy Secretary to the Government of Assam which has been impugned. In view of the decision of the Apex Court in (1989) 4 SCC 264 (supra) (Ossein and Gelatine Manufacturers Association of India vs. Modi Alkalies and Chemicals Ltd & another), I find that the contention of Shri Dutta is to be accepted and accordingly I hold that though the matter was heard by one officer, but the order was passed by another officer, that did not cause any prejudice to the petitioner.. So the point No. l urged by Shri Medhi shall stand rejected. 14A. The concept of hearing associated with natural justice covers two things : (1) that the persons be given adequate notice of the things to be decided, (2) that he be given adequate hearing. What is adequate will vary from case to case. No rigid standard can be laid down. 14A. The concept of hearing associated with natural justice covers two things : (1) that the persons be given adequate notice of the things to be decided, (2) that he be given adequate hearing. What is adequate will vary from case to case. No rigid standard can be laid down. What is required it must be fair. Fairness is the touchstone and measuring rod/yard stick. While hearing will be normally oral, there is no fixed rule that this must be so (see 1974 QB 674, Kavaragh vs. Ryan). The type of hearing may differ within different areas. To expect an administrative authority to hear an appeal with all judicial trapping in minds is something beyond the requirement of law. In this connection I quote below a passage from de Smith "Judicial Review of Administrative Action" - Fourth Edition page 219 "Must he who decides also hear? In general the answer is in the affirmative. It is a breach of natural justice for a member of a judicial tribunal or an arbitrator to participate in a decision if has not heard all the oral evidence and the submissions. The same principle has been applied to members of administrative bodies who have taken part in decision affecting individual rights thereafter oral hearing before those bodies at which they have not been present, for bias and ignorance alike preclude fair judgment upon the merits of the case". But the learned author points out that there are many situations in administrative law where it is impracticable or inconvenient, what is to be looked into in such a case is whether the decision is justified/proper on the anvil of fairness. If the answer is in the affirmative, there is the end of the matter. 15. Next, let us take up the question of the power of the Anchalik Panchayat and whether a settlement made by the Anchalik Panchayat requires the approval of Mahakuma ParishadjFrom a bare perusal of section 105 of the Act (quoted above), it will appear that the power to make the settlement is with the Anchalik Panchayat and that power is to be exercised in the mode/manner as prescribed in the Act. Any other mode or method adopted cannot hold the field. Any other mode or method adopted cannot hold the field. In support of this contention Shri Dutta places reliance on the following decisions : (1) AIR 1936 PC 253 (Nazir Ahmed vs. King Emperor) where the Privy Council has laid down the law as follows : "The rule which applies is that where a power is given to o a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." (ii) AIR 1975 SC 915 (Ramchandra Keshav Adke (dead) by Lrs vs. Govind Joti Chavare & others) and relies on paragraph 25 which lays down the law as follows : "25. A century ago, in Taylor vs. Taylor (1875) I Ch D 426 Jessel MR adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed vs. Emperor, 63- Ind App 372 : (AIR 1936 PC 253 (2) and later by this Court in several cases." (iii) AIR 1976 SC 789 (Hukum Chand Shyam Lai vs. Union of India & others) and he relies on paragraph 18 which is quoted below : " 18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, is should be exercised in that manner or not at all, and all other methods of performance are necessarily forbidden." 16. Shri Dutta urges that section 105 of the Act gives specific power to the Anchalik Panchayat to make the settlement and by Annexure I and II the settlement was made with Md. Yunus Ali, respondent No.7. Thereafter vide Annexure III that was cancelled at the behest of Mahakuma Parishad. Shri Dutta submits that the Mahakuma Parishad has no role to play in the matter and this is absolutely against the mandate of law and the mandate of law requires the settlement to be made in a particular manner and the authority cannot take resort to other manner to make the settlement. Shri Dutta submits that the Mahakuma Parishad has no role to play in the matter and this is absolutely against the mandate of law and the mandate of law requires the settlement to be made in a particular manner and the authority cannot take resort to other manner to make the settlement. Shri Dutta also submits that the Mahakuma Parishad cannot give any direction to the Anchalik Panchayat inasmuch as that will be against the tenet of law and in this connection Shri Dutta places reliance on the following decisions : (i) AIR 1952 SC 16 (Commissioner of Police, Bombay vs. Gordhandas Bhanji), where in paragraph 10 the Supreme Court has pointed out as follows : "10. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they expected to do or forbear from doing and exactly what authority is making the order." 17. That was a case where certain powers were to be exercised by the Commissioner of Police but the Commissioner of Police did not exercise the power and the order was passed by the another authority. Paragraph 26 and 28 are relevant and they are quoted below : "26. We have held that the Commissioner did not in fact exercise his discretion in this case and did not cancel the licence he granted. He merely forwarded to the respondent an order of cancellation which another authority had purported to pass. It is from these facts that the Commissioner had before him objection which called for the exercise of the discretion regarding cancellation specifically vested in him by Rule 250. He was therefore bound to exercise it and being to hear on the l matter his own independent and unfettered judgment and decide for himself whether to cancel the licence or reject the objections. That duty he can now be ordered to perform under section 45. 28. The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him" for public reasons involving the convenience, safety, morality and welfare of the public at large. An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is not a duty which cannot be shirked or shelved nor it be evaded performance of it can be compelled under section 45." (ii) AIR 1969 SC 48 (Orient Paper Mills Ltd vs. Union of India). That was a case where the Collector while hearing appeal certain directions were ' given to determine the appeal in a particular manner by the higher authority and Supreme Court pointed out that the direction given by the higher authority completely vitiated the proceeding and makes a mockery of the whole process. The same is the case in hand, the power rests with the Anchalik Panchayat, but it forfeited that power by seeking a direction from the Mahakuma Parishad. (iii) AIR 1970 SC 1498 (Oreint Paper Mills Ltd vs. Union of India). ' That was a case regarding assessment by the Deputy Superintendent, but he assessed the tax on the basis of instruction received from the Collector. The Supreme Court pointed out that the whole assessment is vitiated inasmuch as the authority who is to decide the matter independently acted on the behest of somebody else. On the same volume there is another case at 1896 (The Purtabour Company Ltd vs. Cane Commissioner of Bihar & others), where in paragraph 14 it was laid down as follows : "14. The executive officer entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister of the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provisions has been made for them to be given binding instructions by a superior." 18. The Court also relied on the earlier judgment AIR 1952 SC 16 which pointed out that the Commissioner of Police is to exercise the power under the Bombay Police Act and Rules made thereunder, but he acted on the behest of State Government and accordingly that order was quashed. The Court also relied on the earlier judgment AIR 1952 SC 16 which pointed out that the Commissioner of Police is to exercise the power under the Bombay Police Act and Rules made thereunder, but he acted on the behest of State Government and accordingly that order was quashed. The Apex Court also referred to another decision reported in AIR 1966 SC 1081 (State of Punjab vs. Hori Krishan Sarma) wherein it was pointed out that under the Punjab Cinemas (Regulation) Act, the power was conferred on the licensing authority, but that power was exercised by the State Government and the Supreme Court quashed such an order. So I find that this order of cancellation of Annexure III which was passed by the Anchalik Panchayat at the behest of Mahakuma Parishad is without authority of law. Section 130 of the Act of 1994 provides as follows: ' "130. Repeal and Saving : All the Panchayat existing immediately before the commencement of this Act, shall continue till the expiration of their duration as under the Assam Panchayati Raj Act, 1986 unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of the State." It is not known whether the Mahakuma Parishad has completed its term or not. Eventhough the Mahakuma Parishad may be in existence by virtue of this section. Nowhere in the Act it has been stated that the Mahakuma Parishad will exercise the power of the Zilla Parishad. 19. The next comes the question of filing the document with the tenders. It is well settled that in every tender there are certain conditions which are essential and there are certain things which are ancilliary. For not conforming to the essential requirements a tender may be rejected. But if not conforming to the ancilliary things a tender cannot be rejected. In support of this contention Shri Medhi places reliance on the following decisions : (i) AIR 1971 Assam & Nagaland 171 (Mufosin Ali Borbhuyan vs. State of Assam & others) wherein it was pointed out that producing certain documents may be directory and not mandatory. But if not conforming to the ancilliary things a tender cannot be rejected. In support of this contention Shri Medhi places reliance on the following decisions : (i) AIR 1971 Assam & Nagaland 171 (Mufosin Ali Borbhuyan vs. State of Assam & others) wherein it was pointed out that producing certain documents may be directory and not mandatory. (ii) AIR 1972 Gauhati 32 (Rahit Chandra Das vs. State of Assam & others) wherein a Division Bench has pointed out as follows : "The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision setting out the consequences of omission to observe that requirement but on a consideration of the purpose for which that requirement has been laid down, particularly in the context of the particular provision and the general scheme thereof." 20. Shri Medhi submits that non-furnishing of the income tax clearance certificate is not fatal in the matter and as such rejection of the tender on this ground is not a valid one. 21. There is force in the contention of Shri Medhi and I accept this contention that rejection of the tender on this ground was not valid and proper. 22. The next question comes regarding negotiation. The principle of negotiation has been crystalised by a number of decisions of the Apex Court and as well as of this Court. Let us their first have a look at AIR 1971 SC 733 (Trilochan Mishra etc vs. State of Orissa & others) where in paragraph 15 the law has been laid down as follows : "15. With regard to the grievance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tenderer to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specifically one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Government certainly has a right to enter into a contract with a person well known to it and specifically one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept the lower one in case, it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer." (ii) AIR 1974 SC 651 (Pursotoma Ramanata Quenim vs. Makan Kalyan Tandel & others) where in paragraph 10 reliance was placed in the earlier judgment in AIR 1971 SC 733 and ultimately Supreme Court accepted even the lowest bid. 23. In the instant case the authority rightly or wrongly found that it was the tender or respondent No.7 which is the only valid tender and in that view of the matter made the settlement with respondent No.7 at a value higher than the value quoted by respondent No.7 and I do not find that to be an illegal or unfair exercise of power. Accordingly the contention that negotiation was made only with respondent No.7 leaving aside the petitioner and that it violated the principle of transparency cannot be accepted. 24. Considering the matter from all the angles I find that there is no merit in this writ application. Accordingly the same is-dismissed. The stay order passed earlier on 8.11.95 shall stand vacated. 25.1 leave the parties to bear their own costs.