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Gauhati High Court · body

1998 DIGILAW 110 (GAU)

Md. Ramzan Ali v. State of Assam and Ors.

1998-04-23

A.K.PATNAIK

body1998
In this application under Article 226 of the Constitution, the petitioner has prayed for quashing the order dated 7.11.97 of the Secretary to the Govt. of Assam, Panchayat and Rural Development Department setting aside the order of the SDO (S), Morigaon and President of the Kapili Anchalik Panchayat settling the Jaluguti Weekly Market in favour of Shri Kushal Chandra Nath and settling the said market in favour of Shri Suren Deuri, respondent No.4. 2. The facts briefly are that by a tender notice dated 15.5.96, the Additional Deputy Commissioner, Morigaon, who was the In-charge President of the Kapili Anchalik Panchayat invited tenders for settling of Jaluguti Weekly Bazarfor the 1997-98 fixing minimum of bazar at Rs.35,000/- in the tender notice. Pursuant to said tender notice, eighteen (18) tenderers including the petitioner and the respondent No.4 submitted tenders. The bid of the petitioner was at Rs.92,209/-while the bid of the respondent No.4 was at Rs.65,939/-. The settlement, however, was made in favour of Shri Kushal Chandra Nath at Rs.50»551/-. Aggrieved by the said order of settlement, the petitioner respondent No.4 as well as others filed appeals before the State Govt. of Assam in the Panchayat and Rural Development (A) Department. The Secretary of the said department in his appellate order dated 7.11.97 after hearing the parties set aside the order of settlement in favour of Shri Kushal Chandra Nath on the ground that under the provisions of second proviso to sub-rule (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990, the tender of the highest bidder was to be accepted and the acceptance of tender other that the highest bid required the State Govt.'s previous and formal approval, but in the instant case, the tender of Shri Kushal Chandra Nath was at the of Rs.50,551/- which was not the highest bid but the settling authority accepted the same without previous and formal approval of the State Govt.. By the said appellate order dated 7.11.97, the Secretary to the Govt. of Assam, Panchayat and Rural Development Department further held that of the bids quoted by different bidders, the bid amount of Rs.65,039/- per months of Shri Suren Deuri-, respondent No.4 was the most reasonable bid and that in the public interest as well as in the interest of Anchalik Panchayat, the market should be settled in favour of the respondent No.4. 3. At the hearing, Mr. 3. At the hearing, Mr. HRA Choudhury, learned counsel for the petitioner, vehemently contended that there was eighteen (18) bidders for the bazar and the highest bidder was Noor Mahammad Seikh at the rate of Rs. 1,17,000/- and the second highest bidder was the petitioner at Rs.90,209/-. The bid of the respondent No.4 as low as at Rs.65,209/-. Thus, the appellate authority acted contrary to the public interest in settling the bazar in favour of the respondent No.4 at a bid of Rs.65,039/-. Mr. Choudhury further submitted relying on the decision of the Apex Court In the case of Dutta Associates Pvt Ltd vs. Indo Merchantiles Pvt Ltd & others, 1997 (II) GLT (SC) 1, that whatever procedure the Govt. proposes to follow in accepting the tender must be clearly stated in the tender notice and in case the Govt. or the settling authority intends to sfettle the bazar not at the highest rate, tendered by the parties, but at a reasonable rate, in the tender notice itself a stipulation should be made that the bazar would be settled at a reasonable rate on the basis of the rates quoted by the parties. Mr. Choudhury further submitted relying on the second proviso to sub-rule (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990, that the tender of highest bidder is to be accepted. 4. Mr. S A Laskar, learned counsel for the respondent No.4, in reply, submitted that sub-rules (5), (6) and (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990, are not applicable to settlement of hats and bazars under the Assam Panchayat Act, 1994. He relied on the decision of a Division Bench of this Court in the case of Md Ranjal AH Thakuria vs. State of Assam & others, 1997 (I) GLT 158, where it has been held that sub-rules (5), (6) and (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990 would not apply to settlements of hats and bazar under the provisions of Assam Panchayat Act, 1994. Mr. Laskar further contended that the Standing Committee after scrutiny of the tenders of different tenderers affirmed that the tender of the petitioner and others were invalid tenders and that the tender Nos 11,15 and 18 were valid tenders. Mr. Laskar further contended that the Standing Committee after scrutiny of the tenders of different tenderers affirmed that the tender of the petitioner and others were invalid tenders and that the tender Nos 11,15 and 18 were valid tenders. He further contended that amongst the three (3) valid tenders, the tender of the respondent No.4 Shri Suren Deuri was the highest at Rs. 65,039/-. According to Mr. Laskar, therefore, until and unless the petitioner was found to be valid tenderer, the petitioner had no locus standi to claim settlement in his favour. 5. Mr, TC Chutia, GA, Assam, has produced records, but I need not go into the records to examine the different points raised by the learned counsel for the parties as it appears from the impugned appellate order dated 7.11.97 of the Secretary to the Govt. of Assam in Panchayat and Rural Development Department that he has set aside the settlement made in favour of Shri Kushal Chandra Nath only on the ground that he was not the highest bidder and yet the settlement was made in favour of Shri Kushal Chandra Nath without referring the matter to the State Govt.. The provision requiring previous and formal approval in case a settlement is proposed in favour of a party other that the highest bidder is contained in second proviso to sub-rule (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990. But in the case of Md Ranjal Ali Thakuria vs. State of Assam & others (supra), a Division Bench of this Court has clearly held after examining the provisions of Assam Panchayat Act, 1994 and the Assam Panchay ati Raj (Financial) Rules, 1990, that after coming to force of the Assam Panchayat Act, 1994, the provisions of sub-rules (5), (6) and (7) of Rule 58 of the Assam Panchay ati Raj (Financial) Rules, 1990 have no application to the settlement of hats and bazars under section 105 of the Assam Panchayat Act, 1994 and that sending of papers by the Secretary of the Anchalik Panchayat under the first and second proviso to sub-rule (7) of rule 58 of the Assam Panchayati Raj (Financial) Rules, 1990 was ultra vires the provisions of section 105 of Assam Panchayat Act, 1994. Para 12 of said judgment in the case of Md Ratajal AH Thakuria vs. State of Assam & others (supra) is extracted herein below ; "12. Para 12 of said judgment in the case of Md Ratajal AH Thakuria vs. State of Assam & others (supra) is extracted herein below ; "12. Rule 58 (5) however, provides tenders have been submitted the tenders have to be examined by a committee which is constituted by the State Govt. under the said sub-rule (5) of Rule 58. We see the provision sub-section 4 of section 105 of the 1994 Act, we find that it has now conferred the power of examination and final acceptance of tenders to the Standing Committee which is to be constituted under section 52 (1) (a) of the 1994 Act. From the aforesaid provisions it is therefore clear that it is now Standing Committee constituted under section 52 (1) (a) of the 1994 Act which will examine the tender and accept the same and the State Govt. cannot now form a Committee under Rule 58 (5) of the Assam Panchayati Raj (Financial) Rules, 1990. All the provisions of sub-Rule (5), (6) and (7) of Rule 58 related to the aforesaid committee constituted by the State Govt. If now under the provision of Assam Panchayat Act, 1994 no such Committee can be formed by the State Govt., we are of the opinion that sub-rules (5), (6) and (7) of Rule 58 if applied would become inconsistent with the mandatory provision of section 105 (3) of the Act. It is therefore clear that after coming into the force of the new Act, the provisions of sub-rule (5), (6) and (7) of Rule 58 of the Assam Panchayati Raj (Financial) Rules 1990 will have no application to settlement of hats under section 105 of the 1994 Act. The sending of the papers by the Secretary of the Anchalik Panchayat which could only be justified under the first of second proviso to sub-rule (7) of Rule 58 of the said Rules therefore was ultra vires the provisions of section 105 of the 1994 Act. Thus, the aforesaid action of the Secretary of the Anchalik Panchayat was uncalled for and the State Govt. had no power to give any approval in case the highest tender was not accepted. We are thus of the opinion that the impugned order passed by the State Govt. Thus, the aforesaid action of the Secretary of the Anchalik Panchayat was uncalled for and the State Govt. had no power to give any approval in case the highest tender was not accepted. We are thus of the opinion that the impugned order passed by the State Govt. dated 30th Sep' in so far as it settles the Noknola Weekly Bazar in favour of Sri Rajanti Kanta Das (respondent No.7) at Rs.25,005/- per month is liable to be quashed." 6. Thus as per the aforesaid judgment, the second proviso to sub-rule (7) of Rule 58 of Assam Panchayati Raj (Financial) Rules, 1990 was not applicable to settlement of hats under the Assam Panchayat Act, 1994. The only reason given by the Secretary to the Govt. of Assam in the Panchayat and Rural Development Department in his appellate order dated 7.11.97 for setting aside the order of settlement in favour of Shri Kushan Chandra Nath, therefore, was not correct law. It appears that there were large number of appeals before the appellate authority and they had raised several grounds against the order of settlement in favour of Shri Kushal Chandra Nath. But the said contentions of the appellants have not been considered by the Secretary of the said Panchayat and Rural Development Department in his appellate order dated 7.11.97. Since, I am remitting the matter back to the said appellate authority, he shall consider the said contentions raised by different appellants and pass fresh order in accordance with law before, 31.5.98. Till disposal of the appeal before 31.5.98, the respondent No.4 who is presently operating the bazar will continue to operate on the terms and conditions on which the bazarhas been settled with him. Certified copies of this order shall be filed both by the petitioner and the respondent No.4 before the Secretary to the Govt. of Assam, Panchayat and Rural Development Department within 15 days from today. However, considering the facts and "circumstances of the case, the parties shall bear their own costs.