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Gauhati High Court · body

2000 DIGILAW 3 (GAU)

Kosheswar Bharali v. State of Assam and others

2000-01-04

A.K.PATNAIK

body2000
Judgement This is an application under Article 226 of the Constitution of India filed by the petitioner for Mandamus on the respondents not to settle the Salmore-Nimatighat Parght through tender for the year 1999-2000 and for quashing the order of the Government communicated by WT Message dated 25-6-99 rejecting the application of the petitioner for extension of the settlement made in his favour in respect of the said Parghat. 2. The facts briefly are that the petitioner is the sitting lessee of Salmora-Nimatighat Parghat since 1995. For the year 1997-98, the said Salmore-Nimatighat Parghat was settled with the petitioner and the petitioner operated motorised passenger boat service as per the said settlement but suffered heavy losses. He, therefore, appealed to the State Government for settling the said Parghat in his favour for the year 1998-99 and the Government settled the said parghat with the petitioner at 10% enhanced rate upon the last years settled value. The said period of settlement ended on 30-6-99. The petitioners case is that he also suffered loss on account of unprecedented flood in the year 1998 and, therefore, he filed an appeal dated 24-5-99 before the Sub-Divisional Officer (Civil), Majuli, for granting extension of the settlement of Salmore-Nomatighat Parghat in favour of him for the period 1999-2000 and the Sub-Divisional Officer (Civil), Majuli, transmitted the appeal of the petitioner along with his comments to the State Government but the State Government rejected the same. In the meanwhile, a notice dated 26-4-99 was issued by the Sub-Divisional Officer (Civil), Majuli, and the President, in-charge of Majuli Anchalik Panchayat, inviting tenders for settlement of the said Salmore-Nimatighat Parghat for the period 1999-2000 and pending such settlement temporarily appointed an agent to operate the said Parghat. Aggrieved, the petitioner has moved this Court for appropriate relief as indicated above. 3. Mr. DCK Hazarika, learned counsel for the petitioner, submitted that the WT Message dated 25-6-99 only stated that the prayer of the petitioner for extension of settlement of Salmore-Nimatighat Parghat has been rejected by the Government, but the said WT Message did not indicate the reason for which the prayer of the petitioner for extension of the settlement was rejected. Mr. DCK Hazarika, learned counsel for the petitioner, submitted that the WT Message dated 25-6-99 only stated that the prayer of the petitioner for extension of settlement of Salmore-Nimatighat Parghat has been rejected by the Government, but the said WT Message did not indicate the reason for which the prayer of the petitioner for extension of the settlement was rejected. He further submitted that it would be clear from the letter of the sub-Divisional Officer (Civil), Majuli, dated 25-5-99 (Annexure-B to the writ petition) that there was unprecedented flood during September, 1998 on account of which road communication linked to the parghat was badly damaged and the number of commuters crossing through the Parghat decreased, consequently, the petitioner suffered heavy losses in collection of revenue. According to Mr. Hazarika, this is a fit case in which the Government ought to have granted extension of the settlement of the Parghat in favour of the petitioner for the period 1999-2000 so that the petitioner can recoupe the losses that he had suffered during the year 1998-99. 4. Mr. B. Choudhury, Sr. G. A. Assam, on the other hand, produced a copy of the order dated 30-6-99 of the Secretary to the Government of Assam, Panchayat and RD (A) Department, in which the prayer for extension of the petitioner has been rejected. In the said order it has been stated that there was no provision for extension of hat/ghat/ferries in the Assam Panchayat Act, 1994 and that the petitioner was given direct settlement for the period 1998-99 on the ground of loss incurred by him during the period 1997-98 for which period also the petitioner was a lessee of Salmora-Nimatighat Parghat and, as such, the prayer of the petitioner for extension of the said Parghat for the period 1999-2000 was not accepted. 5. The reason for rejecting the prayer for extension of the petitioner, inter alia, therefore, is that there is no provision in the Assam Panchayat Act, 1994 for extension of settlement of hat/ghat/ferries. Section 105(1) of the Assam Panchayat Act, 1994, provides that 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. Section 105(1) of the Assam Panchayat Act, 1994, provides that 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. Similarly section 106 (1) of the Assam Panchayat Act, 1994 states that all public ferries, other than Government ferries within the territorial jurisdiction of the 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. On a reading of different provisions of Sections 105 and 106 of the said Act, it appears that there is no provision for extension of settlement either of hats or of public ferries. 6. Mr. Hazarika, however, submitted that since the said two sections of the Assam Panchayat Act, 1994, are silent with regard to extension of settlement of hat or ferry, the Court should take an equitable view and hold that the authorities have the power to grant extension in appropriate cases where the lessee suffers loss during the period of settlement. I am unable to accept the said submission of Mr. Hazarika as both Sections 105 and 106 of the Assam Panchayat Act, 1994, state that the settlement of hat or public ferry is not to exceed one Panchayat financial year and further state that such settlement has to be made by inviting tenders. Thus the express provisions of Sections 105 and 106 of the Assam Panchayat Act, 1994, prohibited any extension of settlement beyond the period of one Panchayat financial year and further mandated that any settlement has to be made by inviting tenders. Therefore, I hold that no extension can be granted in respect of a public ferry settled under Section 106 of the Assam Panchayat Act, 1994, by inviting tenders and that after a period of settlement of one year such public ferry can only be settled afresh by inviting tenders and not otherwise. 7. Therefore, I hold that no extension can be granted in respect of a public ferry settled under Section 106 of the Assam Panchayat Act, 1994, by inviting tenders and that after a period of settlement of one year such public ferry can only be settled afresh by inviting tenders and not otherwise. 7. The reason given by the Secretary to the Government of Assam, Panchayat and RD(A) Department in the order dated 30-6-99 for rejecting the prayer of the petitioner for extension that there is no provision in the Assam Panchayat Act, 1994, for extension is, therefore, valid in law and the impugned order cannot be quashed. Any settlement beyond one Panchayat financial year has to be made by inviting tenders as expressly provided in Section 106 of the Assam Panchayat Act, 1994. Since a notice has already been issued by the Sub-Divisional Officer (Civil) Majuli, inviting tenders for the settlement of Salmore-Nimatighat Parghat for the period 1999-2000, the authorities will now take steps to finalise the tender on the basis of tenders submitted by the parties within a period of one month from the date of receipt of a copy of this order from the petitioner. 8. With the aforesaid directions, the writ petition stands disposed of. No costs. Ordered accordingly.