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2004 DIGILAW 463 (GAU)

Ganesh Das v. State of Assam

2004-08-09

P.G.AGARWAL

body2004
ORDER P.G. Agarwal, J. 1. All these writ petitions along with the Misc. Cases filed therein were heard together as agreed upon by the learned Counsel for both sides and they are disposed of by this common order as common question of law and fact are involved. 2. Heard Mr. H.N. Sarma, learned senior counsel assisted by Mr. P.P. Baruah for the writ Petitioner, Mr. B.B. Narzary, learned Counsel for the Zila Parishad and Mr. P.K. Mushahary and Mr. M. Gani, learned Government Advocate. 3. The matter relates to settlement of hats and bazars situated within the jurisdiction of Karunabari Anchalik Panchayat, Boginadi Anchalik Panchayat and Narayanpur Anchalik Panchayat under the North Lakhimpur Zila Parishad, hereinafter referred to as the Zila Parishad. The dispute that has been raised in respect of the jurisdiction of the Anchalik Panchayat and Zila Parishad in the matter of settlement of markets. Section 109(6) of the Assam Panchayat Act, 1994, for short, the Act, read as follows: The Hats, Ferries and Fisheries falling under any Anchalik Panchayat within the jurisdiction of Zilla Parishad, the yearly sale value of which is more than rupees one lakh shall be settled by the Zilla Parishad concerned for a period coinciding with and not exceeding one Panchayat Financial Year as under Sections 105, 106 and 109 in the manner prescribed. The powers of examination and final acceptance of the such tenders shall be vested in the Standing Committee as under Section 81(i)(a) . The distribution of sale proceeds shall be in the manner as prescribed in the foregoing Sections. 4. The above proposition of law was the subject-matter for the consideration before the Division Bench of this Court in Writ Appeal No. 325 of2003, decided on 1.10.2003 wherein in was held as follows: We are of the view of that settlement of Hats, sale value of which is more than one lakh shall be made by respective Zilla Parishad. The Zilla Parishad shall invite tenders for settlement of Hats of value more than one lakh and proceed with the process of selection as required under Sub-section (6) of Section 109 of the Act read with Rule 47 of the Rules of 2002. 5. In the above judgment, this Court had laid down some guidelines in the matter. The Zilla Parishad shall invite tenders for settlement of Hats of value more than one lakh and proceed with the process of selection as required under Sub-section (6) of Section 109 of the Act read with Rule 47 of the Rules of 2002. 5. In the above judgment, this Court had laid down some guidelines in the matter. In view of the specific provisions of the Act and the decision of this Court as stated above, there is no dispute at the Bar that in respect of settlement of hats, the sale value of which is upto rupees one lakh, the authority for settlement lies with the Anchalik Panchayat and if the sale value is more than rupees one lakh, the settlement is to be made by the Zilla Parishad. Further, both the Zilla Parishad and the respective Anchalik Panchayat floated tenders for the said weekly market stating different sale values and deposit of different earnest money and the disputes has arisen because of the ambiguity of the Act which is not specific as to how the sale value of a particular bazar is to be fixed and by whom. Although there are certain references here and there, the Act is not specific and clear as to how the matter is to be dealt with. One way of dealing with the matter is to rely upon the sale value of a particular market during the preceding year, i.e., the amount for which the market was settled in the preceding year. The Panchayat Year for settlement has commenced from 1.7.2004 itself and already one and half months' period of settlement is over and hence so far the present cases are concerned, this Court is of the view that the amounts at which the markets were settled during last year shall be deciding factor to determine whether the market in question is to be settled by the Zilla Parishad or the Anchalik Panchayat. If the amount of the last year's settlement is below or upto Rupees one lakh, the settlement shall be made by the concerned Anchalik Panchayat and if the value is above Rupees one lakh, the settlement shall be made by the Zilla Parishad. 6. We direct the State Government to examine this aspect of the matter and take necessary fruitful measures identifying the authorities or the process on which the sale value is required to be fixed. 6. We direct the State Government to examine this aspect of the matter and take necessary fruitful measures identifying the authorities or the process on which the sale value is required to be fixed. The power of the State Government is available under Section 112 of the Act and we hope that necessary measures shall be taken, so that the State may be able to complete the job, well ahead of next Panchayat Year. 7. The Petitioners before us are also aggrieved by the fixation of the earnest money at 10% of the sale value. Rule 47(i) of the Assam Panchayat (Financial) Rule, 2002 provides that the earnest money should not be below 2% for the minimum bid for sale or settlement but the higher limit has not been provided under the rules. It is submitted that in the present case, the Anchalik Panchayats have sought earnest money to the tune of 5% of the bid whereas the Zilla Parishad has sought earnest money to the tune of 10% of the bid value. At this stage Mr. B.B. Narzary, learned Counsel for the Zilla Parishad has submitted that the earlier tender was cancelled and fresh tenders were floated vide dated 10.5.2003 wherein the earnest money was reduced to 5%. We find force in the submitted of Mr. H.N. Sarma that because of higher sale value, there may not be enough persons to deposit high earnest money and as such the earnest money should be kept at a reasonable level. 8. In this case, we find that the Zilla Parishad had floated tenders in respect of all markets and hats situated within the Anchalik Panchayats whereas the Anchalik Panchayat has already floated tenders in respect of certain hats and markets and vide interim order dated 4.6.2004, this Court had stayed the entire process for finalization and settlement of the markets as stated above. 9. In view of the foregoing discussion and the submission made by the learned Counsel for both sides, all the writ petitions are disposed of with the following direction and observations: (1) The Zilla Parishad shall consider and examine the tenders invited by them only in respect of the markets, the sale value (settlement amount of the last year) was above Rupees one lakh. The tenders received by them in respect of other markets, the settlement amount of which was one lakh or below shall not be opened at all. (2) Likewise the concerned Anchalik Panchayat shall consider and settle the tenders in respect of markets and hats, the settlement value of which is upto Rupees one lakh during the preceding year (2002-03) and the Anchalik Panchayat shall not open the tender papers in respect of the markets, the settlement value of which was above Rupees one lakh during the period of 2002-03. (3) Considering the fact that in view of the order of stay granted by this Court, some of the intending tenderers may not have submitted their papers, we provide that the Zilla Parishad and the concerned Anchalik Panchayat shall allow the parties to file tenders. Persons who had already filed their tender papers need not be allowed to file fresh offer. The concerned authorities may issue tender papers to such intending parties and these tenders shall be accepted till 2 p.m. of 20.8.2004. After the above date of 20.8.2004, the Zilla Parishad/Anchalik Panchayat shall take necessary steps for finalization of the tenders and settle the markets and hats in accordance with the rules and regulations. It is also provided that the process of settlement shall be completed as early as possible after 20.8.2004 and the concerned Zilla Parishad/Anchalik Panchayat will be at liberty to manage the markets and hats during this intervening period as they deem fit and proper. The interim order passed on 4.6.2004 stands vacated and all the writ petitions stand disposed of accordingly.