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2004 DIGILAW 581 (GAU)

Gangabala Choudhury v. State of Assam

2004-11-24

BIPLAB KUMAR SHARMA

body2004
JUDGMENT Biplab Kumar Sharma, J. 1. All the writ petitions involving settlement of markets pursuant to NIT centre around the same controversy relating to the methodology adopted towards settlement of markets and accordingly were heard analogously. They are being disposed of by this common judgment and order. 2. Brief facts leading to the filing of the writ petitions are as follows: W.P. (C) No. 3231/2004. 3. Respondent No. 6 issued NIT dated 24.2.2004 for settlement of 'Chilarai' daily market alongwith some other markets and the Petitioner who was the sitting lessee submitted her tender in response to the same. After issuance of the NIT, the Respondent No. 2 issued direction by Annexure-2 WT message dated 23.3.2004 to all Chairman/Chairpersons of Urban Local Bodies, not to finalise settlement of markets, pounds, parking lots etc. in view of the then ensuing election. By the said WT message, an indication was made that the existing lessees would apply to the Government for extension of lease till 15.5.2004 and the fresh tenders invited would be submitted to the Government before 31.3.2004. 4. The Petitioner, in terms of the aforesaid WT Message, submitted representation dated 29.3.2004 before the Respondent No. 2 praying for extension of the aforesaid daily market upto 15.5.2004, but no extension was given. In the meantime, the Respondent No. 6 intimated the Respondent No. 2 by Annexure-4 letter dated 24.3.2004 about the completion of tender process for settlement of market/mahals of the Municipality in question i.e. Bongaigaon Municipality for the year 2004- 2005 and sending of all the comparative statements of the tenders alongwith all tender documents to him for necessary approval. Pointing out about the expiry date of earlier lease term on 31.3.2004 and the new term was to start from 1st April, 2004 and that there would be loss of Government revenue in case of delay in the matter, the decision to settle the markets/mahals with the highest bidder among the valid tenderers was conveyed. In respect of 'Chilarai' daily market, the second highest bidder i.e. the Petitioner was preferred in view of withdrawal of the highest bidder from the fray and the Petitioner being the second highest bidder. By the said letter, the Respondent No. 2 was requested the grant necessary approval. 5. After issuance of the said letter dated 24.3.2004, the Petitioner was settled with the market at her quoted rate of Rs. By the said letter, the Respondent No. 2 was requested the grant necessary approval. 5. After issuance of the said letter dated 24.3.2004, the Petitioner was settled with the market at her quoted rate of Rs. 14,75,000.00 in anticipation of the approval of the Government and she was directed to deposit the 1st kist money i.e. the 50% of the total bid money Rs. 7,37,500.00, on or before 26.3.2004 in cash or bank draft drawn in favour of the Respondent No. 6. It was further stated in the settlement order that on failure to deposit the said amount, the lease would be treated as cancelled and further action would be taken as per rules. In response to the settlement so made, the Petitioner deposited the 1st kist money by banker's cheque dated 25.3.2004. Thereafter, the Respondent No. 3 by his letter dated 26.3.2004 requested the Government of Assam, Urban Development Department to accept the tenders with highest bid in respect of the markets/mahals. 6. Amidst the aforesaid development, the impugned order dated 1st April, 2004 was issued by the Respondent No. 6 detailing the Tax Collectors for collection of tax in respect of various markets/mahals including the market in question. This was followed by Annexure-10 letter dated 5.4.2004 issued by the Respondent No. 4, i.e. the Deputy Commissioner, Bongaigaon to the Respondent No. 2 urging for communicating the required approval towards settlement of the markets/mahals. 7. In the aforesaid backdrop, the Petitioner filed the writ petition assailing the legality and validity of Annexure-9 order dated 1st April, 2004 and seeking a further direction to allow the Petitioner to operate the market in terms of order of settlement dated 24.3.2004. W.P.(C) No. 3232/2004 8. In this case, the market in question is called Chilarai weekly market. Like that of the Petitioner in W.P.(C) No. 3231/2004, the Petitioner in the instant case was settled with the said market and the Petitioner deposited the 50% of his quoted rate which was the highest bid. The bid amount was Rs. 10,00,000.00 and the 50% as the 1st kist money i.e. Rs. 5,00,000.00, was deposited by the Petitioner. However, by the impugned order dated 24.3.2004, the Petitioner was intimated about the decision to cancel the order of settlement and he was directed to wait till Government instruction was received after 15.5.2004. The bid amount was Rs. 10,00,000.00 and the 50% as the 1st kist money i.e. Rs. 5,00,000.00, was deposited by the Petitioner. However, by the impugned order dated 24.3.2004, the Petitioner was intimated about the decision to cancel the order of settlement and he was directed to wait till Government instruction was received after 15.5.2004. Like that of the other writ petition, the impugned order dated 1.4.2004 covered the Chilarai weekly market and the Petitioner filed the writ petition making same very prayer in respect of Chilarai weekly market and in addition also prayed for setting aside the order dated 26.3.2004 by which the intimation relating to settlement was cancelled. 9. Both the writ petitions were disposed of by two separate orders dated 21.5.2004 with a direction to the Respondents, more particularly the Respondent No. 3 i.e. the Director of Municipal Administration, Assam and the Respondent No. 5 i.e. Bongaigaon Municipal Board to take immediate steps for handing over the markets to the Petitioners so as to enable them to operate the same in accordance with the terms and conditions of the settlement. Such a direction was issued keeping in view that the reason which had come on the way of the Petitioners' settlement as indicated by the learned State Counsel was the elections which had since been completed. 10. After disposal of the writ petitions as aforesaid, two review applications registered and numbered as R.P. No. 75/2004 in W.P.(C) No. 3231/2004 and R.P. No. 74/2004 in W.P.(C) No. 3232/2004 were filed and the review applications were allowed by judgment and order dated 6.8.2004 by setting aside the orders dated 21.5.2004 finally closing the writ petitions. On such review, both the writ petitions got restored for fresh decision. The review applications were allowed on bringing it to the notice of the Court by the review applicants that prior approval of the Government for awarding settlement of any market under the Board, while under super-session, is a necessary pre-condition for the validity thereof, meaning thereby, that any settlement made by the Executive Officer of the Municipality while the Board is under supersession without such approval would be non-est in law. W.P.(C) No. 4822/2004 11. W.P.(C) No. 4822/2004 11. This writ petition has been filed by the Petitioner in W.P.(C) No. 3231/ 2004 assailing the order of settlement dated 29.5.2004 (Annexure-16) made in favour of the Respondent No. 8 in respect of the same very market, which was earlier settled with her. The approval, which was sought from the Government after making the order of settlement in her favour in anticipation of such approval was not accorded and instead the settlement was made in favour of the Respondent No. 8. It is the case of the Petitioner that such an order could not have been passed without hearing her in breach of the principles of promissory estoppel. According to her, she being the highest bidder, after the withdrawal of the first highest bidder from the fray, instead of settling the market in her favour, it could not have been settled with the Respondent No. 8 who was the fourth highest bidder. W.P.(C) No. 4823/2004 12. This writ petition has been filed by the Petitioner in W.P.(C) No. 3232/2004 assailing the order dated 29.5.2004 (Annexure-14) by which the 'Chillarai' weekly market has been settled with the Respondent No. 8. As that of the case of the Petitioner in W.P.(C) No. 4822/2004, it is the case of the Petitioner that he being the highest bidder, the Respondent No. 8 could not have been preferred being not the highest bidder. In fact, he is the third highest bidder. Other grounds urged are the same as that of the grounds urged in W.P.(C) No. 4822/2004. W.P.(C) No. 4971/2004 13. In this writ petition, the Petitioner is concerned with another daily market called Paglasthan daily market. As in the other writ petitions, the Petitioner submitted his tender in response to the NIT and emerged as the highest bidder with his bid amount of Rs. 6,77,777.00. By letter dated 24.3.2004 he was directed to deposit the 50% of the bid amount as the 1st kist money. However, when the Petitioner wanted to deposit the same, the Respondent No. 6 i.e. the Executive Officer, Bongaigaon Municipal Board refused to accept the same and instructed the Petitioner to wait till Government instruction was received. The said letter also stated that the earlier order of settlement made in favour of the Petitioner stood cancelled. By the impugned order dated 19.6.2004, the market was settled with the Respondent No. 8 at annual value of Rs. The said letter also stated that the earlier order of settlement made in favour of the Petitioner stood cancelled. By the impugned order dated 19.6.2004, the market was settled with the Respondent No. 8 at annual value of Rs. 4,61,111.00 which is by far less than the offered rate of the Petitioner. Thus, like that of the other Petitioners, the Petitioner in the instant case has also assailed the legality and validity of the said order more or less urging the same very grounds. 14. In both the writ petitions i.e. W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/ 2004, counter affidavits have been filed on behalf of the State of Assam in the Municipal Administration Department. I need not deal with the contentions raised in the affidavits relating to the process and the initial settlement in favour of the writ Petitioners as narrated in W.P.(C) No. 3231/2004 and W.P.(C) No. 3232/2004, since dealing with those facts R.P. No. 74/2004 and R.P. No. 75/2004 were allowed and the writ petitions were restored to file for fresh decision. In the meantime, other two writ petitions i.e. W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/2004 were filed assailing the orders of settlement made in favour of the Respondent No. 8 in both the writ petitions. The official Respondents have defended the order of settlement in favour of the private Respondents, who are admittedly not the highest bidders on the ground that on receipt of the proposals (tenders and comparative statements) from the Director, Municipal Administration, the matter was examined and upon examination of the same, it was found that the Petitioners had offered annual value exorbitantly higher in comparison to the annual value of 2003-2004. Further stand in the affidavits are that to avoid public harassment, the traders in particular and the mass people in general, the Government decided not to allow tenders quoting rates above 50% than the annual value of 2003-2004 which resulted in ouster of the Petitioners from the fray, their bid value being higher than the 50% of the annual value of 2003-2004. Quoting the respective bid value of the Petitioners' vis-a-vis the private Respondents, it is the stand in the affidavit that the bids offered by the Petitioners were more than 50% of the annual rate of 2003-2004. Quoting the respective bid value of the Petitioners' vis-a-vis the private Respondents, it is the stand in the affidavit that the bids offered by the Petitioners were more than 50% of the annual rate of 2003-2004. The percentage of such hike in respect of the Petitioner in W.P.(C) No. 4822/2004 has been shown to be 89.88% compared to the Respondent No. 8 which stood at 44.17%. Likewise in W.P.(C) No. 4823/2004, such hike in respect of the Petitioner has been calculated at 53.90% compared to the Respondent No. 8 at 29.27%. 15. In W.P.(C) No. 4971/2004 has also an affidavit-in-opposition has been filed by the Respondent No. 3 i.e. the Director, Municipal Administration taking the only plea that on receipt of the comparative statement and other documents, the market in question has been settled in favour of the Respondent No. 7. However, unlike the other two affidavits filed on behalf of the State, no reason has been assigned for ignoring the highest bid of the Petitioner. 16. The private Respondents who are the beneficiaries of the impugned orders of settlement have filed their individual counter affidavit justifying the action of the official Respondents in making the settlements in their favour. In their affidavits, specific ground has been taken that the Government while deciding to approve the settlement of the markets under Bongaigaon Municipality for the year 2004-2005, decided not to allow the settlement with tender value exceeding 50% and above of the annual value of the markets for the year 2003-2004. According to the said Respondents, such a decision was taken in view of the public complaints of harassment of traders in particular and the common people in general meted out by the lessees towards collection of tolls after getting settlement orders with higher annual value. 17. The private Respondents alongwith the counter affidavit filed in W.P.(C) No. 4822/ 2004 also annexed the affidavit-in-opposition filed on behalf of the State in R.P. No. 74/ 2004. Such an affidavit was also filed in RP No. 75/2004 urging the same very grounds. In the said affidavits also, the stand in the affidavits in the present writ proceedings were highlighted. Thus it is the stand of the Government that while finalizing the matter of settlement, a decision was taken not to make settlement in favour of any tenderer whose bid value was more than 50% of the earlier year's settlement value. In the said affidavits also, the stand in the affidavits in the present writ proceedings were highlighted. Thus it is the stand of the Government that while finalizing the matter of settlement, a decision was taken not to make settlement in favour of any tenderer whose bid value was more than 50% of the earlier year's settlement value. The record pertaining to the settlement produced by the learned State Counsel also indicates the same very ground. The settlement was made in favour of the private Respondents, admittedly not the highest bidders, in consideration of a particular note in the file dated 26.5.2004 to the effect that the increase of bid value may adversely affect the traders and may lead to other complicacies such as increasing of tolls, harassment to traders, common people etc. 18. Mr. N. Dutta, learned Senior Counsel, assisted by Mr. P.B. Majumdar, learned Advocate, appearing on behalf of the Petitioners in first four writ petitions, after referring to the circumstances in which the first two writ petitions i.e. W.P.(C) No. 3231/2004 and W.P.(C) No. 3232/2004 had to be filed and how the Government decision to settle the markets in favour of bidders, who are admittedly not the highest bidders led to filing of the subsequent two writ petitions i.e. W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/ 2004, made submissions against the impugned orders of settlement. Referring to the provisions of the Assam Municipal Act, 1956, Mr. Dutta, submitted that the settlement was to be made by the Executive Officer of the Municipal Board, during supersession of the Board, with the approval of the Director. However, the settlement having been made by the Government itself, same was illegal. Referring to the comparative statements containing the bids offered by the tenderers, he submitted that even if the formula of 50% range is held to be legally valid, then also the Respondent No. 8 could not have been settled with the market inasmuch as there were other tenderers with higher bids than the Respondent No. 8, but conforming to the said viable range. 19. As regards the decision of the Government not to settle the markets with the bidders whose bid value exceeded 50% of the earlier year's settlement value, Mr. Dutta, learned Sr. Counsel strongly contended that such a criteria having not been disclosed in the NIT, the decision of the Government is per-se illegal. 19. As regards the decision of the Government not to settle the markets with the bidders whose bid value exceeded 50% of the earlier year's settlement value, Mr. Dutta, learned Sr. Counsel strongly contended that such a criteria having not been disclosed in the NIT, the decision of the Government is per-se illegal. He also submitted that even such a decision was not followed in respect of some other markets forming part of the same very NIT. Referring to Clause 8,10,17 and 21 of the NIT, he submitted that the grounds assigned for settlement of the markets in favour of the private Respondents who are admittedly not the highest bidders automatically fall through. He placed reliance on the following decisions to buttress his argument: (1997) 1 SCC 53 :1997 (2) GLT (SC) 1 (Dutta Associates Pvt. Ltd. v. Indo Mercantiles Pvt. Ltd. and Ors.) 2000 (1) GLT 573(Intaz Ali v. State of Assam and Ors.) 2003 (3) GLT 202 (Sargous Tours and Travels and Anr. v. Union of India) 2004 (1) GLT 36 (Saurabh Das and Ors. v. Gauhati Municipal Corporation and Ors.) AIR 2004 SC 3533 : 2004 (3) GLT(SC) 12 (Jespar I. Slong v. State of Meghalaya) 20. Mr. M.K. Choudhury, learned Counsel for the Petitioner in W.P.(C) No. 4971/ 2004, more or less argued in the same line as that of Mr. Dutta, learned Sr. Counsel. Learned State Counsel, Mr. B. Choudhury and Ms. V.L. Singh supported the action of the State in making the settlement in favour of the private Respondents. They argued that the Petitioners, merely because are the highest tenderers cannot get the settlement as a matter of right and the Government is entitled to make settlement to the best suitable tenderer on the basis of hosts of consideration including the one relating to viability. 21. Mr. K.N. Choudhury, learned Sr. Counsel assisted by Mr. I. Choudhury, learned Advocate appearing for the Respondent No. 8 in W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/2004, submitted that the formula of 50% viability adopted by the Government is not unreasonable. He further submitted that merely because on the basis of the assertion made by the Petitioners, two views are possible, the writ Court would be reluctant to impose a particular view on the official Respondents. He further submitted that merely because on the basis of the assertion made by the Petitioners, two views are possible, the writ Court would be reluctant to impose a particular view on the official Respondents. He also submitted, reminding the scope and ambit of the power under Article 226 of the Constitution of India that in absence of any malafide and/or colourable exercise of power the writ Court will not sit on appeal over the decision of the State Government. According to him the decisions on which Mr. Dutta placed reliance are not applicable to the facts and circumstances involved in the present case. Mr. C. Baruah, learned Senior Counsel, assisted by Mr. N. Baruah, appearing on behalf of the Respondent No. 7 in W.P.(C) No. 4971/2004, also made submissions supporting the action of the State Respondent. Mr. Choudhury, learned senior Counsel while distinguishing the Dutta Associate's case (supra) placed reliance on the following decisions: (1991) 3 SCC 91 (G.B. Mahajan and Ors. v. Jalgaon Municipal Council and Ors.) (2002) 6 SCC 315 (Kanhaiya Lal Agarwal v. Union of India and Ors.) (2004) 4 SCC 714 (State of U.P. and Anr. v. Johri Mal) 22. In reply to the aforesaid submissions made by Mr. Choudhury, Mr. Dutta, learned Senior Counsel, submitted that if the Government had a particular norm in mind towards making the settlement, same should have been disclosed before hand. According to him, if the norm as has been emphasized by the State Government after knowing the different rates of the contenders is allowed to prevail, same will lead to corruption. Referring to the comparative statements in the records, he submitted that the Respondents themselves violated their so-called norm of settlement by making settlement to tenderers in respect of some other markets whose bid value exceeded 50% of the earlier year's settlement amount. He placed reliance on the letter No. UDD(M)202/2004/89 dated 29.5.2004 by which the Government of Assam in the Urban Development Department directed the Director of Municipal Administration, Assam to make settlement of the markets/parking slots etc. in favour of the highest bidders mentioned in the letter itself and conveyed the approval of the Government for the same. 23. He placed reliance on the letter No. UDD(M)202/2004/89 dated 29.5.2004 by which the Government of Assam in the Urban Development Department directed the Director of Municipal Administration, Assam to make settlement of the markets/parking slots etc. in favour of the highest bidders mentioned in the letter itself and conveyed the approval of the Government for the same. 23. From the above narration of facts and the submissions made by the learned Counsel for the parties, the admitted position, which has emerged is that the Petitioners are the highest bidders in respect of the respective markets, but the settlement has been made in favour of the private Respondents who are admittedly not the highest bidders or even the second highest bidders. However, they have been favoured with the settlement only on the basis of a particular note in the file given on 26.5.2004, as per which the increase of bid value may adversely effect the traders and may lead to other complicacies such as increasing of tolls, harassment to traders, common people, etc. Such a stand was taken in respect of three markets involved in the present writ proceedings alongwith another i.e. the Cattle market. The note, while suggesting such deviation in respect of the said markets, did not make any such suggestion in respect of other markets. In respect of the markets involved in W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/2004, while making suggestions for settlement of the same with the Respondent No. 8, in respect of the market in W.P.(C) No. 4971/2004, the settlement was suggested to be made either in favour of the fourth highest bidder at. Rs. 5,20,000.00 or in favour of the fifth highest bidder at Rs. 4,61,111.00. However, the settlement was made with the Respondent No. 7 who was die fifth highest bidder having offered Rs. 4,61,111.00. 24. What is the basis of such settlement in favour of the private Respondents. Only ground assigned is that more than 50% increase in the earlier year's settlement value may lead to public harassment. Such a decision was taken only at the time of making the settlement and was never disclosed in the NIT. It was in this context, the decision in Dutta Associates case (supra) was pressed into service. In the said case, the Apex Court held that whatever procedure, the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. It was in this context, the decision in Dutta Associates case (supra) was pressed into service. In the said case, the Apex Court held that whatever procedure, the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. The Apex Court further emphasized that while a bonafide error of judgment would not certainly matter, any abuse of power for extraneous reasons would expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at die hands of the Court. 25. In the instant case, as has been emphasized by the Apex Court in the Dutta Associates case (supra), the "viability range" of 50% or less than the earlier year's settlement value was not indicated in the NIT. It was only at the threshold of the decision to settle the markets, the Respondents worked out the viability range. In Dutta Associates case also, the State after determining the viability range called upon the Appellant in that case to make a counter offer to come within the viability range and its revised offer at the higher limit of the viability range was accepted. No such opportunity to make a counter offer was given to any other tenderers. That was equally held to be a vitiating factor. 26. There is another aspect of the matter. The conditions of NIT as referred to above, themselves take care of the kind of situation visualizing which the Respondents took the impugned decision not to settle the markets with the highest bidders. As per Clause 8 of the NIT, the lease shall be cancelled if the instalments are not paid on time. Clause 10 of the NIT stipulates that the lessee shall not be able to collect levy/tax beyond the area of the market leased out to him. As per Clause 17 the lease shall stand cancelled in the event of violating any of the conditions as stipulated in the NIT. As per Clause 21 of the NIT, the tenders submitted by any previous lessee who is accused of irregularities in the matter of collecting levy/tax etc. shall be rejected. As per Clause 17 the lease shall stand cancelled in the event of violating any of the conditions as stipulated in the NIT. As per Clause 21 of the NIT, the tenders submitted by any previous lessee who is accused of irregularities in the matter of collecting levy/tax etc. shall be rejected. Thus the NIT itself provided in built provisions to tackle with the kind of situation visualizing which the decision not to settle the market with the highest bidder was taken. Apart from the fact that the visualization of the lend of situation on the basis of which the impugned settlements have been made led to creation of a particular "viability range", which was never disclosed at the time of issuance of the NIT, but at the same time, as per the aforementioned letter dated 29.4.2004, as was produced by Mr. Dutta, learned senior Counsel, it was the same very Government which decided to settle some other markets within the jurisdiction of the same Municipal Board accepting the highest bids and the approval thereof was conveyed. It is also on record that it was only in respect of the markets under consideration in these writ proceedings were only subjected to the aforesaid "viability range'', leaving aside the other markets from such "viability range". No reason is also forthcoming or discernible from the records for preferring the private Respondents over others who also fulfilled the said "viability range" and acceptance of their bids would have fetched the Government with more revenue. No reason is also discernible as to why the Government did not accept the recommendations of the authorities upto the level of the Directorate of Municipal Administration in terms of which the highest bids were to be accepted. 27. No reason is also discernible as to why the Government did not accept the recommendations of the authorities upto the level of the Directorate of Municipal Administration in terms of which the highest bids were to be accepted. 27. The same very Respondents, who have settled the markets in favour of the private Respondents on the ground of removing public harassment, more particularly to the traders ignored the harassment meted out to the traders by the Respondent No. 7 in W.P.(C) No. 4971/2004 as will be evident from Annexure-12 letter dated 12.4.2004 addressed to the Respondent No. 1 i.e. the Commissioner & Secretary to the Government of Assam, Urban Development Department by the Executive Officer, Bongaigaon Municipality (Respondent No. 6) highlighting as to how the Respondent No. 7 created resentments among the traders leading to submission of memorandum by them to the Minister, Municipal Administration and as to how his performance as lessee for the earlier years was not upto the mark leading to revenue loss. In that letter itself, the said Executive Officer highlighted as to how the settlement of the market with the Respondent No. 7 Would lead to loss of revenue to the Government. However, ignoring all these factors including their own projection of the viable range on visualiazation of the kind of situation, which was already created by the Respondent No. 7, the Respondents made the settlement in his favour. Thus apart from violation of the procedure to be followed in respect of laying down the "viability range", the Respondents themselves violated the one, after illegally fixing the same. 28. In the case of Intaz Ali (supra), a similar question arose for consideration. In that case the order of settlement of market to a lower bidder ignoring higher bidders was put to challenge. In that case also, as in the instant case, the offer of the highest bidder was not accepted and the settlement was made in favour of the 6th highest bidder. Grounds shown in the affidavit was that the offer of the highest bidder was exorbitantly high and that of the settlement holder was reasonable. The settlement was quashed on the ground that the NIT did neither indicate that the market shall be settled at reasonable rate nor the range of reasonable rates. Grounds shown in the affidavit was that the offer of the highest bidder was exorbitantly high and that of the settlement holder was reasonable. The settlement was quashed on the ground that the NIT did neither indicate that the market shall be settled at reasonable rate nor the range of reasonable rates. The Court reacting to the ground assigned in the affidavit by the State Respondent observed: If this reason is accepted by the Court then the authorities will start accepting tenders of parties submitting tenders at lower rates than the tenders of parties submitting the highest rate on the ground that the rate quoted by the highest tenderer is not reasonable. It is, however, true that the authorities with a view to ensure that poor people are not exploited may settle a market at a reasonable rate instead of settling the same at the highest rate, but they will have to specify in the notice inviting tenders that the market shall be settled at a reasonable rate and not at exorbitant rates quoted by the parties and will have to indicate the range of reasonable rates within which the parties may submit their bids and settle the market in favour of the highest bidder within the range of reasonable rates. Such approach by the authorities would be fair and transparent and beyond any doubt. Moreover, unless a range of reasonable rates is specified in the tender notice the authorities may arbitrarily pick and choose a rate to be reasonable depending upon the person to whom they intend to settle the market and settle the market in his favour. In the instant case, there is no indication in the affidavit-in-opposition of the Respondent Nos. 1, 2 and 3 that the tender notice stipulated the condition that the market will be settled in favour of a party quoting reasonable rate and that the tender of parties quoting high rates will not be considered nor did the tender notice appear to have specified the range of reasonable rate. Further, although 10 tenderers submitted 10 different rates no reason whatsoever has been given in the affidavit-in-opposition of the Respondent Nos. 1, 2 and 3 as to why the rate quoted by Respondent No. 6 at Rs. 1,21,437/-was found to be reasonable rate. 29. Further, although 10 tenderers submitted 10 different rates no reason whatsoever has been given in the affidavit-in-opposition of the Respondent Nos. 1, 2 and 3 as to why the rate quoted by Respondent No. 6 at Rs. 1,21,437/-was found to be reasonable rate. 29. In the case of Sargous Tours and Travels (supra), this Court placing reliance the aforesaid decision of the Apex Court in Dutta Associates reiterated than the NIT must notify the intending tenderers of the procedure to be followed and that the concept of reasonable rate must also be made known to the intending tenderers. Admittedly, same was not followed in the instant case. 30. In the case of Saurabh Das (supra), this Court placing reliance on the aforesaid decision of the Apex Court in Dutta Associates and referring to the decision of this Court in Intaz Ali held that if the authority of the corporation felt that any bid exceeding double the estimated value of the contract would be unreasonable, the tenderers should have been put to notice of the said fact by due publication in the NLT. Noticing that the decision was taken towards exclusion of the higher offers after receipt of tenders, the Court observed that the decision making process was not only subversive of the principles of open and competitive bidding which is the essence of the tender process but there was an inherent probability of abuse of the process which, naturally, would effect its reasonableness and fairness. The procedure adopted was held to be in derogation of the rights of the Petitioners to fair treatment. Reacting to the stand of the Respondents that in view of the allegations of extortion during the previous term of the lease, the market ought not to be settled at any amount more than double the estimated value as mentioned in the NIT, the Court observed that if an exercise was necessary to combat the menace of extortion, the authority was not powerless to ensure what it desired without sacrificing the sacrosanct principle of competitive bidding. The Court further observed that cancellation of lease granted, a power available as in the instant case, under the terms and conditions of the lease an effective policing would have been more logical steps to ensure that no extortion takes place. 31. The Court further observed that cancellation of lease granted, a power available as in the instant case, under the terms and conditions of the lease an effective policing would have been more logical steps to ensure that no extortion takes place. 31. In the case of Jespal I. Slong (supra), the Apex Court observed that obtaining higher revenue by accepting the eligible highest bid would only be in public interest because State stands to gain more revenue. It was further held that the application of principle of predatory pricing is wholly alien to the type of contract involved in that case (granting lease of Government weighbridge). It was further observed that mere offer of a fancy or high bid by itself does not make the bid a predatory bid in that type of contract. If the State decides to gives its largesse to public it has an obligation to see that it fetches the best possible value for the same, provided otherwise it does not in any manner affects the rights of other citizens. No bidder has any right in law to remand the State to give away its largesse for an amount which he considers to be reasonable even when there are bidders willing to pay more for it. Further observation made by the Apex Court was that the principle of monopoly also does' not come into play in those types of contracts. 32. I now proceed to examine the applicability of the decisions on which Mr. Choudhury, learned Senior Counsel for the private Respondents placed reliance. In the case of GB. Mahajan (supra), the Apex Court on the basis of the materials placed before it held the same to be far short of what the law requires to justify interference. The Apex Court emphasized on the inherent limitation on the scope of the inquiry by exercising power of judicial review in the matter involving the exercise by a Government Body of its contractual powers. There cannot be any dispute with this proposition, so well established. However, the manner and method in which the impugned orders of settlement have been issued by the official Respondents with the disclosed reasons for doing so which have already been highlighted above, the instant case cannot be said to be a case in which the material placed before the Court falls far short of what the law requires to justify interference. 33. 33. In the case of Johri Mai (supra), the Apex Court reiterated that the action of the State must be judged with extreme care and circumspection. At the same time, the Apex Court also reiterated that discretionary powers are not beyond the pale of judicial review, although the Courts, it is trite, allow the public authorities sufficient elbow space/play in the joints for a proper exercise of discretion. The Apex Court also emphasized referring to its earlier decisions that where administrative action is challenged under Article 14 as being discretionary, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. For judging the arbitrariness of the order, the test of unreasonableness maybe applied. In the instant case, the unreasonableness in the impugned orders has already been noticed above. The observation of the Apex Court will have to be understood in the back ground of the facts and circumstances leading to passing of the impugned orders which have failed to pass the test of reasonableness. 34. The last case on which, Mr. Choudhury, learned Senior Counsel for the private Respondents placed reliance is the case of Kanhaiyalal Agarwal (supra). In this case, the Apex Court, in reference to its earlier decision in the case of G.J. Fernandez v. State of Karnataka as reported in (1990) 2 SCC 488 , emphasized that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non- compliance thereto. If nonfulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only Andhra Pradesh High Court collateral. Dealing with the facts involved in that case, the Apex Court found the offer made by the Appellant to be in compliance with the particular term of the tender. It was in that context, the Apex Court held that the commercial aspect of each one of the offers made by the parties will have to be ascertained and, thereafter a decision taken to accept or reject a tender. It was in that context, the Apex Court held that the commercial aspect of each one of the offers made by the parties will have to be ascertained and, thereafter a decision taken to accept or reject a tender. 35. In the aforesaid case, the short question came up for consideration was that, whether the tender offered by the Appellant with the rebate could have been accepted and whether such acceptance would affect the interest of any other party. The Appellant in response to the NIT submitted his tender with a forwarding letter setting out certain circumstances with a note offering certain reduction in the event of finalization of tender with him. The Apex Court held that the rates offered were clear and the time within which they were to be accepted was also clear. The Apex Court held that as long as such offer did not militate against the terms and conditions of inviting tender it could not be said that such offer was not within its scope. Thus in that case also the emphasis was on the terms and conditions of the NIT and the Apex Court found that the offer made by the Appellant did not militate against the terms and conditions of the NIT. 36. In the instant case, the Respondents adopted altogether a different approach by way of introducing "viability range" fixing the criteria of settlement to be 50% or less than the settlement value of the earlier year. This "viability range" was not made known to the tenderers beforehand. Not only that, while fixing the so-called "viability range" and the higher limit of the same, not only no lower limit was fixed laying down a particular criteria for acceptance of tenders, but such "viability range" was also not strictly adhered to and was flouted giving rise to lack of transparency, fairplay and reasonableness in the entire matter. The decision in the aforesaid case of Kanhaiyalal does not come in aid to the case of the Respondents, which has never diluted the principle laid down in Dutta Associates (supra) case. 37. There is another aspect of the matter, at the time of making the settlement by the impugned orders, the Municipal Board in question was under supersession and the Executive Officer, Municipality was administering the affairs of the Board as contemplated under the Act. 37. There is another aspect of the matter, at the time of making the settlement by the impugned orders, the Municipal Board in question was under supersession and the Executive Officer, Municipality was administering the affairs of the Board as contemplated under the Act. It will be appropriate to refer to the relevant provisions of Assam Municipal Act, 1956 concerning the settlement of markets and the procedure to be adopted towards settlement of the same at the time of supersession of the Board. In this connection, the relevant provisions of the rules governing the procedure for settlement may also be referred to: 148. Rents, tolls and fees.- (1) The Board at a meeting may use their own land or building or, purchase, take on lease or otherwise acquire any land or building for the purpose of establishing a municipal market or improving any existing municipal market. (2) The Board at a meeting may levy rents, tolls and fees at such rates as it may think proper for the right to expose goods for scale in a municipal market and for the use of shops, stalls and standing therein and also may regulate such rates in respect of private markets or places used or declared by the Board as a market place by public notice in the locality. (3) The Board may grant a lease according to rules under this section for a period not exceeding three years for the collection of rents, tolls and fees in municipal markets at the rates prescribed by the Board under Sub-section (2). (4) A lessee of municipal market appointed under Sub-section (3) may refuse to allow any person to expose goods for sale in the market or to use shops, stalls and standing therein until the proper rents, tolls and fees have been paid. (5) Whoever, having rendered himself liable to the payment of rents, tolls or fees refuses to pay the same shall be liable to a fine which may extend to fifty rupees and shall also be liable to be evicted from the place, shop, stall or standing in the market used by him. (5) Whoever, having rendered himself liable to the payment of rents, tolls or fees refuses to pay the same shall be liable to a fine which may extend to fifty rupees and shall also be liable to be evicted from the place, shop, stall or standing in the market used by him. (6) When resistance is offered to any person authorised to collect rents, tolls or fees, any police officer whom he may call to his aid, shall be bound to assist him, and such police officer shall, for that purpose, have the same powers as he has in the exercise of his ordinary police duties. (7) Whoever, realizes rent, tolls or fees at rates higher than the rates fixed under Sub-section (2) shall be liable to a fine not exceeding fifty rupees. 299. Consequences of Supersession.- (1) When an order of supersession or dissolution has been passed under the preceding section, the following consequences shall ensue- (a) All the Commissioners of the Board shall as from the date of the order, vacate their offices as such Commissioner; (b) All the powers and duties which under this Act may be exercised and performed by the Board, whether at a meeting or otherwise shall during the period of supersession or in case of dissolution till the new Commissioners and the Chairman are elected or nominated, be exercised and performed by such person or persons as the State Government may direct; (c) All property vested in such Board shall during the period of supersession or dissolution, as the case may be vested in the State Government. Rules 1 and 2 of the Rules of procedure for the sale of Pounds and Markets by Municipal Boards and Town Committees in Assam. 1. All pounds which the Municipal Board decides to farm out and markets established by vested in or placed under the control and administration of the Municipal Board shall be framed out by tender subject to observance of rules and procedure for inviting tenders; provided that the Board may, in its discretion, and for reasons to be recorded reserve any such pound or market from lease and administer it direct. 2. 2. The period of the lease for a pound or market shall be one year; provided that the Board may, if it thinks fit, with the previous approval of the Director of Municipal Administration extend the period of lease for a total period of two years but not exceeding one year at a time. 38. A conjoint reading of the aforesaid provisions of the Act and Rules will go to show that when a Municipal Board is under super-session, it is the Executive Officer, who is empowered to manage the affairs of the Board is to exercise the powers of the Board and discharge its functions, which, however, shall be subject to the prior approval of the Director of Municipal Administration on the matter on which but for the dissolution, the decision of the Board is necessary in the normal circumstances, as per the provisions of the aforesaid Act and the Rules. The provisions of Section148 of the Act and the aforesaid Rules empower the Board, to settle the market by tender. However, if the period of lease of the market which is normally 1 year is sought to be extended for a total period of 2 years but not exceeding 1 year at a time, the Board can do so only with the previous approval of the Director of Municipal Administration. Thus after the supersession of the Board, it is the Executive Officer, who is to exercise the powers of the Board and discharge its functions, but the same would be subject to the prior approval of the Director on the matter on which, but for the dissolution, the decision of the Board is necessary. 39. In the present case, the Board being under supersession, it is the Executive Officer, who is empowered to make the settlement of the markets with the prior approval of the Director. However, it is the Government in the Municipal Administration Department, which made the settlement in reference to the letters written by the Director. It is the Government in the said department, which granted the approval to the settlement in favour of the private Respondents instead of the Director and rather settled the market with the private Respondents by itself transgressing into the power and jurisdiction of the Director. 40. As noticed above, upto the Directorate level, recommendations were made for settlement of the markets with the highest bidder. Mr. 40. As noticed above, upto the Directorate level, recommendations were made for settlement of the markets with the highest bidder. Mr. Choudhury, learned Senior Counsel for the private Respondents with the production of the WT message dated 24.2.2004 issued by the Commissioner and Secretary to the Government of Assam in the Urban Development Department to all the Deputy Commissioners, submitted that as per the said WT message, all proposals and settlement of the markets were required to be submitted to the Director of Municipal Administration for Government approval. Needless to say that no amount of Government guidelines and for that matter, the WT message dated 24.2.2004 can override the express provisions of the aforesaid Act and the Rules, in terms of which it is the Director from whom the Executive Officer is required to obtain prior approval. It is in this context, Mr. Dutta, learned senior Counsel for the Petitioners argued that the State which issued the impugned orders was stranger. 41. For the foregoing reasons and discussions, I have no hesitation to conclude that the impugned orders of settlement, which is under challenge in the above writ petitions are not sustainable. Accordingly all the impugned orders stand set aside and quashed. The matter shall now go back to the competent authority for a fresh decision on the basis of the bids offered by the parties and consistently with the normal principle of making the settlement in favour of the highest bidder, if he is otherwise eligible for such settlement. Having regard to the fact that as against the specified period of 1 year, about 7 months have already passed on litigation, the competent authority may also decide on the feasibility of granting extension in favour of the parties with whom the settlement may be made. 42. Writ petitions stand allowed to the extent indicated above. Impugned orders stand set aside. However, considering the facts and circumstances of the case, there shall be no order as to costs. Petition allowed