JUDGMENT H.N. Sarma, J. 1. Vide tender notice dated 7.1.2005 Sonari Municipal Board, respondent No. 4 invited a tender for settlement of Sonari Municipal Daily Market for the period from 2005-06 commencing from 1.4.2005 to 31.3.2006. The last date for settlement of the tender was fixed on 11.2.2005 upto 1 p.m. Pursuant to the aforesaid tender notice as many as four tenderers including the petitioner and the respondent No. 5 submitted their respective tenders praying for settlement of the said market offering their respective bid - the petitioner offered Rs. 7,80,500 where the respondent No. 5 offered Rs. 7,28,650. As per Clause 2 of the tender notice the tenderers were required to submit original documents such as Myadi Patta, Zamabandi, non-incumbrance certificate, land revenue paying Receipt, Income tax , Sales tax, Municipal tax, Gaon Panchayat tax clearance certificate of tenderers/guarantor along with the tender. The Municipal Board held its meeting on 22.3.2005 for consideration of the settlement of the aforesaid market and vide resolution No. 2(ga) the respondent No. 5 was settled with the aforesaid market at his bid value of Rs. 7,28,650. Vide resolution No. 2(ka), the bid offered by the petitioner amounting to Rs. 7,80,500 was rejected primarily on two counts, namely that the bid offered by the petitioner is higher by Rs. 1,30,760 than the last year's bid and the value of the property offered as security is less than the bid amount offered by him. It is also noted in the said resolution that as the bid offered by the petitioner is more than last year's bid an apprehension has been expressed, that may lead to additional burden of tax/toll upon the traders. So far the grounds incorporated for acceptance of tender of the Respondent No. 5 which is stated in its said resolution is that the tender of the Respondent No. 5 has offered Rs. 78,910 more than the last year's bid and if the market is settled at his offered rate of Rs. 7,28,650 then there is no possibility of additional burden of tax upon the trader. Admittedly the petitioner having offered Rs. 7,80,500 and the respondent No. 5 having offered Rs. 7,28,650, the bid offered by the petitioner is substantially higher than that of respondent No. 5. The said resolution was adopted by the Municipal Board was forwarded for necessary approval to the Director, Municipal Administration Department. Admittedly the petitioner having offered Rs. 7,80,500 and the respondent No. 5 having offered Rs. 7,28,650, the bid offered by the petitioner is substantially higher than that of respondent No. 5. The said resolution was adopted by the Municipal Board was forwarded for necessary approval to the Director, Municipal Administration Department. There is a set of rules known as Rules for procedure for sale of pond and market by the Municipal Board and town committee of Assam, which are framed in exercise of power conferred by Sections 147, 148 and301 of the Assam Municipal Act, 1956. Rule 7 of the aforesaid Rules is quoted herein below; as it is relevant for the purpose of this case. Rule 7 : Every bid made shall be recorded in writing by the officer conducting the sale. He shall not be bound to accept the highest or any bid ; but if he does not accept the highest or any bid, he shall record his reasons in writing. The lease shall be granted to the persons whose bid is accepted, subject to the provisions of the succeeding rule. 2. Thus, it is mandatory upon the Municipal Board to record .in the case of direction of highest bid in writing. The Municipal Board having sought for necessary approval from the Director, Municipal Administration the Respondent No. 2 by forwarding necessary tender and other relevant documents, the matter was processed in the office of the Director, Municipal Administration and ultimately on getting approval from Director vide letter DMA 230/88/pt-l/2002 dated 31.3.2005 the market in question was settled in favour of Respondent No. 5 at his offered bid of Rs. 7,28,650 for the period from 1.4.2005 to 31.3.2006. 3. Being aggrieved by the aforesaid order of settlement the present writ petition has been filed by the petitioner. 4. I have heard Mr. D.C. Mahanta, learned senior counsel assisted by Mr. N.K. Baruah for the petitioner. Mr. G. Soren, learned Jr. Govt. Advocate appearing for Respondent Nos. 1 and 2 and Mr. C. Baruah, learned senior counsel assisted by Mr. H. Rahman appearing for respondent Nos. 3 and 4 and Dr. Y.K. Phukan, learned senior counsel assisted by Mr. D. Das for respondent No. 5. 5. Opposing the contention raised in the writ petition, an affidavit-in-opposition has been filed on behalf of respondent No. 5, Mr. 1 and 2 and Mr. C. Baruah, learned senior counsel assisted by Mr. H. Rahman appearing for respondent Nos. 3 and 4 and Dr. Y.K. Phukan, learned senior counsel assisted by Mr. D. Das for respondent No. 5. 5. Opposing the contention raised in the writ petition, an affidavit-in-opposition has been filed on behalf of respondent No. 5, Mr. Mahanta, learned senior counsel has raised five points challenging the impugned order of settlement: (i) That the petitioner having offered higher bid than that of the Respondent No. 5, the market ought to have settled with him and by settling the matter with the Respondent No. 5 at much lesser value, the municipality has sustained financial loss which is against public interest and it has adversely affected the right of the petitioner and as such the impugned order of settlement is not sustainable. (ii) That no ground as required under Rule 7 of the Rules, valid in law, has been incorporated in rejecting the Tender of the petitioner. (iii) That the impugned letter dated 31.3.05 issued by the Director, Municipal Administration stating that the bid of the highest bidder i.e. the Petitioner was rejected on technical ground is illegal, unjust and improper. (iv) That the tender of the petitioner has been rejected on irrelevant ground illegally. (v) That the respondent has not furnished the necessary Municipality Certificate which is a mandatory requirement as per tender notice; his tender is incomplete and ought to have been rejected. 6. It is submitted by Mr. Mahanta, that the petitioner having offered the highest bid and having submitted all necessary documents as per term of the tender notice/tender of the petitioner ought not to have been rejected. The ground that valuation of the property offered by the petitioner is less than the bid value is not required to be considered and the tender ought not to have been rejected on that ground inasmuch as there is no such clause/criteria laid down in the tender notice. It is further submitted by Mr. The ground that valuation of the property offered by the petitioner is less than the bid value is not required to be considered and the tender ought not to have been rejected on that ground inasmuch as there is no such clause/criteria laid down in the tender notice. It is further submitted by Mr. Mahanta that Respondent No. 5 not having submitted the necessary documents which are mandatory requirement under the relevant clause of the NIT, i.e., the Municipal Certificate not having been submitted the tender of the Respondent No. 5 is incomplete and acceptance of the same is out and out illegal It is categorically submitted by the learned Counsel for the petitioner that tender of Respondent No. 5 ought to have been rejected at its threshold. On the other hand. Dr. Phukan, learned senior Counsel appearing on behalf of Respondent No. 5 has submitted that resolution of the Municipal Board, on the face of it discloses that such reason have been recorded in terms of Rule 7 of the Rules and this Court in exercise of the writ Jurisdiction is not entitled to come to a different finding than what has been recorded in the resolution inasmuch as rightly or wrongly some reason have been recorded by the Board. Dr. Phukan further submitted that said resolution adopted by the Board is perfectly legal and it is in accordance with the relevant rules and procedure and terms of the condition of the tender notice. On the allegation of non-submission of Municipality tax clearance certificate as required under Clause 2 of the tender notice, it is submitted by Dr. Phukan that Municipal authority having accepted the tender the said ground is irrelevant and the tender of the respondent No. 5 has not been rejected on that ground. Mr. C. Barua, learned senior counsel also supported the resolution passed by the Board and produced the connected records. 7. Mr. G. Soren, learned Govt. Advocate has also produced relevant records from the Director Municipal Administration and has pointed out that the relevant notings in the file, I have considered the rival submissions made by the parties and also perused the relevant records. There are certain admitted or undisputed facts in this case and these are : - (i) That the petitioner is the highest bidder offered amongst the tenderers. There are certain admitted or undisputed facts in this case and these are : - (i) That the petitioner is the highest bidder offered amongst the tenderers. (ii) That the market in question has been settled with the Respondent No. 5 at lesser amount of Rs. 51,850. (iii) That the respondent No. 5 has not submitted the Municipal tax-paying certificate: (iv) Value of the property offered by the petitioner is lesser than the bid value quoted by him and there is no clause in the tender notice that tender would be rejected on such count. 8. The ground for rejection of the lender of the petitioner, as stated above, are that the higher value offered by the petitioner may lead to excessive taxation upon the traders and the valuation of the property offered by the petitioner is lesser than the bid value. 9. Let us take the 2nd ground first that the tender notice was issued by the Municipal Board contenting the relevant clauses. The NIT contains a list of document which are to be enclosed along with the tender but there is no such item/clause in the tender notice that such valuation certificate of the property offered as security should be attached with the tender notice. There is also no such clause that in the event the valuation of the property offered as security is found lesser than the bid value the tender would be rejected. 10. It is no longer res-integra by now that in the event of having such idea in the mind of the Municipal Board that the value of the property offered as scrutiny is lesser than the bid value, and the tender would be rejected in that count, it must be incorporated in the tender notice itself, otherwise the process of settlement would not be transparent. The process of settlement must be clear and transparent and a tenderer must know as to necessary requirement to be complied with and without incorporating such clause in the tender notice, I find it difficult to accept that the rejection of the tender on that ground as is a valid one. Moreover petitioner was not given any opportunity to offer more security before taking such a decision. Moreover petitioner was not given any opportunity to offer more security before taking such a decision. In this connection we may gainfully refer to the ratio of the following decision of the Apex Court and of this Court : - (1997) 1 SCC 53 ; (2) [1986] 3 SCR 63 ; (3) [1991] 2 SCR 696 and (4) 2000 (1) GLT 573 : Regarding other ground that the petitioner offered higher bid than the last years bid which would put more financial burden upon the trader is also clearly unacceptable inasmuch as a lessee is permitted and allowed to collect lolls which is fixed by the Municipality itself and such fixation is made the Municipal Board in its meeting, and approved by the authority. A trader or a lessee is not entitled to demand anything beyond such rate as fixed by the Municipality. Hence apprehension of excessive taxation upon trader is not based on any valid reason and is totally unfounded. 11. Settlement of a market, huts etc are made by the Municipality for augment of its revenue which is one of the major sources of revenue of the Municipality and accordingly it should normally make settlement of such market at the best available price. It can also be observed herein that a prudent businessman always put his bid considering in all respect its profit and loss and as such if the Municipality gets more revenue from a market it should be accepted by such local body. Support can be found for this proposition from the following decisions (1) 1988 (2) GLR 44 : (2) 1987 (1) GLR 206 : (3) 2000 (1) GLR 612. Accordingly, I find that rejection of the tender of the petitioner on the 2nd ground is also not justified. On the other hand in the resolution No. 2(ga) by which the respondent No. 5 has been settled with the market similar consideration of excessiveness and possibility of excessive claim of toll/revenue has not been taken into consideration although the rate offered by the Respondent No. 5 is also much higher than the last year's bid. That apart, the said Resolution No. 2 there is no whisper about non-submissions of the Municipality Certificate as required under Clause 2 of the tender notice. The connected file submitted by the learned Govt. That apart, the said Resolution No. 2 there is no whisper about non-submissions of the Municipality Certificate as required under Clause 2 of the tender notice. The connected file submitted by the learned Govt. Advocate being DMA/230/88/pt-1 from the Director Municipal Administration also discloses the anxiety of the Director to settle the market to the highest bidder in the interest of the Board's revenue. However, vide letter dated 31.3.2005 from the Director Municipal Administration to the Chairman of the Sonari Municipal Board discloses that rejection of the tender of the 1st, 2nd and fourth highest bidder on technical ground is accepted but what is 'technical ground' is neither mentioned in the said letter. No such 'technical ground' has also been recorded in the original file. The original file does not disclose the necessary noting regarding issuance of the said letter. It is no doubt true that merely by submitting highest bid a person is not entitled to claim settlement as a matter of right but what the law requires is that in case of rejection of a tender of a highest bidder reasons must be recorded in writing and such reason must be legally valid reasons. As discussed herein above, I find that the reasons recorded by the Municipal Board is not inconformity with the law. To put it in other word, the Municipal Board has committed grave error in the entire decision making process by not considering the true purport of NIT, the settled principles of law and defects of tender submitted by the respondent No. 5. Accordingly the aforesaid two resolutions, i.e., resolution No. 2(ka) and 2(ga) adopted by the Sonari Municipal Board in its meeting dated 22.3.2005 and the letter issued by the Director Municipal Administration dated 31.3.2005 relating to Sonari Daily Market are arbitrary and illegal and cannot be accepted as valid in law and accordingly the same are set aside and quashed. Sonari Municipal Board will now take appropriate steps to settle market in accordance with law and in the light of the observations made herein above within a period of three weeks from today. During this period, i.e., till settlement of the market as directed herein above, the Municipal Board shall make its own arrangement to run the market. In the result. Petition is allowed to the extent indicated above. No costs. Petition allowed