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2007 DIGILAW 577 (GAU)

Surajit Saikia v. State of Assam

2007-08-28

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The challenge in both the writ petitions, is projected against the order dated 01.08.2007, passed by the Chief Executive Officer, Nagaon Zilla Parishad permitting the respondent No. 6, Rahul Amin to run and manage the Balisatra Bi-Weekly Market (hereafter for short referred to as the 'Market'), at 5% above the last settlement value of Rs. 6,91,201.07, by way of interim arrangement pending finalization of the process initiated by the NIT dated 17.04.2007, pertaining thereto. Admittedly, the respondent No. 6, in compliance of the said order, is operating the market since then as on date. 2. I have heard Mr. A.B. Choudhury, Senior Advocate assisted by Mr. J. Abedin, Advocate for the petitioner in W.P.(C) No. 4008/2007, Mr. G Choudhury, Advocate for the petitioner in W.P.(C) No. 4067/2007 and Ms. V.L. Sinha, learned State counsel for the official respondents. Mr. A.M. Mazumdar, Senior Advocate assisted by Mr. B.D. Konwar and Mr. M.U. Mondal, Advocates represented the respondent No. 6. 3. The pleaded facts are that Shrj Surajit Saikia petitioner in W.P.(C) No. 4008/7007 the was settled the market by the Nagaon Zilla Parishad (hereafter also referred to as the 'Zilla Parishad'), at his bid of Rs. 6,91,201.07/- for the period of 13.02.2007 to 30.06.2007. The petitioner, thereafter, submitted a representation for the remission of the kist money. An appeal was also filed by him under Section 137 of the Assam Panchayat Act 1994, (hereafter for short referred to as the 'Act'), before the Commissioner & Secretary to the Government of Assam, Panchayat and Rural Development Department for extending term of his lease by another year offering enhanced bid of 10% over the last settlement value. As the representation and appeal lay unattended and in the meantime, a fresh process for settlement of the market for the next Panchayat year, was initiated by the NIT dated 17.04.2007, he approached this Court with W.P.(C) No. 2178/2007. By order dated 16.05.2007, this Court disposed of the petition with a direction to the authorities concerned to pass necessary orders on the representation/appeal within a period of two months, clarifying that in doing so only the prayer for the remission of his dues would be considered. By order dated 16.05.2007, this Court disposed of the petition with a direction to the authorities concerned to pass necessary orders on the representation/appeal within a period of two months, clarifying that in doing so only the prayer for the remission of his dues would be considered. The Chief Executive Officer of the Zilla Parishad, pending disposal of the representation/appeal having by his order dated 18.06.2007, directed the petitioner to deposit the outstanding dues within two days of the receipt thereof, he assailed the same before this Court in W.P.(C) No. 3102/2007. By order dated 22.06.2007, this Court while issuing notice, in the interim stayed the operation thereof and maintained the status quo with regard to the affairs of the Market. The petitioner was further directed to appear before the concerned respondent authority to facilitate the hearing and disposal of the appeal. 4. The respondent No. 6, thereafter, filed an application in W.P.(C) No. 3102/2007 (Misc. Case No. 2648/2007), for vacation/ modification/alteration of the interim order of status quo dated 22.06.2007. The petitioner also by his application (Misc. Case No. 2739/ 2007) sought extension of the interim order. This Court by order dated 25.07.2007, disposed of the miscellaneous cases observing that as the petitioner's term had expired on 30.06.2007, the order of status quo had ceased to operate after that date. In the meantime, the NIT dated 17.04.2007, launching the fresh process for settlement of the Market for the next Panchayat year, had been impeached in W.P.(C) No. 2363/2007 and further action thereon, stayed by this Court. Noticing the above, in its order dated 25.07.2007, this Court left the Zilla Parishad at liberty to make interim arrangement in the interregnum with the direction that in doing so, the cases of the parties as well as of those other eligible persons should be considered. A time limit of two weeks was fixed for the Zilla Parishad authorities to complete the drill as directed. The petitioner's possession over the Market was maintained till the finalization of the interim arrangement. 5. According to the petitioner in W.P.(C) No. 4008/2007, a day prior thereto i.e. on 24.07.2007, the Chief Executive Officer of the Zilla Parishad by his order dated 24.07.2007, authorized its tax collector to collect the revenue from the Market. The petitioner's possession over the Market was maintained till the finalization of the interim arrangement. 5. According to the petitioner in W.P.(C) No. 4008/2007, a day prior thereto i.e. on 24.07.2007, the Chief Executive Officer of the Zilla Parishad by his order dated 24.07.2007, authorized its tax collector to collect the revenue from the Market. This order having been challenged in W.P.(C) No. 3888/2007, this Court by order dated 01.08.2007, stayed the operation thereof observing that the same would not interdict the respondents from proceeding with and acting upon the direction contained in the order dated 25.07.2007. According to the petitioner, on 27.7.2007, he submitted an application offering a bid of 15% above the last year settlement value of Rs. 6,91,201.07/- to run and operate the Market for the interim period. However, the Chief Executive Officer of the Zilla Parishad by the impugned order permitted the respondent No. 6 to do so at a lower bid of 5% above the last settlement value. The plea of the petitioner in W.P.(C) No. 4067, is that his higher bid of 20% above the last settlement value of Rs. 6,91,201.07/- though submitted on 30.07.2007, had been overlooked to favour the said respondent. 6. In his counter in W.P.(C) No. 4008/ 2007, the Chief Executive Officer of the Zilla Parishad has asserted that the petitioner in W.P.(C) No. 4008/2007, was in default of Rs. 57,600/- in connection with his last settlement period from 13.02.2007 to 30.06.2007 and that his representation/appeal submitted before the concerned respondent authorities for remission of the kist money had been rejected on 31.07.2007. Inspite thereof, the petitioner had not cleared the outstanding revenue. The answering respondent has maintained that all together 6 candidates had offered their bids for the interim settlement and on a consideration thereof, the offer of the respondent No. 6, was found to be the most acceptable. It has been stated that the bids quoted by the petitioners and others were exorbitant and, therefore, were not acted upon, as acceptance thereof, would have been oppressive and thus opposed to public interest. The default on the part of the petitioner to clear the kist money against his last settlement was also a factor against him. It has been stated that the bids quoted by the petitioners and others were exorbitant and, therefore, were not acted upon, as acceptance thereof, would have been oppressive and thus opposed to public interest. The default on the part of the petitioner to clear the kist money against his last settlement was also a factor against him. The said respondent his affidavit in W.P.(C) No. 4067/2007, reiterated the plea that the bids of the candidates except that of the respondent No. 6, were exorbitant and construed to be undesirable for the interim settlement. 7. The respondent No. 6, in his counter, while maintaining that the impugned order is in consonance of the letter and spirit of the directions of this Court, has pleaded that the petitioner having failed to demonstrate any contravention of his legally enforceable right, the petition does not disclose any cause of action and is, therefore, liable to be dismissed. 8. Mr. Choudhury, has urged that the petitioner's offer for interim settlement being higher than that of the respondent No. 6, the non-consideration thereof, has vitiated the impugned order, the same being patently in non-compliance of the directions of this Court. As augmentation of Government revenue ought to be the prime consideration in such matters, the interim settlement of the Market in favour of the respondent No. 6, apart from being illegal and arbitrary, compromises therewith and is thus unconstitutional, null and void. 9. Mr. G Choudhury while endorsing the above, has argued with reference to Section 95 of the Act that it is apparent therefrom that the bid offered by the petitioner in W.P.(C) No. 4067/2007, was realistic and valid and, therefore, the rejection thereof, is obviously unsustainable in law. The petitioner's offer having been conceived of and structured balancing the aspect of profit and public revenue, the acceptance of a lower bid is manifestly against the public interest rendering the impugned decision ineffectual and non est in law. In any view of the matter, the authorities concerned not having complied with the mandatory prescription of Rule 47(10) of the Assam Panchayat Raj (Financial) Rules, 2002(hereafter referred to as the 'Rules'), to obtain approval of the Government for settlement of the Market at a lower bid, the impugned decision is liable to be adjudged invalid and void. The learned Counsel also contended extraneous considerations to have influenced the impugned settlement. 10. Ms. The learned Counsel also contended extraneous considerations to have influenced the impugned settlement. 10. Ms. Sinha, has urged with reference to the records that the Zilla Parishad was within its authority to reject the excessive bids of the other bidders and, therefore, the impugned order based on relevant considerations, cannot be faulted with. Considering the nature of the settlement, the mandate of Rule 47(10) of the Rules, is not attracted, she urged. She submitted the relevant records pertaining to the impugned settlement for the perusal of the Court. 11. Mr. Mazumdar, argued that the offers made by the other tenderers apart from being unacceptable being absurd, the petitioner in W.P.(C) No. 4008/2007, cannot logically insist for the interim settlement at 5% above the last years value in the face of his prayer for remission of his outstanding dues which eventually was rejected on merits. The Zilla Parishad having been guided by the consideration of the public interest in selecting the respondent No. 6, this Court in the exercise of its power of judicial review, would not interfere with the impugned decision. 12. The rival submissions have been duly considered. Aperusal of the official records reveals that the offers of as many as 6 candidates including the petitioners, were scrutinized by the concerned authorities of the Zilla Parishad and eventually the bid of respondent No. 6, at 5% above the last years settlement value of Rs. 6,91,201.07/-, was accepted for the interim settlement of the Market. The other bids, which ranged between 13% to 300% of the last years settlement, were rejected construing the same to be extortionate having the potential of adversely affecting the public interest. In his affidavit as well, the Chief Executive Officer of the Zilla Parishad has substantiated the above plea asserting that even the interim settlement of the Market at such a high rate would expose the market goers to the risk of harassment. 13. The fact that the petitioner in W.P.(C) No. 4008/2007, had prayed for remission of his outstanding dues relating to the earlier settlement and that his representation/appeal with regard thereto, had been rejected by the appropriate authorities, is not in dispute. The order dated 31.07.2007 of the Zilla Parishad, rejecting his appeal/representation, is based on an assessment of contemporaneous facts and other materials on record. More importantly this decision has remained unchallenged in any higher forum. The order dated 31.07.2007 of the Zilla Parishad, rejecting his appeal/representation, is based on an assessment of contemporaneous facts and other materials on record. More importantly this decision has remained unchallenged in any higher forum. Thus petitioner is also in default in the payment of Government revenue. 14. Indubitably, the settlement is transist in nature pending finalization of the regular tender process already initiated, but presently kept in abeyance by this Court. Having regard thereto, the rigour of the essentialities of a settlement for the full term as envisaged under the Act and the Rules, in meticulous and strict details, even if not enforced, in my view would not invalidate the temporary arrangement. A substantial compliance of the primary procedural requirements ensuring fairness and transparency in the administrative decision, would be adequate to sustain the validity of the resultant conclusion. The records unequivocally demonstrates that in terms of the order dated 25.07.2007 of this Court, the offers of the petitioners and others, were considered on merit and that of the respondent No. 6, was accepted being viable, realistic and aligned with public interest. The consideration of augmentation of public revenue understandably cannot be mutilative of the public interest. The safeguard adopted by the Zilla Parishad against the possible threat of oppression of the traders in the market on the acceptance of exorbitant rates, cannot be dismissed as irrelevant or inapposite. Strict compliance of the edict of Order 47(10)of the Rules, also in the above distinctive facts and the flitting nature of the settlement, in my opinion, even if omitted would not afflict the impugned decision. 15. In the above view of the matter, the 'petitioners having failed to disclose any legally cognizable ground to warrant interference with the impugned settlement, the petitions being without merit, are hereby dismissed. No costs. Petition dismissed.