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2009 DIGILAW 244 (GAU)

Apurba Das v. State of Assam

2009-04-07

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. The subject matter of challenge in this writ petition is the settlement of Kamargaon daily and weekly hat in favour of the respondent No. 6 at his offered bid of Rs. 40,000 by the Chakchaka Anchalik Panchayat in the district of Barpeta for the period from 1.7.2008 to 30.6.2009 ignoring the bid offered by the petitioner at Rs. 75,222. 2. I have heard Mr. Sikdar, Learned Counsel for the petitioner and Ms. H. Phukan, learned G.A., Assam. Although notice was served upon the respondent No. 6 by registered post with A/D, he has chosen not to contest this writ proceeding. 3. A counter has been filed on behalf of the Chakchaka Anchalik Panchayat, respondent No 3. 4. Chakchaka Anchalik is constituted under Section 31 of the Assam Panchayat Act, 2004. An Anchalik Panchayat is constituted for each Development Block having jurisdiction over the entire Development Block jurisdiction excluding such portion of the Block as are included in the Town Committee and are included in the Municipality or under authority of Municipal Corporation, a Sanitary Board or Cantonment are or a notified area constituted under any law for the time being in force. Provide that a Block may comprise of such villages as are not contiguous or have no common boundaries and are separated by an area to which this Act, does not extend or in which the remaining sections of this Act have not come into force. An Anchalik Panchayat is a body corporate having perpetual succession and common seal and subject to such restrictions as are imposed by or under this or any other enactment vested with the power to sue or being sued in the name of Anchalik Panchayat. It can acquire, hold and transfer property movable or immovable whether without or within the limits of the area over which it has authority, enter into contracts or doing all things necessary, proper and expedient for the purpose for which it is constituted. 5. An Anchalik Panchayat is vested with the power to settle hats/markets/pounds/ferries fallen within its territorial jurisdiction in the manner as prescribed under Section 105 of the Assam Panchayat Act, 2004, by inviting tenders. Rule 47 of the Assam Panchayat (Financial) Rules, 2002, prescribes the mode of settlement of hats/markets/pounds/ferries fallen within its territorial jurisdiction. 5. An Anchalik Panchayat is vested with the power to settle hats/markets/pounds/ferries fallen within its territorial jurisdiction in the manner as prescribed under Section 105 of the Assam Panchayat Act, 2004, by inviting tenders. Rule 47 of the Assam Panchayat (Financial) Rules, 2002, prescribes the mode of settlement of hats/markets/pounds/ferries fallen within its territorial jurisdiction. Chakchaka Anchalik Panchayat through its secretary issued a Notice (NIT) dated 16.5.2008 inviting applications from the tending bidder for settlement of hats/markets/pounds/ferries falls within its territorial jurisdiction including Kamargaon daily and weekly market for the period 1.7.2008 to 30.6.2009. The authority has fixed revenue for the Kamargaon daily and weekly market at Rs. 10,000. The aforesaid NIT contains certain terms and conditions for settlement of hats/markets/pounds/ferries. Clause (3) of the NIT provides that each bidder should enclose along with their bids a copy of tax clearance certificate issued by the Anchalik Panchayat, Gaon Panchayat or town committee, proof of payment of land revenue, caste certificate where it is applicable and no dues certificate from the Gaon Panchayat/Samabay Samity. The last date for submission of the bids was fixed on 10.6.2008. 6. In terms of the aforesaid NIT as many as six bidders including the petitioner and the respondent No 6 have submitted their bids. The petitioner offered bids for Rs. 75,222 and the respondent No 6 offered Rs. 40,000 for settling the Kamargaon daily and weekly market. The Executive Officer of the Chakchaka Anchalik Panchayat while scrutinizing the bids prepared comparative statement and found that the bids offered by the petitioner is higher than the bid offered by the respondent No. 6 but the tenders offering bids of other tenderers were found to have not in consonance with all the terms and conditions of NIT. The comparative statement prepared by the Executive Officer along with tender documents was placed before the Tender Committee. However, the Tender Committee accepted the tender submitted by the respondent No 6 and the market in question was settled with him at his offered bid. No reason or explanation is recorded as to why the bid offered by the respondent No. 6 was accepted and the bid offered by the petitioner was rejected. 7. Challenging the order of settlement, Mr. No reason or explanation is recorded as to why the bid offered by the respondent No. 6 was accepted and the bid offered by the petitioner was rejected. 7. Challenging the order of settlement, Mr. Sikdar submits that nondisclosure of any reason or in absence of any explanation for accepting the lowest bid ignoring the higher bid offered by the petitioner is violative of the provisions of Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002, inasmuch as, no prior or formal approval from the Government was obtain while accepting the lowest bid offered by the respondent No. 6. In support of his contention Mr. Sikdar has also referred to a decision of this Court rendered in Abdul Jalil and Ors. v. State of Assam and Ors. 2007 (4) GLT 882. 8. In the counter filed by the Chairman of the Chakchaka Anchalik Panchayat, a plea is taken that the petitioner did not submit necessary Tax Clearance Certificate from the Chakchaka Anchalik Panchayat, Gaon Panchayat and Town Committee as required to be submitted under Clause (3) of the NIT and the Tax Clearance Certificate being essential document for consideration of the bids, the tender submitted by the petitioner was found to be incomplete. Thus, the market in question could not be settled with him. On the other hand, although the bid offered by the respondent No 6 was lowest, the tender submitted by him was found correct in all respect satisfying all the terms and conditions of the NIT. Accordingly, the market in question was settled with him. 9. The submissions made by the Learned Counsel for the parties led to scrutinize the connected records produced by the learned G.A., Assam. On scrutiny of tenders submitted by the petitioner it is found that the petitioner is a permanent resident of Ward No 4 of Sorbhog Town and offered a bid of Rs. 75,222 for settling the Kamargaon daily and weekly market. Along with the tender, the petitioner submitted Land Revenue Clearance Receipt issued by the Mauzadar, Tax Clearance Certificate issued by the Chairman Sorbhog Town Committee, Earnest Money of Rs. 500 by way of Call Deposit issued by the Central Bank of India, Barpeta Branch. On the other hand, the respondent No. 6 submitted his tender offering bid of Rs. 40,000 alonwgith Earnest Money of Rs. 500 by way of Call Deposit issued by the Pragjyotish Gaolia Bank. 500 by way of Call Deposit issued by the Central Bank of India, Barpeta Branch. On the other hand, the respondent No. 6 submitted his tender offering bid of Rs. 40,000 alonwgith Earnest Money of Rs. 500 by way of Call Deposit issued by the Pragjyotish Gaolia Bank. No Dues Certificate from the Executive Officer and Secretary, Chakchaka Anchalik Panchayat, Land Revenue Paying Receipt dated 10.6.2008 along with other documents. The records do not disclose any reason for non-acceptance of the highest bid offered by the petitioner. On the basis of the aforesaid facts it is now required to be seen as to whether such action of the Chakchaka Anchalik Panchayat in settling the Kamargaon daily and weekly market is acceptable or not. A Panchayat is a unit of Local Self Government. Director principles entitled in Article 40 of the Constitution of India lays down the directives that the State shall take steps to organize village Panchayats investing them with such powers and authority as may be necessary to enable them to function as units of Local Self Government. By the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992, the Parliament has inserted Part-DC and DC-A to the Constitution. Part-IX, containing Article 243 to 243O relates to Panchayat and Part DC-A contains Articles 243P to 243ZG relating to Municipalities. Provisions in both Part-DC and DC-A are more or less analogous to each other. After the amendment of the Constitution three tier system of Panchayat has been introduced - (a) village level, (b) district level and (c) intermediate level having a population not exceeding twenty lakhs. The State Legislature has the legislative power to vest with such power and authority as may be considered necessary to enable it to function as an institution of Local Self Government under Article 243G and Article 243H of the Constitution. Such power includes levy and collection of taxes, duties, toll and fees which may be assigned or appropriated, preparation of plan and scheme for economic development and social justice, implementation of scheme for economic development and social justice as may be entrusted to them including those matters which are listed in 11th Schedule. In terms of the aforesaid mandate of the Constitution, the Assam Panchayat Act, 1994, was enacted by the Legislature of Assam, repealing the existing Act. In terms of the aforesaid mandate of the Constitution, the Assam Panchayat Act, 1994, was enacted by the Legislature of Assam, repealing the existing Act. Thus, decentralizing the power, certain duties and responsibilities are entrusted to the institution of Panchayat as units of Local Self Government. The Panchayats are to be financially solvent to enable itself to implement various development objectives and accordingly, they are vested with the power and authority to collect revenue by way of settling hat/bazaar/ferries/pounds, etc. falling within its boundaries which is again one of their ancillary functions as elicited above. Thus one of the formidable function of the Panchayat is also to sol UP hat/bazaar/ferries/pounds, etc. for the purpose of earning revenue. Accordingly, the Panchayat authority is duty bound to guard that such hats/bazaars/ferries/pounds, etc., are leased out at the best available rate. 10. For the settlement of Kamargaon daily and weekly market although the Government fixed the revenue at Rs. 10,000, the petitioner offered Rs. 75,222 and the respondent No. 6 offered Rs. 40,000. The offer made by the petitioner is higher by Rs. 35,000 than the offer made by the respondent No. 6. No reason or explanation is recorded in the order for non-acceptance of the highest bid offered by the petitioner. Sub-rule 10 of Rule 47 of the Assam Panchayat (Financial) Rules, 2002 which is a statutory one mandates that the tender of the highest bidder shall be accepted and acceptance of tender other than the highest bid requires prior Government approval. But the same has not been complied with in this case and no prior and formal approval of the Government was obtained while settling the Kamargaon daily and weekly market with the respondent No. 6 at the bid which is much lower than the highest bid offered by the petitioner. 11. The contention raised by the learned G.A., Assam, that the petitioner did not submit necessary documents as required under Clause (3) of the NIT, the petitioner not having submitted the Tax Clearance Certificate from Chakchaka Anchalik Panchayat, Gaon Panchayat and Town Committee has receive due consideration of the court. The Comparative Statements itself disclose that the petitioner is a resident of Ward No. 4 of Sorbhog Town. Although he has not submitted the no dues certificate from the Anchalik Panchayat or Gaon Panchayat, the petitioner submitted no dues certificate from the Town Committee. The Comparative Statements itself disclose that the petitioner is a resident of Ward No. 4 of Sorbhog Town. Although he has not submitted the no dues certificate from the Anchalik Panchayat or Gaon Panchayat, the petitioner submitted no dues certificate from the Town Committee. Admittedly, the petitioner is a resident of Ward No. 4 of Sorbhog Town. A close scrutiny of Section 31 of the Assam Panchayat Act, 1994, disclosed that an area included under the Town Committee is excluded from the jurisdiction of the Anchalik Panchayat. Town Committee is excluded from the jurisdiction of the Anchalik Panchayat. Town Committee or Municipality or an area under the authority of the Municipal Corporation is also excluded from the jurisdiction of the Anchalik Panchayat and in fact, the Anchalik Panchayat is constituted excluding such areas. In such a situation, the aforesaid provisions in Clause 3 of the NIT requiring submission of certificate from Anchalik Panchayat or Gaon Panchayat by a tenderer who is a resident of an area falling within a Town Committee or Municipality is not applicable. On the same principle, the respondent No. 6 has also not submitted no dues certificate from the Town Committee and for this he also cannot be faulted with, inasmuch as, he is a resident of the village Dakhin Burikhamar and he does not belong to an area under any Town Committee or Municipality. The requirement of submission of no dues certificate from the Panchayat or Town Committee/Municipality is mutually exclusive. In view of the aforesaid situation, the contention of the learned G.A., Assam, is not sustainable. 12. By settling the market with the respondent No. 6, the Panchayat authority is losing a substantial amount of revenue. It appears that the Panchayat authority has adopted two different standards in settling the market in question. On the one hand the stand of the Panchayat is that the petitioner did not submit no dues certificate from the Panchayat and instated he submitted such certificate from the Sorbhog Town Committee and on the other hand the respondent No. 6 though not submitted such certificate from the Town Committee, but submitted the same issued by the Panchayat authority and his tender was not rejected on that count. For such faulty decision, the Panchayat institution is losing huge exchequer by way of toll. For such faulty decision, the Panchayat institution is losing huge exchequer by way of toll. The tender of the petitioner being the highest and his tender being a regular one, the market ought to have been settled with him. No good or cogent reason for discarding the bid offered by the petitioner, sufficient enough to refuse the settlement with him could be shown by the respondents. 13. In view of the aforesaid discussion, this writ petition is allowed. The settlement made in favour of the respondent No. 6, Shri Prafulla Das, stands set aside and quashed. The Panchayat authority is directed to settle the market with the petitioner for the remaining period forthwith. It is made clear that the petitioner shall deposit kist money proportionately for the remaining period left to be enjoyed by him, which is due to over by 30.6.2009. 14. In the result, the writ petition stands allowed. Petition allowed.