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2010 DIGILAW 146 (GAU)

Md. Harun Rashid v. State of Assam

2010-02-24

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Heard Mr. A. Ali, learned Counsel for the petitioner, and Mr. G. Soren, learned Government Advocate, appearing on behalf of the respondent Nos. 1, 2 and 3. Also heard Mr. A. Matin, learned Counsel, appearing on behalf of the respondent No. 4. 2. This writ petition, filed under Article 226 of the Constitution of India, arises out of a settlement of a bi-weekly market, namely, Arabari Bi-weekly Bazaar, for the financial year 2009-2010, pursuant to a Notice Inviting Tender issued, in this regard, by respondent Nos. 2 and 3. Though the present petitioner's bid value, seeking settlement of the said bazaar, was Rs. 14,000/- per month, the State respondents, more specifically, respondent Nos. 2 and 3 herein, have settled the said bazaar with respondent No. 4, namely, Md. Abdul Kalam, on the later's bid value of Rs. 8,300/- per month, by making an order, dated 12.10.2009. It is the order, dated 12.10.2009, which stands impugned in this writ petition. 3. Resisting the writ petition, respondent No. 3, namely, the Executive Officer, Juria Anchalik Panchayat, has filed an affidavit, wherein it has been pointed out that the General Standing Committee had taken the decision that it would be in public interest to give settlement of the said bazaar in favour of the respondent No. 4 at his bid value of Rs. 8,300/-, per month, instead of the petitioner at the latter's bid value of Rs. 14,000/-, per month, an offer, which was, according to the General Standing Committee, exorbitant and impracticable. The justifications which the Standing Committee has given, are essentially meant for the State Government inasmuch as Sub-rule (10) of Rule 47 of the Assam Panchayat (Financial) Rules, 2002 (in short, 'the Rules'), provides, "The tender of highest bidder shall be accepted. Acceptance of tender, other than the highest bid, shall require the Government's prior and formal approval." 5. From a bare reading of the provisions contained in Sub-rule (10) of Rule 47, what becomes more than abundantly clear is that, as a matter of general practice, it is the highest bid, which shall be accepted by the Standing Committee. Acceptance of tender, other than the highest bid, shall require the Government's prior and formal approval." 5. From a bare reading of the provisions contained in Sub-rule (10) of Rule 47, what becomes more than abundantly clear is that, as a matter of general practice, it is the highest bid, which shall be accepted by the Standing Committee. However, if, for any reason, the Standing Committee finds that the highest bid is not practicable or, for any other reason, not acceptable, the Standing Committee cannot give settlement to, or request the panchayat concerned to give settlement to, anyone other than the highest bidder except if the Government's prior and formal approval is obtained for making settlement in favour of a person, other than the highest bidder. Thus, when a General Standing Committee finds that an offer, though highest, is so exorbitant that it cannot be accepted being impracticable, it may justify giving of settlement to the person, who may not be the highest bidder, but such settlement cannot be given unless the Government's prior and formal approval is obtained thereto. 6. In the case at hand, with the justifications, which have been assigned by the Standing Committee, for not accepting the highest bid value of petitioner and for accepting the lower bid value of the respondent No. 4, the proposal, seeking approval for giving settlement to the respondent No. 4, ought to have been forwarded, in the light of the provisions of Sub-rule (10) of Rule 47 of the Rules, to the State Government and if, on examination thereof, had the State Government found that it would be appropriate to give settlement in favour of the respondent No. 4, the State Government could have granted its approval, as aforesaid, and it is only upon granting of such approval by the State Government that the settlement could have been made in favour of the respondent No. 4. 7. In short, the respondents, before granting settlement of the bazaar in favour of respondent No. 4, ought to have sent the matter to the Government for obtaining necessary approval, which has, admittedly, not been done in the present case. Without prior approval of the Government, respondent Nos. 2 and 3 could not have given the settlement of the said bazaar in favour of the respondent No. 4 on a bid value, which was lower than the present petitioner's offered bid value. 8. Without prior approval of the Government, respondent Nos. 2 and 3 could not have given the settlement of the said bazaar in favour of the respondent No. 4 on a bid value, which was lower than the present petitioner's offered bid value. 8. Situated thus, there can be no escape from the conclusion that the' impugned order, dated 12.10.2009, settling the bazaar, in question, with respondent No. 4, is beyond the jurisdiction of the respondent Nos. 2 and 3. 9. Hence, the settlement is hereby set aside and quashed. The respondent Nos. 2 and 3 are left at liberty to obtain approval of the Government to the settlement, which had been given to the respondent No. 4, and, if such approval is granted, respondent No. 2 shall act on the approval. Until the time the Government's approval, as indicated hereinbefore, is obtained, the bazaar, in question, shall be run by respondent Nos. 2 and 3 without engaging any outsider including the petitioner and/or respondent No. 4. 10. With the above observations and directions, this writ petition shall stand disposed of. 11. No order as to costs. Petition allowed.