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2010 DIGILAW 166 (GAU)

Jamat Ali v. State of Assam

2010-03-04

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. R. Ali, learned Counsel for the petitioners, and Ms. V.L. Sinha, learned Government Advocate, appearing on behalf of the respondents. 2. A notice was published, on 26.5.2009, by Mandia Anchalik Panchayat, inviting applications for settlement of, amongst others, Kadongbeki Parghat (i.e., ferry service) for the financial year 2009-2010. While the bid value of the applicant, in Misc. case No. 3403/2009, namely, Moinul Hoque, was Rs. 2,95,000/-, the bid value of the present writ petitioner, namely, Jamat Ali, was Rs. 99,999/-. The total number of persons, who had participated in the said tender process, was as many as eleven. 3. However, in respect of the same Ferry service, namely, Kadongbeki Parghat, another Notice Inviting Tender (in short, 'NIT') was already issued, on 11.5.2009, by Barpeta Zila Parishad for the financial year 2009-2010. 4. As Barpeta Zila Parishad settled the said ferry service in favour of one Miran Ali by its order, dated 24.6.2009, the same came to be challenged by the said Jamat Ali by way of a writ petition, which gave rise to WP(C) No. 2684/2009, wherein it was contended, inter alia, by a Jamat Ali that the NIT, dated 11.5.2009, issued by the Barpeta Zila Parishad, was, in the light of the decision of the Full Bench of this Court, in Harez Ali v. State of Assam reported in 2009 (2) GLT 561, without any authority of law inasmuch as the power to issue NIT for settlement of ferry service, in all cases, with Anchalik Panchayat and not with Zila Parishad and, hence, the NIT, dated 26.5.2009, issued by Mandia Anchalik Panchayat for settlement of the said ferry service (i.e., the Parghat) shall hold the field. 5. In the writ petition, which so arose, namely, WP(C) No. 2684/2009, an order was passed, on 2.7.2009, suspending the order, dated 24.6.2009. It may, however, be noted that while so suspending the order, dated 24.6.2009, the Court granted liberty to Mandia Anchalik Panchayat to make settlement in terms of the NIT, dated 26.5.2009, notwithstanding the pendency of the writ petition, namely, WP(C) No. 2684/2009. Mandia Anchalik Panchayat accordingly prepared comparative statement and settled the said ferry service by its order, dated 27.8.2009, in favour of Jamat Ali (i.e., the writ petitioner) at his offered value of Rs. 99,999/-. 6. Mandia Anchalik Panchayat accordingly prepared comparative statement and settled the said ferry service by its order, dated 27.8.2009, in favour of Jamat Ali (i.e., the writ petitioner) at his offered value of Rs. 99,999/-. 6. Eventually, by order, dated 18.9.2009, passed, in WP(C) No. 2684/2009, the order of settlement, dated 24.6.2009, aforementioned, whereby the said ferry service stood settled in favour of the said Miran Ali by Barpeta Zila Parishad, was set aside and quashed. Having quashed the NIT, dated 11.5.2009, issued by Barpeta Zila Parishad, the Court further directed that the Barpeta Zila Parishad shall now, pursuant to the NIT, dated 26.5.2009, issued by the Mandia Anchalik Panchayat, complete the process of settlement of the ferry service. In effect, considering the fact that in the case of Harez Ali (supra), the Full Bench has held to the effect that the NIT in respect of settlement of all the ferry service shall be published by the Anchalik Panchayat, but the settlement thereof has to be made by the Zila Parishad if the value of the ferry service is above rupees one lakh, the Court set aside the NIT, which has been issued by the said Zila Parishad on the ground that the NIT was rightly published by Mandia Anchalik Panchayat and no NIT, in this regard, ought to have been published by Barpeta Zila Parishad, but the value being above rupees one lakh, the settlement has to be made by the Barbeta Zila Parishad and not by Mandia Anchalik Panchayat. The Court, therefore, directed Barpeta Zila Parishad to act upon the NIT, dated 26.5.2009, which had been issued by the Mandia Anchalik Panchayat, but complete the process of settlement of the said ferry service. This order was never put to challenge and, therefore, attained finality. 7. As already indicated above, besides Jamat Ali, even the applicant, namely, Moinul Hoque, had participated in the NIT, dated 26.5.2009, issued by Mandia Anchalik Panchayat, but he was held to be ineligible on the ground that he was a defaulter. Though the applicant claims that he was not a defaulter, this is an aspect of the case, which we are not required to deal with, in the present case, at this juncture. 8. Though the applicant claims that he was not a defaulter, this is an aspect of the case, which we are not required to deal with, in the present case, at this juncture. 8. Be that as it may, following the decision, in WP(C) No. 2684/2009, rendered on 18.9.2009, the Standing Committee, Barpeta Zila Parishad, held, on 10.11.2009, the applicant, namely, Moinul Hoque, as a valid tender and, while not accepting the offer of Rs. 99,999/- made by the writ petitioner, the Standing Committee accepted the highest bid of the applicant, namely, Moinul Hoque. 9. Thereafter, on 12.11.2009, a WT Message was issued by the Chief Executive Officer, Barpeta Zila Parishad, requesting the Block Development Officer, Mandia Development Block, to inform him if any settlement had been given to Jamat Ali at his offered bid of Rs. 99,999/-. This WT message was followed by an order, dated 18.1.2009, issued by the Chief Executive Officer, Barpeta Zila Parishad, granting settlement of the said ferry service in favour of the applicant Moinul Hoque with effect from 19.11.2009 and the lease was to continue till 30.6.2010. In short, settlement was accordingly granted in favour of the present applicant, who, on the strength of the settlement, so given, started operating the said ferry service. 10. By filing a writ petition, which gave rise to WP(C) No. 5096/2009, the writ petitioner, namely, Jamat Ali, has challenged the order, dated 18.11.2009, whereby settlement has been granted in favour of Moinul Hoque and also the WT message, dated 12.11.2009, aforementioned. On the writ petition, so filed, the Court passed an order, on 23.1.2009, directing issuance of notice of motion and also notice to be issued on the prayer for interim directions, which the writ petitioner, Jamat Ali, had made. No interim order was, however, passed in WP(C) No. 5096/2009. 11. On 25.11.2009, the Executive Officer, Mandia Anchalik Parishad, cancelled the order, whereby settlement had been granted in favour of the writ petitioner, Jamat Ali. By filing a writ petition, which has given rise to WP(C) No. 5386/2009, the writ petitioner, Jamat Ali, has challenged the order, dated 25.11.2009, whereby the Chief Executive Officer, Mandia Anchalik Panchayat, has cancelled the settlement order, dated 27.8.2009, which was earlier passed in favour of the writ petitioner, Jamat Ali. 12. By filing a writ petition, which has given rise to WP(C) No. 5386/2009, the writ petitioner, Jamat Ali, has challenged the order, dated 25.11.2009, whereby the Chief Executive Officer, Mandia Anchalik Panchayat, has cancelled the settlement order, dated 27.8.2009, which was earlier passed in favour of the writ petitioner, Jamat Ali. 12. While filing the subsequent writ petition, i.e., WP(C) No. 5386/2009, the writ petitioner, Jamat Ali, never brought it to the notice of the Court that he had already challenged the order, dated 18.1.2009, whereby Barpeta Zila Parishad had settled the said ferry service in favour of the applicant, Moinul Hoque, and that he had not been granted any interim order in the said writ petition. Suppressing these material facts, the writ petitioner, Jamat Ali, obtained an order, on 4.12.2009, in WP(C) No. 5386/2009, whereby the order, dated 25.11.2009, stood suspended. While suppressing these material facts, the writ petitioner, Jamat Ali, did not also make the applicant, Moinul Hoque, a party to his writ petition, namely, WP(C) No. 5386/2009. Thus, the writ petitioner, Jamat Ali, kept the Court wholly in the dark about the fact that the said ferry service already stood settled by the said Zila Parishad in favour of Moinul Hoque and that Moinul Hoque was a necessary party in the writ petition inasmuch as no order setting aside and/or quashing the said order of settlement can be passed without hearing the applicant, Moinul Hoque, in whose favour settlement stands made. 13. Aggrieved by the order, dated 4.12.2009, which has been passed, in WP(C) No. 5386/2009, the applicant, Moinul Hoque, in whose favour settlement had already been made by the said Zila Parishad, sought for being impleaded in the said writ petition. This application for impleadment, which gave rise to WP(C) No. 3398/2009, has been allowed and the said applicant had been made a party to the subsequent writ petition, namely, WP(C) No. 5386/2009. 14. From the various facts as narrated above, what transpires is that the NIT, dated 11.5.2009, issued by Barpeta Zila Parishad stands set aside and quashed; whereas the NIT, dated 26.5.2009, issued by the Mandia Anchalik Panchayat has been held by this Court to be a valid NIT. 14. From the various facts as narrated above, what transpires is that the NIT, dated 11.5.2009, issued by Barpeta Zila Parishad stands set aside and quashed; whereas the NIT, dated 26.5.2009, issued by the Mandia Anchalik Panchayat has been held by this Court to be a valid NIT. However, the decision of the Full Bench, in Harez Ali (supra), makes it clear that the said Anchalik Panchayat could not have granted settlement in favour of the writ petitioner, namely, Jamat Ali, inasmuch as the power to grant settlement, in the present case, where the offer of the applicant, Moinul Hoque, being as high as Rs. 2,95,000/-, it is Barpeta Zila Parishad, which is the competent authority to grant the settlement. This apart, it clearly transpires, as already indicated above, that the writ petitioner, Jamat Ali, has suppressed the fact that he had earlier challenged, in WP(C) No. 5386/2009, the settlement order made in favour of the applicant Moinul Hoque and by suppressing this fact, the writ petitioner, Jamat Ali, has obtained an interim order, on 4.12.2009, in WP(C) No. 5386/2009, as indicated above. When the writ petitioner has clearly suppressed the material facts and obtained the interim order on the basis of manipulation and when it is the Barpeta Zila Parishad, which is the competent authority to grant settlement, and when the settlement has, in fact, been granted by Barpeta Zila Parishad in favour of the applicant, Moinul Hoque, the settlement, so made in favour of Moinul Hoque, cannot be legally interfered with. 15. Because of what have been discussed and pointed out above, the interim direction, passed in WP(C) No. 5096/2009. on 4.12.2009, is hereby withdrawn and vacated. As the writ petitioner does not disclose that the he has any right to demand interference with the cancellation of his settlement order passed by Mandia Anchalik Panchayat and/or with the order of settlement, which has been made by Barpeta Zila Parishad in favour of the applicant, Moinul Hoque, both the writ petitions, namely WP(C) No. 5096/2009 and WP(C) No. 5386/2009, cannot be admitted and are, therefore, dismissed. 16. In the result and for the reasons discussed above, it is hereby directed that the applicant, Moinul Hoque, shall be allowed by the Barpeta Zila Parishad to operate the said ferry service in accordance with law until 30.6.2010 unless the order of settlement is extended in accordance with law. 17. 16. In the result and for the reasons discussed above, it is hereby directed that the applicant, Moinul Hoque, shall be allowed by the Barpeta Zila Parishad to operate the said ferry service in accordance with law until 30.6.2010 unless the order of settlement is extended in accordance with law. 17. With the above observations and directions, this writ petition shall stand disposed of. 18. No costs. Petition allowed.