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Gauhati High Court · body

2011 DIGILAW 965 (GAU)

Abdul Gani v. State of Assam & Ors.

2011-12-07

UJJAL BHUYAN

body2011
Ujjal Bhuyan, J.— The matter relates to settlement of a parghat called the Kadang-Sonapur-Beki Nadir Parghat, which is within the territorial jurisdiction of the Mandia Anchalik Panchayat for the year 2011-12. Mandia Anchalik Panchayat is under the Barpeta Zilla Parishad. A Notice Inviting Tender (NIT) was issued by the Mandia Anchalik Panchayat on 15.4.2011 inviting tenders for settlement of various Hats, Ghats etc. within its jurisdiction for the year 2011-2012, including the Kadang-Sonapur-Beki Nadir Parghat (briefly the "Parghat" hereafter). As per the said NTT, the Government value of the Parghat was fixed at Rs. 40,000/- and the earnest money at Rs. 2000/-. 2. Clause 3(Ka) of the NIT, which is relevant for adjudication of the present case, stipulated that a tenderer whose bid value was above Rs. 1,00,000/- should submit a Loan Clearance Certificate from the Zilla Parishad. It was stated that submission of such a certificate was mandatory, otherwise the tender would be rejected. The petitioner submitted his tender for the Parghat offering his bid value at Rs. 99,999.99. As his bid value was below Rs. 1,00,000/- he was not required to submit such a certificate. It appears altogether 13 tenderers had submitted tenders for the Parghat, including the petitioner and the respondent No.6. The tenders were opened on 16.6.2011. The tenders were scrutinized by the General Standing Committee of the Mandia Anchalik Panchayat and thereafter the comparative statement was prepared. As per the comparative statement prepared, the first highest bidder had withdrawn his tender. The second highest bidder i.e. the respondent No. 6 had offered Rs. 2,86,999/- but in the absence of necessary document his tender was rejected. The tenders of the tenderers at S1. Nos. 3, 4 and 5 were also similarly rejected. The tenderer at S1. No.6 had also withdrawn his tender. That left the petitioner with bid value of Rs. 99,999.99 at SI. No.7. In the remarks column in respect of the petitioner it was remarked "settlement given". The said comparative statement as available up to S1. No. 7 was signed by the President and the Executive Officer as well as by the Members of the General Standing Committee of the Mandia Anchalik Panchayat. According to the petitioner, as per the direction of the Anchalik Panchayat authorities, he deposited the first installment of kist money amounting to Rs. 35,000/- on 27.6.2011. Since the bid value of the highest eligible bidder selected was below Rs. According to the petitioner, as per the direction of the Anchalik Panchayat authorities, he deposited the first installment of kist money amounting to Rs. 35,000/- on 27.6.2011. Since the bid value of the highest eligible bidder selected was below Rs. 1,00,000/-, the Mandia Anchalik Panchayat forwarded the tender papers along with the comparative statement to the Barpeta ZillaParishad on 29.6.2011 for confirmation. The Barpeta Zilla Parishad instead of confirming the decision of the Mandia Anchalik Panchayat, decided to settle the Parghat with the respondent No.6 at his bid value of Rs. 2,86,999/- vide order dated 30.6.2011. It is this order of the Zilla Parishad dated 30.6.2011 which is under challenge in the present proceeding. 3. This Court by order dated 20.7.2011 while issuing notice, stayed the aforesaid order dated 30.6.2011. The respondent NO.6 thereafter filed an application for vacation of the aforesaid order dated 20.7.2011 passed by this Court. The said application was registered as Misc. Case No. 2272 of 2011. Both the mise. case and the main writ petition have been, taken up together for consideration by the Court. 4. The respondent No.6 in his mise. application, which is treated as his counter affidavit, has stated that he had obtained the tax clearance certificate from the Barpeta Zilla Parishad on 7.6.2011 and had annexed it with his tender. According to the respondent No.6 the comparative statement annexed by the writ petitioner in the writ petition is not the correct one. He has stated that he had obtained a copy of the comparative statement from the office of the Zilla Parishad, which he says is the correct one. According to the respondent No. 6 there was no defect in his tender and that the Anchalik Panchayat had wrongly rejected his tender. Therefore, the decision of the Barpeta Zilla Parishad dated 30.6.2011 settling the Parghat with him is justified and should not be interfered with. He prays for dismissal of the writ petition and for vacation of the interim order dated 20.7.2011. 5. I have heard Mr. R. Ali, learned counsel for the petitioner, Mr. J. Handique, learned State counsel appearing for respondent Nos. 1 to 5 and Mr. J. Ahmed, learned counsel appearing for the respondent No.6. Though the State has not filed any affidavit, Mr. J. Handique, the learned State counsel has produced the record. 6. 5. I have heard Mr. R. Ali, learned counsel for the petitioner, Mr. J. Handique, learned State counsel appearing for respondent Nos. 1 to 5 and Mr. J. Ahmed, learned counsel appearing for the respondent No.6. Though the State has not filed any affidavit, Mr. J. Handique, the learned State counsel has produced the record. 6. Section 106 of the Assam Panchayat Act, 1994 (briefly "the Act" hereafter) provides for settlement of public ferries and distribution of sale proceeds thereof. As per the scheme of Section 106, all public ferries other than Govt. ferries within the territorial jurisdiction of the Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one panchayat financial year by inviting tenders. As per Sub-Rule (3) of Section 106, the powers of examination and final acceptance of such tenders is vested in the General Standing Committee of the Anchalik Panchayat constituted under Section 52( 1 )(a) of the Act. As per Sub-Section (4) of the said Section, all settlements made under Sub Section (3) shall be subject to the confirmation of the Zilla Parishad. As per the 1st proviso to the said sub-section, in case of any dispute, the Anchalik Panchayat may refer such cases to the Government and the aggrieved party may also appeal to the Government whose decision in this regard shall be final. As per the 2nd proviso, the Government may intervene in the matter of a particular settlement as and when deemed necessary and its decision in this regard shall be final. Though Section 109 essentially deals with settlement of fisheries by the Anchalik Panchayat, Sub-Section (6) thereof not only deals with fisheries but also deals with Hats and Ferries (Ghats/Parghats). As per the said Sub-Section (6), the Hats, Ferries and Fisheries falling under any Anchalik Panchayat within the jurisdiction of Zilla Parishad, the yearly sale value of which is more than Rs. 1,00,000/- shall be settled by the Zilla Parishad concerned for a period coinciding with and not exceeding one panchayat year, hi such a case, the power of examination and final acceptance of such tenders shall be vested in the General Standing Committee of the Zilla Parishad constituted under Section 81 (a) of the Act. 7. 1,00,000/- shall be settled by the Zilla Parishad concerned for a period coinciding with and not exceeding one panchayat year, hi such a case, the power of examination and final acceptance of such tenders shall be vested in the General Standing Committee of the Zilla Parishad constituted under Section 81 (a) of the Act. 7. A controversy had arisen regarding the interpretation of Sub-Section (6) of Section 109 of the Act particularly with reference to the meaning of the expression "yearly sale value". The controversy was set at rest by a Full Bench of this Court in the case of Harez Ali & Anr. Vs. State of Assam & Ors.; reported in 2009 (2) GLT 561 (FB). The questions which arose for consideration before the Full Court were (i) whether yearly sale value would mean the minimum value fixed by the panchayat while offering the property for settlement by tender or it is the highest value offered by the eligible highest bidder, and (ii) whether Zilla Parishad is empowered to invite tenders in respect of Hats, Ferries and Fisheries having yearly sale value of more than Rs. 1,00,000/-. The Full Court after observing that the expression "yearly sale value" is not defined in the Act, held that "yearly sale value" of all Hats, Ghats and Fisheries would mean the highest bid amount that is offered by the eligible bidder. If the bid value of the eligible highest bidder is less than Rs. 1,00,000/-, the General Standing Committee of the Anchalik Panchayat will examine and accept the tender of the highest eligible bidder and forward it to the Zilla Parishad for confirmation, which is a mandatory requirement. The Full Bench has pointed out that any settlement made without such confirmation by the Zilla Parishad will not be a legally valid settlement. The Full Bench further clarified that after submission of all tender papers before the Anchalik Panchayat if the bid value offered by the eligible highest bidder is found to be more than Rs. 1,00,000/-, the General Standing Committee of the Anchalik Panchayat shall immediately forward all such tender papers submitted by the bidders together with the comparative statement prepared to the Zilla Parishad concerned for doing the needful. 8. 1,00,000/-, the General Standing Committee of the Anchalik Panchayat shall immediately forward all such tender papers submitted by the bidders together with the comparative statement prepared to the Zilla Parishad concerned for doing the needful. 8. Having noticed the relevant provisions of the Act as interpreted by the Full Bench of this Court, the following situation thus emerge, tenders for the Hats, Ghats and Fisheries within the territorial jurisdiction of the Anchalik Panchayat will be floated by the President of the Anchalik Panchayat. The tenders submitted shall be scrutinized by the General Standing Committee of the Anchalik Panchayat. If on such scrutiny it is found that the highest bid value amongst the eligible tenderers is below Rs. 1,00,000/-, the settlement is to be made by the Anchalik Panchayat subject to confirmation by the Zilla Parishad. But if the highest bid value amongst the eligible tenderers is found to be more than Rs. 1,00,000/-, the tender papers have to be sent to the Zilla Parishad. In such a case, the General Standing Committee of the Zilla Parishad shall scrutinize the tender papers and thereafter the final settlement order would be issued by the Zilla Parishad. 9. Thus, the picture that emerges is that there are two stages of scrutiny. In the first stage, the scrutiny will be made by the General Standing Committee of the Anchalik Panchayat. If on such scrutiny it is found that the bid value of the highest valid tenderer is less then Rs. 1,00,000/-, the power of settlement is vested with the Anchalik Panchayat, subject of course to confirmation by the Zilla Parishad. The language of Sub-Sections (3) and (4) of Section 106 is very clear, which are quoted hereunder for ready reference: "(3) The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee under Section 52(1 )(a) (4) All settlement made under Sub-Section (3) shall be subject to the confirmation of the Zilla Parishad." A careful scrutiny of the said provisions clearly show that the decision of the General Standing Committee of the Anchalik Panchayat regarding validity of a tender is final. Therefore, once the decision is taken by the General Standing Committee of the Anchalik Panchayat regarding the validity of a tender, the same attains finality. In such a case, the settlement will be made by the Anchalik Panchayat, subject to confirmation by the Zilla Parishad. Therefore, once the decision is taken by the General Standing Committee of the Anchalik Panchayat regarding the validity of a tender, the same attains finality. In such a case, the settlement will be made by the Anchalik Panchayat, subject to confirmation by the Zilla Parishad. However, if on scrutiny of the tender papers, the General Standing Committee of the Anchalik Panchayat finds that the highest bid value of the eligible tenderers is more than Rs. 1,00,000/-, the tender papers would have to be immediately forwarded to the Zilla Parishad. It is then that the second stage comes into play. On receipt of the tender papers, those would be examined by the General Standing Committee of the Zilla Parishad and the final acceptance of such tenders is vested in the said General Standing Committee. In such a case, the settlement will be made by the Zilla Parishad. 10. Having noticed the legal position as indicated above, let us see what has happened in the instant case. 11. In the file containing the tender papers of the respective tenderers, it is seen that all the documents have been tagged together except one document, which is in a loose form. The said document is a Tax Clearance Certificate dated 7.6.2011 issued by the Chief Executive Officer, Barpeta Zilla Parishad in favour of the respondent No. 6 certifying that there is no outstanding dues payable to the Barpeta Zilla Pa rishad by the said respondent No.6. A loose photostat copy of the proceeding of the General Standing Committee of the Mandia Anchalik Panchayat dated 23.6.2011 is also found in the record. As per the resolution No. 1, the General Standing Committee resolved that after scrutiny of the tenders it was decided to settle the Parghat with the petitioner. In the said resolution it was mentioned that the first tenderer had withdrawn his tender. In respect of the second highest bidder i.e. the respondent No. 6 it was noted that as relevant document was not submitted his tender was rejected. For similar reason the tenders of the 3rd, 4th and 5th highest bidders were also rejected. It was also noted that the 6th highest tenderer had withdrawn his tender. That brought the petitioner at serial No. 7 into consideration. After noting that the petitioner had submitted the relevant documents, the General Standing Committee took the aforesaid decision to settle the Parghat with the petitioner. It was also noted that the 6th highest tenderer had withdrawn his tender. That brought the petitioner at serial No. 7 into consideration. After noting that the petitioner had submitted the relevant documents, the General Standing Committee took the aforesaid decision to settle the Parghat with the petitioner. In another file of the record presumably of the Zilla Parishad, in Column-10 of the comparative statement relating to Tax Clearance Certificate of the Zilla Parishad, in respect of the respondent No.6, it is seen that both 'no' and 'yes' were written but struck off. The said comparative statement is also considerably different from the copy of the comparative statement annexed to the writ petition inasmuch as in the latter, in the remarks column the seal and signature of the President of the Mandia Anchalik Panchayat are there which is missing in the comparative statement found in the said record. There are also other material differences. However, it is seen that on the left hand side of the said comparative statement the President of the Barpeta Zilla Parishad put up a note dated 30.6.2011 settling the Parghat with second highest bidder i.e. the respondent No. 6 at his bid value of Rs. 2,86,999/-, besides this, there are 4(four) other signatories of the Members of the General Standing Committee of the Zilla Parishad. In the proceedings of the Zilla Parishad dated 30.6.2011, it was noted that the 1st highest bidder had withdrawn his tender, therefore, it was decided to settle the Parghat with the 2nd highest bidder (respondent No.6) at his bid value of Rs. 2,86,999/-. It was noted that the Anchalik Panchayat had rejected the tender of the respondent No. 6 on the ground that the said tenderer had not submitted the Tax Cearance Certificate from the Zilla Parishad but doubt was expressed on the stand taken by the Anchalik Panchayat. The Standing Committee of the Zilla Parishad noted that in the column relating to Tax Clearance Certificate of the Zilla Parishad, in respect of the respondent No.6, once it was written 'yes' which was struck off and then it was written 'no', which was also struck off. The Zilla Parishad further noted that the respondent No. 6 has produced the Tax Clearance Certificate of the Zilla Parishad bearing SI. No. 110 dated 7.6.2011 and accordingly his tender was considered to be valid and was accepted. The Zilla Parishad further noted that the respondent No. 6 has produced the Tax Clearance Certificate of the Zilla Parishad bearing SI. No. 110 dated 7.6.2011 and accordingly his tender was considered to be valid and was accepted. Interestingly, a copy of the said certificate finds place along with the said resolution. However, it is seen that the certificate which is annexed to the resolution of the General Standing Committee of the Barpeta Zilla Parishad is different in format from the loose certificate which is found in the file containing the tenders of the tenderers. 12. In fact, this Court while considering the misc. case had noticed the material differences. By order dated 15.11.2011 passed in misc. case No. 2272 of 2011, this Court noted that from the writ petition as well as from the misc. case it appeared that two separate comparative statements were prepared and there are material differences in both the comparative statements. Therefore, by order dated 15.11.2011 this Court directed the Chief Executive Officer of the Mandia Anchalik Panchayat as well as the Chief Executive Officer of the Barpeta Zilla Parishad to file affidavits and to appear in person with the relevant record on 22.11.2011. On 22.11.2011 the two Officers had appeared before the Court in person. The records which they brought and as referred to above were handed over to the Court by the learned State counsel. 13. From a perusal of the record, I am constrained to observe that the records have not been properly maintained. The proceedings of the General Standing Committee of the Anchalik Panchayat are not available in original except a loose photocopy of the same. Besides, tempering in the comparative statement has been noticed. The same has cast a shadow on the fairness of the decision making process, hi my opinion, it requires a proper investigation by the higher authority of the department to find out the persons responsible for such tempering and to take necessary action against them, otherwise the credibility of the entire settlement system will be eroded. 14. Coming back to the present case, let us again examine what is the requirement of Clause 3(Ka) of the NIT. The said clause requires that those tendered whose bid value is above Rs. 1,00,000/- must submit Loan Clearance Certificate from the Zilla Parishad. 14. Coming back to the present case, let us again examine what is the requirement of Clause 3(Ka) of the NIT. The said clause requires that those tendered whose bid value is above Rs. 1,00,000/- must submit Loan Clearance Certificate from the Zilla Parishad. Submission of the said certificate has been made mandatory and if it is not submitted, it is clearly stipulated that such tenders would be rejected. Therefore the requirement is submission of a Loan Clearance Certificate from the office of the Zilla Parishad. In other words, when an application conies before the Zilla Parishad for issuance of such a certificate, the Zilla Parishad is required to conduct an inquiry and after satisfying itself, it has to issue such a certificate. In the instant case, in so far the petitioner is concerned, since his bid value is less than Rs. 1,00,000/-, there is no requirement for submission of such a certificate That may perhaps explain why Column 10 in the comparative statement in respect of the petitioner is kept blank. However, in the case of the respondent No.6, even as per the resolution of the General Standing Committee of the Zilla Parishad, both the remarks 'yes' and 'no' made in the said column have been struck off, which means that there is no remark against that column. Even in the typed copy of the comparative statement annexed by the respondent No.6 himself in his misc. application, against Column-10 in respect of the respondent No. 6 it is remarked 'no' and nothing in respect of the petitioner. At this stage it must be pointed be out that the requirement of Clause 3(Ka) is not submission of a Tax Clearance Certificate but a Loan Clearance Certificate from the Zilla Parishad. 15. As pointed out above, the decision of the General Standing Committee of the Anchalik Panchayat regarding validity of the tenders is final. The General Standing Committee of the Zilla Parishad will come into the picture only if the General Standing Committee of the Anchalik Panchayat finds that the bid value of the highest eligible tenderer is more than Rs. 1,00,000/-. In such a case, the tender documents are to be sent to the Zilla Parishad and the General Standing Committee of the Zilla Parishad will thereafter scrutinize the tenders and make the settlement. 1,00,000/-. In such a case, the tender documents are to be sent to the Zilla Parishad and the General Standing Committee of the Zilla Parishad will thereafter scrutinize the tenders and make the settlement. In the instant case, the General Standing Committee of the Anchalik Panchayat on scrutiny of the tenders declared the tender of the respondent No. 6 as invalid and settled the Parghat with the petitioner, whose bid value is below Rs. 1,00,000/-. The said settlement was subject to confirmation by the Zilla Parishad under Sub-Section (4) of Section 106 of the Act. The dictionary meaning of the word confirmation means "the action on confirming or the state of being confirmed". According to the Blacks Law Dictionary, 6lh Edition, confirmation also means to give formal approval. Therefore, once the matter was scrutinized by the General Standing Committee of the Anchalik Panchayat and the bid of the highest valid tenderer was found to be less then Rs. 1,00,000/-, it was not open for the Barpeta Zilla Parishad to sit like an appellate authority over the said decision of the Anchalik Panchayat. All that was required of it was to approve the decision of the Anchalik Panchayat or if it had any doubt, to have sought clarification from the Anchalik Panchayat. The course of action adopted by the Barpeta Zilla Parishad is, therefore, in the considered opinion of this Court, beyond the mandate of the aforesaid provisions of the Act. 16. Mr. J. Ahmed, learned counsel for the respondent No.6 placed before the Court a decision of this Court in the case of Haji Abdul Mazid Vs. State of Assam & Ors.; reported in 2008 (2) GLT 64 which appears to be the basis of an alternative argument of Mr. Ahmed. In this case, the settlement of a weekly market was challenged by the petitioner therein on the ground that on a combined reading of Clauses 3 and 8 of the NIT, his tender could not have been treated as invalid and he ought to have been settled with the market. On a reading of the relevant provisions of the NIT, this Court noticed that in terms of Clause 3 thereof, preference was to be extended to the highest bidder but sub-clause Kha made it obligatory on the part of the tenderers to furnish alongwith their tenders a non-encumbrance certificate in respect of loan, tax, revenue etc. On a reading of the relevant provisions of the NIT, this Court noticed that in terms of Clause 3 thereof, preference was to be extended to the highest bidder but sub-clause Kha made it obligatory on the part of the tenderers to furnish alongwith their tenders a non-encumbrance certificate in respect of loan, tax, revenue etc. with the indication that in case of any proof of non payment of such revenue, loan, tax etc. the settlement even if offered would be cancelled after finalization. Clause-8 of the said NIT provided that if the successful bidder deposits within 7 days of settlement the amount offered as a whole, it would be inessential to disclose the particulars of the property offered by way of mortgage. The said clause required that to avail such benefit, the tenderer concerned would make an undertaking to the above, otherwise any tender lacking in particulars of the land offered as mortgage would not be accepted. It is in the context of the aforesaid clauses in the NTT that this Court after observing that the NIT conditions have to be construed harmoniously so as to render the same workable, held that in case the tenderer in his tender form made a declaration undertaking to pay the entire amount of his offer within 7 days of his settlement, he is not required to furnish the particulars of any immovable property mentioned to be offered as mortgage and that the requirement of submission of non-encumbrance certificate enjoined by clause Kha is not inflexibly obligatory in nature in all situations. In that view of the matter, when the petitioner made the categorical undertaking in his tender form to deposit the entire amount quoted by him within 7 days of the order of settlement if made in his favour, this Court held that the ground of rejection of the petitioner's tender could not be sustained. 17. I am afraid the proposition enunciated in the above case does not fit in with the facts in hand and does not support the case of the respondent No.6. The above decision is clearly distinguishable in the facts of the present case. 17. I am afraid the proposition enunciated in the above case does not fit in with the facts in hand and does not support the case of the respondent No.6. The above decision is clearly distinguishable in the facts of the present case. As noticed in the earlier part of this judgment, Clause-3 (Ka) of the NIT stipulated a mandatory condition in respect of those tenderers whose bid value were more than rupees one lakh inasmuch as they had to submit a Loan Clearance Certificate from the Zilla Parishad. The respondert No. 6 did not submit the Loan Clearance Certificate from the Zilla Parishad on which ground his tender was rejected by the Anchalik Panchayat. 18. For all the aforesaid reasons, I hold that the Barpeta Zilla Parishad was not justified and committed an illegality in passing the impugned order dated 30.6.2011. The same is hereby set aside and quashed. 19. In view of my observation regarding the maintenance of record and considering the provisions contained in the second proviso to sub-section (4) of Section 106 of the Act, the matter is hereby remanded to the Government i.e. the respondent No. 1 (Principal Secretary to the Govt. of Assam in the Panchayat and Rural Development Department) to consider the entire matter afresh and pass a fresh settlement order for the remaining period in accordance with law within 30(thirty) days from today. The Principal Secretary shall also conduct an inquiry in respect of the anomalies noticed in the records and initiate appropriate action against the persons responsible within the period stipulated above. For the said purpose, the learned State counsel is directed to immediately hand over the records of the case as submitted before the Court to the Principal Secretary for doing the needful. 20. Writ petition stands disposed of in the above terms. No cost. _____________