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2015 DIGILAW 278 (GAU)

Sarat Gogoi v. State of Assam

2015-03-09

A.K.GOSWAMI

body2015
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. A.K. Gupta, learned counsel for the petitioner. Also heard Mr. B.J. Talukdar, learned State counsel, appearing for respondent Nos. 1, 2, 3 and 4 and Mr. S.N. Tamuli, learned counsel appearing for respondent No. 6. Notice to respondent No. 5 was sent on 19.09.2014 by registered post with A/D. There is office note, dated 11.11.2014, indicating that neither the A/D card nor the notice with "un-served" remark has been received back. Respondent No. 5 is the President of Karunabari Anchalik Panchayat (hereinafter referred to as the Anchalik Panchayat). 2. Having regard to the period of time that has elapsed from the date of despatch of notice to respondent No. 5 by registered post with A/D, service of notice on respondent No. 5 is deemed to be complete. 3. The case was partly heard on 24.02.2015. However, no order, inadvertently, was passed with regard to the service of notice on respondent No. 5 and, therefore, to-day it is recorded that notice on respondent No. 5 is deemed to have been served. 4. Mr. Talukdar has produced the records relating to the settlement process by the Anchalik Panchayat as well by the Lakhimpur Zilla Parishad (hereinafter referred to as the Zilla Parishad), which had passed the order of settlement, which is impugned in the present proceeding. 5. By an order dated 28.08.2014, the respondent No. 6 was given settlement of the Harmoti Sunday Weekly Market at an amount of Rs. 10,02,631/- considering the period of settlement with effect from 01.09.2014 to 30.06.2015. The bid of the respondent No. 6 was for an amount of Rs. 12,12,500/- for one year and, as per the Notice Inviting Tender (for short, NIT) dated 15.05.2014, the settlement for the aforesaid market was to be given for the period from 01.07.2014 to 30.06.2015. 6. The petitioner and the respondent No. 6 along with 15 other persons had submitted tenders in respect of the market in question. The petitioner submitted his bid at Rs. 17,81,201/-. One Hemanta Kumar Borah had submitted his tender for an amount of Rs. 15,05,005/-. 7. After opening of the tenders, Karunabari Anchalik Panchayat prepared a comparative statement. In the said comparative statement, mark had been given against columns in respect of Bank Draft, Court Fee, loan clearance certificate for the year 2014-2015, clearance of GP, AP, VAT, land value, Bakijai, Photo, affidavit and SS. 15,05,005/-. 7. After opening of the tenders, Karunabari Anchalik Panchayat prepared a comparative statement. In the said comparative statement, mark had been given against columns in respect of Bank Draft, Court Fee, loan clearance certificate for the year 2014-2015, clearance of GP, AP, VAT, land value, Bakijai, Photo, affidavit and SS. So far as the bid of Hemanta Kumar Borah was concerned, it was indicated that affidavit required to be submitted along with the tender was in the form of photocopy and, in the remarks column, "incomplete tender submitted" had been recorded. With regard to the tender of respondent No. 6, in the "affidavit" column, "X" mark was given and, in the remarks column, it was noted that: "Tenderer has not submitted documents as required in the tender notice". 8. As provided under the provisions of the Assam Panchayat Act, 1994 (for short, the Act), as the yearly bid value of the market in question exceeded Rs. 1 lakh, the Anchalik Panchayat forwarded the tender papers to the Zilla Parishad for taking further steps for settlement of the market in question. 9. From the perusal of the records produced by Mr. Talukdar, it appears that the Zilla Parishad had also prepared a comparative statement of the tenders submitted. With regard to the tender of the petitioner, the Zilla Parishad had noted, against column of Bakijai that Bakijai certificate was not submitted in his own name and, in the remarks column, it was recorded that full particulars, as sought for in the tender notice, had not been submitted. The tenderers, who had submitted bids higher than the petitioner, were also found to have submitted tenders with incomplete documents. Hemanta Kumar Borah was found to be the highest valid tenderer and the respondent No. 6, the second highest tenderer. 10. The resolution adopted in the meeting of the Standing Committee goes to show that the Standing Committee approved the final settlement in favour of Sri Hemanta Kumar Borah at Rs. 15,05,005/- for the period from 01.09.2014 to 30.06.2015. However, from the records produced by Mr. Talukdar, it appears that one application was submitted by the said Hemanta Kumar Borah stating that on ground of his ill health, he was unable to take settlement of the market. Thereafter, the impugned order of settlement was passed in favour of respondent No. 6. 11. Mr. However, from the records produced by Mr. Talukdar, it appears that one application was submitted by the said Hemanta Kumar Borah stating that on ground of his ill health, he was unable to take settlement of the market. Thereafter, the impugned order of settlement was passed in favour of respondent No. 6. 11. Mr. A.K. Gupta, learned counsel for the petitioner submits that the Anchalik Panchayat found the tender submitted by the petitioner complete in all respects, and the finding of the Zilla Parishad that the petitioner did not submit Bakijai Certificate in his own name is not correct. He has also submitted that the petitioners brother, Shanti Gogoi, had also submitted tender. 12. Mr. Talukdar, on the basis of the records, has submitted that along with the tender documents submitted by the petitioner, the Bakijai Clearance Certificate was found in the name of Shanti Gogoi. He has also submitted that in the tender documents of Shanti Gogoi, Bakijai Certificate in the name of the petitioner was found. However, he has submitted that from the comparative statement prepared by the Zilla Parishad, it is seen that the tender documents of Shanti Gogoi contained his own Bakijai Clearance Certificate and his tender was rejected on the ground that there was outstanding dues in the Anchalik Panchayat against his name. 13. Mr. S.N. Tamuli, learned counsel for the respondent No. 6, submits that the tender of the petitioner having been found invalid by the Zilla Parishad and after withdrawal of tender by Hemanta Kumar Borah, the respondent No. 6 being the highest valid tenderer, there is no illegality in granting settlement in his favour. 14. When the Zilla Parishad had found the tender of Shanti Gogoi to be valid so far as it related to submission of Bakijai Clearance Certificate, it is incomprehensible as to how the said certificate of Shanti Gogoi found its way to the tender documents of the petitioner. It is also not understood as to how the tender documents of Shanti Gogoi now contain the Bakijai Clearance Certificate of the petitioner. It is also to be noted that, at the first point of time, when the comparative statement was prepared by the Anchalik Panchayat, the tenders submitted by both Shanti Gogoi and Sarat Gogoi (i.e., the petitioner) were found to be containing valid Bakijai Clearance Certificates. It is also to be noted that, at the first point of time, when the comparative statement was prepared by the Anchalik Panchayat, the tenders submitted by both Shanti Gogoi and Sarat Gogoi (i.e., the petitioner) were found to be containing valid Bakijai Clearance Certificates. If the tender of Shanti Gogoi was also found by the Zilla Parishad to have not contained Bakijai Clearance Certificate in his own name, a conclusion could, perhaps, have possibly been drawn that, at the time of submission of tenders, the two brothers had mixed up their respective Bakijai Clearance Certificates. But that is not the case here. The only reasonable conclusion that can be drawn, in the circumstances, is that there must have been some misplacement of documents and the same must have taken place in the office of the Zilla Parishad. Therefore, it appears that the tender of the petitioner was wrongly rejected by the Zilla Parishad. Thus, the petitioner is, at the present moment, the highest valid tenderer in the fray. This Court is not, however, suggesting that there was some deliberate attempt to switch the documents to make a higher bidder ineligible to grant the settlement in favour of respondent No. 6. 15. There is another aspect of the matter. Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 (for short, the Rules), provides as follows: "The tender of the highest bidder shall be accepted and that acceptance of tender other than the highest bidder shall require prior and formal approval of the government." 16. Thus, in a case where the highest tenderer is sought to be not given the settlement and the settlement is sought to be offered to a next higher bidder, prior and formal approval of the Government is required to be taken. There is no dispute that Hemanta Kumar Borah had emerged as the highest valid tenderer after rejection of the bid of the petitioner. If Hemanta Kumar Borah had not accepted the order of settlement and the order of settlement was to be given to the next highest bidder, in terms of Rule 47(10) of the Rules, prior and formal approval of the government ought to have been taken. If Hemanta Kumar Borah had not accepted the order of settlement and the order of settlement was to be given to the next highest bidder, in terms of Rule 47(10) of the Rules, prior and formal approval of the government ought to have been taken. There is no dispute that no prior and formal approval was taken by the Zilla Parishad while issuing the settlement order in favour of respondent No. 6 and, consequently, the settlement given to the respondent No. 6 is not sustainable on that count also, the same being violative of Rule 47(10) of the Rules. 17. In the aforesaid factual matrix, I am of the considered opinion that the order of settlement dated 28.08.2014, given in favour of respondent No. 6, is not sustainable in law and, therefore, the same is quashed. As the petitioner is found to be the highest valid tenderer, the Zilla Parishad will, now, take appropriate steps, within a period of 15 days from today, to settle the market in accordance with law. Writ petition stands disposed of accordingly. Disposed off.