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2015 DIGILAW 28 (GAU)

Dulen Borgohain v. State of Assam

2015-01-09

A.K.GOSWAMI

body2015
JUDGMENT : A.K. Goswami, J. Heard Mr. A.K. Dutta learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned State Counsel appearing for respondent No. 1, Mr. T.J. Mahanta, learned Senior Counsel appearing for respondent Nos. 2 and 3 and Mrs. R. Gogoi, learned counsel appearing for respondent Nos. 4 and 5. 2. A tender notice was issued on 02.05.2014 by the respondent No. 5 inviting tenders for settlement of, amongst others, Sapekhati Weekly Market with effect from 01.07.2014 to 30.06.2015. Nine tenderers including the petitioner submitted tenders in respect of the said market. The tenders were opened on 26.06.2014 by the respondent No. 5 and, thereafter, a Comparative Chart was prepared. Subsequently, respondent No. 5 forwarded all the tender papers along with Comparative Chart to the Sivasagar Zilla Parishad for their scrutiny and approval. 3. It is pleaded in the writ petition that the Zilla Parishad refused to consider the tenders submitted by the Sapekhati Anchalik Panchayat on the ground that the Anchalik Panchayat had no jurisdiction to open the tender papers when the value of the tender is more than Rs. 1 lakh. On 25.06.2014, the respondent No. 5 issued a short tender notice dated 24.06.2014 inviting fresh tenders for 3 Nos. of Markets and a Ghat, including Sapekhati Weekly Market as per direction of the Chief Executive Officer, Sivasagar Zilla Parishad. 4. By an order dated 30.06.2014, this Court directed that the respondents would be at liberty to proceed with the said tender, but no order shall be made without leave of the Court. Subsequently, by an order dated 24.09.2014, this Court permitted Sapekhati Anchalik Panchayat to make arrangement for collection of toll from the market in question through their official arrangement. 5. The respondent Nos. 4 and 5, i.e., the authorities of Sapekhati Anchalik Panchayat, by filing affidavit, stated that by an order dated 23.06.2014, Sivasagar Zilla Parishad informed the respondent No. 5 that Standing Committee of Sivasagar Zilla Parishad refused to accept the tenders transmitted by Sapekhati Anchalik Panchayat on the ground that tenders were opened by Sapekhati Anchalik Panchayat with a direction to him to float a short tender notice and accordingly, the short tender notice dated 24.06.2014 was issued. In the said affidavit, it is stated that the procedure adopted by the Sapekhati Anchalik Panchayat was in accordance with a Full Bench judgment of this Court. 6. In the said affidavit, it is stated that the procedure adopted by the Sapekhati Anchalik Panchayat was in accordance with a Full Bench judgment of this Court. 6. The respondent No. 3, in its affidavit, justifies the stand taken by the Sivasagar Zilla Parishad by stating that as per provisions contained in Rule 47 of the Assam Panchayat (Financial) Rules, 2002, for short, the Rules of 2002, the General Standing Committee of Zilla Parishad is the authority to open, process and prepare the comparative statement. It is also mentioned that complaint was lodged by one Ashok Das and some others. It is also submitted that in terms of the short notice inviting tender dated 24.06.2014, 7 Nos. of tenders were received and one Diganta Phukan, who was the 3rd highest bidder, but otherwise the highest valid tenderer, was recommended for settlement. It is also stated that he had offered higher amount than the petitioner. 7. Settlement of Hats, Ghats, Ferry, etc., & distribution of the proceeds and maintenance and regulation thereof is provided in Chapter - VII of Assam Panchayat Act, 1994, for short, the Act. Section 105 provides for settlement of Hats (markets) by the Anchalik Panchayat. Section 105(1) provides that tenders are to be invited by the President of the Anchalik Panchayat and Section 105(3) provides that powers of examination and final acceptance of such tenders shall be vested in the Standing Committee referred to in Section 52(1)(a) of the Act. Section 105(4) provides that all settlements made under Sub-Section (3) shall be subject to the confirmation of the Zilla Parishad. 8. Section 109 relates to settlement of fisheries and distribution of proceed thereof. Section 109(6) provides that the Hats, Ferries and Fisheries falling under any Anchalik Panchayat, the yearly sale value of which is more than Rs. 1 lakh shall be settled by the Zilla Parishad concerned in the manner prescribed under Sections 105, 106 and 109 of the Act. The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee constituted under Section 81(a) of the Act. 9. In view of divergence of views expressed by this Court on construction and interpretation of Section 109(6) of the Act, a Full Bench was constituted. The moot questions which arose for consideration before the Full Bench in the case of Harez Ali & Anr. 9. In view of divergence of views expressed by this Court on construction and interpretation of Section 109(6) of the Act, a Full Bench was constituted. The moot questions which arose for consideration before the Full Bench in the case of Harez Ali & Anr. v. State of Assam & Ors, reported in 2009 (2) GLT 561 (FB), 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 rupees more than a lakh. 10. This Court in the aforesaid case held that "yearly sale value" of a property put on sale through a tender system, for one year, would be the amount of money which would be received after the highest bid value offered by eligible bidders, is accepted by the authority concerned. 11. Noticing the provision of Rule 47 of the Rules of 2002 as also the provisions of Section 105(1), 105(1) and 109(1) of the Act, in Harez Ali (Supra), this Court in paragraphs 27 and 29 had held as follows: "27. Provisions of Sections 105(1), 106(1) and 109(1) of the Act, in respect of inviting tenders of property under the control of Anchalik Panchayat, make it clear and specific that irrespective of price-tag or bid value fixed by the authority concerned in respect of Hats, Ferries and Fisheries, the NIT is issued by the President of the Anchalik Panchayat. After having floated the tenders, if the bid value of the eligible highest bidder is less than Rs. 1 lakh, the Standing Committee of Anchalik Panchayat will examine and accept the tenders of the highest eligible bidder and forward it to the Zilla Parishad, for confirmation, in terms of the sub-sections (4) of Section 105, sub-sections (4) 106, sub-sections (4) of Section 109, as the case may be. It may be clarified that irrespective of yearly sale value being less than rupees one lakh, it is mandatory on the Anchalik Panchayats to forward all such tender papers, comparative chart and other related papers to the Zilla Parishad, for confirmation of settlement made by Anchalik Panchayat. It may be clarified that irrespective of yearly sale value being less than rupees one lakh, it is mandatory on the Anchalik Panchayats to forward all such tender papers, comparative chart and other related papers to the Zilla Parishad, for confirmation of settlement made by Anchalik Panchayat. It may be pointed out that any settlement made in respect of Hats, Ferries and Fisheries without such confirmation by the Zilla Parishad, will not be a legally valid settlement. 29. Further, we also respectfully disagree with the view taken by the Single Bench in Khalilur Rahman v. State of Assam (supra), to the effect that 'the question of jurisdiction between Zilla Parishad and Anchalik Panchayat would remain indecisive till the submission and opening of the tender papers', as because the procedure laid down by 'the Act', is precisely clear that all NITs, in respect of Ghats, Hats and Fisheries, irrespective of the 'yearly sale value' of such property in question, are required to be floated by the Anchalik Panchayat. However, 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 rupees one lakh, the Standing Committee of Anchalik Panchayat, constituted under Section 52 of the Act, shall immediately forward all such tender papers submitted by the bidders together with comparative chart prepared and processed as per procedure prescribed, to the Zilla Parishad concerned, for doing needful at their end, in accordance with law. However, in case the bid value offered by eligible highest bidder is less than rupees one lakh, the Standing Committee of the Anchalik Panchayat shall accept tender value offered by eligible highest bidder and forward such recommendations for confirmation by the Zilla Parishad. We hasten to add here that if in any given case, the highest bidder is not found suitable, law prescribed, for such eventuality will have to be followed." 12. Therefore, it is clear that irrespective of bid value fixed by the authorities concerned, it is the Anchalik Panchayat who has to float the tenders for settlement of Hats, Ghats and Ferries. After tenders are received, if the bid value of the highest tenderer is less than Rs. Therefore, it is clear that irrespective of bid value fixed by the authorities concerned, it is the Anchalik Panchayat who has to float the tenders for settlement of Hats, Ghats and Ferries. After tenders are received, if the bid value of the highest tenderer is less than Rs. 1 lakh, the Standing Committee of Anchalik Panchayat will examine and accept the tender of the highest eligible bidder and forward it to the Zilla Parishad for confirmation as visualised under Sub-Sections (4) of Sections 105, 106 and 109 of the Act, as the case may be. Without confirmation by the Zilla Parishad, any settlement made by the Anchalik Panchayat cannot be held to be a legally valid settlement. However, if the bid value offered by the highest eligible tenderer is found to be more than Rs. 1 lakh, the Standing Committee of Anchalik Panchayat, constituted under Section 52 of the Act, shall immediately forward all such tender papers together with comparative chart prepared and processed, to the Zilla Parishad concerned, for doing the needful at their end. The powers of examination and final acceptance of such tenders, shall be vested in the Standing Committee constituted under Section 81(a) of the Act. 13. In the instant case, the bid value of highest valid tenderer was found to be more than Rs. 1 lakh and, therefore, the Anchalik Panchayat had forwarded all the tender papers, comparative chart and other related papers to the Zilla Parishad in accordance with law. The Zilla Parishad had directed issuance of short tender notice only on the ground that according to Zilla Parishad, Anchalik Panchayat could not have opened, processed and prepared the comparative statement. Such a stand, in view of the above discussion, is clearly arbitrary and illegal. Apart from making a cursory statement that there was a complaint, no other material was also placed before the Court. 14. In the result, the impugned short tender notice dated 24.06.2014 is set aside and quashed. In case the tenders, comparative statement and other related papers in connection with the tender notice dated 02.05.2014 were returned back to the Anchalik Panchayat by the Zilla Parishad, the Anchalik Panchayat will again forward to Zilla Parishad the said documents forthwith. The respondent Nos. In the result, the impugned short tender notice dated 24.06.2014 is set aside and quashed. In case the tenders, comparative statement and other related papers in connection with the tender notice dated 02.05.2014 were returned back to the Anchalik Panchayat by the Zilla Parishad, the Anchalik Panchayat will again forward to Zilla Parishad the said documents forthwith. The respondent Nos. 3 and 4 are directed to take consequential action on the basis of the tenders received pursuant to the notice inviting tender dated 02.05.2014 within a period of 3 (three) weeks from the date of receipt of certified copy of this order in case they are in custody of the aforesaid documents and in the event of Zilla Parishad being not in custody of such documents, within a period of 3 weeks from the date of receipt of the documents pertaining to tender notice dated 02.05.2014 from the Anchalik Panchayat. 15. The petitioner is permitted to serve a certified copy of this order before the authorities of the Anchalik Panchayat as well as the Zilla Parishad for their taking action in terms of this order. 16. The writ petition stands allowed as indicated above. No cost.