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2017 DIGILAW 159 (GAU)

Patit Paban Ghosh v. State of Assam

2017-02-06

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. B.D. Das, learned senior counsel appearing for the petitioner and Ms. D.D. Barman, learned counsel appearing for the respondent Nos. 1, 2, 3 and 4. None appears for the respondent No. 5. As per the office note dated 9.1.2017, the AD cards had been received back from the respondent Nos. 3 and 5 and as per the AD cards, which are available at Flag-X, the respondent No. 5 had been served on 4.11.2016 with the notice of this writ petition. In spite of being so served, none appears for the respondent No. 5 and accordingly, this matter, being a matter pertaining to settlement of a market under the Panchayat Act and the terms of which is only up to 30.6.2017, this court deems it appropriate to take up the matter for final hearing in the absence of the respondent No. 5. 2. Pursuant to an advertisement dated 20.4.2016 for settlement of, amongst others, the Kachua Tiniali (Daily) Market, the writ petitioner along with the respondent No. 5 and others had submitted their tendered bids. The Government value of the Kachua Tiniali (Daily) Market was fixed at Rs. 77,827 as per the Notice Inviting Tender (NIT) 3. As per the comparative statement annexed as Annexure 3 to the writ petition, the petitioner had tendered a rate of Rs. 2,16,000, while the respondent No. 5 had tendered a rate of Rs. 1,81,812 for the concerned market. But, by the impugned decision of the Chief Executive Officer of Nagaon Zila Parishad, the higher bid of the petitioner had been rejected on the ground that though the bid of the petitioner is valid, but the tender rate quoted is much higher than the Government value and, therefore, there is a presumption that the general public will have to bear higher tax. Accordingly, the impugned decision states that in the interest of general public, the tendered bid of the petitioner is not considered for settlement. Accordingly, by the impugned order dated 5.9.2016, the respondent No. 5 had been settled with the Kachua Tiniali (Daily) Market at his quoted rate of Rs. 1,81,812. 4. Accordingly, the impugned decision states that in the interest of general public, the tendered bid of the petitioner is not considered for settlement. Accordingly, by the impugned order dated 5.9.2016, the respondent No. 5 had been settled with the Kachua Tiniali (Daily) Market at his quoted rate of Rs. 1,81,812. 4. When the matter is taken up, the learned counsel appearing for the respondent Zila Parishad produced the record and upon perusal of the record, no plausible reason could be found as to on what basis the Zila Parishad had come to a conclusion that the rate quoted by the petitioner is so high so as to draw a presumption that the general public will have to bear a higher tax. Further the learned senior counsel for the petitioner has placed reliance upon a decision of this court rendered in Intaz Ali vs. State of Assam, (2000) 1 GLR 612 : 2000 (1) GLT 573, wherein in paragraph 5, it had been held that although the authorities with a view to ensure that poor people are not exploited, may settle a market at a reasonable rate instead of settling the same at the highest rate, but at the same time, they will have to specify in the Notice Inviting Tender that the market shall be settled at a reasonable rate and not at an exorbitant rates quoted by the parties and the settling authority will have to indicate the range of the reasonable rates within which the parties may submit their bids. In the absence of such provisions in the NIT, this court had held that any rejection of a higher tender merely on the premises that the rate quoted is exorbitantly high, was held to be arbitrary. 5. Further, the learned senior counsel for the petitioner had also brought to the notice of this court that as per clause 26(gha) of the NIT, the rates at which the settlement holder may collect from the respective shop owners is fixed and prescribed. In such view of the matter, whatever may be the rate offered by a tenderer, the same cannot be the basis to draw a presumption that the tenderer quoting a higher rate will exploit the shopkeepers inasmuch as, no collection can be made beyond the prescribed rate. 6. In such view of the matter, whatever may be the rate offered by a tenderer, the same cannot be the basis to draw a presumption that the tenderer quoting a higher rate will exploit the shopkeepers inasmuch as, no collection can be made beyond the prescribed rate. 6. In view of the above, upon a due consideration, this court is of the view that in the absence of any reason being specified by the respondent-authorities as to why they have arrived at a conclusion that the rate quoted by the petitioner is exorbitant and also in the absence of any specific provisions in the NIT prescribing for a specific reasonable rate and also in view of the provisions of clause 26(gha) of the NIT, wherein the rates to be collected by the settlement holder is fixed, this court is of the view that the reason given by the respondent-Zila Parishad in rejecting the higher, bid of the petitioner to the effect that the rate quoted by him is much higher than the Government tender and so there is a presumption that the general public will have to bear higher tax, is therefore, found unacceptable. 7. In view of the aforesaid findings, the impugned order of settlement 1.8.2016 made in favour of the respondent No. 5 at his quoted rate of Rs. 1,81,812 is hereby set aside. The respondent-Nagaon Zila Parishad is directed to take a fresh decision on the matter and make the settlement as per law. 8. The aforesaid exercise is to be carried out within a period of ten days from the date of receipt of a certified copy of this order.