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2017 DIGILAW 277 (GAU)

Abul Hussain (MD. ) v. State of Assam

2017-03-02

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Achintya Malla Bujor Barua, J. Heard Mr. A. C. Buragohain, learned senior counsel for the petitioner. Also heard Ms. D. Das Barman, learned counsel appearing for the respondent Nos. 1, 2, 3, 4 and 5 and Mr. M.K. Hussain, learned counsel for the respondent No.6. 2. Pursuant to a notice inviting tender dated 20.04.2016, for settlement of Moirabari Bi-weekly Bazar amongst others, the petitioner had participated in the tender process by submitting a tendered bid amounting to Rs. 1,33,000/-. On the other hand, the respondent No.6 had also participated in the same tender process by submitting a bid of Rs.2,87,999/-. It is stated that the terms of the settlement is for one year from 04.07.2016 to 30.06.2017. 3. Under the tender conditions, the respective tenderers are also required to give a Land Valuation Certificate issued by the competent authority. The petitioner in his tendered bid had submitted all the required documents including Land Valuation Certificate, as required. Accordingly, upon the bid of the petitioner being found to be highest valid bid, the Chief Executive Officer of Morigaon Zilla Parishad, by the order dated 02.07.2016, had settled the Moirabari Bi-Weekly market with the petitioner at a bid value of Rs.1,33,000/-. 4. It is stated that the said order of settlement was given to the petitioner on 02.07.2016 itself, which was a Saturday. As per the order of settlement, the petitioner was required to deposit an amount of Rs.3,99,000/- as guarantee for 3 months and also an amount of Rs.1,33,000/-, the total being Rs.5,32,000/- in the office of the Executive Officer, Moirabari Anchallik Panchayat on or before 11.07.2016. 5. On 04.07.2016, when the petitioner appeared in the Office of the Executive Officer for making the requisite payment, the petitioner was informed that the settlement made in his favour had been kept in abeyance. The petitioner was informed that there was a W.T. message from the Chief Executive Officer, Zilla Parishad, Morigaon to the B.D.O. Cum Executive Officer, Moirabari, Anchallik Panchayat informing that the Circle Officer, Laharighat had given a whatsaap message that the Land Valuation Certificate issued in favour of the person who stood as a guarantor of the petitioner, was wrongly issued by the Laharighat Revenue Circle. Accordingly, the Executive Officer of Moirabari Anchallik Panchayat was instructed to keep the settlement of the Moirabari Bi-Weekly market in abeyance and to run the market temporarily until further instruction. Accordingly, the Executive Officer of Moirabari Anchallik Panchayat was instructed to keep the settlement of the Moirabari Bi-Weekly market in abeyance and to run the market temporarily until further instruction. 6. Subsequently, there was one more W.T. message dated 13.07.2016, by which, the settlement made in favour of the petitioner had been kept in abeyance in view of the report of the Circle Officer, Laharighat. 7. Both the aforesaid W.T. messages, dated 05.07.2016 and 13.07.2016, have been assailed in this writ petition. It is the submission of Mr. A.C. Buragohain, learned senior counsel appearing for the petitioner that the Chief Executive Officer, Morigaon, Zilla Parishad, having made the settlement in favour of the petitioner, becomes a functus officio and has no further authority, either to cancel or to keep the order of settlement under abeyance. 8. The learned senior counsel also takes a stand that the Circle Officer having once issued the Land Valuation Certificate, could not have unilaterally come to a conclusion that the same was unauthorisedly issued without any further communication or opportunity of hearing to the petitioner or to his guarantor. 9. It is also the submission of the learned senior counsel that the under the provision of the proviso to Section 105(4) of the Assam Panchayat Act, in the event of there being any dispute in the matter of settlement, the Anchallik Panchayat may refer such case to the Government or the aggrieved party may appeal to the Government whose decision in this regard shall be final. 10. Accordingly, it is the submission of the learned senior counsel that even it is to be construed that the Land Valuation Certificate issued by the Circle Officer to the guarantor of the petitioner was incorrectly issued, or as a matter of fact, even if the Chief Executive Officer is of the view that the settlement was wrongly issued in favour of the petitioner, the same would be within the realm of a dispute in the matter of making the settlement. As such, under the proviso to Section 105(4), the appropriate course of action open for the respondent authorities would only be to refer the matter to the Government. 11. As such, under the proviso to Section 105(4), the appropriate course of action open for the respondent authorities would only be to refer the matter to the Government. 11. In other words, it is also the submission of the learned senior counsel that there being a specific statutory provision for referring the dispute to the Government, the same also by itself is an indication that once the settlement has been finally made, the settling authority has no further jurisdiction vested in it either to cancel the settlement or to give the same in abeyance. 12. It has been stated by the learned counsel for the respondent that the respondent No.6 had raised an objection as regards the Land Valuation Certificate issued to the guarantor of the petitioner and the cancellation was effected upon such objection. 13. In response to the submissions of the learned senior counsel for the petitioner, learned counsel for the respondents could not point out any specific provision in the Panchayat Act or within Section 105 of the said Act, which indicates that the settling authority after making the final settlement has any further authority left in itself, either to cancel the settlement or to keep the settlement under abeyance. 14. On reading of Section 105 of the Anchallik Panchayat Act, it can be seen that Sub-Section 1 of Section 105 provides that all such hats and markets within the territorial jurisdiction of the Anchallik Panchayat shall be settled in the prescribed manner, for a period coinciding with and not exceeding one Panchayat financial year, by inviting tenders at the office of the Anchallik Panchayat by its President. 15. As per the law laid down by the Full Bench of this Court in Nagaon Zilla Parishad v. Rezia Begum reported in 2006 Suppl 1 GLT 585, any settlement whose value exceeds Rs. 1,00,000/- (one lakh) is required to be made by the Zilla Parishad and not by the Anchallik Panchayat. 16. Sub-Section 3 of Section 105 provides that the powers of examination and final acceptance of such tenders shall be vested in the Standing Committee referred to in Section 52(1)(a). While Sub-Section 4 provides that all settlement made under Sub-Section 3 shall be subject to the confirmation of the Zilla Parishad. 17. 16. Sub-Section 3 of Section 105 provides that the powers of examination and final acceptance of such tenders shall be vested in the Standing Committee referred to in Section 52(1)(a). While Sub-Section 4 provides that all settlement made under Sub-Section 3 shall be subject to the confirmation of the Zilla Parishad. 17. The aforesaid provisions of Sub-Section 3 and 4, when read together, gives the indication that after the examination and the final acceptance of the tender by the Standing Committee, the same is required to be confirmed by the Zilla Parishad or as a matter of fact, in the event, the value of the tender is more that Rs.1,00,000/-, the same is required to be finalized by the Zilla Parishad itself. 18. Under both the circumstances, once the Zilla Parishad gives a final acceptance or a confirmation of the settlement, the said acceptance or confirmation becomes final. 19. Once the settlement has finally been made, Section 105 does not give any further authority, either to the Zilla Parishad or the Anchallik Panchyat, to deal any further with the settlement. 20. In the above circumstance, when the proviso to Sub-Section 4 of Section 105 is read, which provides that in case of any dispute, Anchallik Panchayat may refer the case to the Government or the aggrieved party may appeal to the Government whose decision shall be final, gives an indication that the only available option in the event of any discrepancy or dispute as regards to the settlement which had finally been made, is for the Anchallik Panchayat to refer the dispute to the Government. 21. It being so, it is a clear indication that in the event of any dispute or discrepancy, there is no further option left with the Anchallik Panchayat to deal with the matter, other than to refer the same to the Government. 22. Accordingly, it is the finding of this Court that once a dispute or a discrepancy arises, after the final settlement has been made, there is no further authority left either with the Zilla Parishad or with the Anchallik Panchayat to deal with the matter and the only available option before the authorities in the event of such dispute or discrepancy would be to refer the matter to the Government. 23. 23. The WT messages dated 05.07.2016 and 13.07.2016, keeping final settlement made in favour of the petitioner in abeyance is, therefore, without any authority of law. 24. Accordingly, the two WT messages keeping the settlement made in favour of the petitioner in abeyance, is hereby set aside. Accordingly, it is provided that in the event, the Anchallik Panchayat or the Zilla Parishad is of the view that there is some dispute or discrepancy while making the final settlement such dispute or discrepancy may be referred by the Anchallik Panchayat or the Zilla Parishad to the State Government for its final adjudication on the matter. 25. In the event, the matter is referred to the Government, both petitioner as well as the respondent No.6 would be at liberty to raise any issue that they desire to raise and the Government would give due opportunity of hearing to both the parties. 26. In terms of the above this writ petition is disposed of. Any interim order passed earlier shall merge with the order passed today.