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2018 DIGILAW 883 (GAU)

NAYEB ALI v. STATE OF ASSAM

2018-05-30

PRASANTA KUMAR DEKA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. R Ali, learned counsel appearing for the petitioner. Also heard Mr. TC Chutia, learned Additional Senior Government Advocate and Mr. H Ali, learned counsel appearing on behalf of the respondent No. 7. 2. The petitioner states that the President of Mandia Anchalik Panchayat issued a tender notice on 09.05.2017 for settlement of Hat/ Parghats/ Fishery etc. falling under the jurisdiction of the said panchayat for the year 2017-18. The said tender notice stipulated qualifying criteria of the bidders and amongst other clauses 15 (kha), and 18 which are relevant and reproduced hereinbelow:- "(B) In respect of Parghat the tenderer should submit the copy of insurance policy in respect of boat and passengers. After getting the settlement holder should submit the license of the haul operator and capacity of passengers. The settlement holder should also keep the articles of safety in the boat otherwise settlement will be cancelled. 18. If the terms and condition of Part-1 & 2 from serial No. 1 to 17 is not fulfilled, tender will be cancelled." (Translated from the vernacular) 3. The tender was opened wherein 16 bidders participated which was for "Sukhaarzhar Manikpur via Satrakanara Parghat". The petitioners bid was found to be valid at his quoted bid of Rs. 1,00,000/- which was accepted by the Standing Committee of Mandia Anchalik Panchayat (hereinafter referred to as Mandia AP). The bid quoted by the respondent No. 7, Habej Uddin was Rs. 1,51,000/- but as there was no insurance coverage of his own boat, his bid was rejected. The comparative statement was prepared by the Mandia AP and vide covering letter dated 03.07.2017, the Executive Officer, Mandia AP sent all the tender documents along with the comparative statement for confirmation. The petitioner was engaged in the mean time as an agent of the Mandia AP vide resolution dated 07.07.2017 to collect toll of the said Parghat i.e. Sukhaarzhar Manikpur via Satrakanara Parghat purely on temporary basis. Vide letter dated 15.07.2017, the Chief Executive Officer, Barpeta Zilla Parishad, respondent No. 3 settled the said Parghat to respondent No. 7. Being aggrieved, the petitioner has filed this writ petition for quashing the order dated 12.07.2017 directing the respondent No. 3 to confirm the settlement on the petitioner. 4. Mr. Vide letter dated 15.07.2017, the Chief Executive Officer, Barpeta Zilla Parishad, respondent No. 3 settled the said Parghat to respondent No. 7. Being aggrieved, the petitioner has filed this writ petition for quashing the order dated 12.07.2017 directing the respondent No. 3 to confirm the settlement on the petitioner. 4. Mr. Ali, learned counsel for the petitioner, submits that the respondent No. 7 did not raise any objection against the comparative statement which speaks about the deficiency on the part of the respondent No. 7 that there was no insurance coverage of the boat in his name. The respondent No. 3 manipulated the records and prepared a fake comparative statement showing that there was insurance coverage of the boat of respondent No. 7. It is further stated that the respondent No. 3 has no power to re-examine the comparative statement once it is opened by the Standing Committee of Mandia AP. Relying the decision of this court in Abdul Gani v. State of Assam reported in 2012 (4) GLT 1, Mr. Ali submits that the decision of the Standing Committee of the AP is final and Zilla Parishad (hereinafter referred to as ZP) cannot sit as an appellate authority. But misusing the power, the respondent No. 3 issued the settlement order in favour of the respondent No. 7. 5. The respondent No. 7 filed his affidavit-in-opposition. Mr. Ali, learned counsel for the respondent No. 7, submits that Anchalik Panchayat prepared the comparative statement with mala fide intention and rejected the bid of respondent No. 7 on the ground of non-submission of the insurance coverage of his boat. The Zilla Parishad verified the tender papers and found the bid of respondent No. 7 as valid and highest bidder and vide order dated 12.07.2017 settled the Parghat with the respondent No. 7. It is the contention of the learned counsel that an agreement was made between the respondent No. 7 and one Abdul Halim Parmanik and as per terms of the said agreement, Abdul Halim Parmanik let out his own boat to the respondent No. 7 on hire for a period of 1 (one) year. On consideration of the said agreement, the respondent No. 3 settled the Parghat to the respondent No. 7. 6. On consideration of the said agreement, the respondent No. 3 settled the Parghat to the respondent No. 7. 6. The said contention of the learned counsel for the respondent No. 7 was refuted by the learned counsel for the petitioner that the said agreement was a forged one and on the basis of such corrupt practice the settlement order was issued to the respondent No. 7 which is required to be interfered. 7. Mr. Chutia, learned Additional Senior Government Advocate, produced the records of the tender process which is perused. 8. On perusal of the comparative statement prepared by the Standing Committee of the Anchalik Panchayat, the petitioner was found to fulfil all the requisite criteria including insurance coverage of his own boat and the same stands in his name. The documents on being examined are found to be proper and in order as per the affidavit sworn by the petitioner along with his bid. But on scrutiny it is found that the bid value of Rs. 1,00,000/-shown to be quoted by the petitioner was written after erasing the earlier one quoted using whitener. The said fact of erasing is not mentioned in the affidavit sworn by the petitioner annexed to the bid documents. From the documents submitted by the petitioner it is seen that he submitted all the requisite documents and the said documents so annexed with the tender form tallies with the documents mentioned in the affidavit sworn by the petitioner dated 09.06.2017. 9. On scrutiny of the documents submitted by the respondent No. 7 it is seen that an insurance policy standing in the name of Abdul Halim Parmanik was submitted and there is endorsement of the President of the Anchalik Panchayat. An agreement purportedly executed between the said respondent No. 7 and Abdul Halim Parmanik is found annexed along with the documents of respondent No. 7 but without any endorsement of the President of Anchalik Panchayat nor the Chief Executive Officer, Zilla Parishad. The said agreement is dated 12.06.2017. There is no mention of the said agreement in the affidavit of the respondent No. 7 which was sworn on 12.06.2017. The said agreement is dated 12.06.2017. There is no mention of the said agreement in the affidavit of the respondent No. 7 which was sworn on 12.06.2017. It is the said agreement which the respondent No. 7 stated in his affidavit-in-opposition that there was an arrangement for operating the boat of Abdul Halim Parmanik by him on the basis of which he claims to fulfil the criteria that the bidder must have insurance coverage of the boat. The Standing Committee of the Mandia AP did not consider about the rewriting of the bid value by the petitioner as it appears from the comparative statement. The same was considered by the Zilla Parishad and as per resolution No. 5 of the Standing Committee of Barpeta Zilla Parishad, the bid of the petitioner was cancelled as there was rewriting of the quoted rate using whitener and as such, the same was rejected. On the basis of the said resolution it was decided to settle the Parghat with respondent No. 7 keeping in view the revenue earnings whose quoted value was Rs. 1,51,000/-. 10. On close scrutiny of the records it is found that vide resolution No. 2 of the meeting on 14.07.2017 the Standing Committee of Barpeta Zilla Parishad resolved that any settlement holder with whom the Parghats are settled from the bidders instead of using his own boat hires any boat then the agreement of such hire is to be deposited in the office of the Zilla Parishad or Anchalik Panchayat and such boat must be as per the tender terms. 11. From the records it is seen that the petitioner though satisfied all the requisite qualifications but rewriting of the said bid without mentioning the same in the affidavit sworn by him amounts to disqualification of the petitioner. On the other hand, from the resolution No. 5 of the Standing Committee, Barpeta Zilla Parishad, it is seen that one Isak Ali who was the highest bidder, the second highest bidder Manowara Khatun and the third highest bidder failed to submit various relevant document. Manowara Khatuns bid was rejected as she failed to produce insurance coverage of her own boat. The fourth highest bidder, the respondent No. 7 whose bid was considered keeping in view of revenue earning of the Government also failed to submit insurance standing in his own name against his boat. Manowara Khatuns bid was rejected as she failed to produce insurance coverage of her own boat. The fourth highest bidder, the respondent No. 7 whose bid was considered keeping in view of revenue earning of the Government also failed to submit insurance standing in his own name against his boat. The agreement which is annexed with the bid documents does not find mention in his affidavit so submitted. Such omission of mentioning of the said agreement between the respondent No. 7 and Abdul Halim Parmanik goes to show that the said agreement was brought on record after opening of the bid. Moreover, the said agreement does not bear the signature of the President of Mandia AP. On the other hand, rest of the documents submitted by respondent No. 7 bears the said signature. If the said agreement is not considered, the bid of the respondent No. 7 ought to have been rejected on the ground of non fulfilling Clause 15 (Kha). It is clear that in order to accommodate the respondent No. 7, the respondent No. 3 passed the resolution in the meeting of Standing Committee dated 14.07.2017. Such practice cannot be permitted to be followed inasmuch as the tender condition requires the insurance policy of the boat owned by the bidders. The same is clear violation of Article 14 of the Constitution of India. Accordingly, it is found that the settlement of the respondent No. 7 is not a valid settlement and such resolution No. 2 of the Standing Committee of Barpeta Zilla Parishad dated 14.07.2017 requires quashing the same being invalid. 12. The contention of Mr. R Ali, learned counsel for the petitioner that once the Standing Committee of the Anchalik Panchayat took a decision for settlement, it is final and the same must be confirmed by the Zilla Parishad. The said submission cannot be accepted in view of the decision of this court by the Full Bench in Harej Ali v. State of Assam reported in 2009 (2) GLT 561 wherein it was held that it is mandatory on the part of the Anchalik Panchayat to forward all tender papers, comparative Statement and other related papers to the Zilla Parishad for confirmation of settlement made by the Anchalik Panchayat and any settlement without such confirmation by the Zilla Parishad will not be a legally valid settlement. Keeping the said ratio in view, it is found that until and unless the settlement order is confirmed by the Zilla Parishad the same is voidable and finality cannot be granted to the said settlement order. 13. Now, coming to the qualification of the present petitioner, I in my opinion, hold that the petitioner ought to have mentioned about such rewriting of the bid value in the affidavit in order to remove the doubt of manipulation after opening of the bid. Moreover, there is a suppression of material fact in this writ petition filed by the petitioner himself. Under such circumstances, I am constrained to hold that the petitioner is also not entitled for settlement of the said parghat owing to non-explanation of the fact of rewriting of the bid value after using whitener erasing the earlier quoted bid value. In the result, this writ petition succeeds to the extent that the settlement of the respondent No. 7 is liable to be set aside and quashed and the petitioner owing to such suppression of material facts is not entitled for the settlement. As a result, the said Parghat and its toll collection may be operated on a decision by the Principal Secretary to the Government of Assam, Panchayat and Rural Development Department to that effect. This writ petition is accordingly disposed of. 14. Interim order passed earlier stands vacated.