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2019 DIGILAW 344 (GAU)

Mojibur Rahman (Md. ) v. State of Assam

2019-03-14

A.K.GOSWAMI

body2019
JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Ms. S.B. Choudhury, learned counsel for the petitioner in both the writ petitions. Also heard Mr. A. Bhattacharjee learned standing counsel. Panchayat and Rural Development appearing for respondent Nos. 1, 2 and 3 in both the writ petitions, Mr. R. Dhar, learned State counsel appearing for respondent Nos. 4, 5 and 8 in W.P.(C) No. 7464/2018 and for respondent Nos. 4, 5, 6 and 7 in W.P.(C) No. 7539/2018 and Ms. S. Chakraborty, learned counsel appearing for respondent Nos. 6 and 7 in W.P.(C) No. 7464/2018 and for respondent Nos. 8 and 9 in W.P.(C) No. 7539/2018. The respondent Nos. 6 and 7 in W.P.(C) No. 7464/2018 and respondent Nos. 8 and 9 in W.P.(C) No. 7539/2018 are the same persons. 2. As the subject matter of both the writ petitions relates to settlement of Tinsukia Chatian Half Weekly Market for the year 2018-19, the writ petitions are taken up together for final disposal at the admission stage. 3. Pursuant to a Notice Inviting Tender (NIT) dated 01.06.2018 issued by the Juria Anchalik Panchayat for settlement of markets, ghats, fisheries, etc., including Tinsukia Chatian Half Weekly Market for the year 2018-19, the petitioner had submitted tender. The case projected in W.P.(C) No. 7464/2018 is that the petitioner had emerged as the 3rd highest tenderer. The settlement was offered to respondent No. 6 in W.P.(C) No. 7464/2018, he being the highest tenderer, but the settlement made in his favour was cancelled vide letter dated 04.10.2018 issued by the Chief Executive Officer, Nagaon Zilla Parishad, on the ground of violation of terms and conditions of the NIT as well as agreement for settlement. The respondent No. 7 in W.P.(C) No. 7464/2018, who was the 2nd highest tenderer, had withdrawn from the fray. Copy of the said letter was forwarded to Executive Officer, Juria Anchalik Panchayat to initiate process of open tender of the market and to take responsibility of the market until the re-tender process is completed. 4. Challenging the decision to issue fresh tender without making settlement to the highest valid tenderer after the 1st and 2nd highest bidder had gone out of contention, W.P.(C) No. 7464/2018 was filed. The said writ petition was taken up for consideration on 15.10.2018 when 4 weeks' time was granted to Mr. Dhar to obtain instructions. 4. Challenging the decision to issue fresh tender without making settlement to the highest valid tenderer after the 1st and 2nd highest bidder had gone out of contention, W.P.(C) No. 7464/2018 was filed. The said writ petition was taken up for consideration on 15.10.2018 when 4 weeks' time was granted to Mr. Dhar to obtain instructions. It was also indicated that prayer for interim order would be considered after suitable response is given by the contesting respondents. 5. W.P.(C) No. 7539/2018 came to be filed as during the pendency of the W.P.(C) No. 7464/2018 a fresh Notice for re-Tender dated 06.10.2018 was issued. This Court by order dated 31.10.2018 stayed the fresh notice for re-tender dated 06.10.2018. Till date, no affidavit has been filed by the State respondents. The respondent Nos. 8 and 9 in this writ petition i.e. W.P.(C) No. 7539/2018, filed their separate affidavits. The respondent No. 8 contended that as he was the highest tenderer, settlement was offered to him. But as he could not pay the kist money and did not sign the agreement, his settlement was cancelled. The respondent No. 9 stated that he had submitted an application dated 30.07.2018 praying for cancellation of settlement made in his favour. It appears that the statement made by the respondent No. 9 that he was offered settlement on 23.07.2018, he being the 2nd highest valid bidder, is not correct in as much as the settlement with respondent No. 8 came to be cancelled only on 04.10.2018. But what is manifest is the intention of the respondent No. 9, which is not to take up the settlement of the market in question. In other words, he had left himself out of the competition for the purpose of settlement of the market. 6. In the letter dated 04.10.2018, there is no indication as to why the tender process initiated had to be cancelled and a fresh notice inviting tender is required to be issued. In absence of any discernible reason in the letter dated 4.10.2018, as also any explanation subsequently by way of filing of any affidavit with contemporaneous materials on record justifying such decision, the action of the Chief Executive Officer, Nagaon Zilla Parishad has to be held to be arbitrary and irrational. The re-tender notice dated 6.10.2018 is a fall out of the direction to issue the re-tender notice. The re-tender notice dated 6.10.2018 is a fall out of the direction to issue the re-tender notice. When the foundation falls, necessarily, any consequential action taken cannot sustain the scrutiny of law. 7. In that view of the matter, the direction to issue re-tender in the letter dated 4.10.2018 issued by the Chief Executive Officer of Nagaon Zilla Parishad and the subsequent re-tender notice dated 06.10.2018, issued by the Juria Anchalik Panchayat are set aside and quashed. The Nagaon Zilla Parishad is directed to settle the Tinsukia Chatian Half Weekly Market in accordance with law with the highest valid tenderer. As the term of the settlement is going to expire on 30.06.2019, such settlement order shall be passed on or before 31.03.2019. 8. With this direction, the writ petitions are disposed of. 9. Mr. Dhar will communicate this order for doing the needful by the Chief Executive Officer, Nagaon Zilla Parishad. A copy of this order be furnished to Mr. Dhar, learned State counsel.