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2020 DIGILAW 675 (GAU)

Md Akkash Ali Tenderer v. State Of Assam

2020-09-23

SUMAN SHYAM

body2020
JUDGMENT Suman Shyam, J. - Heard Mr. M. H. Choudhury, learned counsel for the writ petitioner, in both the writ petitions. Also heard Mr. M. Nath, learned Standing Counsel, P & RD Department, Assam, appearing for the respondent Nos.1 to 3 in WP(C) No.3026/2020 and for the respondent Nos.1 to 4 in WP(C) No.2490/2020, Mr. B. J. Talukdar, learned counsel appearing for the respondent Nos.4 and 5 in WP(C) No.3026/2020 and Mr. N. Borah, learned counsel appearing for the respondent No.6 in WP(C) No.3026/2020 and respondent No.5 in WP(C) No.2490/2020. 2. The order dated 30.03.2020 issued by the Chief Executive Officer, Sonitpur Zilla Parishad, Tezpur, settling the Bihiagaon Weekly Market for the year 2019-20 in favour of the respondent No.6 has been assailed in WP(C) No.3026/2020, whereby, the writ petitioner has prayed for setting aside the order of settlement and also for issuing a writ of mandamus directing the respondents to settle the weekly market with the petitioner by treating him as the highest bidder. 3. The facts relevant for disposal of this writ petition may be noticed herein below. It appears from the record that the Gabhoru Anchalik Panchayat had issued Notice Inviting Tender (NIT) dated 29.05.2019 inviting bids for settlement of various hats/ghats markets etc. coming within the jurisdiction of the Anchalik Panchayat including the Bihiagaon weekly market for a period of one year i.e. from 01.07.2019 to 30.06.2020. As per the NIT dated 29.05.2019, the minimum Government value of Bihiagaon Weekly Market was fixed at Rs.1,69,105/- and the earnest money required to be deposited was Rs.16,911/-. The writ petitioner herein was one of the tenderers who had submitted his bid seeking settlement of the Bihiagaon Weekly Market. The bids were opened on 15.06.2019 whereafter, a comparative statement was prepared by the Anchalik Panchayat. Upon opening the bids it transpired that one Jiten Das had quoted Rs.2,02,222.22 p which was the highest amount. The writ petitioner herein had quoted the 2nd highest amount of Rs.2,00,000/- whereas the respondent No.6 had quoted a sum of Rs.1,99,000/- which was the 3rd highest bid. Since the bid value exceeded Rs 1 Lakhs, the Gabhoru Anchalik Panchayat had prepared a comparative statement and forwarded the same to the Sonitpur Zilla Parishad for issuing the order of settlement. The writ petitioner herein had quoted the 2nd highest amount of Rs.2,00,000/- whereas the respondent No.6 had quoted a sum of Rs.1,99,000/- which was the 3rd highest bid. Since the bid value exceeded Rs 1 Lakhs, the Gabhoru Anchalik Panchayat had prepared a comparative statement and forwarded the same to the Sonitpur Zilla Parishad for issuing the order of settlement. Based on the comparative statement prepared by the Anchalik Panchayat, the General Standing Committee, Sonitpur Zilla Parishad had adopted the resolution dated 20.07.2019 taking a decision to settle the weekly market with the highest bidder viz., Jiten Das at his quoted price. Accordingly, vide order dated 24.07.2019, the market was settled with the highest bidder Jiten Das for a period of one year with effect from 30.06.2019. 4. The order of settlement dated 24.07.2019 was assailed by the present petitioner by filing WP(C) No.5749/2019 inter-alia contending that the bid submitted by Sri Jiten Das (impleaded as respondent No 5) was non-compliant with Clause-13 of the NIT and therefore, was technically defective. In the said writ petition, the State of Assam represented by the Commissioner & Secretary to the Govt. of Assam, Panchayat & Rural Development, Department, the Principal Secretary to the Govt. of Assam, Panchayat & Rural Development, Department, the Sonitpur Zilla Parishad and the Gabhoru Anchalik Panchayat were impleaded as respondent Nos.1 to 4 respectively. Upon hearing the learned counsel for the parties and on perusal of the records produced by the departmental counsel, this Court was of the view that the bid submitted by Sri Jiten Das, i.e. the respondent No 5 was technically defective. Therefore, by the judgment and order dated 25.02.2020 passed in W.P.(c) 5749/2019, the order of settlement dated 24.07.2019 was set aside and a direction was issued to the concerned authority to settle the Bihiagaon Weekly Market as per the comparative statement already on record by following the terms of the NIT. 5. It further appears that the petitioner had submitted copies of the judgment and order dated 25.02.2020 before the respondent authorities for doing the needful. 5. It further appears that the petitioner had submitted copies of the judgment and order dated 25.02.2020 before the respondent authorities for doing the needful. But when no action was taken in the matter, the petitioner had once again approached this court by filing WP(C) No.2490/2020 inter-alia praying for a direction upon the Sonitpur Zilla Parishad to settle the Bihiagaon Weekly Market in his favour for the period from 01.07.2020 to 30.06.2021 or alternatively, to allow him to run the said market till regular settlement is made. During the pendency of WP(C) No.2490/2020, the respondent No.5 had issued the impugned order dated 30.03.2020 settling the market for the year 2019-20 with the 3rd highest bidder i.e. the respondent No.6. Aggrieved thereby, the petitioner has filed WP(C) No.3026/2020 assailing the order of settlement dated 30.03.2020. 6. In the meantime, the Principal Secretary to the Government of Assam, Panchayat and Rural Development Department has issued Notification dated 29.05.2020 laying down that in view of the prevailing situation due to out- break of the pandemic covid-19 and the country wide lock-down, settlement of Hats/Ghats/Fisheries/ Ponds by floating Tenders under the Assam Panchayat Act 1994 would not be feasible. As such, the Department has decided to allow the existing lessee to continue at the previous year''s settlement value. It appears that on the strength of the notification dated 29.05.2020 the respondent No.6 has been allowed to operate the weekly market for the current financial year by treating him as the existing lessee. 7. The respondents have appeared and contested the writ petition by filing counter-affidavits. The learned departmental counsel has produced the records. 8. Mr. Choudhury, learned counsel for the writ petitioner submits that by the order dated 25.02.2020, this court had interfered with the order of settlement issued in favour of the highest bidder i.e. Sri Jiten Das and issued a direction upon the authorities to settle the market in terms of the comparative statement and in accordance with the NIT. Since the bid of Jiten Das had been found to be technically defective and the bid submitted by the writ petitioner has been held to be technically valid, there was no scope for the respondent authorities to re-scrutinise the bids and prepare a fresh comparative statement so as to settle the market in favour of the respondent No.6 at a lower price. According to Mr. According to Mr. Choudhury, the recourse taken by the respondent No.5 is nothing but a clear attempt to overreach the jurisdiction of this court and deny the settlement order to the writ petitioner by adopting dubious means. Mr. Choudhury submits that after rejection of the bid submitted by Sri. Jiten Das, the writ petitioner has become the highest bidder and therefore, the respondents were duty bound to issue the order of settlement in favour of the petitioner in strict compliance of the judgment and order dated 25.02.2020 passed by this court but the same has evidently not been done in this case. As such, the petitioner''s counsel has prayed for setting aside the order dated 30.03.2020 and for issuing a writ of mandamus directing the respondents to settle the Bihiagaon Weekly Market in favour of the petitioner. 9. Mr. M. Nath, learned departmental counsel, has refuted the arguments advanced by the petitioner''s counsel and has argued that the total bid value in this case having exceeded the sum of Rs.1 lakh, as per sub-section (6) of Section 109 of the Assam Panchayat Act, 1994 (hereinafter referred as ''the Act of 1994''), the Anchalik Panchayat did not have the jurisdiction to settle the weekly market. That is the reason why the matter had to be referred to the Zilla Parishad for preparation of comparative statement and for issuing the order of settlement. In this case, submits Mr. Nath, the Zilla Parishad had not prepared any comparative statement and therefore, the judgment and order dated 25.2.2020 passed by this Court would have to be understood in the context of comparative statement earlier prepared by the Anchalik Panchayat. Since the Zilla Parishad is the competent authority to prepare the comparative statement for settlement of markets, ghats valued at more than Rs.1 lakh, the respondent No.5 has rightly re-scrutinised the bids and prepared a fresh comparative statement wherefrom, it transpired that the petitioner did not submit non-encumbrance certificate for the current financial year. As such, petitioner''s bid was held to be technically defective due to non-compliance of Clause-13 of the NIT and therefore, rejected by the Zilla Parishad. Consequently, submits Mr Nath, the respondent No.6 was held to be the valid highest bidder and the order of settlement dated 30.03.2020 was issued in his favour. Mr. As such, petitioner''s bid was held to be technically defective due to non-compliance of Clause-13 of the NIT and therefore, rejected by the Zilla Parishad. Consequently, submits Mr Nath, the respondent No.6 was held to be the valid highest bidder and the order of settlement dated 30.03.2020 was issued in his favour. Mr. Nath, further submits that the action taken by the Zilla Parishad is strictly in accordance with the provisions of Sections 106, 107 and 109(6) of the Act of 1994 and hence, the same does not call for interference by this Court. In support of his above arguments Mr. Nath has relied upon a decision of the Full Bench of this Court rendered in the case of Harez Ali and others vs. State of Assam and others, (2009) AIR Gauhati 132 to contend that in case of a market valued at more than Rs 1 lakhs, the Zilla Parishad alone would have the jurisdiction to prepare the comparative statement and issue the order of settlement. 10. Mr. B. J. Talukdar, learned counsel for the respondent Nos.4 and 5, while supporting the impugned order, has argued that although his client has been impleaded by name, since there is no allegation of malafide made against him no adverse observation be made against the respondent No 4. 11. Mr. N. Borah, learned counsel representing the respondent No.6, while supporting the arguments advanced by Mr. Nath, has vociferously argued that the impugned order of settlement has been issued by the Zilla Parishad in exercise of jurisdiction conferred under Section 109(6) of the Act of 1994 . Therefore, the impugned order of settlement dated 30.03.2020 does not in any manner contravene the provisions of the Act of 1994 nor does it violate the judgment and order dated 25.02.2020. By placing reliance on a decision of the Supreme Court rendered in the case of Godde Venkateswara Rao vs. Government of Andhra Pradesh and others, (1966) AIR SC 828 Mr. Borah submits that the bid submitted by the writ petitioner having been found to be technically defective, if a direction is issued by this Court for settlement of the market with the petitioner, the same will restore a defective bid by replacing the valid bid of his client. As such, submits Mr. Borah, the writ petition is liable to be dismissed by this Court. 12. As such, submits Mr. Borah, the writ petition is liable to be dismissed by this Court. 12. I have considered the submissions advanced by learned counsel for both parties and have also gone through the records produced by the learned departmental counsel. 13. At the very outset, it would be apposite to note herein that from the materials available on record it is apparent that the order of settlement impugned in the present proceeding has its genesis in the judgment and order dated 25.02.2020 passed by this Court WP(C) No.5749/2019. Therefore, in order to understand the true import of the directions contained in the order dated 25.02.2020, it would be necessary to briefly indicate the findings and observation recorded by the learned Single Judge in the order dated 25.02.2020. 14. As noticed above, the controversy in this case revolves around the claim of the writ petitioner that he is the highest valid bidder and therefore, entitled to the order of settlement in respect of the Bihiagaon weekly market on the ground that the bid submitted by the highest bidder was technically defective due to noncompliance of Clause-13 of the NIT. It may be mentioned herein that as per Clause13 of the NIT, the bidders would have to inter-alia submit along with their tenders, current years Jamabandi and non-encumbrance certificate besides other documents including no objection certificate (NOC) from the co-pattadars in respect of the land offered as security. Clause 16 of the NIT makes it clear that violation of Clause 13 would be a ground for rejection of the bid. 15. As mentioned above, the respondent no.5 had issued the order of settlement dated 24.07.2019 in favour of the highest bidder based on the comparative statement prepared by the Anchalik Panchayat which order was challenged in W.P. (c) 5749/2020 filed by the writ petitioner. During the course of hearing in W.P(c) 5749/ 2020 the learned Standing Counsel for the P & RD Department, Assam, had specifically assailed the bid submitted by the writ petitioner alleging that his bid was also technically defective due to contravention of Clause-13 of the NIT. However, rejecting such plea raised by the departmental counsel, the learned Single Judge has held that the bid submitted by the writ petitioner was technically valid. However, rejecting such plea raised by the departmental counsel, the learned Single Judge has held that the bid submitted by the writ petitioner was technically valid. Having held as above, by the judgement and order dated 25.02.2020, the learned Single Judge had allowed the writ petition by setting aside the order of settlement dated 24.07.2019 and also issued a directions upon the respondent No.3 therein i.e. Sonitpur Zilla Parishad, to settle the market as per the comparative statement by following the terms of the NIT. The operative part of the judgment and order dated 25.02.2020 is reproduced herein below for ready reference :- wxyz "18. From the records it is found that the General Standing Committee of Sonitpur Zilla Parishad did not prepare any fresh comparative statement in the form of the one of the Gabhoru Anchalik Panchayat except the bid value and resolved that as the bid value of the respondent No. 5 was highest he was considered for the settlement. Nowhere on record it was found that on comparing the various documents the petitioner was found to be deficient except the bid value which is second highest. Accordingly the submission of Mr. Roy cannot be accepted that the petitioner failed to submit the no-objection of the co-pattadars of the land for security. Similarly the issue of violation of the order dated 03.07.2019 passed in WP(C) 4664/2019 is not within the purview of this court while disposing of this writ petition inasmuch as the court is exercising the jurisdiction of judicial review of the decision making process of the General Standing Committee of the Sonitpur Zilla Parishad in the NIT dated 29.05.2019. zyxw wxyz 19. From the aforesaid discussions, I hold that this writ petition succeeds, the undated resolution of the General Standing Committee of the Sonitpur Zilla Parishad and the consequent impugned order dated 24.07.2019 bearing No. SZP/2019-20/4043 is set aside and quashed. The respondent No. 3 is directed to settle the Bihiagaon Weekly Market as per the comparative statement already on record strictly following the terms of the NIT dated 29.05.2019 being No. GAP/Tender/2019-2020 issued by the respondent No. 4 within a period of 30 (thirty) days from the date of receipt of the copy of this order. Records shall be handed back to Mr. A. Roy, the learned Standing Counsel of P&RD." zyxw 16. Records shall be handed back to Mr. A. Roy, the learned Standing Counsel of P&RD." zyxw 16. From a perusal of the impugned order dated 30.03.2020 it transpires that in purported compliance of the directions contained in the judgment and order dated 25.02.2020 passed by this court, the respondent No. 5 had re-scrutinised the bids submitted by the respective bidders and thereafter, selected the private respondent No. 6 having found him to be the highest bidder, thereby re-opening the question of technical validity of the bid submitted by the petitioner which issue was set at rest by the order dated 25.02.2020. 17. It is the specific plea raised by the respondents that in exercise of jurisdiction conferred under Section 109(6) of the Act of 1994, the Zilla Parishad was entitled to prepare the comparative statement and thereafter, issue the order of settlement and as such, a fresh comparative statement has been prepared in this case whereby, the bid submitted by the writ petitioner has been found to be technically defective. However, such a plea of the departmental counsel cannot be accepted at this point of time for more than one reason. Firstly, as evident from the judgment and order dated 25.02.2020, the General Standing Committee of the Zilla Parishad had adopted a resolution deciding to settle the market in favour of the highest bidder viz. Jiten Das based on the comparative statement prepared by the Anchalik Panchayat, which goes to show that the Zilla Parishad had found the comparative statement free from all defect. In the said comparative statement prepared by the Anchalik Panchayat, , the bid submitted by the writ petitioner was also shown to be technically valid. Based on the comparative statement prepared by the Anchalik Panchayat, the Sonitpur Zilla Parishad had issued the order of settlement dated 24.07.2019 in favour of the highest bidder Jiten Das. If that be so, it is apparent that the Sonitpur Zilla Parishad had not only accepted the comparative statement prepared by the Anchalik Panchayat to be correct but had also acted upon it so as to issue the order of settlement in favour of the highest bidder. 18. If that be so, it is apparent that the Sonitpur Zilla Parishad had not only accepted the comparative statement prepared by the Anchalik Panchayat to be correct but had also acted upon it so as to issue the order of settlement in favour of the highest bidder. 18. Secondly, by taking note of the facts and circumstances of the case and after dealing with the objections raised by the respondents pertaining to the question of validity of the technical bid of the writ petitioner, by the order dated 25.02.2020, the learned Single Judge had found that the petitioner''s bid was technically valid and therefore, issued a direction to settle the market in accordance with the comparative statement already prepared. The expression "comparative statement already prepared" as appearing in the order dated 25.02.2020 makes it abundantly clear that no leave was granted to the department to prepare a "fresh" comparative statement nor have the respondents sought leave from the court to do so. Such being the position, in the opinion of this court, there was no scope for the respondent No. 5 to re-scrutinize the bids and prepare a fresh comparative statement so as to arrive at a contrary finding on the bid validity since such a recourse would be in clear violation of the letter and spirit of the judgement and order dated 25.02.2020 passed by this court. 19. Thirdly, the plea regarding invalidity of the technical bid of the writ petitioner having been raised by the department and the same having been rejected by this court by a reasoned order in the earlier round of litigation, the same plea by the respondents 1 to 5, even though on a slightly different ground, would be barred under the principles of constructive res-judicata and hence, cannot be entertained by this court in the present proceeding. 20. In the case of Harez Ali and others (supra), the question that arose for consideration before the Full Bench was as to whether, the expression "yearly sale value" under sub-section (6) of Section 109 of the Act of 1994 would mean the minimum value fixed by the Panchayat or it is the highest value offered by the prospective settlee i.e. the eligible bidder. The question as to whether, the Zilla Parishad would be empowered to invite tenders in respect of hats, ferries and fisheries having yearly sale value of more than Rs.1 lakh also arose for consideration of the court. While interpreting Section 109(6) of the Act of 1994, the Full Bench has categorically held that after submission of tender papers before the Anchalik Panchayat if the bid value offered by the eligible highest bidder is found to be more than Rs.1 lakh, the Standing Committee of Anchalik Panchayat 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 for doing needful at their end in accordance with law. 21. It is no doubt correct that under section 109(6) of the Act of 1994, it is the Zilla Parishad which would have the jurisdiction to settle the market valued above Rs.1 lakhs. However, in the present case, as noticed above, the Anchalik Panchayat had, in fact, prepared the comparative statement and forwarded the same to the Zilla Parishad which was also duly acted upon by the Zilla Parishad whereby, order of settlement was issued in favour of Sri Jiten Das treating him as the highest bidder. Having done so, the departmental authorities cannot now be permitted to argue that notwithstanding the judgment and order dated 25.02.2020 passed in connection with WP(C) No.5749/2019 determining the bid validity of the petitioner, it was still open for the authorities to re-open the issue and take a different view in the matter on the same facts merely by preparing a fresh comparative statement. In such view of the matter, I am of the view that the decision in the case of Harez Ali and others (supra) relied upon by Mr. Nath would not be of any assistance to him in the facts and circumstances of the present case. 22. During the course of argument, the learned counsel for the respondents have made an attempt to convince this Court that in view of section 109(6) of the Act of 1994 the learned Single Judge ought to have granted liberty to the Zilla Parishad allowing it to prepare a comparative statement. I am afraid, such a submission made by the respondents'' counsel also cannot be accepted by this Court. I am afraid, such a submission made by the respondents'' counsel also cannot be accepted by this Court. The learned Single Judge evidently did not grant liberty to the Zilla Parishad to evaluate the bids afresh. Therefore, it would not be permissible for this court to go into the said aspect of the matter in the present proceeding as the same would amount to reopening an issue dealt with by the judgment and order dated 25.02.2020.The findings and observation recorded in the eye of law. Hence, such finding in the judgment and order dated 25.02.2020 have attained finality and would be binding on this court. 23. Law is well settled that a co-ordinate Bench can neither comment nor disturb any findings or directions issued by another Bench, that too on the basis of same materials and in the same circumstances. In the case of Vikramjit Singh vs. State of Madhya Pradesh, (1992) Supp3 SCC 62 the Hon''ble Supreme Court has observed that a co-ordinate Bench would have no authority to upset the earlier order passed by the court. That which could not be done directly cannot also be done indirectly as otherwise a party aggrieved by an order passed by one Bench would be tempted to get the matter re-opened before another Bench. If the respondents were in any manner aggrieved by the judgment and order dated 25.02.2020 there was nothing stopping them from preferring an appeal or filing a review petition against the same,which has not been done in this case. 24. In the above context, it would be noteworthy that although the petitioner in WP(C) No.5749/2019 had prayed for a writ of mandamus directing the respondent authorities to issue the order of settlement in his favour, yet, the other bidders including the respondent No.6 herein were not impleaded as parties to the said proceeding. Notwithstanding the same, no objection was raised by the departmental counsel on such count. The respondent No.6 has also not assailed the judgment and order dated 25.02.2020 passed by the learned Single Judge holding the petitioner''s bid to be technically valid. Under the circumstances, I am of the un-hesitant opinion that at this distant point of time, the respondents would not have the liberty to question the technical validity of the bid submitted by the writ petitioner. Under the circumstances, I am of the un-hesitant opinion that at this distant point of time, the respondents would not have the liberty to question the technical validity of the bid submitted by the writ petitioner. On the contrary, in view of the order dated 25.02.2020, the only option left open for the respondent No 5, in the facts and circumstances of this case, would be to issue the order of settlement in favour of the highest bidder. i.e. the writ petitioner. Having regard to the Notification dated 29.05.2020 issued by the department, I am of the view that claim of the writ petitioner is still alive and therefore, he would be entitled to a writ of mandamus for issuance of the order of settlement of the weekly market in his favour. 25. It has already been observed that the finding of facts recorded in the judgement and order dated 25.02.2020 cannot be disturbed by this court. Since, it has been held by the learned single judge that the bid submitted by the writ petitioner was technically valid, the submission of Mr. Bora that interference with the impugned order dated 30.03.2020 would revive an invalid bid also cannot be accepted. Such being the position, the decision of the Apex Court rendered in the case of Godde Venkateswara Rao (supra) relied upon by Mr. Borah would be of no assistance to him in the facts and circumstances of the present case. 26. For the reasons stated herein the writ petition being W.P.(C) 3026/ 2020 stands allowed. The impugned order of settlement dated 30.03.2020 issued in favour of the respondent No. 6 stands set aside. The respondent No.5 is directed to issue the order of settlement of the Bihiagaon Weekly Market in favour of the writ petitioner within a period of 7 (seven) days from the date of receipt of a certified copy of this order and thereafter, allow him to operate the market upon realization of revenue as per prescription of the NIT. wxyz Both the writ petitions stand disposed of accordingly. zyxw wxyz Records be returned back. zyxw