IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 4457 of 2011
Sri Manik Konwar,
S/o Sri Dimbeswar Konwar,
Resident of Village No. 2, Ghandhakrai,
P.O.- Sukiya Pathar,
Dist- Golaghat, Assam,
Pin Code -785601
……Petitioner.
-Versus1. The State of Assam represented by the
Commissioner & Secretary, Panchayat
& Rural Administration, Govt. of Assam,
Dispur. Guwahati - 6
2. The Director, Panchayat &
Rural Development, Assam,
Juripar, Guwahati – 37.
3. The Deputy Commissioner,
Golaghat.
4. The SDO,
(Sadar), Dhanshri, Sarupathar.
5. The Chief Executive Officer,
Golaghat Zilla Parishad.
6. The Chairman of Golaghat Dakhin
Anchalik Panchayat, Sarupathar.
7. The Director of Municipal Administration,
Guwahati – 6.
8. Sri Jashoda Ranjan Nag,
S/o Late Jogesh Chandra Nag,
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 1 of 12
Vill- Sarupathar,
P.O. & P.S.- Sarupathar,
Dist.- Golaghat, Assam.
Pin Code- 785601.
……….Respondents.
Advocates for the petitioner:
Sri T J Mahanta,
Smt G K Das
Advocates for the respondent : Sri B J Ghosh, GA, Assam,
C Baruah, Sr. Adv, (R-8).
AND
WP(C) No. 4066 of 2011
Sri Mukunda Basumatary,
S/o Sri Sarat Basumatary,
Resident of Village Pub Dhantola,
P.O.- Uriamghat, District- Golaghat,
Assam.
……Petitioner.
-Versus1. The State of Assam represented by the
Commissioner & Secretary, Panchayat
& Rural Administration, Govt. of Assam,
Dispur. Guwahati – 6
2. The Director, Panchayat &
Rural Development, Assam,
Juripar, Guwahati – 37.
3. The Golaghat Zilla Parishad,
Represented by the Chief Executive Officer,
Golaghat, Assam.
4. The CEO of Golaghat Zilla Parishad,
P.O.- Golaghat, District- Golaghat, Assam.
5. The Golaghat Dakshin Anchalik Panchayat,
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 2 of 12
Represented by the Executive Officer and
Commissioner, P.O.-Sarupathar,
District – Golaghat, Assam.
6. Sri Jashoda Ranjan Nag,
S/o Late Jogesh Chandra Nag,
Vill- Sarupathar,
P.O. & P.S.- Sarupathar,
Dist.- Golaghat, Assam.
Pin Code- 785601.
……….Respondents.
Advocates for the petitioner:
Sri K Bhattacharjee,
Sri N Rajkhowa,
Smt M Bhattacharjee.
Advocates for the respondent : Sri B J Ghosh, GA, Assam,
C Baruah, Sr. Adv, (R-6).
AND
WP(C) No. 4716 of 2011
Sri Purna Kanta Gogoi,
S/o Sri Saru Gogoi,
Resident of Village Gargaon,
P.O.- Borpathar, P.S.- Sarupathar,
District- Golaghat, Assam.
……Petitioner.
-Versus1. The State of Assam represented by the
Commissioner & Secretary, Panchayat
& Rural Development Department, Govt. of Assam,
Dispur. Guwahati – 6
2. The President,
Golaghat Zilla Parishad, Golaghat,
District: Golaghat, Assam,
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 3 of 12
PIN - 785621.
3. The CEO of Golaghat Zilla Parishad,
P.O.- Golaghat, District- Golaghat, Assam.
4. The President,
The Golaghat Dakshin Anchalik Panchayat,
Sarupathar,
District – Golaghat, Assam,
PIN- 785601.
5. The Executive Officer,
The Golaghat Dakshin Anchalik Panchayat,
Sarupathar,
District – Golaghat, Assam,
PIN- 785601.
6. Sri Jashoda Ranjan Nag,
S/o Late Jogesh Chandra Nag,
Vill- Sarupathar,
P.O. & P.S.- Sarupathar,
Dist.- Golaghat, Assam.
Pin Code- 785601.
……….Respondents.
Advocates for the petitioner:
Sri P Kataki, (not present)
Sri S K Sarma, (-do-)
Advocates for the respondent : Sri B J Ghosh, GA, Assam,
C Baruah, Sr. Adv, (R-6).
PRESENT
HON’BLE MR. JUSTICE B D AGARWAL
Date of hearing
:
17.11.2011.
Date of Judgment
:
17.11.2011.
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 4 of 12
JUDGEMENT AND ORDER (ORAL)
Since the facts in all the aforesaid 3 (three) writ
petitions are one and the same and since identical issues have
been raised therein, al the 3 (three) writ petitions are being
disposed of by this common Judgment.
2.
Heard Sri T J Mahanta, learned counsel and Sri K
Bhattacharjee, learned counsel for the writ petitioners in
WP(C) Nos. 4457 and 4066 of 2011 respectively. None
appeared for the writ petitioner in WP(C) No. 4716 of 2011. I
have also heard Sri B J Ghosh, learned Government Counsel
appearing for the State respondents. Sri C Barua, learned
Senior Counsel appeared for the private respondent Sri
Jashoda Ranjan Nag.
3.
The settlement of Nowjan Weekly Bazar for the
year 2011-12 is in question in the aforesaid writ petitions.
Golaghat Dakshin Anchalik Panchayat had invited tenders
for settlement of various markets, including the aforesaid
market vide NIT dated 30.05.2011. Pursuant to the said
notice, as many as 22 tenders were submitted by different
persons. The lowest bidder was one Sri Castom Basumatory
and he offered Rs. 16,23,545/-, whereas one of the writ
petitioners, namely, Sri Mukunda Basumatary, hadoffered
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 5 of 12
Rs. 39,68,499/-. The tender value of the other writ petitioner
Sri Manik Konwar was Rs. 18,11,888/-, whereas, another
writ petitioner Sri Purna Kanta Gogoi, had offered Rs.
19,55,955/-. The offers of the remaining tenderers were also
more than the amount which was offered by the private
respondent Sri Jashoda Ranjan Nag. As per the requirement
of Section 109 (6) of the Assam Panchayat Act, 1994, the
Anchalik Panchayat forwarded the tender papers to the Zila
Parishad since the official bid as well as the tender amounts
were clearly more than Rs. 1,00,000/- per year. It may be
mentioned here that the official bid was Rs. 3,30,300/-. On
being referred the matter to the Golaghat Zila Parishad, the
market has been settled with the respondent Sri Jashoda
Ranjan Nag at an amount of Rs. 16,74,428/-.
4.
The aforesaid settlement has been challenged on
various grounds. The first and foremost ground is that the
settlement is in clear violation of Rule 47 (10) of the Assam
Panchayat (Financial) Rules, 2002. For ready reference, the
aforesaid rule is reproduced below:“Rule 47 (10): The tender of the highest bidder shall be
accepted. Acceptance of tender other than the highest bid shall
require the “Government” prior and formal approval.”
5.
According to the learned counsel for the writ
petitioners, the Zila Parishad has settled the market without
obtaining any approval from the Government and as such,
the settlement order dated 03.07.2011, is dehors to the Rules
and is liable to be set aside. The impugned settlement order
has also been assailed on the ground that in the previous
year also the same market was settled with the highest
bidder at Rs. 30,07,551/- and as such, there was no reason to
WP(C) Nos. 4457, 4066 & 4716 of 2011
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alter from the said practice. In other words, it was contended
on behalf of the petitioners that the market should have been
settled with the highest bidder, provided his tender was
valid in other aspects. It was also contended on behalf of the
highest bidder that if for any reason, the settling authority
was not willing to settle the market at Rs. 39,00,000/- & odd,
the authority was incumbent to invite the highest bidder for
negotiation. Having not done so, the respondents have
violated the principles of natural justice.
6.
On the other hand, Sri Ghosh, learned State
Counsel submitted that although the market was settled at
more than Rs. 30,00,000/- in the previous year but the lessee
could not run the market for the entire term and surrendered
it after depositing Rs. 15,13,776/- and as such, the Zila
Parishad decided to settle the market with the private
respondent at a lower rate in the public interest. The learned
counsel also submitted that if the market is settled at an
exorbitant higher rate it causes hardship to the general
public.
In
support
of
this
submission,
the
learned
Government Counsel referred to the resolution No. 8 of the
General Standing Committee taken on 02.07.2011.
7.
Defending the settlement, the learned counsel for
the private respondent also adopted the submissions of the
learned Government Counsel. Sri Barua, learned Senior
Counsel for the private respondent further submitted that the
State authority is not bound to accept the highest bid and it
can accept even the lowest bid. In support of this submission,
the learned counsel referred to a Judgment of the Supreme
WP(C) Nos. 4457, 4066 & 4716 of 2011
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Court, rendered in the case of State of Uttar Pradesh –Vs-Sri
Vijay Bahadur Singh, reported in (1982) 2 SCC 365. Sri Barua
also took a preliminary objection about the maintainability of
the writ petition by submitting that the aggrieved tenderers
ought to have approached the Government by way of
preferring an appeal as provided under Section 105 (4) and
137 of the Act, read with Rule 47 (9) of the Assam Panchayat
Financial Rules, 2002.
8.
Apparently, the procedure for settlement of the
market has been laid down in Section 105 under Chapter VII
of the Assam Panchayat Act, 1994, whereas, Section 137 falls
in Chapter XI, under the marginal heading “Miscellaneous”.
The proviso for referring any case to the Government has
been placed just below Section 105 (4), whereas, Section 105
ends with Sub-Section (6). Hence, the proviso has to be read
only with Sub-Section (4) and cannot be read as a general
provision for referring all the matters relating to settlement of
the markets to the Government. For ready reference, Section
105 (4) is also reproduced below in extenso:
“Section 105 (4): All settlement made under Sub-Section
(3) shall be subject to the confirmation of the Zila Parishad.
Provided that in case of any dispute, the Anchalik
Panchayat may refer such case to the Government and the
aggrieved party may appeal to the Government whose decision
in this regard shall be final.”
9.
After going through the entire Section 105, it
appears to me that the proviso to Section 105 (4) basically
relates to pre-settlement disputes and not post-settlement of
Ghats. Even otherwise, the proviso cannot be construed as a
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 8 of 12
statutory prescription for challenging settlement orders. On
the same analogy, Section 137 of the Act and Rule 47 (9) of
2002 Rules, are also not applicable to challenge the settlement
of any market. Be that as it may, the aforesaid provisions
relating to settlement process of market cannot fetter the
plenary powers of the High Court under Article 226 of the
Constitution of India.
10.
Coming to the legal principle of the settlement of
market with a lower bidder, I find that there is a clear
statutory bar to settle the market with a bidder other than the
highest bidder, either by the Anchalik Panchayat or by the
Zila Parishad, without prior and formal approval from the
Government. I do not deem it necessary to dwell-upon this
legal issue in detail since the language in Rule 47 (10) is clear
and unambiguous and in a number of decisions, this Court
has also held so.
11.
In the judgment of the Hon’ble Supreme Court,
rendered in the case of Vijay Bahadur Singh (supra), it has
been observed that though the Government has the right not
to accept the highest bid but there should be good and
sufficient reasons for accepting the lower bid. In my
considered opinion, if the tenders are invited for settlement
of Government largesse the theory of “settlement with the
highest bidder” should normally be followed and it is the
rule. In the present case, the private respondent’s offer was
second from the bottom amongst 22 bidders. Hence,
practically, the theory of “settling with the lowest bidder”
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 9 of 12
has been adopted by the Zila Parishad, which cannot be
approved in the garb of “public interest”.
12.
In the resolution of the Standing Committee,
there is no deliberation as to how the Anchalik Panchayat or
the Zila Parishad would be benefited by settling the market
with the second lowest bidder and why the lowest bidder
was not considered for settlement, whose bid was more
nearer to the official bid, if the argument of the Government
Counsel that other bids were too high. Admittedly, in the
previous year also, the same authority had settled the market
with the highest bidder. The other admitted fact is that the
previous lessee had at least paid half of the settlement
amount, that is, more than Rs. 15,00,000/- and despite this
fact, the Anchalik Panchayat fixed the official bid at Rs.
3,30,300/- for the year 2010-2011. The official bid was
increased only by Rs. 200/- from the previous year’s official
bid, although the previous lessee had quoted more than Rs.
30 lacs and was able to deposit more than Rs. 15 lacs. Besides
this, as many as 18 bidders had quoted more than Rs. 17 lacs
and the highest bidder offered Rs. 39,68,499/-. Hence, by no
stretch of imagination it can be said that the offer of private
respondent, i.e., Rs. 16,74,428/- was the best offer.
13.
In the case of Indrajit Konwar –Vs- The State of
Assam & Others (WP(C) No. 2792 of 2010), this Court has
observed that if the settling authority takes a decision to
settle any market at a reasonable rate it is obliged to
communicate the reasonable rate in the tender notice. In the
case of Dutta Associates Pvt. Ltd. –vs- Indo Merchantiles
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 10 of 12
Pvt. Ltd. & Others; reported in (1997) 1 SCC 53, the Hon’ble
Supreme Court has observed that awarding of any supply
order to a particular tenderer, sidelining other acceptable
offers, on the ground that the bid of other tenderers were not
within the “viability range” cannot be accepted unless the
“viability range” is mentioned in the NIT itself.
14.
In the case before me, there was no such
stipulation in the NIT and as such, the tenders of higher
bidders could not have been summarily rejected. On the
basis of previous experience, if the settling authority was of
the view that it would not be in the public interest to settle
the market at more than a specified amount it should have
indicated so in the tender notice. I am also of the view that if
the settling authority takes an opinion that a lessee with
exorbitant offer may not be able to run the market for the
entire period the authority can put stringent conditions in the
settlement order. For instance, the said authority may insist
payment of bid money well in advance. Be that as it may, the
legal principle is that after floating the tender the settling
authority is prohibited to change the rules and conditions of
the game.
15.
In the present case, the Zilla Parishad has
whimsically taken the decision that the market should not be
settled with the highest bidder in the public interest. In my
considered opinion, settling a market with the highest bidder
would equally be in public interest. Hence, I hold that the
highest bidder’s tender has been rejected on insufficient and
untenable grounds by the settling authority.
WP(C) Nos. 4457, 4066 & 4716 of 2011
Page 11 of 12
16.
For the foregoing reasons the Nowjan Weekly
Bazar settled with the private respondent Sri Jashoda Ranjan
Nag vide impugned order dated 03.07.2011, is hereby set
aside. The Zila Parishad is directed to settle the market with
the highest bidder, provided, his bid is valid in all respects. If
the tender of the highest bidder is found to be defective the
settling authority shall proceed to consider the next bidder
chronologically. The Zila Parishad is directed to settle the
market afresh, within a period of one week from the date of
production of a certified copy of this judgment.
17.
Since the Zila Parishad has flouted the statutory
provision of Rule 47 (10) of the Assam Panchayat (Financial)
Rules, 2002, san any reason, all the writ petitions are allowed
with cost of Rs. 30,000/-. The cost shall be paid by the Zila
Parishad @ Rs. 10,000/- to each of the writ petitioners.
JUDGE
dtg
WP(C) Nos. 4457, 4066 & 4716 of 2011
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