High Court · 2009

Panchayat in the District of Dibrugarh for the period 2009-10. I have heard Mr. S. Borthakur, learned counsel for the petitioner, Ms R. Chakrab orty, learned Addl. Sr. Govt. counsel appearing for the respondents No.1 and 2 a nd Mrs. VL Sinha, learned counsel appearing for the respondent No.4. Non appears on behalf of the remaining respondents in spite of proper service of notice. The Executive Officer, Khowang Anchalik Panchayat issued an NIT inviting tenders for settlement of the various hats/bazaars/ghats falling within its jurisdictio n including the Moran Khat Khati Daily Market. The minimum rate fixed by the Pa nchayat authority for settlement of the said market was at Rs. 31,000/- for the period from 1.7.09 to 30.6.10. In pursuance to the said NIT the petitioner and s even others submitted their respective tenders. The petitioner offered the highe st bid amounting to Rs. 53,000/- but ignoring the highest bid offered by the pet itioner, the market in question was settled with the respondent No.6 who offered the bid amounting to Rs. 37,500/-. Accordingly, aggrieved by the aforesaid orde r, the petitioner has approached this court by filing this writ petition. Mr. Barthakur submits that the petitioner having offered highest bid the respon dent authorities have committed illegality on the face of the record by not sett ling the market with him. It is further contended that the respondent No.6 havin g offered bid of Rs. 37,500/- and settling the market with such lower bidder, it is incumbent upon the authority to obtain prior formal approval from the Govt. in terms of the Assam Panchayat (Financial) Rule and in the instant case no suc h prior formal approval from the Govt. has been obtained before settling the mar ket in favour of the respondent No.6 vide order dated 30.6.09. Consequently, the action of the respondents are illegal, unjust and improper and liable to be int erfered with. Mrs. VL Sinha, learned counsel appearing for the respondent No.4 has produced th e connected records and on the basis of the parawise comments so received , lea rned counsel submits that the bid amount offered by the petitioner is exorbitant and in the event of settling the market accepting such exorbitant rate, the poo r market goers of the locality will suffer financially. It is further contended that the tax clearance certificate submitted by the petitioner which is require d to be submitted in terms of the NIT, in respect of the concerned Gaon Panchaya t is found to be defective one inasmuch as the submitted certificate was issued by the President of the Gaon Panchayat. Learned counsel further submits that the Govt. has empowered the Anchalik Panchayat to settle the market falling below R s. One lac and in such sense the formal approval of the Govt. is not necessary . Ms R. Chakraborty, learned Addl Sr. Govt. Advocate, however, referring to Rul e 47 (10) of the Assam Panchayat (Financial) Rule 2002 submits that as per the s tatutory Rule such prior formal approval from the Govt. is necessary, if the ten der other than the highest bidder is accepted. Submissions of the learned counsel received due consideration of the court. Con nected records pertaining to settlement of market in question produced by Mrs. VL Sinha has also been perused. As indicated above, altogether eight tenderers s ubmitted their respective tender in terms of the NIT issued by the Anchalik Panc hayat for getting settlement of Moran Khat Khati daily market. The bid offered by the tenderers are as follows : 1. Mileswar Borgohain 2. Munindra Gogoi 3. Kamal Das 4. Sankar Das 5. Mantu Bhuyan 6. Gagan Gowala 7. Apurba Tanti The tenders so submitted by the respective tenderers were duly scrutinized in th e office of Anchalik Panchayat and comparative statement of the tenders was als Rs. 53,000/- Rs. 51,100/- Rs. 48,000/- Rs. 41,000/- Rs. 39,000/- Rs. 37,000/- Rs. 37,000/- o prepared. In the said comparative statement in the remark column in respect of the petitioner it is stated that the tender has proposed to pay the entire kist money in one instalment, if the instalment is made in his favour, but No Dues C ertificate submitted by him by the Gaon Panchayat is found to be defective. Upo n scrutiny of the record it is found that the petitioner submitted No Dues Cert ificate from the Gospuria Gaon Panchayat issued by the President of the Gaon Pa nchayat which clearly states that there is no dues of tax payable by the petitio ner in respect of the Gospuria Gaon Panchayat upto 2009-10. In the tender notice , there is no specific requirement from which authority such certificate is to b e furnished. Admittedly, the President of Gaon Panchayat is an authority under t he Act and in the absence of any law the President is not debarred from issuing such certificate. The statement made in the remark column against the petitione r as regards No Dues Certificate issued by the Gaon Panchayat cannot be accepte d. The said certificate is found to be correct and proper in all respect. From t he rates offered by the various tenderers as reflected from the comparative stat ement as well as from the record it is established that the petitioner is the hi ghest bidder amongst the tenderers. Section 105 of the Assam Panchayat Act, 1994 empowers the Anchalik Panchayat t o settle the hats falling within its jurisdiction and procedures for settlement are provided in the Rules framed under the Act namely, Assam Panchayat (Financia l) Rules, 2002. Rule 47 (10) provides that the tender of the highest bidder shal l be accepted and acceptance of tender other then highest bidder shall require G overnment’s prior and formal approval. Settlement of Hats/Bazars etc. is one of the main sources of revenue of the Panc hayat. The amount received by way of settlement is one of main source of income of the Gaon Panchayat and the amount so received by the Panchayat authority is utilized in the welfare activities in the locality. Thus earning of revenue is t he sole purpose of the settlement of such market. Hence, it should be the endeav our of the Panchayat authority to settle such market at the best available pric e. In the instant case, the petitioner offered Rs. 53,000/- whereas the respondent No.6 offered Rs. 37,500 which is lower by Rs. 15,500/- and by settling the mark et with the respondent No.6, the Panchayat authority is loosing revenue of Rs. 1 5,500/- which neither can be ignored nor can be stated to be in the public inter est. No prior formal approval of the Government was also obtained by the respond ent authorities before settling the market in question in favour of the responde nt No.6. That apart, in between the petitioner and the respondent No.6 there are other tenderes As no specific and plausible reason has been provided by the Pa nchyat authority to settle the market in favour of the respondent No.6. In the N IT there is no fixation of the highest bid to be offered by any tenderer. In the absence of fixation specific higher bid in the tender notice such principle is not permissible to adopt at the time of settlement inasmuch as such action woul d violate the basic principle of fairness and natural justice. Hence the consid eration for passing the impugned order of settlement in favour of the respondent No.6 is vitiated on such counts. The tender submitted by the petitioner was sta ted to be defective not on any ground but on the ground that No Dues Certificate was submitted from the President of the Gaon Panchayat. The petitioner having submitted a valid tender with all necessary requirements mentioned in the NIT and having offered highest bid, his tender was required to be accepted but the same has not been done on the ground which are not sustainab le in law. The Panchayat authority in arriving at the decision has committed err or in the decision making process by ignoring the provision of the statute and the Rules framed thereunder as indicated above including various dictum of this court regarding settlement of the market in favour of the highest bidder. In view of the above discussion I am of the view that the petitioner has been ab le to make out a case for interference with the impugned order of settlement whi ch I hereby do. Accordingly, the impugned order of settlement dated 30.6.09 sett ling the market in favour of the respondent No.6 stands set aside and quashed. P ancyat authority is directed to settle the market in the manner as indicated her einabove. Necessary order for settlement shall be given within a period of two weeks from the date of receipt of the certified copy of this order. In the result, writ petition stands allowed. No cost.