High Court
Case Details
WA 364/2013 BEFORE HON’BLE MR. JUSTICE A.M.SAPRE, THE CHIEF JUSTICE HON’BLE MR. JUSTICE A .K.GOSWAMI (AM Sapre,CJ)
Legal Reasoning
This is an intra-court appeal filed by Respondent No.7 of WP(C) 4323/201 3 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the ord er dated 30.10.2013 passed by the learned Single Judge in abovementioned writ petition.
Decision
By impugned order, the writ court (Single Judge) allowed the writ petiti on and in consequence quashed the settlement order dated 17.7.2013 (annexure-3 t o the writ petition) passed by the CEO, Barpeta Zilla Parishad in relation to M ilijuli Haat in favour of Respondent No.7. So the short question which arises for consideration in this writ appeal is whether writ court (Single Judge) was justified in allowing the writ petitio n and in consequence was justified in cancelling the settlement order dated 17.7 .2013. Facts of the case lie in a narrow compass:- The matter relates to settlement of Milijuli Haat. On 14.5.2013, a tende r notice was issued by the Executive Officer of the Mandia Anchalik Panchayat fo r settlement of Milijuli Hat .There were in all 16 persons who submitted their t ender.The petitioner and respondent no 7 were amongst 16 who had submitted their respective tenders. On scrutiny, the petitioner was found 3rd highest whereas t he respondent no 7 (appellant) was at 5th position. It was, however, noticed tha t tenders submitted by the first two bidders, had certain defects in their tend ers and hence, both were declared invalid and this is how the petitioner claimed to be the highest bidder to get the settlement in his favour. The CEO, Barpeta Zilla Parishad, however, ignored petitioner’s tender and procee ded to accept the tender of the respondent no 7 and by order dated 17.7.2013 gra nted settlement in his favour. The petitioner being aggrieved, filed the writ pe tition out of which this intra-court appeal arises, questioning the grant made i n favour of the appellant (respondent no 7) as being bad in law. The stand taken by the respondents to the writ petition in reply to the case of the petitioner was that petitioner’s tender was also defective in as muc h as he did not file along with his tender (cid:28)land availability certificate (cid:29) as pe r tender condition. It was, therefore, contended that due to this defect, his te nder was not considered on merits and was rejected as being invalid and as the t ender of the respondent no 7 was found conforming to all the terms and condition s of the tender notice, being the next highest amongst those who had remained in the fray, the same was accepted and order dated 17.7.2013 was issued granting s ettlement. The petitioner, however, in reply to the aforesaid stand in the rejoinder affid avit, contended that he had filed the copy of the (cid:28)land availability certificate (cid:29) along with the tender and hence, his tender should not have been rejected on s uch ground and instead it should have been considered on merits treating it to b e valid as against the respondent no 7. The learned Single Judge by impugned order allowed the writ petition and quashed the order of settlement. In Para 10 of the impugned order, the learned Single J udge held that since the land certificate was already issued to the petitioner p rior to submission of the tender, there was every possibility that he must have enclosed the same along with the tender and someone must have mischievously remo ved it from petitioner’s tender. This is what was held in Para 10 and the concluding Para of the impugned order As regards the land holding certificate, the petitioner applied for the : (cid:28)10. same to the Circle Officer and it was issued to him prior to submission of tende r. Therefore, I am of the view that the possibility of mischievous removal of th e land holding certificate by the settling authorities cannot be ruled out, as i t is highly improbable having secured the land holding certificate, the petition er failed to enclose the same with his tender, which was filed subsequently on 1 3.06.2013. 12. In the above circumstances, I am of the view that disregarding the highest v alid bid of the petitioner was unjustified and on this basis, it is held that th e settlement order granted to the respondent No.7 cannot be sustained. According ly, the order dated 17.07.2013 (Annexure-3) issued by the C.E.O., Barpeta Zilla Parishad granting settlement of the Majuli Haat to the Respondent No.7 is quashe d. Since several months of the settlement period still remains, the Barpeta Zill a Parishad should now issue another settlement order for the balance period by c onsidering the petitioner to have submitted a valid tender. (cid:29) It is against this order, the respondent no 7 felt aggrieved and filed this intr a court writ appeal. Submission of the learned counsel for the appellant was essentially one. Accordi ng to him, when even the learned Single Judge failed to record a categorical fin ding in petitioner’s favour that he had actually filed the land certificate alon g with the tender, then in such eventuality, there was no basis for allowing the petition. The learned counsel urged that the finding of the learned Single Judg e was based on (cid:28)presumption (cid:29), namely, that petitioner might have filed the land certificate because he was already having it at the time of submitting the tende r or/and secondly, the certificate might have been removed by some mischievous p erson from petitioner’s tender. Learned counsel urged that, in fact, no such fin ding was capable of being returned in writ petition, it being purely a question of fact and further, there was no material available on record for recording suc h finding and lastly, the petition could not have been allowed on assumption and presumption. In reply, learned Counsel for the respondent (writ petitioner) supported the imp ugned order and urged for upholding the same. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, and while setting aside the impu gned order, dismiss the writ petition. With a view to verify the fact as to whether writ petitioner had actually filed the land certificate along with his tender, we directed the concerned Parishad t o produce the original record before us. It was accordingly produced. The record reveals that the certificate was not in the file. There was also no evidence to suggest even remotely that any attempt was made to remove such document, though filed. There was also no evidence to prove that it was actually filed. The peti tioner also never raised any objection subsequent to submission of his tender co mplaining its removal from the file. Even after coming to know of this fact, he did not raise any objection. In the light of these infirmities, we are unable to agree with the finding of th e writ court. In our view, none of the infirmities which had a material bearing over the issue were taken into consideration. The writ court, therefore, erred i n recording a finding based on presumption for which there was no material. Ther e might be myriad reasons for non- filing of a document by the petitioner despit e its so called availability with him and we cannot possibly probe any such caus e. It is not permissible in writ petition. The fact remains that certificate of land was not filed along with tender. In order to allow the writ petition, it wa s necessary for the writ court to have recorded a categorical finding in petitio ner’s favour that it was actually filed as required under the terms of the Tende r condition thereby entitling him for being considered on merits qua other valid tenderers. In our considered view, since the petitioner failed to ensure compliance of one of the material terms in the tender notice relating to filing of land certificat e along with the tender, his tender was rightly rejected at its threshold as bei ng invalid. Such rejection in our opinion should have been upheld. In the light of foregoing discussions, we are unable to concur with the reasonin g and the conclusion arrived at by the writ court and respectfully disagreeing w ith the same, allow the appeal and set aside the impugned order. As a consequenc e, we dismiss the writ petition out of which this writ appeal arises and in turn , uphold the order of settlement dated 17.7.2013 impugned in the writ petition. No cost.