High Court
Case Details
WP(C) 5123/2013 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
The matters pertain to settlement of the Alikash Weekly Open market, Alikash Wee kly Cattle market and the Alikash Daily Vegetable market, for which the NIT date d 23.4.2013 was issued by the Dalgaon Sialmari Anchalik Panchayat, Kharupetia. S ince tenders of higher bidders have not been considered and settlement was grant ed to lower bidders, they challenge the settlement granted to the private respon dent(s), by the Darrang Zilla Parishad, Mangaldoi. 2. But since complaint of settlement through illegal process was received, the Government intervened in the matter and through the order dated 4.9.2013, ca ncelled the settlement granted by the Darrang Zilla Parishad of these 3 markets for the year 2013-2014. Consequential direction for re-tendering of the markets was issued for the balance period. Thereafter the aggrieved settlement holders have filed the WP(C) No.5489 3. /2013 (Alikash Weekly Open market), WP(C) No.5393/2013 (Alikash Daily Vegetable market) and WP(C) No.5477/2013 (Alikash Weekly Cattle market). The settlement ho lders contended that hearing was not afforded by the Government before the settl ement order was cancelled and accordingly interim order was passed by the Court staying the settlement cancellation order. Therefore the settlement holders cont inue to operate the three markets in question. 4. I have heard Advocates Mr. T Islam and Mr. A Matin for the petitioners. The 3 settlement holders are represented by Advocates Mr. J Islam and Mr. S Nath . The Govt. Advocate Ms. B Dutta appears for the State of Assam, whereas the Dar rang Zilla Parishad and the Dalgaon Sialmari Anchalik Panchayat, Kharupetia are represented by Mr. J Handique, learned Govt. Advocate. According to the aggrieved tenderers, the settlement was illegally grant 5. ed by ignoring the higher bids offered by the petitioners. They contend that the ir bids were erroneously declared to be defective, although they had submitted a ll supporting documents along with their tenders. Accordingly they argue that ig noring of the higher bids was not justified since higher bids are to be accepted under Sub-Rule (10) of Rule 47 of the Assam Panchayat (Financial) Rules, 2002. Here it is admitted that the Government had not accorded approval to acceptance of the lower bids. 6. In WP(C) No.5477/2013, the Government has filed a counter affidavit, whe re in para 6 it is averred that the Zilla Parishad failed to process the tenders upon proper scrutiny of documents and accordingly a defective competitive state ment was wrongly made the basis of settlement. Having detected the irregularitie s, the markets were directed to be settled through a fresh process. Moreover the Joint Secretary, Panchayat & Rural Development Department was asked to inquire into the irregularities and the inquiry report is now awaited. 7. Representing the 3 settlement holders, who are affected by the Governmen t’s cancellation order of 4.9.2013, Mr. S Nath and Mr. J Islam argues that their clients were settled with the Alikash Weekly Open market, Alikash Weekly Cattle market and Alikash Daily Vegetable market after observation of all formalities and the adverse findings recorded against the process of settlement should have been preceded by an opportunity to the settlement holders, as it is they who are affected by the cancellation order. 8. On behalf of the tenderers, who challenged the settlement granted to the private respondents, it is argued that their valid tenders were irrationally re jected without proper application of mind and accordingly they argue that settle ment should either be given by scrupulous adherence to Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 or there should be a fresh settlement process, as was ordered by the Government. 9. Representing the Panchayat Authorities, the Govt. Advocate Mr. J Handiqu e submits that the Panchayat Authorities are prepared to issue a fresh tender no tice as was directed by the Government. I have considered the rival submissions and found that some of the highe 10. r bids were wrongly declared to be invalid without proper justification and cons equently these higher bids should have been taken into account while considering settlement. But at the same time the settlement holders were not afforded any h earing before cancellation of settlement was ordered by the Government on 4.9.20 13. It further appears that the inquiry report is not yet given by the Joint Sec retary of the Panchayat & Rural Development Department. 11. ctions: In the above backdrop, I deem it appropriate to issue the following dire (i) Fresh tender notice may be issued for the Alikash Weekly Open ma rket, Alikash Weekly Cattle market and the Alikash Daily Vegetable market in ter ms of the Government order dated 4.9.2013 and interested tenderers including the parties before the Court may give their tenders without prejudice to their resp ective contentions. (ii) Since the present three settlement holders contend that they wer e not afforded any hearing before cancellation of the settlement, the inquiry of ficer i.e. Mr. R Das, Joint Secretary, Panchayat & Rural Development Department should provide an opportunity to the settlement holder to have their say, if the y immediately file representation in support of their respective stand. Hearing may also be afforded to the Darrang Zilla and the Anchalik Panchayat authorities . Thereafter the inquiry finding should be given expeditiously on or before 25.1 1.2013. (iii) The tenders which are received in pursuant to the re-tender noti ce may be processed in the meantime. However de novo settlement order(s) for the balance period should be issued only if, the inquiry report confirms the settle ment cancellation order passed by the Government on 4.9.2013 was justified. The fresh tenders should be considered on merit in accordance with law. (iv) Subject to outcome of the inquiry, the new settlement orders should be i ssued on or before 2.12.2013. until this exercise is complete, the present arran gement on operations of the three markets will continue. However the lessees who are operating the markets on the strength of the settlement order(s) dated 31.7 .2013 and 2.8.2013, should not be allowed to continue beyond 9.12.2013 and for t he balance period the new lessees must be put in possession before this date. Ob viously the new arrangement will be made only if the inquiry finding confirms th at settlement was granted without following the due process. 12. rders will merge with this final order. 13. A copy of this order be furnished to Govt. Advocates Ms. B Dutta and Mr.
Decision
With the aforesaid direction, these cases are disposed of. The interim o J Handique for necessary communication.