High Court · 2009

Petitioner by the present petition has challenged the communication (Ann exure-5) and the WT Message (Annexure-5/A), both dated 8.10.09 issued by the Chi ef Executive Officer, Goalpara Zilla Parishad, intimating the Block Development Officer, Jaleswar, who is the Executive Officer of the Jaleswar Anchalik Panchay at not to take any action regarding the NIT till disposal of the review applicat ion filed by Zilla Paishad seeking review of the order dated 16.9.2009 passed in WP(C) No.6906/2009. I have heard Mr MH Rajborbhuyan, learned counsel for the petitioner; Mrs HM Phukan, learned state counsel, appearing for the respondent nos.1 to 3; and Mr H. Buragohain, learned counsel for respondent No.4. None appears for responde nt nos.5 and 6. The NIT dated 4.9.09 initially issued by Goalpara Zilla Parishad invitin g tenders for settlement of Chattaimari Pashu Hat falling within the jurisdictio n of the Jaleswar Anchalik Panahayat was challenged before this Court by the pre sent petitioner in WP(C) No.3906/09 on the ground that the Zilla Parishad under the provisions of the Assam Panchayat Act, 1994 had no jurisdiction to issue suc h NIT. The said writ petition was decided on 16.9.09 by following the ratio laid down by a Full Bench of this Court in Harej Ali & Ors vs. State of Assam & Ors, reported in 2009 (2) GLT 561, by holding that the Zilla Parishad has no jurisdi ction to issue NIT. By the said order, the Jaleswar Anchalik Panahayat was direc ted to issue NIT and to complete the process of settlement within a period of on e month and the interim arrangement made by the Zilla Parishad was directed to c ontinue during the said period. Consequently, the Jaleswar Anchalik Panchayat is sued the NIT dated 23.9.09 inviting tenders from intending tenderers for settlem ent of the said Hat fixing 9.10.09 as the last date for submission of tender. Th e Zilla Parishad thereafter, issued the impugned communication and the WT messag e, both dated 8.10.09 asking the Anchalik Panahayat not to take any action relat ing to settlement of the Hat in question and hence, the present writ petition. Mr Rajborbhuyan, learned counsel for petitioner, has submitted that sinc e the review petition filed by the Zilla Parishad being Misc Case No.2698/09 see king review of the order dated 16.9.09 passed in WP(C) No.3906/09 has been dismi ssed on 11.11.09, the Anchalik Panchayat is required to proceed and complete the tender process initiated by issuing the NIT dated 23.9.09 and hence, necessary direction may be issued to the Anchalik Panchayat to do the needful in that rega rd in accordance with the provisions of Assam Panchayat Act, 1994. Mrs Phukan, learned state counsel, appearing for the respondent nos.1 to 3, has submitted that in view of the Full Bench decision of this Court in Harej Ali(supra), the Anchalik Panchayat is the sole authority to issue the NIT and t o process the tenders in accordance with law, and if any tenderer offers the bid amount of Rs.1 lakh or more, the entire papers have to be sent to the Zilla Par ishad for taking a decision in that regard, otherwise it is within the jurisdict ion of the Anchalik Panchayat to settle, with the approval of the Zilla Parishad . Mrs Phukan, therefore submits that since the review petition filed by the Zill a Parishad has been dismissed, the Anchalik Panchayat should proceed with the te nder process initiated vide NIT dated 23.9.09. Mr H. Buragohain, learned counsel for the respondent no.4, has submitted that under Rule 47(3) of the Assam Panchayat (Financial) Rules, 2002, a wide pu blicity is required to be given, which has not been done in the instant case and in fact, the copy of the NIT issued by the Anchalik Panchayat on 23.9.09 was se nt to the office of the Zilla Parishad only on 13.10.09. Mr Buragohain, therefor e submits that since the review petition filed by Zilla Parishad has been dismis sed, the Anchalik Panchayat is to initiate the fresh process by issuing fresh NI T in terms of the Full Bench decision of this Court in Harej Ali (supra). A Full Bench of this court in Harej Ali (supra) has held that the Anchalik Panch ayat under the provisions of the Assam Panchayat Act, 1994 is to issue the NIT. In the event any tenderer offers the bid amount Rs.1 lakh or more, the Anchalik Panchayat ceased to have the jurisdiction to pass the order of settlement and it has to forward all the papers to the concerned Zilla Parishad for making settle ment pursuant to the NIT to be issued by the Anchalik Panchayat. However, in cas e the bid value is less than Rs.1 lakh, the Anchalik Panchayat is the authority to make settlement subject to approval of the Zilla Parishad. In the instant case, pursuant to the order dated 16.9.09 passed in WP(C) No.3906 /09 the Anchalik Panchayat issued the tender notice dated 23.9.09 fixing 9.10.09 as the last date for submission of tender. The Zilla Parishad vide impugned com munication and the WT message, both dated 8.10.09 directed the Anchalik Panchaya t not to proceed with the settlement of the Hat since a review petition has been filed seeking review of the order dated 16.9.09 passed in WP(C) No.3906/09. Adm ittedly, the said review petition filed by the Zilla Parishad has been, in the m eantime, dismissed on 11.11.09. That being the position, there is no impediment on the part of the Anchalik Panchayat to proceed with the process for settlement of the Hat in question initiated by issuing NIT dated 23.9.09. However, since before expiry of the last date for submission of the tender, the Zilla Parishad by the impugned communication and the WT Message, both dated 8.10.09 stopped the process, ends of justice requires giving further opportunity to other intending bidders who could not submit their tender papers, because of the impugned commu nications, so that they can submit their tenders, if they wish. The contention o f the Zilla Parishad that proper publication of the NIT dated 23.9.09 has not be en made, cannot be accepted in the absence of any challenge to the same. In view of the aforesaid position, the present writ petition is disposed of with a direction to Jaleswar Anchalik Panchayat to issue a notice granting 7 (seven) days more time, from the date of issuance of such notice, intimating all concerned that the intending bidders may file tender papers within the aforesai d period of 7 days. Such notice shall be issued by the Anchalik Panchayat within a period of 10(ten) days from today. The copy of such notice shall be sent to t he authorities concerned to whom those notices are required to be sent under Rul e 47(3) of the Assam Panchayat (Financial) Rules, 2002, on the date of issuance of such notice. Needless to say that the tender papers already submitted by the tenderers pursuant to the NIT dated 23.9.09 shall also be taken into considerati on and they need not file any fresh tender papers. The Anchalik Panchayat therea fter shall proceed with the tender process in accordance with law as well as in terms of the judgment passed by a Full Bench of this court in Harej Ali (supra). The entire exercise is directed to be completed within a period of one month fr om the date of issuance of such notice by the Anchalik Panchayat. Till the fina l order of settlement is passed, the Anchalik Panchayat shall manage the Hat in question departmentally without allowing any of the bidders to operate the same. The writ petition accordingly stands disposed of. No costs.