Dalgaon Sialmari Anchalik Panchayat v. Single Judge

3. The learned Single Judge allowed the said writ petition by direc ting the Anchalik Panchayat to forward the tender papers to the Darrang Zila Par ishad without opening the sealed tenders and that on receipt of the tender paper s, the Zila Parishad should proceed to settle the markets. Aggrieved by the said order, the Anchalik Panchayat has preferred the appeal.

4. rnment Advocate, Assam appears on behalf of the State respondents. None appears for the appellant, while Ms. B. Goyal, learned Gove

5. Though the period of settlement covered by the NIT was for a per iod of one year and had expired on 30-06-2011, the appeal is taken up for consid eration as the issue involved would have a bearing on future settlements of the Anchalik Panchayat and appears to be in conflict with a full bench judgment of t his Court. Section 105 of the Act provides for settlement of hats by Anchal 6. ik Panchayats. Though Section 109 of the said Act provides for settlement of fis heries, Sub-section (6) of the said section deals with settlement of hats, ferri es and fisheries, the yearly sale value of which is more than rupees one lakh. T he said provision is quoted hereunder for ready reference:- (cid:28) The Hats, Ferries and Fisheries falling under any Anchalik Panchayat within th e jurisdiction of Zilla Parishad the yearly sale value of which is more than rup ees one lakh shall be settled by the Zilla Parishad concerned for a period coinc iding with and not exceeding one Panchayat Financial year as under Section 105, 106 and 109 in the manner prescribed. The powers of examination and final accept ance of such tenders shall be vested in the Standing Committee as under Section 81(i)(a). The distribution of sale proceeds shall be in the manner as prescribed in the foregoing sections (cid:29).

7. A careful reading of the said provision would indicate that a ha t falling under an Anchalik Panchayat within the jurisdiction of a Zila Parishad , whose yearly sale value is more than rupees one lakh shall be settled by the Z ila Parishad for one panchayat year in the manner prescribed under section 105. As can be seen from the above, the crucial expression in the said provision is (cid:28) yearly sale value (cid:29).

8. A full bench of this Court in the case of Harez Ali and another -vs- State of Assam and others reported in 2009 (2) GLT 561 had examined the ab ove expression and held that it would mean the highest bid amount that is offere d by the eligible bidder. The full bench further held that considering the provi sions of Sections 105, 106 and 109 of the Act, irrespective of the bid value fix ed by the authority, the NIT is issued by the President of Anchalik Panchayat. I f the bid value of the eligible highest bidder is less than rupees one lakh, the Standing Committee of the Anchalik Panchayat will examine and make the settleme nt but forward it to the Zila Parishad for confirmation. On the other hand, if t he bid value of the eligible highest bidder is found to be more than rupees one lakh, the Standing Committee of the Anchalik Panchayat shall immediately forward all such tenders papers together with the comparative statement to the Zila Par ishad for settlement. The full bench has held that the question of jurisdiction between the Zila Parishad and the Anchalik Panchayat would remain indecisive til l the submission and opening of the tender papers. Therefore, from a reading of the full bench judgment, it is clearly evident that at the first instance, the t enders would have to be opened by the Anchalik Panchayat to find out the bid val ue of the bidders, dependent upon which the settlement would be made either by t he Anchalik Panchayat or by the Zila Parishad. The relevant portion of the full bench judgment is quoted hereun

9. der for ready reference :- (cid:28) 26. As stated earlier, ’yearly sale value’ is not a defined expression in ’t he Act’. The ’Yearly sale value’ of all Ghats, Hats and Fisheries, under the jur isdiction of the Anchalik Panchayat, which are settled by way of tender system, for a period one Panchayat year, is dependent upon the highest bid value offered by the eligible bidder. Thus, yearly sale value of any property settled by way of tender system may differ each year. When a property such as Ghats, Hats and F isheries under the Anchalik Panchayat is put in tender by issuing NIT, for the p urpose of settlement, for one year, it’s yearly sale value cannot be fixed by th e Anchalik Panchayat or any other authority in question, as because it is depend ent on highest bid value, offered by eligible bidder, which is finally accepted for settlement by the concerned authority. Nevertheless, in a system of settleme nt by inviting tender, it is the choice of the authority inviting tender to indi cate a minimum value of the property but in tender for settlement, which the aut hority inviting tender expects it to fetch. Therefore, yearly sale value of all Ghats, Hats and Fisheries under the Anchalik Panchayat put in tender for settlem ent would mean the highest bid amount that is offered by the eligible bidder, in terms of the provision of the Act.

27. Provisions of Sections 105(1), 106 (1) and 109(1) of the Act, in respect of inviting tenders of property under the control of Anchalik Panchayat, make i t clear and specific that irrespective of price-tag or bid value fixed by the au thority concerned in respect of Hats, Ferries and Fisheries, the NIT is issued b y the President of the Anchalik Panchayat. After having floated the tenders, if the bid value of the eligible highest bidder is less than Rs.1 lakh, the Standin g Committee of Anchalik Panchayat will examine and accept the tenders of the hig hest eligible bidder and forward it to the Zilla Parishad, for confirmation, in terms of the sub-sections (4) of Sec. 105 sub-sections (4) 106 sub-sections (4) of Section 109, as the case may be. It may be clarified that irrespective of yea rly sale value being less than rupees one lakh, it is mandatory on the Anchalik Panchayats to forward all such tender papers, comparative chart and other relate d papers to the Zilla Parishad, for confirmation of settlement made by Anchalik Panchayat. It may be pointed out that any settlement made in respect of Hats, Fe rries and Fisheries without such confirmation by the Zilla Parishad, will not be a legally valid settlement.

28. In view of the above interpretation, without lingering the discussion an y more, we respectfully disagree with the views that the value fixed by the Panc hayat with regard to Ghat, Hats and Fisheries, prior to issuance of NIT, would b e ’the yearly sale value’ of the property, in question, for the purpose of decid ing jurisdiction of Anchalik Panchayats and Zilla Parishad to invite tenders.

29. Further, we also respectfully disagree with the view taken by the Single Bench in Khalilur Ramhan -Vs- State of Assam (supra), to the effect that ’the q uestion of jurisdiction between Zilla Parishad and Anchalik Panchayat would rema in indecisive till the submission and opening of the tender papers’, as because the procedure laid down by ’the Act’, is precisely clear that all NITs, in respe ct of Ghats, Hats, Fisheries, irrespective of the ’yearly sale value’ of such pr operty in question, are required to be floated by the Anchalik Panchayat. Howeve r, after submission of all tender papers before the Anchalik Panchayat, if the b id value offered by the eligible highest bidder is found to be more than rupees one lakh, the Standing Committee of Anchalik Panchayat, constituted under Sectio n 52 of the Act, shall immediately forward all such tender papers submitted by t he bidders together with comparative chart prepared and processed as per procedu re prescribed, to the Zilla Parishad concerned, for doing needful at their end, in accordance with law. However, in case the bid value offered by eligible highe st bidder is less than rupees one lakh, the Standing Committee of the Anchalik P anchayat shall accept tender value offered by eligible highest bidder and forwar d such recommendations for confirmation by the Zilla Parishad. We hasten to add here that if any given case, the highest bidder is not found suitable, law presc ribed, for such eventuality will have to be followed (cid:29). It appears that the full bench judgment was not brought to the n 10. otice of the learned Single Judge. The learned Single Judge in the order impugne d directed as follows :- (cid:28)Section 105 is very specific and unambiguous as regards the entitlement of conc erned Zilla Parishad in settling the market whose value is more than 1 lakh and in the instant case the value of the markets in question as indicated, are more than 3 lakhs. Accordingly, this writ petition is disposed of with the direction that the tende r papers so received by the Dalgaon Sialmari Anchalik Panchayat through any of i ts officer shall forthwith transmit and forward to the Darrang Zilla Parishad fo r necessary settlement and forward to the Darrang Zilla Parishad for necessary s ettlement thereof. It is further directed that the Anchalik Panchayat authority shall not open any of the sealed tender submitted by any of the tenderers in res pect of the said three markets. Upon receipt of the tender documents, the Darran g Zilla Parishad shall open the tender papers and proceed to settle the markets in accordance with the provision of Assam Panchayat Act (cid:29).

11. rary to the decision of the full bench in Harez Ali (supra). Apparently, the view taken by the learned Single Judge runs cont

12. In view of the aforesaid, the order dated 21-05-2010 passed by t he learned Single Judge in W.P.(C) No.2869/2010 is hereby set aside with the dir ection that the appellant Anchalik Panchayat shall follow the directions contain ed in the full bench judgment in Harez Ali (supra) while making settlement of ha ts etc. which are under its jurisdiction.

14. Writ appeal accordingly stands allowed. No cost.