High Court
Case Details
WP(C) 3769/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL)
Legal Reasoning
8. A Full Bench of this Court in Harez Ali and Anr. Vs. State of Assam an d Ors. reported in 2009(2) GLT 561 has held that it is the President of the Anc halik Panchayat who is empowered to issue NIT for settlement of markets,ferries and fisheries falling under its jurisdiction. Zilla Parishad is only empowered to examine and finally accept such tenders if the bid value is more than Rs.1, 00,000.00. If the bid value is more than Rs.1,00,000, the Standing Committee of the Anchalik Panchalik shall forward the tender papers together with comparativ e statement prepared and processed as per procedure prescribed to the Zilla Par ishad. The record does not disclose that Zilla Parishad had carried out any f 9. urther scrutiny of the tender documents, which was carried out by the Standing C ommittee of the Anchalik Panchayat at the first instance. No-one prevented the Zilla Parishad from re-scrutinizing the documents on record. There is no noti ng by the Zilla Parishad that any of the tenders were invalid. 10. If that be the position, rigour of Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 would come into play. There is no prior and formal appro val of the State Government to settle the market with respondent No.7, who was n ot the highest bidder. 11. Thus having regard to the discussions made above, Court is of the view t hat impugned settlement order dated 1.7.2013 cannot be sustained. The same is h ereby quashed. Chief Executive Officer, Sibsagar Zilla Parishad shall now issue fresh settlement order for the remaining period of settlement in favour of th e highest bidder. 12. Writ petition is allowed. However, there shall no order as to cost. Rec ord produced by learned State Counsel is returned back. J
Arguments
Heard Mr. N.K. Baruah, learned counsel for the petitioner and Mr. H. Rahman, learned Government Advocate, Assam for the State respondents, who has pr oduced the relevant record. Also heard Mr.P.J.Saikia, learned counsel appearin g for respondent No.7. 2. Matter relates to settlement of market by Sibsagar Zilla Parishad. 3. Necessary facts relevant for adjudication of the issues raised may be bri efly noticed. 4. Sibsagar Anchalik Panchayat issued Notice Inviting Tender (NIT) dated 2 0.5.2013 inviting tenders from eligible tenderers for settlement of various ma rkets etc. including Charakapar Weekly Market for the period 1.7.2013 to 30.6. 2014. Petitioner as well as respondent No.7 had submitted tenders for the said market responding to the NIT. Tenders were opened on 20.6.2013 and comparative s tatement was prepared. As per comparative statement prepared by the Anchalik Pa nchayat, 4 tenderers had submitted tenders and all the tenders were found to be valid. While the bid value of the petitioner at Rs.1,40,000.00 was the highe st, bid of the respondent No.7 at Rs.1,39,000.00 was the second highest. Standin g Committee of Sibsagar Anchalik Panchayat forwarded the comparative statement alongwith the relevant documents to the Sibsagar Zilla Parishad as the bid valu e was above Rs.1,00,000.00. In the comparative statement, it was remarked that necessary documents of all the tenderers were found to be correct with the fu rther remark that tenderer No.4(petitioner) offered the highest bid value at Rs.1,40,000.00. 5. Chief Executive Officer of Sibsagar Zilla Parishad passed order dated 1. 7.2013 settling Charakapar Weekly Market with respondent No.7 as per his offe red bid value at Rs. 1,39,000.00. 6. It is this order, which is under challenge in the present proceeding. 7. Though State respondents have not filed affidavit, learned State Counse l has produced the record for consideration of the Court. 1. Respondent No.7 has filed counter affidavit. Stand taken is that tende r submitted by the petitioner was defective as the documents as prescribed by the NIT were not enclosed. Since the bid value of the market was more than Rs. 1,00,000.00, the Anchalik Panchayat instead of preparing the comparative statem ent ought to have been forwarded the tender documents to the Zilla Parishad for scrutiny and consideration. Therefore, recommendation of the Anchalik Panchaya t is of no legal consequence. Zilla Parisahad was justified in awarding the sett lement to respondent No.7 being the highest valid bidder. It is also stated tha t pursuant to the order of settlement, respondent No.7 had deposited necessary k ist money and is operating the market. Difference of the bid value between peti tioner and respondent No.7 being minimal i.e. only Rs.1000.00, question of havi ng any advantage by the highest bidder would not arise. 2. Mr. Baruah, learned counsel for the petitioner submits that tender of t he petitioner was valid as per scrutiny. Bid value offered by the petitioner was the highest. As per Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 , it is mandatory to accept the tender of the highest bidder. In case of any de viation for acceptance of tender other than highest bid, it would require prior and formal approval of the Government. Admittedly, bid amount of the petitione r was the highest and, therefore, acceptance of bid amount of respondent No.7 would require prior and formal approval of the Government, which in this case w ould mean the State Government of Assam. No such prior and formal approval ha s been obtained. Therefore, impugned settlement cannot be sustained and should be quashed. 3. Mr. P.J. Saikia, learned counsel for respondent No.7 on the other hand , submits that though he has no access to the record, as per instruction , tende r of the petitioner was defective as he did not enclose relevant documents wit h the tender including land holding certificate . If the tender of the petitio ner is held to be defective, that makes the bid value of respondent No.7 to be highest and therefore question of taking prior and formal approval of the Gover nment does not arise. Therefore, impugned settlement should be upheld. Mr. Rahman, learned State Counsel submits from the record that record d 4. oes not disclose any infirmity in the tender of the petitioner. Further, no prio r or formal approval of the Government is available. In such circumstances, Zil la Parishad could not have over looked the better claim of the petitioner. 5. Submissions made have been considered. Record produced by learned State Counsel has been perused. A perusal of the relevant record would show that tender submitted by pet 6. itioner was found to be valid on scrutiny . Record indicates that he had submit ted the documents mentioned in the tender. 7. id value of respondent No.7. It is not in dispute that bid value of petitioner was higher than the b