Gauhati High Court
WP(C)/7112/2021 on 27 April, 2022
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GAHC010220122021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (Civil) no. 7112/2021
Md. Azizul Haque
Aged about 52 years
S/o Late Abdul Aziz
R/o Village - Dekagaon,
P.O. Barampur, District - Darrang Assam, 784525
...............Petitioner
-Versus-
1. The State of Assam
represented by the Principal Secretary
to the Government of Assam, Panchayat and Rural Development
Department, Guwahati - 6
2. The Darrang Zilla Parishad Mangaldai
Represented by its President
District - Darrang, Assam, 784529
3. The Chief Executive Officer
Darrang Zilla Parishad,
District - Darrang, Assam, 784529
4. The Paschim Mangaldai Anchalik Panchayat,
represented by its President
P.O. Banglagar, District - Darrang, Assam, 784529
5. The Executive Officer of Paschim Mangaldai Anchalik Panchayat
P.O. Banglagar, District - Darrang, Assam, 784529
6. Sri Hemchandra Sarma
S/o Late Paduram Sarma
R/o Village - Adhamapara
District - Darrang, Assam, 784529
...................Respondents
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Advocates :
For the Petitioner : Mr. D. Das, Senior Advocate,
Mr. B. Rahman, Advocate
For the Respondent nos. 1 - 5 : Mr. S. Dutta, Standing Counsel,
Panchayat & Rural Development
For the Respondent no. 6 : Mr. T.J. Mahanta, Senior Advocate
Mr. S. Islam, Advocate
Date of Hearing & Judgment : 27.04.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
This writ petition under Article 226 of the Constitution of India has been preferred by the
petitioner assailing the action on the part of the Paschim Mangaldai Anchalik Parishad in settling
Deonagaon Weekly Market in favour of the respondent no. 6 inter alia on the ground that despite the
bid of the petitioner was found to be a valid and higher one than that of the respondent no. 6 the said
market had not been settled with the petitioner and there was violation of the provisions of Section
109[6] of the Assam Panchayat Act, 1994 and Rule 47[10] of the Assam Panchayat [Financial] Rules,
2002 ['the Rules, 2002', for short].
2. The facts which are necessary for adjudication of the issue raised in this writ petition can be
exposited, in brief, as follows:-
2.1 A Tender Notice dated 23.06.2021 for settlement of a number of markets ['Tender Notice', for
short] was published by the respondent no. 5 inviting sealed bids from intending bidders for their
settlement for the financial year : 2021-2022 for the period from 01.07.2021 to 30.06.2022. By the said
Tender Notice, a total of 6 nos. of markets within Paschim Mangaldai Anchalik Panchayat were sought
to be settled. One such market was Deonagaon Weekly Market ['the Market', for short] within the
territorial jurisdiction of the Anchalik Panchayat. As per the Tender Notice, the minimum value of the
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said Market was fixed at Rs. 77,000/- and the last date of submission of bids was initially fixed on
05.08.2021. The last date of submission of bids was, however, extended by a notice dated 18.09.2021.
As per the notice dated 18.09.2021, the last date of submission of bids was fixed on 28.09.2021.
2.2 It is an admitted position, as revealed from the records of settlement, that in response to the
Tender Notice for settlement of the Market, a total of 5 nos. of bids were received from the bidders
quoting different bid values. The bid values, in descending order, quoted by the 5 nos. of bidders were
as under :-
Sl. Bidder number Bid value offered
No.
1 Bidder no. 1 [the petitioner] Rs. 3,51,000.00
2 Bidder no. 2 Rs. 2,59,099.00
3 Bidder no. 3 Rs. 1,36,500.00
4 Bidder no. 4 Rs. 99,999.99
5 Bidder no. 5 [the respondent no. 6] Rs. 99,999.99
2.3 When the respondent no. 5 issued an order of settlement dated 14.12.2021 settling the Market in
favour of the respondent no. 6 at his offered bid value of Rs. 99,999.99, the petitioner has approached
this Court by this writ petition challenging the said action of the respondent authorities in settling the
Market in favour of the respondent no. 6. As per the order of settlement passed on 14.12.2021, the
period of settlement is up to 30.06.2022 and the Market has been settled with the respondent no. 6 at a
proportionate amount of Rs. 53,843/- by taking into consideration the bid value of Rs. 99,999.99,
offered by the respondent no. 6 for a year.
3. Heard Mr. D. Das, learned senior counsel assisted by Mr. B. Rahman, learned counsel for the
petitioner; Mr. S. Dutta, learned Standing Counsel, Panchayat and Rural Development [P&RD]
Department for the respondent nos. 1 - 5; and Mr. T.J. Mahanta, learned senior counsel assisted by Mr.
S. Islam, learned counsel for the respondent no. 6.
4. Mr. Das, learned senior counsel for the petitioner has submitted that the bid of the petitioner was
found to be the valid and highest one by the General Standing Committee of Paschim Mangaldai
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Anchalik Panchayat. On the other hand, the bid of the respondent no. 6 was found to be the joint 4 th
highest amongst the 5 [five] nos. of participating bidders. It is his contention that if the valid bids were
received having bid values more than Rs. 1,00,000/- then as per the provisions of Section 109[6] of the
Assam Panchayat Act, 1994, the Anchalik Panchayat had no authority to settle the Market, as such
market has to be settled as per the decision of the General Standing Committee of the concerned Zilla
Parishad. It is his further submission that in case, it is decided to settle such a market in favour of a
bidder other than the highest valid bidder then it is mandatory to obtain prior and formal approval from
the State Government under Rule 47[10] of the Rules, 2002. Since there was no prior and formal
approval of the State Government in terms of Rule 47[10] of the Rules, 2002 and the Market was not
settled by the concerned Zilla Parishad in terms of Section 109[6] of the Assam Panchayat Act, 1994,
the order of settlement made in favour of the respondent no. 6 is illegal and is liable to be set aside. To
buttress his submissions, Mr. Das has referred to the Full Bench decision of this Court in Harej Ali and
another vs. the State of Assam and others, reported in 2009 [2] GLT 561.
5. Mr. Dutta, learned Standing Counsel, P&RD Department has submitted that the General
Standing Committee of the Anchalik Panchayat prepared a comparative statement after evaluation of
the bids of the 5 [five] participating bidders and by keeping in view the then prevailing situation due to
Covid-19 pandemic, the Anchalik Panchayat had reached at a decision that it would be in the interest of
general public that a reasonable bid value be accepted for the Market. It was in terms of such a
decision, the bids of the other 4 [four] bidders who either offered higher bid values than or the same bid
value with the respondent no. 6, were not accepted. The Anchalik Panchayat accepted the bid of the
respondent no. 6 who offered a bid value of Rs. 99,999.99 and forwarded the matter to the Zilla
Parishad for its acceptance.
6. Mr. Mahanta, learned senior counsel for the respondent no. 6 has submitted that the decision of
the Anchalik Panchayat to accept the bid of the respondent no. 6 was taken having regard to the
situation prevailing at that point of time due to Covid-19 pandemic and as the decision of the Anchalik
Panchayat to accept the bid of the respondent no. 6 at a reasonable amount was taken considering the
interests of the public in general, which was also approved by the Zilla Parishad, no interference to the
order of settlement is called for. The General Standing Committee constituted under Section 52[1][a] of
the Assam Panchayat Act, 1994 is vested with the power of examination for final acceptance of the
tenders for the markets situated within the territorial jurisdiction of such Anchalik Panchayat and as the
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bid value accepted for the Market was under Rs. 1,00,000/- due to rejection of the higher valid bids, the
provisions of Section 109[6] of the Assam Panchayat Act, 1994 is not attracted.
7. I have considered the submissions of the learned counsel for the parties and also perused the
materials brought on record by the parties through their pleadings. I have also gone through the records
of settlement, produced by Mr. Dutta, learned Standing Counsel, P&RD Department and the decisions
cited by the parties.
8. It is settled that a bidder who has participated in a competitive bidding process at least has a right
to equality and fair treatment in the matter of evaluation of competitive bid offered by him in response
to a notice inviting tender in a transparent manner and free from any hidden agenda and in that respect,
he is entitled to be treated in a fair, equal and non-discriminatory manner in the matter of evaluation of
his bid. A bidder has an enforceable right to that limited extent before the Court and the Court can
definitely examine the issue as to whether the petitioner has been treated unfairly or discriminated
against. An obligation is also cast on the tendering authority to proceed with the matter in fair, just and
transparent manner by undertaking the exercise in accordance with law.
9. As have been noted above, 5 [five] bidders responded to the Tender Notice dated 23.06.2021.
After receipt of the bids from the 5 [five] bidders, the Anchalik Panchayat opened the bids and after
going through the documents submitted along with the bids, the Anchalik Panchayat processed the
same. After such processing, the Anchalik Panchayat prepared a comparative statement wherein it had
recorded its remarks in respect of the documents required to be submitted by the bidders and as to
whether each of the bidders had submitted the essential documents or not. From the comparative
statement placed before this Court, it is noticed that the General Standing Committee of the Anchalik
Panchayat had found the bids of all the 5 [five] bidders compliant to the terms and conditions of the
Tender Notice. As per the provisions of the Assam Panchayat Act, 1994, all tender notices, in respect of
markets, ghats, fisheries, irrespective of the yearly sale value of such property, are required to be
floated by the concerned Anchalik Panchayat. However, after submission of all tender papers before the
Anchalik Panchayat, if the bid value offered by the eligible highest bidder is found to be more than Rs.
1,00,000/-, the Standing General Committee of the Anchalik Panchayat, constituted under Section
52[1][a] of the Assam Panchayat Act, 1994, requires to forward all such tender papers submitted by the
bidders together with a comparative statement prepared and processed, to the concerned Zilla Parishad,
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for doing the needful at their end. Section 109[6] of the Assam Panchayat Act, 1994 has laid down that
the powers of examination and final acceptance of such tender shall be vested in the General Standing
Committee of the concerned Zilla Parishad constituted under Section 81[a] of the Assam Panchayat
Act, 1994. The said position has also been clarified by the Full Bench decision of this Court in Harej
Ali [supra]. It transpires from the records of settlement, prima facie 3 [three] nos. of valid bids
submitted in respect of the Market, had quoted bid values of more than Rs. 1,00,000/- for one year.
Thus, it is the General Standing Committee of the Zilla Parishad who was to finally accept the tender
and pass the order of settlement of the Market.
10. Sub-Rule [10] of Rule 47 of the Assam Panchayat [Financial] Rules, 2002 reads as follows :-
Rules and Procedures for the Sale and Settlement of Markets, Ferries,
Fisheries and Ponds
Rule 47[10] - The tender of highest bidder shall be accepted. Acceptance of tender
other than the highest bid shall require the "Government" prior and formal approval.
11. Rule 47[10] has been incorporated in the Rules, 2002 so that a settling authority cannot deviate
arbitrarily from the norm of settling ordinarily the market with the highest valid bidder without prior
approval of the higher authority, that is, the State Government. Rule 47[10] also came to be considered
by this Court in Sarat Gogoi vs. State of Assam and others, reported in 2015 [2] GLT 194. It has been
held therein that in a case where the highest bidder is sought to be not given the settlement and the
settlement is sought to be offered to a next higher bidder, prior and formal approval of the Government
is required to be taken. In the event no prior and formal approval is taken by the Zilla Parishad while
issuing the settlement order in favour of a bidder who is not the highest valid bidder, then the
settlement given to such a bidder would not be sustainable, being violative of Rule 47[10] of the Rules,
2002.
12. In the context of the above, when records of settlement including the order of settlement and the
resolution of the General Standing Committee of the Paschim Mangaldai Anchalik Panchayat are
examined, it is found that the General Standing Committee of the Anchalik Panchayat upon evaluation
of the bids, had found that the bids of all the 5 [five] participating bidders including the highest bid of
the petitioner, were responsive to the terms and conditions of the Tender Notice. Despite having
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observed so, the General Standing Committee of the Anchalik Panchayat had rejected the bids of the 3
[three] valid higher bidders and accepted the bid of the respondent no. 6 who was the 4 th joint highest
valid bidder. One of the reason given by the General Standing Committee of the Anchalik Panchayat
for accepting the bid of the respondent no. 6 was the then prevailing situation due to Covid-19
pandemic in the interests of the public in general.
13. The question of not accepting the highest bid value offered by the petitioner in public interest is
to be considered in the context of the nature of settlement qua the provisions of the Assam Panchayat
Act, 1994.
13.1. The bidders are considered to be prudent businessmen who prepare their tenders by taking into
consideration a host of factors including the terms and conditions incorporated in the tender document,
the estimated amount and the quantums of profit they are likely to earn and accordingly, they arrive at
their tendered bid values. One prepares his tender to the best of his estimation, by quoting his tendered
bid value at a definite amount on the premise that at such amount, he would be able to perform the
obligations under the contract if the tender is settled in his favour and at the same time, would also be
able to earn a particular amount of profit. A number of bidders participate in a tender process and the
bidders tender different bid values but only one of them emerges successful. Thus, the preparation of
the tendered bid value is at the risk and peril of rejection of one's tender if the same does not emerge as
the highest valid one and a tender process is always competitive.
13.2. Reverting back to the facts of the case, it is an admitted position that a lessee if he is settled with
a market under the aegis of the Zilla Parishad and/or Anchalik Panchayat, has to collect the fees in the
market only at the rates fixed by the Anchalik Panchayat and/or Zilla Parishad. The lessee cannot
collect fees at a higher rate than the rate fixed by the Anchalik Panchayat and/or Zilla Parishad. As per
the terms and conditions of the Tender Notice, the lessee at all times, has to keep the rates of fees
prescribed by the Anchalik Panchayat and/or Zilla Parishad by installing a notice board at a
conspicuous place in the market so that it is noticeable to all concerned. Therefore, the rates of fees to
be collected by the lessee are fixed and such rates of fees do not vary with the amount of bid offered by
a bidder and there is no correlation between the prescribed rates of fees to be collected in the market
and the lease value at which the market has been settled with. The settlement of the market in view of
the fact that the lessee has to collect the fees at the prescribed rate will not have any effect on any third
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person including the public in general, whether the market is settled with the first highest valid bidder
or any other bidder. But, acceptance of a bid of a lower valid bidder would result in lesser revenue to
the State Exchequer. Thus, the settlement of Deonagaon Weekly Market made by the General Standing
Committee of the Anchalik Panchayat in favour of the respondent no. 6 at his bid value of Rs.
99,999.99 in ignorance of the higher bid value of Rs. 3,51,000/- offered by the petitioner, despite the
fact that it found the bid of the petitioner as a valid one, by taking into consideration irrelevant factors
in the decision making process is clearly arbitrary and also not in the public interest. Moreover, there is
no reason assigned as to why the bid of the respondent no. 6 was accepted in preference to the other 4 th
joint highest valid bidder, who had also quoted the same bid value of Rs. 99,999.99 and whose bid was
also found to be a responsive one to the terms and conditions of the Tender Notice. The decision
making process for distribution of State largesses, in the case in hand, is found to be guided by
irrelevant factors which has resulted in causing loss to the State Exchequer, thereby, making the process
arbitrary, unfair and discriminatory.
14. Though in certain situations acceptance of a lesser bid may be permissible but in case of
settlement of a market under the aegis of the Anchalik Panchayat and/or Zilla Parishad, the same is
ordinarily required to be settled in favour of the highest valid bidder as per the Rule 47[10] of the
Rules, 2002. In the event the General Standing Committee, a statutorily constituted body, decides to
settle the market in favour of a bidder other than the highest valid bidder then it has to obtain prior and
formal approval from the State Government, which has not been taken in the case in hand. The
admitted fact is that there are higher valid bidders than the respondent no. 6. It is, thus, found that the
statutory provision contained in Rule 47[10] of the Rules, 2002 has been violated as no prior and
formal approval of the State Government was taken prior to settling the Market in favour of the
respondent no. 6.
15. What has further emerged from the records of settlement is that despite having valid bid values
higher than Rs. 1,00,000/-, the General Standing Committee of the Anchalik Panchayat had passed the
order of settlement whereas in such a case, it is the General Standing Committee of the Zilla Parishad
which has the authority and jurisdiction to accept the highest valid bid and thereafter, the Zilla Parishad
passes the order of settlement in terms of Section 109[6] of the Assam Panchayat Act, 1994. In the case
in hand, Anchalik Panchayat had only stated to have been taken the approval of the Zilla Parishad
whereas as per the provisions of Section 109[6] of the Assam Panchayat Act and the decision of the
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Full Bench decision of this Court in Harej Ali [supra], if in the tender process, the bid value offered by
the eligible higher bidder is found to be more than Rs. 1,00,000/-, the authority and jurisdiction of the
General Standing Committee of the Anchalik Panchayat is restricted only to the extent of preparing and
processing the comparative statement and thereafter, to forward the same along with the tender papers
to the concerned Zilla Parishad for passing the order of settlement after due consideration.
16. In view of the violations of the provisions contained in Section 109[6] of the Assam Panchayat
Act, 1994 and Rule 47[10] of the Rules, 2002 on the part of the General Standing Committee of the
Anchalik Panchayat, the decision making process of settlement resulting into the order of settlement of
Deonagar Weekly Market in favour of the respondent no. 6 is found to be a vitiated one due to taking
into account irrelevant factors in the decision making process and non-compliance of the statutory
prescription. In such view of the matter, the order of settlement dated 14.12.2021 is found not
sustainable in law and the same is liable to be set aside. It is accordingly set aside.
17. Consequently, the Zilla Parishad is directed to revisit the matter of settlement of Deonagar
Weekly Market once again on the basis of the records containing the tender documents of the
participating valid bidders and to arrive at a decision on the settlement of Deonagar Weekly Market for
the subsequent period up to 30.06.2022, as indicated in the Tender Notice dated 23.06.2021, in
compliance of Section 109[6] of the Assam Panchayat Act, 1994 and Rule 47[10] of the Rules, 2002.
The entire exercise shall be undertaken and completed on or before 10.05.2022.
18. At this stage, Mr. Mahanta, learned senior counsel for the respondent no. 6 has submitted that the
respondent no. 6 has already deposited the installment amount to operate the Market upto 30.06.2022
and the respondent no. 6 is presently operating the Market. Thus, he may be allowed to operate the
market till 10.05.2022. In view of the directions given above, the respondent no. 6 may be
permitted to operate the market up to 10.05.2022 and if after that, any excess amount of installment for
the period from 30.06.2022 is found to be refunded to the respondent no. 6 due to deposit already made
by him, the same shall be refunded by the respondent authorities forthwith thereafter.
19. With the observations made and directions given above, the writ petition stands allowed to the
extent indicated above. There shall, however, be no order as to cost.
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20. A copy of this order be furnished to Mr. S. Dutta, learned Standing Counsel, P&RD Department
for necessary compliance.
JUDGE
Comparing Assistant
