Page No.# 1/7 vs The State Of Assam And 5 Ors
2022 Latest Caselaw 542 Gua

                                                              Page No.# 1/7

GAHC010103882021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/3302/2021

         FIRUJA KHANOM LASKAR AND 7 ORS.
         W/O ASAD ULLAH BARBHUIYA
         VILLAGE DINANATHPUR PART I,PO DINANATHPUR, PS KATLICHERA,
         DIST HAILAKANDI, ASSAM 788161

         2: RAJU SINGHA CHOUDHURY
          S/O SRI SAILEN SINGHA CHOUDHURY
         VILLAGE ALEXANDERPUR GRANT

         PO AND PS KATLICHERA
         DIST HAILAKANDI
         ASSAM 788161

         3: FIRUJ KHAN CHOUDHURY
          S/O FARID KHAN CHOUDHURY
         VILLAGE DHOLAI MOLAI PART I
         PO DHOLAI MOLAI AND PS PS KATLICHERA
          DIST HAILAKANDI
         ASSAM 788161

         4: PROHALLAD DUSAD
          S/O SRI RABILAL DUSAD
         VILLAGE DHOLAI PART IX
          PO ROOPACHERRRABASTI
          PS KATLICHERA
          DIST HAILAKANDI
         ASSAM 788161

         5: RUPA SAHA
          S/O SRI SANDIP SAHA
         VILLAGE RONGPUR PART II
         PO AND PS KATLICHERA
          DIST HAILAKANDI
         ASSAM 788161
                                                       Page No.# 2/7


6: BADRUL ISLAM BARBHUIYA
 S/O ABDUL JABBAR BARBHUIYA
VILLAGE APIN PART II
PO APIN
 PS LALA DIST HAILAKANDI
ASSAM 788161

7: RUSTANA BEGUM BARBHUIYA
W/O KAZI FAJAL KARIM
VILLAGE RONGPUR PART VII
PO SAHABAD AND PS KATLICHERA
 DIST HAILAKANDI
ASSAM 788161

8: HUSANARA BEGUM LASKAR
W/O ABDUL KAYUM BARBHUIYA
VILLAGE BHAGABANPUR
 PO HARISHNAGAR
 PS KATLICHERA
 DIST HAILAKANDI
ASSAM 78816

VERSUS

THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEV. DEPT.DISPUR GUWAHATI 6

2:THE COMMISSIONER

PANCHAYAT AND RURAL DEVELOPMENT DEPT. PANJABARI GHY 37

3:THE DEPUTY COMMISSIONER

HAILAKANDI
ASSAM 788151

4:THE CHIEF EXECUTIVE OFFICER

HAILAKANDI ZILLA PARISHAD
HAILAKANDI

5:THE HAILAKANDI ZILLA PARISHAD

REPRESENTED BY THE CHIEF EXECUTIVE OFFICER
HAILAKANDI
ASSAM 788151
                                                                       Page No.# 3/7


            6:THE BLOCK DEVELOPMENT OFFICER

            KATLICHERA DEVELOPMENT BLOCK CUM SECRETARY AND EXECUTIVE
            OFFICER
            KATLICHERA ANCHALIK PANCHAYAT
            HAILAKANDI
            ASSAM 78816

Advocate for the Petitioner   : MR M J QUADIR

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 16.02.2022

Heard Mr. M.J. Quadir, learned counsel for the petitioner. Also heard Mr. M. Nath, learned standing counsel for the P&RD Department, representing the respondent nos. 1, 2 and 4 to 6 as well as Mr. B. Deuri, learned Govt. advocate appearing for respondent no. 3, Deputy Commissioner, Hailakandi.

2. The petitioners are all elected members of Katlicherra Anchalik Panchayat and claiming that they had common cause of action, the present writ petition has been filed under Article 226 of the Constitution of India.

3. The case of the petitioner is that the Katlicherra Anchalik Panchayat had invited tender from intending tenderers for settlement of Haat, Ghat and Tanks for financial year 2021-22 under their jurisdiction which includes tender for Katlicherra Weekly Market and Katlicherra Daily Market. The tender is for one

year from 1st July 2021 to 30th June, 2022 with the minimum tender value of Page No.# 4/7

Rs.95,000/- each. The tenders were opened on 28.06.2021. It is projected that 12 bidders had submitted their tenders for Katlicherra Daily Market and 7 bidders had submitted their tenders for Katlicherra Weekly Market. The tenders were to be processed as per the Standing Committee constituted as per notification dated 10.05.2021 issued by the President of Katlicherra Anchalik Panchayat, which is as per provisions of Section 52(1)(a) of the Assam Panchayat Act, 1994.

4. The petitioners are aggrieved by an order No. KDB-6/own fund/2021-22/6 dated 07.07.2021 (Annexure-3) issued by the Secretary and Executive Officer, Katlicherra Anchalik Panchayat. In the said order, reference was made to the instructions of the Deputy Commissioner, Hailakandi (respondent no.3), who had directed that the minimum tender value be increased to Rs.1,00,000/-. The said directions was purportedly under sub-section (6) of Section 109 of the Assam Panchayat Act, 1994. It was also provided that the notice inviting tender for Katlicherra Weekly Market and Katlicherra Daily Market with minimum tender value of Rs.1,00,000/- only in each to be arranged from Zila Parishad, Hailakandi. Accordingly, the learned counsel for the petitioner submits that this had resulted in the cancellation of the earlier tender process and the Panchayat authorities would require to invite a fresh bid for the said two markets.

5. The learned counsel for the petitioner has placed reliance on the case of Harez Ali and Anr. Vs. State of Assam and Ors., 2009 (2) GLT 561 to project that the Full Bench of this Court by the aforesaid judgment has held, inter alia, that it is the President of Anchalik Panchayat who has been entrusted by the legislature to invite tenders for settlement of all hats, ferries and fisheries falling under the Anchalik Panchayat in the manner prescribed and the Full Bench of Page No.# 5/7

this Court also expressed its disagreement with the view that the Zila Parishad will have complete authority to invite tender for settlement of hat etc., yearly sale value of which is more than Rs.1,00,000/-. It was also held that there was no scope to extinguish the statutory power of the President of an Anchalik Panchayat to invite tenders irrespective of any fixed yearly sale value for settlement of hats, ferries and fisheries within its territorial jurisdiction. It was also held that in a system of settlement by inviting tender, it is the choice of the authority inviting tender to indicate a minimum value of the property, which the authority inviting tender expects to fetch. Therefore, yearly sale value of all ghats, hats, fisheries under the Anchalik Panchayat put in tender for settlement would mean the highest bid amount that is offered by the eligible bidder, in terms of the Act. Further clarifications are issued in paragraph 27 of the said order, which is reproduced hereinbelow:

"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 it clear and specific that irrespective of price-tag or bid value fixed by the authority concerned in respect of Hats, Ferries and Fisheries, N. I. T. is issued by 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 Standing Committee of Anchalik Panchayat will examine and accept the tenders of the highest eligible bidder and forward it to the Zilla Parishad, for confirmation, in terms of the Sub- section (4) of Section 105 Sub-section (4) of Section 106 Sub-section (4) of Section 109, as the case may be. It may be clarified that irrespective of yearly 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 related 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, Ferries and Fisheries without such confirmation by the Zilla Parishad, will not be a legally valid Page No.# 6/7

settlement."

6. The learned standing counsel for the P&RD Department has fairly submitted that the decision of the Full Bench of this Court in Harez Ali (supra), is the law holding the field and therefore, irrespective of the minimum sale value indicated in the tender, the Anchalik Panchayat would have the sole authority to invite tender and process in accordance with law.

7. The Court has examined the materials available on record in the writ petition as well as considered the Full Bench judgment of this Court in Harez Ali (supra). In this case, although notice was issued by order dated 16.07.2021, but the Deputy Commissioner, Hailakandi has not submitted his return. The impugned order dated 07.07.2021 does not indicate how the Deputy Commissioner would be aggrieved by minimum tender value of Rs.95,000/- each for Katlicherra Weekly Market and Katlicherra Daily Market and how the said authority or the State would benefit if the minimum tender value is enhanced to Rs.1,00,000/-. In the said order, the source from which the Deputy Commissioner had derived power to interfere with the minimum tender value is also not disclosed. On a perusal of the provisions of the Assam Panchayat Act, 1994, there is no provision to empower the Deputy Commissioner, Hailakandi to visit the minimum tender value quoted for the hereinbefore referred two markets and to scuttle the tender process merely on the flimsy ground that the minimum tender value should be Rs.1,00,000/- instead of Rs.95,000/-. In the case of Harez Ali (supra), this Court has interpreted the various provisions of the Assam Panchayat Act, 1994, specifically Sections 105(1), 106(1), 109(1) and 109(6) and thereafter, it was held that under the said Panchayat Act, the power of initiating the process of settlement by inviting tender invested with the Page No.# 7/7

President of the Anchalik Panchayat only.

8. Therefore, the Court does not find any power or authority vested upon the Deputy Commissioner, Hailakandi to interfere with the process of settlement on the flimsy ground of enhancing the minimum tender value from Rs.95,000/- to Rs.1,00,000/- for the two markets in reference. Therefore, the Court is inclined to hold that the impugned order No. KDB-6/own fund/2021-22/6 dated 07.07.2021 by the Secretary and Executive Officer of Katlicherra Anchalik Panchayat is wholly without jurisdiction and therefore, the purported instruction of the Deputy Commissioner, Hailakandi, which has resulted in issuance of the said order dated 07.07.2021 is also holding without jurisdiction. Accordingly, the Court has no hesitation to set aside and quash the impugned order No. KDB- 6/own fund/2021-22/6 dated 07.07.2021 (Annexure-3) issued by the Secretary and Executive Officer, Katlicherra Anchalik Panchayat.

9. It is left open to the wisdom of the President of the Katlicherra Anchalik Panchayat as to proceed with the same tender or to issue a fresh tender for settlement of the Katlicherra Weekly Market and Katlicherra Daily Market.

10. The petitioner shall produce a certified copy of this order before the respondent no.6.

11. The writ petition stands allowed to the extent as indicated above.

12. The interim order passed earlier has lost its efficacy.

JUDGE

Comparing Assistant