Keshab Kalita vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1051 Gua

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GAHC010060212022




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

                          Case No. : WP(C)/2167/2022

         KESHAB KALITA
         S/O. LT. RAJEN KALITA, VILL. NIZ DHING, WARD NO.10, P.O. DHING, P.S.
         DHING, DIST. NAGAON, PIN-782123.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, MUNICIPAL
         ADMINISTRATION DEPTT. DISPUR, GUWAHATI-781006.

         2:THE DIRECTOR

          MUNICIPAL ADMINISTRATION
          ASSAM
          DISPUR
          GHY.-781006.

         3:THE DHING MUNICIPAL BOARD
          REP. BY THE EXECUTIVE OFFICER


         4:THE EXECUTIVE OFFICER

          DHING MUNICIPAL BOARD
          DHING
          NAGAON
          PIN-782123.

         5:THE DY. COMMISSIONER

          DIST. NAGAON
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Advocate for the Petitioner   : MR. R GOSWAMI

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (ORAL)

Date : 25-03-2022

1. Heard Mr. R. Goswami, the learned counsel for the petitioner and Ms. S. Sarma, the learned counsel appearing on behalf of the respondent Nos. 1, 2 and

5.

2. Taking into consideration that issuance of notice at this stage insofar as the respondent Nos. 3 and 4 is concerned would neither be in the interest of the petitioner nor the respondent Nos. 3 and 4, this Court therefore dispenses with the notice upon the respondent Nos. 3 and 4 more so in view of the reasons given hereinunder.

3. The case of the petitioner is that the Dhing Bazar (Athgaon Hat) is a daily and weekly market situated within Dhing Municipal Board and presently the said affairs are run through the Executive Officer i.e. the respondent No. 4 herein. The Dhing Municipal Board had floated a tender and the petitioner being the highest bidder was approved and allotted the lease for the financial year 2020- 21 with effect from 01.04.2020 to 31.03.2021. Thereupon on account of lockdown, the petitioner having suffered, the petitioner requested the Dhing Municipal Board to extend the period of the lease. Instead of extending the period of the lease, the Dhing Municipal Board floated a fresh NIT on 18.02.2021. However, on account of Model Code of Conduct coming into play in Page No.# 3/7

view of the announcement made by the Election Commission of India on 26.03.2021, the said tender documents in against the tender dated 18.02.2021 could not be opened and the respondent No. 4 vide an order dated 25.03.2021 granted an extension to the petitioner for a period of 3(three) months with effect from 01.04.2021 to 30.06.2021. It is the further case of the petitioner that though the petitioner was granted an extension but on account of various lockdowns during the said period he could not recoup his losses for which he again requested for granting a further extension. As the request was refused and the respondent No. 4 issued an NIT dated 10.06.2021, the petitioner again on 11.06.2021 requested for granting an extension from 01.07.2021 to 31.03.2022. The respondent No. 4 granted a further extension to the petitioner for a period of 3(three) months with effect from 01.07.2021 to 30.09.2021. Thereafter, again the petitioner filed a representation seeking 6(six) months extension which was denied for which the petitioner had approached this Court by filing a writ petition i.e. WP(C) No. 5558/2021. This Court directed the respondent No. 4 to dispose of the representation within a period of 10(ten) days from the date of the order and in the event if the respondent No. 4 was not conferred with the power of granting extension of the lease of the market to forward the petitioner's representation within 4(four) days to the competent authority who had the power to take a decision on the prayer of extension of the lease of the market. Thereupon for another 2(two) months the Dhing Municipal Board verbally extended the settlement period to the petitioner. The respondent No. 4 thereafter floated another NIT dated 28.10.2021 and the petitioner having was granted the settlement for a period from 01.12.2021 to 31.03.2022. The petitioner thereafter again filed a representation on 21.01.2022 seeking extension however the respondent No. 4 did not given any heed to the Page No.# 4/7

petitioner's representation and instead issued a fresh NIT bearing No. DMB.69/SB/2019-20/675 dated 14.03.2022.

4. It is the specific case of the petitioner that the said Notice Inviting Tender dated 14.03.2022 has been issued without taking into consideration the petitioner's representation for extension to which the petitioner was at least entitled for consideration. The petitioner further submitted that the petitioner is an intending tenderer but as the tender was issued for only 15(fifteen) days, which as per the Rules for Procedure for Sale of Pounds and Markets by Municipal Board and Town Committees in Assam, the said Notice Inviting Tender ought to have been for a period of 1(one) month the petitioner's rights as an intending tenderer has been effected. It is relevant to note that the impugned Notice Inviting Tender is a notice for a period of 15(fifteen) days and the closing date is 29.03.2022. It is on the basis of the aforementioned two contentions that the petitioner is before this Court under Article 226 of the Constitution challenging the Notice Inviting Tender dated 14.03.2022.

5. I have heard the learned counsels for the parties and given my anxious consideration to the matter. Section 148 of the Assam Municipal Act, 1956 (for short "the Act of 1956") empowers the Municipal Board to grant a lease for collection of rents, tolls and fees in municipal markets and parking lots at the rates prescribed by the Board under sub-Section (2) of Section 148 of the Act of 1956. Section 298 of the Act of 1956 stipulates the power of the State Government to dissolve the Board in the circumstances mentioned therein. Section 299 of the Act of 1956 stipulates the consequences of dissolution and relevant for the purpose of the instant case is Section 299(b) which stipulates that all the powers and duties under the Act of 1956 may be exercised and performed by such person as the State Government may direct till the Page No.# 5/7

Commissioners and Chairman are elected. It is by virtue of the powers under Section 299(b) that the Executive Officer had issued the Notice Inviting Tender dated 14.03.2022 and as such as the Executive Officer is an appointee of the State Government and the State Government being duly represented by its counsel, the interest of the respondent No. 4 is being taken care of by the counsel appearing on behalf of the State Government. The presence of the respondent No. 3 has no relevance for the instant dispute as the respondent No. 3 is under dissolution and the Executive Officer appointed by the State Government by virtue of Section 299(b) is exercising the duties of the Board.

6. The counsel for the petitioner had submitted that on account of the pandemic he had incurred huge losses for which he had submitted a representation which the respondent No. 4 did not consider and instead issued the Notice Inviting Tender. The said submission of the petitioner does not appeal to this Court taking into consideration that the petitioner had been granted the lease in respect to the market in question since 01.04.2020 and had also been granted extensions as would appear from a perusal of the writ petition. Not being able to profit cannot be a ground to withhold a tender process. Accordingly, this Court does not find any illegality in the issuance of the Notice Inviting Tender dated 14.03.2022.

7. Now coming to the next question as regards the violation of the Rules for Procedure for Sale of Pounds and Markets by the Municipal Boards and Town Committees in Assam as notified vide a Notification No. LML51/58 dated 24.06.1958, it has been clearly mandated vide Clause 3 of the said notification that public auction shall be held by giving a public notice of 1(one) month

previously and not later than 14th day of February of the financial year. Clause 3 of the said notification is quoted herein below:

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"3. The sale by public auction of the right to levy fines and charges in respect of any pounds and to collect the authorized fees in respect of any market shall be held, public notice having been given one month

previously, not later than the 14th day, of February in the financial year preceding that in which the lease is to take effect."

A perusal of the said Notification and Clause 3 therein, it is apparent that the public auction notice should be for a period of 1(one) month and the same is

required to be issued not later than the 14 th day of February of the financial year. The counsel appearing for the respondents have not placed any notification to the effect that the Notification issued in the year 1958 have been superceeded by reducing the period of public notice.

8. This court is, therefore, of the opinion that the Notice Inviting Tender dated 14.03.2022 giving a public notice for only 15(fifteen) days violates the mandate of Clause 3 of the said Notification as quoted herein above. Consequently this Court is of the further opinion that the interest of justice would be met in the present facts and circumstances, if the respondent No. 4 issues a Corrigendum thereby extending the period of the Notice Inviting Tender dated 14.03.2022 by a further period of 15(fifteen) days from 29.03.2022 thereby meeting the requirement of Clause 3 of the said Notification. Accordingly, this Court therefore directs that the respondent No. 4 shall issue a Corrigendum to the Notice Inviting Tender bearing tender No. DMD.69/SB/2019- 20/675 dated 14.03.2022 thereby extending the period for submission of the bids by another period of 15(fifteen) days from 29.03.2022.

9. Before parting with the records, it is observed that this situation would not have arisen had the respondent No. 4 issued the said Notice Inviting Tender in Page No.# 7/7

terms with Clause 3 of the said Notification i.e. within the 14 th day of February of the financial year. Consequently it is therefore directed that henceforth the respondent authorities shall issue the Notice Inviting Tenders strictly in terms with Clause 3 of the Notification, unless and until the said Notification dated 24.06.1958 stands superceeded or had superceeded. It is made clear that in view of the instant order the period of the Notice Inviting Tender dated 14.03.2022 stands extended by another 15(fifteen) days and consequently a void is created for a period of 15(fifteen) days from the date of ending of the settlement of the petitioner i.e. on 31.03.2022 and granting of a fresh settlement. As such during this period the respondent No. 4 would be at liberty to run the market in question either through its own machinery or make ad hoc arrangement(s) for this period of 15(fifteen) days as per law only.

10. With the above observations and directions the petition stands disposed of. The Registry is directed to serve a copy of the instant order forthwith to Ms. S. Sarma, the learned counsel for the respondents to communicate the instant order to the respondent No. 4.

JUDGE

Comparing Assistant