WP(C)/4557/2022
2022 Latest Caselaw 4541 Gua

                                                         Page No.# 1/11

GAHC010135872022




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


                        WP(C) NO.6322 OF 2022
     1.NARESWAR DANGIARI
     AGED ABOUT 52 YEARS,
     S/O. MATIRAM DANGIARI,
     VILL. DHEKIPELUWA KACHARI,
     P.O. GARUBANDHA, P.S. MISSAMARI,
     P.O. 784506, DIST. SONITPUR, ASSAM.

     2: HITESWAR BASUMATARY
     AGED ABOUT 44 YEARS,
     S/O. KHANTAL BASUMATRAY
     VILL. MEJENGJULI
     P.S. THELAMARA
     PIN-784111
     DIST. SONITPUR
     ASSAM.

     3: BHUMIDHAR BORO
     AGED ABOUT 45 YEARS,
     S/O. LT. RUNAI BORO
     VILL. NO.2 DHANMARA
     P.O. AND P.S. MISSAMARI
     DIST. SONITPUR
     ASSAM
     PIN-784606

                                                      ........Petitioners

                                           -Versus-


     1. THE STATE OF ASSAM
     REP. BY THE CHIEF SECRETARY,
     GOVT. OF ASSAM, DISPUR, GUWAHATI-781006.
                                                         Page No.# 2/11


2:THE PRINCIPAL SECRETARY
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
GOVT. OF ASSAM
DISPUR
GUWAHATI-781006.

3:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
GOVT. OF ASSAM,
JURIPAR, PANJABARI, GUWAHATI
PIN-781037, ASSAM.

4:THE DEPUTY COMMISSIONER
SONITPUR, TEZPUR,
ASSAM, PIN-784001.

5:THE CHIEF EXECUTIVE OFFICER
SONITPUR ZILLA PARISHAD
TEZPUR, ASSAM
PIN-784001.

6:THE BLOCK DEVELOPMENT OFFICER AND EXECUTIVE OFFICER
DHEKIAJULI ANCHALIK PANCHAYAT
P.O. DHEKIAJULI
DIST. SONITPUR
ASSAM
PIN-784110.

7:SRI. RUPENDRAJIT SARMA
AGED ABOUT 33 YEARS,
S/O. LT. PRANESWAR SARMA,
R/O. WARD NO.6, DEHAKIAJULI,
P.O. DHEKIAJULI, DIST. SONITPUR,
ASSAM, PIN-784110

                                                  ........Respondents

WP(C) NO.4557 OF 2022 RUPENDRAJIT SARMA AGED ABOUT 33 YEARS, S/O LATE PRANESWAR SARMA, R/O WARD NO. 6, DHEKIAJULI, P.O. AND P.S.-DHEKIAJULI, PIN-784110 Page No.# 3/11

........Petitioner

-Versus-

1.THE STATE OF ASSAM REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006

2:THE PRINCIPAL SECRETARY PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GUWHAATI-781006

3:THE COMMISSIONER, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, PANJABARI, JURIPAR, GUWAHATI-781037

4:THE DEPUTY COMMISSIONER, SONITPUR DISTRICT, TEZPUR, ASSAM-784001

5:THE CHIEF EXECUITVE OFFICER SONITPUR ZILLA PARISHAD TEZPUR, ASSAM-784001

6:THE PRESIDENT DHEKIAJULI ANCHALIK PANCHAYAT, DHEKIAJULI, SONITPUR, ASSAM-784110

7:THE BLOCK DEVELOPMENT OFFICER CUM EX-OFFICIO SECRETARY, DHEKIAJULI, SONITPUR, ASSAM-78411

........Respondents

For the Petitioners (WP(C)6322/2022) : Mr. S.D. Purkayastha, Advocate.

Mr. U Choudhury, Advocate.

For the Petitioner (WP(C)4557/2022) : Mr. R.P. Sarmah, Senior Advocate.

Mr. M.R. Adhikari, Advocate.

Page No.# 4/11

For the respondents : Mr. NK Debnath, P&RD Department.

- BEFORE -

             HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA


     Date of hearing              : 17th November, 2022.

     Date of Judgment & Order     : 17th November, 2022.



                           Judgment & Order (Oral)

Heard Mr. MK Adhikari, learned counsel for the petitioner in WP(C) No.

4557/2022 and the respondent No. 7 in WP(C) No. 6322/2022. Heard Mr. SD

Purkayastha, learned counsel for the petitioner in WP(C) No. 6322/2022. Mr. NK

Debnath, learned counsel appears for the P&RD Department, while Mr. M

Chetia, learned counsel appears for the Deputy Commissioner, Sonitpur and

Chief Secretary, Government of Assam. Also heard Mr. Mousam Das/respondent

No. 6, Block Development Officer, Dhekiajuli, Sonitpur, who has appeared in

person.

2. Both the writ petitions are being disposed of by this common judgment

and order, in view of the fact that issues raised by the petitioners are

intertwined and pertains to Gorubandha Weekly Market. For easy disposal of the

matters, the placement of the parties in the Cause-Title in WP(C) No. 6322/2022 Page No.# 5/11

is taken into consideration.

3. The brief facts of the case is that the respondent No. 7 was running the

Gorubandha Weekly Market from the financial year 2019-2022 till 30.06.2022,

on the basis of tenders published by the State respondents. As the settlement

of the markets (hats) was being done on a yearly basis, in terms of Section 105

of the Assam Panchayat Act, 1994, the term of the respondent No. 7 as the

settlement holder of the said market was to end on 30.06.2022. Prior to

30.05.2022, the State respondents issued a Notice Inviting Tender ("NIT" in

short) dated 13.05.2022, calling for bids from tenderers for settling the

Gorubandha Weekly Market for the year 2022-2023, for the period from

01.07.2022 to 30.06.2023.

4. The respondent No. 7 and the petitioner submitted their tenders in

pursuance to the NIT dated 13.05.2022. However, the respondent also

submitted a representation dated 23.05.2022 to the State respondents, praying

for extension of the settlement of the market, for a further period of one year.

The same not being allowed by the State respondents, the petitioner filed

WP(C) No. 3729/2022 praying for extension of the settlement period of the

market for one year.

5. WP(C) No. 3729/2022 was dismissed by this Court vide order dated

06.06.2022.

Page No.# 6/11

6. Though the prayer of the respondent No. 7, for extension of the

settlement of the market for a period of one year had initially been rejected by

the State respondents and by this Court in WP(C) No. 3729/2022, the State

respondents extended the settlement period of the market with the respondent

No. 7 vide order dated 01.07.2022, till the selection process for appointment of

the successful tender, in pursuance to the NIT dated 13.05.2022 was completed.

7. Subsequent to the above facts, the President, Dhekiajuli Anchalik

Panchayat and the respondent No. 6 issued a notice of re-tender for settlement

of the Gorubandha Weekly Market on 04.07.2022. Being aggrieved, the

respondent No. 7 filed WP(C) No. 4557/2022, with a prayer that the re-tender

notice dated 04.07.2022 should be set aside and that a direction should be

issued to the respondent authorities, to consider the bid amount of the

respondent No. 7 in terms of the earlier NIT dated 13.05.2022.

8. This Court vide order dated 05.07.2022 in WP(C) No. 4557/2022,

passed an interim order to the effect that the re-tender notice should not be

finalised by the State respondents.

9. The respondent No. 6 thereafter issued an order dated 08.07.2022,

stating that the re-tender notice dated 04.07.2022 had been cancelled, in

compliance with the order dated 05.07.2022 passed in WP(C) No. 4557/2022.

10. The petitioner herein has now filed the present writ petition, i.e., WP(C) Page No.# 7/11

No. 6332/2022, praying that the order dated 08.07.2022 issued by the

respondent No. 6, cancelling the re-tender notice and the extension of the

settlement of the market with the respondent No. 7, vide extension order dated

01.07.2022, should be set aside. The petitioner has also prayed for a direction

to be issued to the State respondents, to initiate a fresh tender process for

settlement of the Market for the remaining period of the year 2022-2023.

11. The learned counsel for the petitioner submits that in terms of Section

105 of the Assam Panchayat Act, 1994, markets have to be settled for a period

not extending one Panchayat Financial Year by inviting tenders. As the

settlement of the market with the respondent No. 7 had been given on a year to

year basis, from 2019 till 30.06.2022, the extension given to the settlement

period of the market to the respondent No. 7, was in violation of Section 105 of

the Assam Panchayat act, 1994. He also submits that this Court in the case of

Kosheswar Bharali vs. State of Assam & Ors., reported in 2000 (3) GLT

528 had accepted the stand taken by the Government of Assam that there is no

provision in the Assam Panchayat Act, 1994, for extension of settlement of a

market beyond one year. He accordingly submits that the State respondents

should call for a fresh tender.

12. Mr. MR Adhikari, learned counsel for the respondent No. 7, on the other

hand submits that the extension of the settlement period of the market was Page No.# 8/11

prayed for by the petitioner, on the ground that the petitioner could not do

normal business due to the COVID-19 Pandemic. He also submits that as the

selection process in terms of the NIT dated 13.05.2022 has not been completed,

a direction should be issued to the State respondents to settle the market, in

pursuant to the NIT dated 13.05.2022. He further submits that as there was no

cancellation of the earlier NIT dated 13.05.2022, the re-tender notice dated

04.07.2022 should be set aside.

13. The respondent No. 6, who has appeared in person has brought the

records before this Court. Mr. NK Debnath, learned counsel for the P&RD

Department submits that as per the records that are brought today, none of the

bids of the tenderers in pursuance to the NIT dated 13.05.2022 can be

accepted, inasmuch as, the tenderers have not submitted the required

documents called for, in terms of the NIT dated 13.05.2022 in the tenderers

forms that was submitted by them. He submits that as per the records brought

by the respondent No. 6, the respondent No. 7 had not submitted the following

documents:-

a. Non-encumbrance certificate of the land, which is to be used as

security.

b. Affidavit of mortgage land from co-pattadars.

c. Income Tax Return certificate.

Page No.# 9/11

d. Certificate for financial soundness from Circle Officer, and

He also submits that the respondent No. 7 has also not submitted the

following documents from his Zamindar, which are as follows:-

a. Land valuation certificate from the DC/SDO/CO.

b. Attested copy of Zamabandi.

c. Land revenue certificate or Khajana Certificate.

d. Non-encumbrance certificate of the land.

e. Affidavit of mortgage land from co-pattadars.

f. Income Tax Return Certificate.

g. Certificate for financial soundness from Circle Officer

h. Affidavit for genuineness of documents submitted.

i. Tax clearance certificate from Sonitpur Zilla Parishad.

j. Tax clearance certificate from Dhekiajuli Anchalik Panchayat

k. Tax clearance certificate from Gaon Panchayat.

l. Affidavit for advertisement of Government Rule by Zamindars.

14. Mr. NK Debnath, learned counsel for the P&RD and the respondent No. 6

submit that if this Court decides that a fresh tender is to be issued, the State

respondents will issue a fresh tender on or before 21.11.2022 and the selection

of the successful tenderer can be completed by 14.12.2022.

15. I have heard the learned counsels for the parties.

Page No.# 10/11

16. On considering the fact that the respondent No. 7 has not submitted

various documents, which is a requirement for being considered for settling the

market in terms of the NIT dated 13.05.2022, this Court finds that there is no

infirmity with the stand of the State respondents that the respondent No. 7

cannot be considered for settlement of the market, in terms of the NIT dated

13.05.2022.

17. Section 105 of the Assam Panchayat Act, 1994 clearly provides that the

settlement of a market (hat) shall not exceed one Panchayat Financial Year and

that the settlement has to be made by inviting tenderers. In the present case,

the settlement of the said market by way of the impugned extension order

dated 01.07.2022, clearly shows that Section 105 of the Assam Panchayat Act,

1994 has been violated by the State respondents. In the case of Kosheswar

Bharali (supra), this Court had held that the State respondents rejection of

the prayer of the petitioner therein, for extension of the settlement of the

market beyond one year, to be valid in law, holding that there was no provision

in the Assam Panchayat Act, 1994 for extension. In that view of the matter, the

extension order dated 01.07.2022 being unsustainable in law, the same is set

aside. The respondent No. 7 should not be allowed to collect any further toll

from the vendors in the Gorubandha Weekly Market beyond today.

Page No.# 11/11

18. At this stage, the counsels for the petitioner, the respondent No. 7 and

the State Government submit that a fresh tender may be called. Accordingly, in

view of the consent of the parties, the respondent No. 6 who is before this

Court and the State respondents are directed to issue a fresh advertisement, for

settlement of the Gorubandha Weekly Market, for the remaining period of the

Panchayat Financial Year 2022-2023 on or before 21.11.2022 and select the

successful tenderer on or before 14.12.2022. It is made clear that the

respondent No. 5 shall settle the market in terms of Section 109(6) of the

Assam Panchayat Act, 1994. Further, the State respondents shall also make a

check-list of the documents required from the intending tenderers at the time of

issuance of the fresh tender notice, which should be made known to the

intending tenderers.

19. The writ petitions are disposed of accordingly.

JUDGE

Comparing Assistant