Md. Ruhul Amin vs The State Of Assam And 5 Ors
2023 Latest Caselaw 2141 Gua

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GAHC010103232023




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

                         Case No. : WP(C)/2695/2023

         MD. RUHUL AMIN
         SON OF LATE ABDUL KHALEQUE,
         VILLAGE RAMPUR SATRA,
         P.S.- BATADRAVA,
         DISTRICT- NAGAON, ASSAM.
         PIN- 782122.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT,
         DISPUR, GUWAHATI-06.

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DEPTARTMENT
          DISPUR
          GUWAHATI-06.

         3:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
          PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
         ASSAM
          JURIPAR
          PANJABARI
          GHY-37.

         4:THE NAGAON ZILLA PARISHAD

          REPRESENTED BY THE CHIEF EXECUTIVE OFFICER
          NAGAON

         DISTRICT- NAGAON
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              ASSAM.

              5:BATADRAVA ANCHALIK PANCHAYAT
               REPRESENTED BY THE EXECUTIVE OFFICER

              BATADRAVA ANCHALIK PANCHAYAT

              NAGAON
              DIST. NAGAON
              ASSAM.

              6:DEB NATH DAS
               S/O- SRI DIMNESWAR DAS

              VILLAGE AND P.O.- SENCHOWA

              P.S.- BATADRAVA

              DIST.- NAGAON
              ASSAM

              PIN- 782001

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : SC, P AND R.D.




                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                         ORDER

24.05.2023

Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. M.K. Hussain, learned counsel for the petitioner; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1 - 5; and Mr. B.C. Das, learned senior counsel assisted by Mr. D.A. Kaiyum, learned counsel for the respondent no. 6/caveator.

2. By a Tender Notice dated 10.05.2022, Batadrava Anchalik Panchayat invited bids for Page No.# 3/7

settlement of a number of markets including 'the Balisatra Bi-Weekly Market' ['the Market', for short] for the Panchayat Financial Year : 2022-2023, that is, from 01.07.2022 to 30.06.2023. The petitioner and the respondent no. 6 participated in the said bidding process. The General Standing Committee of the Zilla Parishad after opening the bids, prepared a comparative statement indicating about responsiveness and non-responsiveness of the bids in respect of the documents required to be submitted by the bidders at the time of submission of their bids. As per the comparative statement, the respondent no. 6 did not submit the documents namely [i] Passport size photocopy; [ii] Certificate of Tax Clearance of Gaon Panchayat/Anchalik Panchayat/Zilla Parishad; [iii] Land documents [Ka] Jamabandi, [Kha] Non-Encumbrance Certificate, [Ga] Land Valuation Certificate; and [iv] Bank Guarantee. But the Zilla Parishad by an offer letter dated 27.06.2022 in deference to Clause 10 of the Tender Notice dated 10.05.2022 had offered settlement of the Market to the respondent no. 6 at the bid value of Rs. 1,61,00,000/- offered by him for the Market. By the offer letter dated 27.06.2022, the respondent no. 6 was asked to submit the documents which he did not submit at the time of submission of his bid, within 3 [three] days therefrom. Another letter dated 27.06.2022 was issued by the Zilla Parishad to the respondent no. 6 asking him to submit stamp papers to execute the Contract Agreement and the entire settlement amount since the respondent no. 6 did not submit any guarantee along with his bid. When the respondent no. 6 failed to comply with the condition in the offer letter dated 27.06.2022 by submitting the relevant documents which were not enclosed with his bid, within the stipulated period as well as the kist money, the General Standing Committee of the Zilla Parishad in its meeting held on 01.07.2022, had decided to forfeit the Earnest Money of the respondent no. 6 and to offer the settlement of the Market to a regular highest bidder, that is, the petitioner at his offered bid value of Rs. 1,40,01,050/-. When the settlement was offered to the petitioner by a letter dated 01.07.2022 with direction to deposit the requisite security money and kist money, the petitioner complied with the said condition within the stipulated time period. The petitioner was awarded with the settlement of the Market by the Zilla Parishad by an order of settlement dated 01.07.2022 and it is stated that the petitioner took possession of the Market immediately thereafter.

3. Aggrieved by the cancellation of the offer of settlement of the Market pursuant to the Page No.# 4/7

decision of the Zilla Parishad, the respondent no. 6 stated to have filed an appeal on 29.07.2022 before the respondent no. 1 under Section 105[4] of the Assam Panchayt Act, 1994. When the appeal was not disposed of within the year 2020, the respondent no. 2 preferred a writ petition, W.P.[C] no. 192/2023 with a prayer for expeditious disposal of the appeal. The writ petition, W.P.[C] no. 192/2023 was disposed of by an order dated 10.01.2023 with a direction to the respondent no. 1 to dispose of the appeal of the respondent no. 6 in the matter of settlement of the Market within an outer period of 1 [one] month from the date of receipt of a certified copy of the order.

3.1. The appeal preferred by the respondent no. 6 was thereafter, disposed of by an office order dated 07.02.2023 with a direction to the respondent no. 4 to take immediate necessary action for settlement of the Market with 'the highest bidder' for the remaining period of the Panchayat Financial Year. The appellate order dated 07.02.2023 was followed by an order of settlement dated 09.02.2023 whereby the respondent no. 6 was requested to deposit the requisite documents as mentioned hereinabove, within a period of 3 [three] days and offered the settlement of the Market for the remaining period. The respondent no. 6 was also asked to deposit the amounts towards kist money and security money for the Market by another letter dated 09.02.2023 of the respondent no. 4.

3.2. As the appellate order dated 09.02.2023 was passed without hearing the petitioner, the petitioner approached this Court by a writ petition, W.P.[C] no. 1019/2023 assailing the said appellate order. The writ petition, W.P.[C] no. 1019/2023 came up for consideration on 12.04.2023 and the Court by setting aside the appellate order as well as the order of settlement passed in favour of the respondent no. 6, directed the Appellate Authority to hear both the petitioner and the respondent no. 6 and to dispose of the appeal afresh by 10.05.2023. After hearing the petitioner and the respondent no. 6, the Appellate Authority by the impugned order dated 10.05.2023 has decided the appeal in favour of the respondent no. 6 and directed to maintain status quo in respect of the Market. The said appellate order dated 10.05.2023 is the subject-matter of challenge in this writ petition.

4. Clause 10 of the Tender Notice dated 10.05.222 reads as under :-

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The highest offered rate of tenderer in respect of all the settlements of Bazaar/Ghat/Fishery/Panghat will be considered for settlement. If any highest bidder did not affix their relevant papers [excluding the court fee & Earnest Money] then he could not be allowed to submit the same within 3 [three] days. If the said bidder could not submit the same within 3 [three] days then his bid will be cancelled and his deposited Earnest Money will be forfeited and the settlement will be given to the next higher bidder for that purpose subject to same terms and conditions.

5. The respondent no. 6 was offered the settlement of the Market by the letter dated 27.06.2022 on the basis of the afore-mentioned Clause 10 of the Tender Notice dated 10.05.2022. It is submitted by the learned senior counsel for the petitioner that the impugned appellate order is bad as it reached a finding that the settlement of the Market was made in favour of the petitioner without the State Government's prior approval under Rule 47[10] of the Assam Panchayat [Financial] Rules, 2002. The appellate order has also recorded the finding that the respondent no. 4 had violated the provisions of Clause 20 of the Tender Notice and Rule 47[11][i] of the Assam Panchayat [Financial] Rules, 2002. It is submitted by the learned senior counsel for the petitioner that Clause 20 and Rule 47[11][i] of the Assam Panchayat [Financial] Rules, 2002 is relatable to the highest valid bidder and not to an invalid bidder like the respondent no. 6. Since the petitioner's bid, as per the comparative statement as well as the findings of the Zilla Parishad in its resolution dated 01.07.2022, is the regular highest bid and the petitioner has fulfilled the condition incorporated in Clause 20 of the Tender Notice and Rule 47[11][i] of the Assam Panchayat [Financial] Rules, 2002 after he was awarded the settlement of the Market by order dated 01.07.2022, findings therein is completely erroneous. It is further submitted that since the petitioner is the highest valid bidder, there was no requirement of the Government's prior approval under rule 47[10] of the Assam Panchayat [Financial] Rules, 2002.

6. It is submitted by Mr. B.C. Das, learned senior counsel for the respondent no. 6 that the respondent no. 6 did not receive the offer letter dated 27.06.2022 within the stipulated period of time and the same disabled the respondent no. 6 to comply with the conditions Page No.# 6/7

stipulated therein. But when the respondent no. 6 received the offer letter on 09.02.2023 after the appellate court order dated 07.02.2023, he complied with the conditions in the offer letter on 09.02.2022 itself.

7. Issue notice, returnable on 12.06.2023.

8. As Mr. Dutta has appeared and accepted notices on behalf of the respondent nos. 1 - 5 and Mr. Kaiyum has appeared and accepted notice on behalf of the respondent no. 6/caveator, no formal notices are needed to be issued to the respondents. Mr. Hussain shall furnish requisite nos. of extra copies of the writ petition along with the annexures, each to Dutta and Mr. Kaiyum within 3 [three] working days from today.

9. The matter about 'the highest bidder' in the settlement process under the Assam Panchayat Act, 1994, as amended, is well settled by a catena of decisions of this Court. In the writ petition, W.P.[C] no. 5992/2014 [Durga Charan Mandal vs. the State of Assam & others], this Court in its judgment and order dated 18.03.2015 had observed as under :-

22. 'Process', in the context of a notice inviting tender, encompasses within its ambit, amongst others, preparation of a comparative statement, evaluation of the tenders and rejection of tenders not conforming to the requirements of the Notice Inviting Tender. Sections 105[3], 106[3] also provide for examination of tenders by the General Standing Committee. The highest tender, after examination and evaluation, in a given case, may be rejected. Once rejected, such a tender cannot come into consideration for the purpose of acceptance or settlement. If the words, 'highest bidder' occurring in Rule 47[10] of the Rules is given literal meaning, examination or evaluation of tenders, as contemplated in the Act, will be rendered meaningless and it will result in a situation of acceptance of a tender, irrespective of the fact as to whether or not the tenderer fulfils the eligibility criteria and other terms and conditions. Surely, this is not what the legislature contemplated. The expression, 'the tender of the highest bidder shall be accepted' would, by necessary implication, mean that the highest 'valid' tenderer will be considered for acceptance or settlement and, therefore, Rule 47[10] of the Rules has to be understood to mean that the tender of the highest 'valid' tender Page No.# 7/7

shall be accepted and that acceptance of tender, other than the highest valid tenderer, shall require prior and formal approval of the government.

10. The subsequent decision in Jalal Uddin & Ors. vs. State of Assam & Ors., reported in 2015 [2] GLT 1097 has re-affirmed the view in Durga Charan Mandal [supra].

11. Rule 47[10] of the of the Assam Panchayat [Financial] Rules, 2002 mandates that ordinarily, the bid of the highest valid bidder shall be accepted. Acceptance of the tender other than highest valid bidder, shall require Government's prior and formal approval. In view of the interpretation given in connection with the highest bidder, prima facie the petitioner was the highest valid bidder in the bidding process undertaken for settlement of the Market and the respondent no. 6 was not the highest bidder, that is, highest valid bidder in the bidding process. Thus, this Court is of the prima facie view that the findings recorded in the impugned office order dated 07.02.2023 is in violation of the provisions of the Assam Panchayat Act, 1994, and the Assam Panchayat [Financial] Rules, 2002 and the same is stayed. It is further ordered that the petitioner shall be allowed to operate the Market in the meantime in adherence to the provisions of the Assam Panchayat Act, 1994, and the Assam Panchayat [Financial] Rules, 2002.

12. List the case on 12.06.2023.

JUDGE

Comparing Assistant