Hanif Ali vs State Of Assam

Heard Mr.D. Das, learned Senior Counsel assisted by Mr.S.Islam, learned counsel appearing for the petitioner. Also heard Mr.B.Rahman, learned

counsel appearing for the respondent No. 6 and Mr.T.C.Chutia, learned Additional Senior Govt. Advocate appearing for the State respondent.

The petitioner in WP(C) No.126/2018 had challenged the legality and the validity of the office order under Memo No.

D.Z.P./Bazar/General/393/2017-18/1130(A) dated 30.12.2017 issued by the Chief Executive Officer, Darrang Zila Parishad by which the settlement

order dated 20.7.2017 issued in favour of the petitioner was cancelled and the respondent No. 6 was settled with the Ramhari Bazar. The Pachim

Mangaldai Anchalik Panchayat issued notice inviting tender (NIT) on 9.5.2017 for settlement of Hats under its jurisdiction including Ramhari Bazar

for the year, 2017-18. On 27.6.2017 the tender was opened by the standing committee of Pachim Mangaldoi Anchalik Panchayat (hereinafter referred

to as the Panchayat), and the comparative statement was prepared. The petitioner was found to be the highest valid bidder amongst the tenderer. On

the other hand, the tender of respondent No. 6 was found to be defective one. On the basis of a resolution adopted by the General Standing

Committee of the Panchayat it was decided to settle the market in question, in favour of the petitioner and vide order dated 20.7.2017, the said market

was settled with the petitioner at his quoted bid value of Rs.99,999.99/-.

The Executive Officer, Panchayat vide his letter dated 20.7.2017 addressed to the Chief Executive Officer, Darrang Zila Parishad sent the copy of

the resolution dated 20.7.2017 passed by the standing Committee of the Panchayat alongwith the comparative statement of the Ramhari Bazar. On

the other hand, as per the terms of the settlement order dated 20.7.2017 the petitioner deposited 30% of the quoted value amounting to Rs. 28,557/-, as

the security money for the market. In the meantime, the respondent No.4 failed to approve/confirm the said settlement order dated 20.7.2017

following which a reminder was issued by the Executive Officer of the Panchayat. Further, the petitioner deposited the first installment of Rs.24,000/-

to the Panchayat. But to the surprise of the present petitioner, respondent No.4 settled the Ramhari bazar with the private respondent No. 6 vide order

dated 30.12.2017, thereby cancelling the settlement order dated 20.7.2017 issued by the Executive Officer of the Panchayat. Being aggrieved this writ

petition being WP(C) No.126/2018 has been preferred for setting aside the impugned order dated 30.12.2017.

The petitioner in W.P(C) No. 127/2018 also participated in the aforesaid NIT dated 30.12.2017 for Deonagaon Bazar. His bid value quoted was Rs.

99,999.98/- and the same was settled vide letter dated 20.7.2017 whereafter he deposited the 30% security deposit of his quoted value. The said

settlement order was sent to the Chief Executive Officer of Darrang Zila Parishad for confirmation which was delayed by the respondent No. 4.

Reminders were issued by the Executive Officer, Panchayat and surprisingly, vide order dated 30.12.2017 issued by the respondent No.4, cancelled

the settlement of the petitioner and settled the Deonogaon Bazar with the private respondent No.6. Being aggrieved the petitioner has preferred this

writ petition for setting aside the impugned letter of respondent No. 4 bearing No. BZP/Bazar/General/393/2017-18 dated 30.12.2017.

4 Both the writ petitions were moved and upon motion vide order dated 10.1.2018 the impugned orders dated 30.12.2017 passed by the respondent

No.4 were suspended.

Both the private respondents in the aforesaid writ petitions, preferred IA(C) 192/2018 and IA(C) 214/2018 respectively with a prayer for vacation

/alteration /modification of the interim orders dated 10.1.2018 passed by this court. The said Interlocutory Applications alongwith the writ petitions are

taken up together for disposal at admission stage.

On perusal of the records, it is seen that both the private respondents’ bids were rejected respectively for non submission of valuation report/

certificate of the land of the guarantor and as no affidavit was submitted by the co-pattadar of the land belonging to the guarantor. The private

respondents in their stay vacating petition brought the allegation against the Panchayat that after preparation of the comparative statement the quoted

value stood above Rs. 1 lacs of all the 7(seven) bidders, as such the settlement order of the Panchayat is without any jurisdiction. It is also pleaded

that both the petitioners failed to submit financial solvency certificate and as such there is a specific violation of Clause 12 and Clause 21 of the terms

stipulated in the NIT. The private respondents mainly raised the aforesaid disqualifications on the petitioners’ bid and pleaded that the settlement

order passed by the Executive Officer, Panchayat are illegal and as such, there is no primafacie case at all in favour of the petitioner as such, the stay

orders are to be vacated.

Mr.Das, learned Senior counsel submits that the present petitioners’ bid value is below Rs. 1 lac. There is no point in sending the comparative

statement to the Zila Parishad as none of the bidders, leaving aside the petitioners were found to be eligible. Referring to Harej Ali and another Vs.

State of Assam reported in 2009 (2) GLT 561, Mr.Das submits that the Full Bench of this court clarified that yearly value of Ghat, Ferry and Fishery

under the Anchalik Panchayat put in tender for settlement would mean the highest bid amount offered by the eligible bidder in terms of the provision

of the Act. In the present case in hand, it is seen that none of the bidders who quoted above Rs.1 lac are eligible and as the petitioners were found to

be eligible bidders and their bid value are below 1 lac, there is no violation of Section 109 sub-Section 6 of Assam Panchayat Act,1994.

Mr. Das, further, submits that on 20.7.2017 the whole record alongwith requisite comparative statements and the resolution of the General Standing

Committee of the Panchayat were sent to the Zila Parishad for confirmation and till 30.12.2017, the respondent No.4 remained silent. On the other

hand, the petitioners started running the Hats after paying their contracted amount. The said fact is known to the respondent No.4 and even if it is

assumed that there were any deficiency in the tender bids of the petitioner, a duty was cast upon the respondent No. 4 at least to hear the petitioners.

The act of delay itself speaks about the intention of the respondent No. 4 to deprive the petitioners from their right to get the settlement of the bazar. It

is further submitted that the role of the respondent No. 4 required in the factual matrix of these writ petitions is mainly an act of approval thereby

confirming the resolution of the general Standing Committee of Panchayat. Referring (2016) 12 SCC 613 (Bajaj Ltd Vs. State of U.P.) Mr.Das

submits that approval is the act of confirming/ratifying to some act or thing done by another. Approval to an act or decision can also be subsequent to

the act or decision. It is further submitted that there is a difference between the approval and permission. Approval indicates that any action hold good

until it is disapproved. On the other hand, any action does not become effective until permission is obtained. Referring the said terminology, Mr.Das

submits that till the resolution of Anchalik Panchayat was disapproved, the settlement order remained valid and as such before cancelling the

settlement order the petitioners ought to have given a hearing by the respondent No.4. Having not done so, the settlement orders are liable to be set

aside restoring the settlement of the petitioner.

Mr.Rahman countered the submission of Mr.Das by referring to Harej Ali and another Vs. State of Assam (supra) and submits that the Full Bench

of this Court held that any settlement made in respect of Hat, Ferry and Fishery without confirmation by the Zila Parishad cannot be held to be a

legally valid settlement. In the present case though there were settlement orders passed by the Anchalik Panchayat but the same were invalid one as

the same were not confirmed. For completing the process of confirmation as authorized under the law, the Zila Parishad, respondent No. 4 herein had

no business of calling or issuing notice to the petitioners. The said process of confirmation is continuous from the point of time the NIT was opened

and formally closed by confirmatory orders wherein the settlement orders are issued by Anchalik Panchayat. The present petitioners defaulted in

depositing the financial solvency certificate which is a mandatory condition as stipulated under Clause 12 of the NIT and keeping in view the

mandatory provision of Clause 21, the petitioners cannot be treated as eligible bidders. There is no merit at all in these writ petitions and the same are

liable to be dismissed.

The submission of the learned counsel is considered. The petitioner in WP(C) No.126/2018 is Hanif Ali and the petitioner in WP(C) No.127/2018

is Bhaben Ch. Deka. The respondent No. 6 in each of the writ petitions are Md.Gahan Ali and Md.Sahidul Islam. The guarantor of the Hanif Ali is Sri

Bhabani Bania and that of Bhaben Ch. Deka is Md. Norman Ali. Perused the case record. From the comparative statement, it is seen that Md.Hanif

Ali’s name is at Serial No. 8 for Ramhari Bazar. From the comparative statement it is seen that the petitioner Hanif Ali has satisfied all the

qualification. On the other hand, his guarantor Bhabani Bania did not submit his passport size photograph. The respondent No.6 Md.Gahan Ali in

WP(C) No. 126/2018 did not submit the certificate of the Mauzadar and his guarantor Giasuddin Ahmed failed to submit the land valuation certificate

of the land offered as guarantee and there being no passport size photograph. The Standing Committee of the Zila Parishad while examining the

comparative statement and the remarks thereon, did not consider the bid of Hanif Ali nor there is any comment as to why his bid was not considered.

The General Standing Committee of the Zila Parishad came to the conclusion rejecting the bid of bidder Nos.1,2,3,4 and 5, the sixth bidder Gahan Ali

was held to be the eligible bidder. On perusal of comparative statement and the documents annexed by the present petitioner in W.P(C) No.126/2018,

from the record it is seen that he has submitted all the documents alongwith his guarantor Bhabani Bania. However, Bhabani Bania did not submit

passport size photograph.

So far the records of Deonagaon Bazar is concerned there were in total 7(seven) bidders. From the comparative statement, Bhaben Ch. Deka,

petitioner in WP(C) No.127/2018 is the bidder No.7 and it is seen from the comparative statement that he has submitted all the requisite documents

and on the other hand, his guarantor Norman Ali leaving aside rest of the documents, failed to submit the passport size photograph. Sahidul Islam

respondent No. 6 in WP(C) No.127/2018 is the bidder No. 6 in the comparative statement, though submitted the required documents as per the

qualifying clauses, his guarantor Md.Maqbul Haque failed to submit no objection of the co-pattadar of the land forwarded against the guarantee.

Herein also the members of the General Standing Committee did not consider nor any comment was made against the petitioner Bhaben Ch. Deka.

From the verification of the records, it is observed that both the petitioners were not even considered by the General Standing Committee of Zilla

Parishad though their names are very much reflected in the comparative statement. Non consideration of the bids of the petitioners is intentional which

can be seen from the resolution taken by respondent No.4, Chief Executive Officer, Darrang Zila Parishad. From the resolution it is seen that the

resolutions of the Anchalik Panchayat were rejected because of assumption of the jurisdiction by the Standing Committee of Anchalik Panchayat

when there were bidders whose bid values were above Rs. 1 lacs. Accordingly, the General Standing Committee of the Zila Parishad did not consider

the bids of the petitioners whose bids were below Rs. 1 lacs. If the eligibility of the petitioners are considered both of them are seen to be qualified as

per the criteria except for non-submission of photographs by the respective guarantors. If at all the respondent No.4 considered that action of the

General Standing Committee of the Anchalik Panchayat were not as per the Rules then a duty was cast upon the respondent No. 4 to take shelter

under the provision of the prescribed law by referring the matter through the Anchalik Panchayat to the Government for a decision or on its own.

But in both the present cases the respondent No. 4 was not diligent in informing the decision of the Standing Committee of the Zila Parishad to the

Anchalik Panchayat and in such a situation the action of the respondent No. 4 by settling the respective markets with the respondent No. 6 in each of

the writ petitions cannot be accepted to be fair and reasonable. If at all there were any violation of rules by the General Standing Committee of the

Anchalik Panchayat, same ought to have been pointed out by the respondent No.4. Now the guarantors of both the petitioners defaulted in not

submitting the photographs which as per the requisite criteria is a must in view of Clause 21 of the tender condition which stipulates all the conditions

in the tender notice are to be fulfilled. Similarly there is deficiency on the part of the guarantor in meeting the criteria of both the respondents in the

petition. For the said reason a decision ought to have been sought for from the Government which is not done, instead the respondent No. 4 without

any cogent reason settled the hut with the respondent No. 6 in both the writ petitions which in my opinion cannot be accepted.

Accordingly, the impugned orders in both the writ petitions are quashed directing the respondent No.1, the Commissioner and Secretary to the

Govt. of Assam, Panchayat & Rural Development Department for passing appropriate orders and till then the market is to run by the respective

Anchalik Panchayats i.e. respondent No. 5 in both the writ petitions.

These writ petitions are accordingly disposed of. Interim order passed earlier stands vacated.