Nipen Das vs State Of Assam And 3 Ors

1) Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Mr. M. Nath, learned standing counsel for the respondent nos.1, 3 and 4

and Ms. M. Barman, learned Junior Govt. Advocate appearing for respondent no.2.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, who is the sitting lessee of Bihora Cow Market under

Golaghat Zilla Parishad for the year 2019-20, as extended from time to time to 30.06.2021, has filed this writ petition, inter-alia, seeking intervention by

his Court in respect of tender notice no.G.P.A.P.13/B.G.B./Pt.-5/2020-21/603-11 dated 06.05.2021; and for a direction upon the respondent authorities

to refund 50% of the amount paid by the petitioner.

3) The learned counsel for the petitioner has submitted that during the tenure of his respective lease, lockdown was imposed since 24.03.2020 due to

outbreak of Covid-19 pandemic and as such the Deputy Commissioner cum District Magistrate, Golaghat had closed the hat/ market from time to

time. It is submitted that the petitioner had deposited his kist money without any default for the period up to 30.06.2021. However, during the Covid-19

pandemic situation, the petitioner has suffered huge financial losses. The learned counsel for the petitioner has submitted that in view of the financial

losses, this was a fit case for ordering cancellation of the tender process with a direction to the respondent authorities to extend the period of lease for

a reasonable time so as to enable the petitioner to recover his loss. The learned counsel for the petitioner has referred to the statements made in the

writ petition in support of his argument.

4) The learned standing counsel for the P&RD Department has opposed this writ petition and the prayer for interim relief on the ground that there is

no provision in the Assam Panchayat Act, 1994 or rules framed thereunder for extension of the period of lease/ settlement of hats. It is submitted that

it is open to the petitioner to seek remission in respect of the kist money by invoking the provisions of Rule 49 of the Assam Panchayat (Financial)

Rules, 2002. In support of his submissions the learned standing counsel has relied on the decision of this Court dated 02.06.2020 rendered in WP(C)

2246/2020 (Mustafa Kamal vs. State of Assam & 7 Ors.), wherein this Court had permitted the petitioner therein to submit representation to the

Commissioner to the Govt. of Assam, Panchayat & Rural Development Department, Assam with a direction to the said authority to dispose of the

same within four weeks.

5) Perused the writ petition and documents annexed thereto. The only question with which the Court is confronted with is whether it serves any public

interest to extend the tenure of settlement of markets/ hats, etc. on consideration of the plea of the petitioner that he had suffered losses.

6) In this regard, the Court is of the considered opinion that if the petitioner has suffered losses, it is open for him to file a suit and prove his entitlement

to recover losses from lease rent/ kist money payable and/or paid for the period he was settled with the market/ hats. There is no public interest

involved in ordering extension of lease period merely because the petitioner has projected that he had suffered losses. There is no doubt that world

over, business enterprise of every conceivable description have suffered huge losses due to Covid-19 pandemic. Till now, the world has seen two

waves of Covid-19 pandemic and without commenting whether it is true of not, but there are predictions in print and television media that very shortly

India would suffer third wave of Covid-19 pandemic. Thus, the times are uncertain. Even the petitioner cannot predict that if their lease is extended

for ‘n’ number of days, months, or years, they would be able to recover losses. The documents annexed to the writ petition do not indicate that

there was assurance from the respondents that the lease for the market/ hat in question was designed to assure profit to the successful bidder.

 Therefore, if the petitioner has suffered losses, it is open to him to file a civil suit and recover compensation from the respondent authorities, but

there is no public interest involved to stay the tender process and to direct the authorities to extend the term of lease of the petitioner.

7) In this regard, the Court is reminded of the case of Ali Akbar Vs State of Assam, 2009 (2) GLT 553, where dealing with the provisions of the

Panchayat Act, 1994, this Court had made the below extracted observations:-

(7) Coupled with the above, the settlement, in the present case, has been made by an Anchalik Panchayat in exercise of its jurisdiction under Section

105 of the Assam Panchayat Act, 1994, and the Rules framed thereunder. Neither the Assam Panchayat Act, 1994, nor the Rules framed thereunder

make provisions for extension of the period of settlement for the purpose of enabling a lessee or a settlement holder of a ferry ghat to recover the loss,

which he may have incurred after he had received the settlement. In fact, in Kosheswar Bharali Vs. State of Assam, reported in (2000) 3 GLT 528, it

was urged before this Court that since the Assam Panchayat Act, 1994, is silent as regards extension of settlement of a ferry, the Court should take

an equitable view and hold that the authority concerned have the power to grant extension in appropriate cases, where the lessee suffers loss during

the period of settlement. Rejecting the submissions, so made, the Court observed and held as follows:

The reason for rejecting the prayer for extension of the petitioner, inter alia, therefore, is that there is no provision in the Assam Panchayat Act,

1994 for extension of settlement of hat/ghat/ferries. Section 105 (1) of the Assam Panchayat Act, 1994, provides that all hats within the territorial

jurisdiction of Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial

year by inviting tenders at the office of the Anchalik Panchayat. Similarly, Section 106(1) of the Assam Panchayat Act, 1994 stated that all public

ferries, other than Government ferries within the territorial jurisdiction of the Anchalik Panchayat shall be settled in the manner prescribed for a period

coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by its President. On a

reading of different provisions of Sections 105 and 106 of the said Act, it appears that there is no provision for extension of Settlement either of hats or

of public ferries.

Mr. Hazarika, however, submitted that since the said two sections of the Assam Panchayat Act, 1994, are silent with regard to extension of

settlement of hat or ferry, the Court should take an equitable view and hold that the authorities have the power to grant extension in appropriate cases

where the lessee suffers loss during the period of settlement. I am unable to accept the said submission of Mr. Hazarika as both Sections 105 and 106

of the Assam Panchayat Act, 1994, state that the settlement of hat or public ferry is not to exceed one Panchayat financial year and further state that

such settlement has to be made by inviting tenders. Thus, the express provisions of Section 105 and 106 of the Assam Panchayat Act, 1994 prohibited

any extension or settlement beyond the period of one Panchayat financial year and further mandate that any settlement has to be made by inviting

tenders. Therefore, I hold that no extension can be granted in respect of a public ferry settled under Section 106 of the Assam Panchayat Act, 1994,

by inviting tenders and that after a period of settlement of one year such public ferry can only be settled afresh by inviting tenders and not otherwise.

(emphasis added)

(8) From what have been observed and concluded above, what becomes clear is that when there is no provision made in the Assam Panchayat Act,

1994, for granting extension of the period of settlement and when the said Act makes it clear that the settlement shall be for one Panchayat financial

year, it is not possible for a Panchayat to extend the period of settlement, even though the settlement holder or lessee might have sustained loss. Had

the legislature intended making such provisions, it could have done so as have been done in the cases of fisheries. I, therefore, see no reason to take a

view different from what has been taken in Kosheswar Bharali (supra) and I hold that extension of the period of settlement of a ferry ghat cannot be

granted by a Panchayat under the provisions of the Assam Panchyat Act, 1994.

(9) Because of the conclusions reached above, it becomes clear that the directions, given by the Commissioner, in the impugned order, dated 06. 05.

2008, to the said Panchyat to compensate Safiqul Hoque (i.e., the petitioner in WP (C) No. 2063/2008), by way of extension of the settlement, which

had been granted to him, is completely without jurisdiction and must be set aside. If the order dated 06.05.2008, is set aside, the consequence would be

that the writ petition, filed by the Sofiqul Hoque, seeking direction to the State respondents to extend his period of settlement, must also fail.

(10) In the result, and for the reasons discussed above, the impugned orders dated 06.05.2008 and 30.06.2008 are hereby set aside and quashed. The

prayer for extension made by the petitioner, Safiqul Hoque, in WP (C) No. 2063/2008, is not allowed; hence, this writ petition shall stand dismissed.

(11) It is further directed that the said Panchayat shall proceed with the finalization of the lease, if they so decide, in terms of the notice inviting tender,

dated 03. 05. 2008. It is further made clear that Safiqul Hoque (i. e., the petitioner in WP (C) No. 2063/2008) shall remain at liberty to recover his loss

by taking resort to appropriate provisions of law.â€​

8) It is seen that this Court in the case of Sekura Boro vs. The Principal Secretary, BTC & 3 Ors., WP(C) 3073/2021 decided on 18.06.2021, without

interfering with the tender process had granted time to the petitioner to submit a proper representation before the respondent no.1 therein to be

considered on merit, however, with a direction that the possession of the market shall not be disturbed till 30.06.2021, date till which the settlement

was valid.

9) In view of the discussions above, the Court is of the considered opinion that the ratio of the above referred case of Ali Akbar (supra) squarely

applied to the facts and circumstances of this case. Accordingly, the Court has no hesitation to hold that the writ petition is devoid of any merit.

10) Accordingly, this writ petition stands disposed of by granting liberty to the petitioner to submit his representation before the respondent no.1 along

with such documents on which he intends to rely upon and on receipt of such representation, the respondent no.1 shall dispose of the representation

within a period of 4 (four) weeks from the date of receipt of such representation along with copy of this order. It is made clear that while considering

the representation, the respondent no.1 shall have due regard to the provisions of Rule 49 of the Assam Panchayat (Financial) Rules, 2002. The

petitioner is granted liberty to produce a downloaded copy of this order before the competent authority, who would be at liberty to verify the

correctness of the order from the website of the Court.

11) Before parting with the records, the Court is inclined to observe that this order shall not preclude the petitioner to avail appropriate remedy as he

may be so advised to recover loss by taking resort to appropriate provisions of law.