Shri Bilsing Bordoloi vs The State of Assam and Others

K. Lahiri, J.—The core question posed in this writ application is the of power of the State Government u/s 138(2) of the Assam Panchayati Raj Act, 1972 as amended.

The Executive Committee of the Morigaon Mahkuma Parishad settled the hat in question with the Petitioner. One of the tenderers Rupen Bordoloi, Respondent No. 5, preferred an application u/s 138(2) of "the Act" questioning the validity of the settlement but he made the Petitioner as the sole Respondent of course the Mahkuma Parishad was a formal Respondent. The Government in exercise of its powers u/s 138(2) of "the Act" heard the matter, wherein admittedly Rupen and the Petitioner figured as the parties to the proceedings and none else apart for the Mahkuma Parishad. The State Government considered the case of Respondent No. 5, Rupen Bordoloi, who figured as the Petitioner therein and rejected his case. There after, the Government considered the case of Abdul Karim, one of the co-tenderers and those of the Petitioner and other tenderers and found that Abdul Karim was entitled to get the settlement of the bazar. The reasons subscribed by the Govern-ment in favour of Respondent No. 6 prima-facie appear to be reasonable and just. The Government held that Abdul Karim had landed property, and therefore, more secured than the Petitioner and others. The second reason was that the tender of Abdul was the highest amongst the three combatants. The third ground in favour of Karim was that the Mahkuma Parishad had left out of consideration his tender on obviously wrong construction of the provisions of "the Rules" framed under ''the Act and the tender: notice. The Executive Committee had outright rejected the tender of Karim as he had allegedly misdescribed the name of the bazar as "Gopalghat" instead of "Gopal-ghat" in column 3 of his tender. Undoubtedly, this could not have been a valid ground for rejection of his tender. From the name itself and other descriptions of the tender of Respondent No. 6, Abdul Karim, it was evident that he had submitted the tender for "the hat in question" i.e. "Gopalar Ghat" bazar and no other bazar. Therefore, apparently the impugned order of the Government was correct but there was a fatal error of jurisdiction committed by the Government rendering the impugned order as invalid.

It has been very rightly pointed out by Mr. Chaliha, learned Counsel for the Petitioner that the State Government has a large and wide discretionary power u/s 138(2) of the Act. It can "give such order as may deem necessary" after examination of the records of the proceedings. According to Mr. Chaliha, learned Counsel for the Petitioner, Respondent No. 6 (Abdul Karim) was not a party to the appeal before the Government nor did he appear or figured as a party "suo moto". Learned Counsel submits that the Government, while considering the records of the proceeding in exercise of the power u/s 138(2) of "the Act" could maintain the order of settlement, not it aside, remit it back for fresh settlement or could grant settlement to any tenderer qualified to obtain the tender. The discretionary powers conferred on the State Government, according to Mr. Chaliha, learned Counsel for the Petitioner, are large and wide, in the sense that it could exercise "co-extensive power" with the Settling authority. However, the power delegated could not be exercised arbitrarily by the power holder. The function of the Government being quasijudicial it was bound to follow the principles of natural justice and could make the order affording reasonable opportunity to the parties. The first contention of the Petitioner is that the impugned order is bad as Respon-dent No. 6 Abdul Karim was hot a party to the proceedings and the Government had no jurisdiction to make the settlement with him as he was not a party to the proceedings. The second contention is that (sic) State Government could not have passed the order directing (sic) settlement of the bazar in favour of Abdul Karim Respondent No. (sic) he was, at all relevant time a defaulter of Government (sic) and as such disqualified to get the settlement''''. Counsel (sic) its out the averment of Petitioner in paragraph 17 of the (sic) as well as paragraph 3 of his Additional affidavit. In (sic) the Affidavits the Petitioner categorically stated that Respondent No. 6 Abdrl Karim had been a defaulter" of co-operative loan, at alt relevant period, and, as such, he was disqualified to get the settlement.

The State Government exercising powers u/s 138(2) of "the Act" may make any order as it may deem necessary, after examining the records of the proceedings. However, the extraordinary power does not include conferment of power or function to make an order of settlement in favour of a stranger, i.e. a non-tenderer, It has co-extensive power with the Settling authority subject to the limitations under which the settling authority could settle. The settling authority could not settle a hat with a non-tenderer, so, the State Government acting u/s 138(2) cannot settle the bazar with a non-tenderer.

Be that as it may, the core question is whether the State Government can make the order of settlement with a tenderer who is not a party to the proceedings? If so, under what circumstances? In our opinion, ordinarily, while exercising the powers u/s 138(2) the State Government should not make settlement with a person who is not a !party before it. The reasons are first that if the settlement is made in favour of the person, who is not a party to the proceedings, although a clearly qualified tenderer, he might not accept the order of settlement. Secondly the power can be exercised only after giving reasonable opportunities to the parties to the proceedings why the settlement should not ne made in favour of the person, not party to the proceedings. In the instant case, admittedly Abdul Karim was not a party to the proceedings. Fortunately for the State Government Abdul karim appears to have shown his inclination to accept the settlement. What would have happened if Abdul Karim would have refused to accept the settlement? It would have put the entire settlement proceeding in a disarray, as Karim was granted settlement after setting aside the settlement of the Petitioner this aspect of the matter need be carefully scrutinised by the state Government. Let us now consider the meet of the matter. In the instant case, the Petitioner complains that he did not get and opportunity whatever to place before the authority about the basic qualification of Abdul Karim, namely, his disqualification for being a defaulter in respect of Government loan or loan from a co-operative society. It is clear that the Petitioner did not get any opportunity to show that Karim was so disqualified to get the settlement. We are also convinced that if the Petitioner would have been given the opportunity of knowing that the State Government was inclined to grant settlement favour of Respondent Abdul Karim, the parties to the proceedings would have certainly placed the disqualifications before the authority. However, the Petitioner did not get that opportunity. Now, in view of the disqualification alleged in paragraph 17 of the petition and paragraph 3 of the Additional affidavit of the Petitioner, we are confirmed that the Respondent No. 6 could not have obtained the order of settlement from the Government. In (sic) of the disqualification, a person cannot get settlement of a that under "the Act" and "the Rules" framed there under. Under these circumstances we are constrained to hold that Respondent No. 6 was disqualified to obtain settlement and as such the impugned order cannot be sustained.

We would like to state here in clear terms that while (sic) the power u/s 138, If the State Government desires (sic) settlement to a person who is not a party to the proceeding it must issue notice to the party to appear and ascertain (sic) he likes to get the settlement. Farther opportunities (sic) should also be given to the parties to the proceedings to show (sic) why the settlement should not be made in favour of the (sic) party. Only after giving such opportunities to the parties the Government could exercise the power of offering settlement to a person who was pot a party to the proceedings.

For the foregoing reasons, we have no hesitation in coming to the conclusion that the impugned order is bad and is liable to be quashed. However, Respondent No. 6 Abdul Karim has suffered pecuniary and other loss and it is a fit case in which cost should be awarded in bis favour although the petition is allowed.

In the result, while allowing the writ petition and setting aside the impugned order and making the rule absolute we direct the Petitioner to pay a cost of Rs. 1,200/ to Respondent No. 6 (sic) 2 months from today.

In view of the fact that the settlement is going to (sic) by June, 1983 we direct that the order of the Executive committee of the Morigaon Mahkuma Parishad should be given (sic) and the Petitioner be allowed to continue with the settlement till the expiry of the settlement.