Shri Debendra Nath Bardolai vs The State of Assam and Others

D. Pathak, Actg. C.J.

These three petitions arise out of the rettlement of Rajmal Cattle Market in which the Petitioners were tenderers. The Sibsagar Mahkuma Parishad invited tenders for settling 50 cattle markets including the present market. In question, Rajmai Cattle Market. The Petitioner: tenders were not considered and they preferred appeal before the prescribed appellate authority under the Assam Penchayat Raj Act, 1972 (hereinafter called the Act). Their appeals were dismissed and hence these petitions.

A brief narration of the facts leading to the present proceedings is that tenders were called by the Executive Committee, Sibsagar Mahkuma Parishad for settlement of 50 markets including the Rajmai Cattle Market. So far Rajmai Cattle Market is concerned 37 tenderers gave bid. The Executive committee of the Mahkuma Parishad on consideration of the tenders, considered only 2 tenders and settled the market with Respondent No. 4 at his bid. The Petitioners being aggrieved preferred appeal before the appellate authority and the appellate authority also upheld the settlement of the hat with Respondent

The settlement of hat is provided in the Assam Punchayat raj (Administrative) Rules, 1973 (hereinafter called the Rule). The specific provision is encapsuled in Rule 28. The relevant provision of this Rule may be read as follows:

Procedure for sale and Settlement of hate - Notice for Sale. 1. Sealed tenders affixing Court-fee stamps of (five) only for sale of the right to collect the authorised fees in respect of any hat for one year, shall be invited by public notice to be given atleast thirty days before the date from which the lease of such hat is to take effect:

Provided that the Executive Committee of the Mohkuma Parishad in a meeting may, if things fit, portion out any shop, house or bazar bheti of a hat for letting out on yearly rental basis separately at such rate as may be fixed from time to time.

(a) The public notice referred to in the preceding rule shall be given by the Chief Executive Councellor of the Mohkuma Parishad concerned and shall state:

(i) the name and location of each hat to be leased;

(ii) the number of shop, house or bazar bhetis, if any, excluded from the sale of any hat;

(iii) the last date and place of receiving the tenders such date being not less than fifteen days after issuing the notice;

(iv) the officer by whom the tenders will be received;

(v) the term for which the lease will be given; and

(vi) the condition, viz. that the selected tenders shall have to deposit with the Secretary of the Mohkuma Parishad, not less than twenty-five per centum on his quoted amount in the tender for one year and to accept duly stamped lease jointly with one OR more sureties to the satisfaction of the Secretary, Mohkuma Parishad within seven days from the date of issuing acceptance letter in respect of his tender that the lessee shall be required to pay the stamp duty on leases and mortgage bonds (unless the Executive Committee of the Mohkuma Parishad has otherwise directed) and any otter special conditions that the Executive Committee may impose for any particular hat:

Provided that if the Executive Committee so directs, the Secretary of the Mohkuma Parishad may in lieu of sureties accept as security the quoted amount for immovable property or promissory notes not less in value than for one year, which shall be given in addition to the security deposit as mentioned above in this sub-rule. The form of mortgage bond of immovable property shall be as provided in Schedule ''B'' annexed to these rules ;

(vii) the date on which the instalments of the purchase money shall have to be paid ;

(viii) the minimum amount below which the hat will not be settled. In determining the minimum amount the Chief Executive Councillor shall cause to be prepared an estimate of probable receipts and expenditure of the hat and fix the minimum amount with the approval by the Executive Committee.

(b) A copy of the notice shall be hung up within the view of the public in the office of the Mohkuma Parishad and a copy shall also posted at a conspicuous place at or in the vicinity of the hat to be leased. Notices shall also be sent to the Block Offices in the Sub-division for displaying in their notice boards.

The Chief Executive Councellor shall immediately after the last date of receiving the tenders, open all tenders and shall cause to prepare a comparative statement of he amount quoted in different tenders received in respect of every hat to be leased.

After preparation of the comparative statements under Rule (3), above, the Chief Executive Councillor shall place such statement along with the tenders before a meeting of the Executive Committee to be convened for the purpose of selecting the suitable tenderers. The Executive Comittee shall have the right to reject any tender as their discretion on any reasonable ground recording the ground for Such rejection in writing.

MR. P.G. Baruah the learned Counsel on behalf of the Petitioner a Civil Rule No. 1020/81 submits that Sub-rule (4) of Rule 28 enjoins the Executive Committee of the Mohkuma Parishad which is the setting authority of the markets to consider the tenders submitted by the tenders in pursuance to the notice calling for tenders after the preparation of the comparative statement and he Executive Committee has got the right to reject any tender (SIC) their discretion on any reasonable ground recording the reasons or such rejection in writing. The initial order of the settlement is marked as Annexure 3 to the petition. This order reads as follows:

Rajmai market: 37 Nos. of tenders have been received in total. After examination having found 2 tenders of Sri Laksheswar Dihingia and Sri Sam Duari, being of the same bid, within the rate determined by the Committee as per law, decides to determine by "Chit Pot" method. After calling both the tenderers and on information of his fact, they agree to run the market jointly. On giving wriiter consent by both parties immediately, for giving settlement of the said market in the name of Sri Laksheswar Dihingia, the Committee settles the Rajmai market in the name of Sri Laksheswar Dihingia at Rs. 27,450.00.

Do perusal of this order it is quite apparent that the Executive Committee did not record any reason for rejection of other tenders. It only took into consideration 2 tenders whose bids were found to be Rs. 27,450/- being 25% increase of the last view''s bid. It is specifically indicated in the order that except these a tenders none of the other tenderers having given the bid of Rs. 27,450/- their tenders were left out of consideration. Mr. P. Prasad, learned Counsel appearing on behalf of the State has brought to our notice the Clause (iv) of the Tender notice which is to the effect that the Executive Committee shall not be bound to accept highest or any tender and for the rejection they need cot give any reasons. This clause is pulpably wrong and it runs counter to the specific provision contained in sub rule (4) of Rule 28 of the Rules that the Executive Committee is to record its reason for rejection of the tendors. A. single Beach of this Court dealing with Sub-rule (4) of Rule 28 in Thagiram Borah Vs. State of Assam and Others, has rightly laid down as follows:

Mr. S.M. Choudhury, learned Counsel for O.P. No. 4. submits that the recording of reason is only directory and hot mandatory and as such non-recording of reasons should not vitiate the settlement. It is difficult to accept such a contention. If the recording of reasons Is held to be directory or not obligatory, it will open up a wide vista for nepotism and favouritism in respect of settlement. Besides, it is an accepted principle of law that when public authorities deal with rival claims of citizens and the decision is statutorily subjected to appeal, recording of reasons is necesuary for the purpose of enabling the appellate authority to scrutinise and find out the legality or otherwise, The reasons must be reasonable as provided in the Rule. The same principle may also be applicable to writ court which also may need to scrutinise the reason, to ascertain the justification for interference. In the absence of any reason so recorded the appellate authoritiy had no material before it even to hold that the O.P. No. 4 was found to be most suitable. Suitability is a criterion and not a reason. To support such a settlement is indirectly to allow these bodies to pick and choose at sweet will. For these reasons the settlement with O.P. No. 4 cannot be allowed to stand.

In view of the aforesaid position the settling authority was clearly in error in rejecting and not considering the tenders of the other tenderers except that of Respondent No. 4 and an other person Saru Duari who give the same bid as that of the Petitioner, We have carefully gone through the impugned judement of the appellate authority and we find that the appelate authority did not address itself to the specific provision of Rule 23 Sub-rule (4) of the Rules. We find has non-consideration of this legal provision by the appellate authority (SIC) the entire order. It is true as it has been observed by be appelate authority that the Mohkuma Parishad being in (SIC) with the tenderer the Mahkuma Parishad functioning as a unit of Local Self Government so long it has performed its duty according to law with regard to statutory revision and consistently with the purpose of the statute is A liable to be interfered with. But here it is a case where (SIC) is a flagrent violation of the statutory provision of Sub-section (4) of Rule 28 of, the Rules. In view of the aforesaid fact we find that the settling authority was not right in Nos. considering the tenders of the other tenderers except that of Respondent No. 4 and another person Saru Duari. For the reasons is stated above, we find that the settlement of the market with the Respondent No. 4 was not proper. But as the term of the settlement of the hat is going to be over after (SIC) months which will, have the opportunity of holding 4 weekly market days (SIC). In that view of the matter we do not like to disturb the present arrangements and we are not inclined to grant any rlief to the Petitioners in view of the aforesaid fact. Accoringly, these petitions are disposed of with the above observation but in the facts and circumstances of the case we pass to order as to cost.