WP(C) 3578/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was one of the bidders in respect of Panjabari Batahghuli Ma rket for the Panchayat year 2011-12, by the present petition, has challenged the order dated 04.07.2011 issued by the Chief Executive Officer, Kamrup(Metro) Zil la Parishad settling the said market in favour of the respondent No.6 at Rs.1,43 ,950/- for the said Panchayat year ending on 30.06.2012. 2. I have heard Mr. R.K. Adhikary, learned counsel for the petitioner, Mr. R.K. Bora, learned State counsel appearing for the respondent Nos.1 to 5 and Mr. D.R. Gogoi, learned counsel appearing for the respondent No.6. 3. Referring to the averments made in the writ petition as well as the comp arative statement prepared by the Anchalik Panchayat, which is available on reco rd, it has been submitted by Mr. Adhikary, learned counsel for the petitioner th at since the petitioner was found to be the highest valid bidder, who has offere d Rs.1,95,000/- for settlement of the market in question, the Zilla Parishad oug ht not to have settled the market in favour of the respondent No.6 at Rs.1,43,95 0/-, on the ground that (i) the bid of the petitioner is exorbitant keeping in v iew the Government revenue fixed for the said market, which may leads to the col lection of the revenue from the vendors at a rate which is much higher than the rate fixed resulting in inconvenience to the general public and (ii) that in suc h higher bid if the market is settled, there is likelihood of public resentment. According to the learned counsel in the tender notice no viability range has be en mentioned informing the intending bidders that the bids within a particular r ange of the minimum rate fixed for the market would be considered and entertaine d for the purpose of settlement of the market in question and as such the ground s on which the market has been settled in favour of the respondent No.6 cannot b e sustained in law. It is also the contention of the petitioner that since the r ate of tolls to be collected from the vendors is fixed by the authority concerne d, the settlement holder in any case cannot collect tolls at any higher rate. It is also the submission of the learned counsel for the petitioner that if the Pa nchayat authority had any doubt relating to the inability of the tenderers to de posit the kist money in the event of settling the market at a rate offered by th e petitioner, the authority could have asked the petitioner to deposit the kist money at a time. Mr. Adhikary further submits that there is also no basis to arr ive at the decision that the amount offered by the respondent No.6 is the reason able amount keeping in view the minimum rate fixed for that market. The learned counsel submits that the decision making process is vitiated by the arbitrarines s in action on the part of the respondent authority and hence the order of settl ement passed in terms of such decision making process may be set aside and the r espondent authority may be directed to offer the settlement of the market in fav our of the petitioner, he being the highest valid bidder. 4. Mr. Bora, learned State counsel appearing for the respondent Nos.1 to 5 supporting the decision of the Zilla Parishad in settling the market in favour o f the respondent No.6 and placing reliance on the records produced has submitted that the Standing Committee adopted the resolution in its proceeding dated 29.0 6.2011 to settle the market in favour of respondent No.6 though the bid of the w rit petitioner and 5(five) others were found to be higher than the bid of the re spondent No.6, on 2(two) grounds, namely, that the offer of those tenderers are exorbitant and if the settlement is made at the amount offered by those tenderer s including the petitioner, there is likelihood of collecting the toll at a high er rate resulting in public inconvenience and there is a possibility of such ten derers becoming defaulter in depositing the kist money. Mr. Bora further submits that since such decision was taken keeping in view the public interest and the respondent No.6’s bid having been found to be the lowest, the decision was taken by the Zilla Parishad to settle the market in favour of the respondent No.6. Mr . Bora further submits that in terms of the requirement of Rule 47(10) of the As sam Panchayat (Financial) Rules, 2002, the Zilla Parishad had also requested the Government to grant the approval, outcome of which, however, is not known to th e learned State counsel. Mr. Bora submits that as the respondent No.6 is running the market pursuant to the impugned order of settlement passed by the Zilla Par ishad, it can be presumed that the Government has approved the action of the Zil la Parishad in settling the market in favour of a bidder whose bid was not the h ighest. 5. Mr. Gogoi, learned counsel appearing for the respondent No.6 supporting the arguments advanced by Mr. Bora, learned State counsel also submits that sinc e such a decision has been taken keeping in view the public interest i.e. the in terest of the consumers, no fault can be found in settling the market in favour of the respondent No.6, who was the lowest bidder. It has also been submitted th at there were number of complaints about collection of tolls at the rate higher than the rate fixed by the Panchayat authority, against the settlement holder of the market in the last year, who was settled at around Rs.1,19,000/-, which fac tor must have also been taken into consideration by the Zilla Parishad in passin g the impugned order. The learned counsel, therefore, submits that the order of settlement passed by the Zilla Parishad needs no interference. 6. I have considered the submissions of the learned counsel for the parties and perused the pleadings as well as the records produced by Mr. Bora, learned State counsel. 7. The notice inviting tender was issued by the Chandrapur Anchalik Panchay at on 16.05.2011 for settlement of different markets including the Panjabari Bat ahghuli Market for the Panchayat year 2011-12 (01.07.2011 to 30.06.2012). The mi nimum rate fixed for the said market was Rs.59,895/- and earnest money was fixed at Rs.2,995/-. Pursuant to such tender notice issued 10(ten) tenderers submitte d their respective bids. While one Shyam Kr. Shrestha offered Rs.2,10,191/-, the writ petitioner offered Rs.1,95,000/- as against Rs.1,43,950/- offered by the r espondent No.6. Shri Robin Rahang, Shri Paresh Das, Shri Nagen Baishya and Shri Manabendu Das offered different amounts between the amount offered by the writ p etitioner and the respondent No.6. 3(three) other bidders, namely, Shri Manoj Kr . Dowara, Shri Amzed Ali and Shri Bipul Sarma offered the amount less than what was offered by the respondent No.6. The Anchalik Panchayat after opening the ten der papers submitted by different tenderers prepared a comparative statement, wh ich was thereafter sent to the Zilla Parishad for taking a final decision of set tlement since the amount offered by the bidder was more than Rs.1,00,000/-. The General Standing Committee of the Zilla Parishad in its proceeding dated 29.06.2 011, upon consideration of the different amounts offered by different tenderers, adopted a resolution, being resolution No.1, to settle the market in favour of the respondent No.6 on the ground that the amount offered by bidder No.1, 2(writ petitioner), 3, 4, 5 and 6 though are found to be valid and in order, their off er being highly excessive in comparison to the minimum rate fixed in the tender notice, the market cannot be settled in their favour. A further decision was als o taken to settle the market in favour of the bidder at Sl.No.7(respondent No.6) at Rs.1,43,950/-. It has also been indicated in the said resolution that if the market is settled in favour of those higher bidders, there is possibility of pu blic resentment. The Standing Committee, however, did not cite the ground that i f settlement is made in favour of the bidders whose bids were higher than the re spondent No.6, they may default in depositing the kist money. 8. In the NIT dated 16.05.2011 issued by the Anchalik Parishad, the minimum rate to be offered has been fixed without however fixing any maximum rate or th e viability range. There is no indication in the NIT that any amount offered by any of the tenderers, which is not within any viability range of the minimum rat e fixed, would not be considered for settlement. That apart in the proceeding of the Standing Committee dated 29.06.2011 no reason has been cited as to why the respondent No.6’s bid was found to be most viable. The contention of the learned State counsel that the decision was taken by the Zilla Parishad to settle the m arket in favour of the respondent No.6 at Rs.1,43,950/- as in the event of makin g such settlement there is likelihood of collection of the tolls at the rate hig her than the rate fixed, also cannot be accepted since the rate of tolls to be c ollected from the vendors is fixed by the Panchayat authority and the Panchayat authority is duty bound to ensure that the tolls are collected by the settlement holder at the rate fixed by it. It is also the responsibility of the Panchayat authority to ensure that the terms and conditions of the settlement are strictly followed by the settlement holder. In the absence of any viability range fixed and notified in the NIT, the authority cannot refuse to consider the bids of the tenderers on the ground that the same is excessive in comparison to the minimum rate fixed. If such a course of action is allowed to be adopted, there would be scope of arbitrariness in action as the authority would be given the licence to pick and choose a bidder for settlement citing the ground that his bid is viabl e. The contention of the learned counsel for the respondent No.6 that the author ity must have taken into consideration the last year settlement holder’s conduct and decide to settle the market in favour of the respondent No.6, his bid being reasonable, cannot also be accepted for the aforesaid reasons. Moreover, the re cords do not reveal such consideration by the Zilla Parishad. 9. In view of the aforesaid discussion, the impugned order of settlement is sued by the Zilla Parishad in favour of the respondent No.6 is set aside. The ma tter is remitted to the Zilla Parishad for passing necessary order relating to t he settlement, keeping in view the findings as well as the observations made her ein above in this judgment, which shall be done within 2(two) weeks from the dat e of production of the certified copy of this order to be submitted by the petit ioner before the Chief Executive Officer of the Zilla Parishad. For this period of 2(two) weeks the respondent No.6, however, shall be allowed to continue. 10. The writ petition is accordingly allowed as indicated above. No costs.