WP(C) 4063/2011 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R Heard Mr. N. Borah, learned counsel appearing for the petitioner . Also heard Ms. S. Sharma, learned State counsel appearing for the respondent N os. 1, 2, 3 and 5 and Mr. F.K.R Ahmed, learned counsel appearing for the respond ent No. 7. Respondent Nos. 4 & 6 were personally served as per the order of this Court and thereafter necessary affidavits have been filed by the petitioner, wh ich are on record. Therefore, service on respondent Nos. 4 & 6 are treated to be complete. 2. Considering the subject matter involved and as agreed to by the counsels for all the sides, the matter is taken up for disposal at this stage it self. 3. The Mayang Anchalik Panchayat, which is under the Morigaon Zila Parishad, had issued a Notice Inviting Tender (NIT) dated 30-04-2011 inviting t enders from eligible persons for settlement of various markets, parghats etc. wi thin its jurisdiction for the year 2011-2012 i.e. for the period from 1-7-2011 t o 30-6-2012. The Na-khula weekly market was also included in the list of markets /parghats etc. for which the NIT was issued. In terms of the said NIT, 16 tender ers submitted tenders for settlement of the Na-khula weekly market (briefly the market hereafter), including the petitioner and the respondent No. 7. The bid value of the petitioner was Rs. 1,31,999/- per month whereas that of the respond ent No. 7 was Rs. 53,365/- per month. By order dated 28-7-2011 issued by the Chi ef Executive Officer, Morigaon Zila Parishad, the market has been settled with t he respondent No. 7 at the rate offered by him. This order dated 28-07-2011 is u nder challenge in the present writ petition. 4. The State has not filed any affidavit but has produced the relev ant record at the time of hearing. The respondent No. 7 has filed his affidavit- in-opposition. In his affidavit, the respondent No. 7 has stated that the tender of the petitioner was found to be defective as he had given wrong valuation of the property, which he had offered as surety. According to the respondent No. 7, as per Clause-8 of the NIT, the concerned tenderer is required to furnish immov able property as surety and the value of such property should be 25% of the tend ered amount, which in the case of the petitioner was less. The petitioner had gi ven a higher figure as compared to the value assessed by the Sub-Registrar and, therefore, his bid was treated to be defective. The bid of the respondent No. 7 was found to be the highest amongst the valid tenderers and, therefore, the auth ority rightly settled the market in favour of the respondent No. 7. 5. Mr. Bora, learned counsel for the petitioner firstly referred to the terms and conditions of the NIT, particularly, Clause-8 thereof. As per the translated version (marked as Annexure-A to the writ petition), if the value of the immovable property offered as surety is not proportionate to 25% of the bid value, in such a case another landed person can be accepted as guarantor and th e value of his property should be equivalent to 25% of the tendered value. He su bmits that he had offered land measuring about 1.5 bighas as surety, the approxi mate market value of which would be about Rs. 6,00,000/-. Referring to the compa rative statement, Mr. Bora has pointed out that in column-12 which deals with th e value of the immovable property offered as surety, in respect of the petitione r, it has been recorded as approximately Rs. 6,00,000/- as the value of 1.5 bigh as of land, but in the remarks column i.e. column No. 16, it has been remarked t hat as per the certificate of the Sub-Registrar, the value of 1(one) bigha of l and is Rs. 25,000/-. But in respect of the respondent No. 7, while in column 12 dealing with the valuation of the land, though a figure of Rs. 1,50,000 have bee n entered, no particulars of the land has been entered and there is no remark in the remarks column 16 unlike that of the petitioner. He submits that the petiti oner had fulfilled the condition laid down in Clause-8 of the NIT even if the va lue stated to have been assessed by the Sub-Registrar is taken and that the auth ority deliberately and illegally did not grant the settlement to the petitioner. He submits that the settlement granted to the respondent No. 7 is wholly illega l and devoid of any reason and that the same has caused loss of public revenue. He submits that the bid of the petitioner should be treated as valid and being t he highest valid tenderer, the settlement should be made in favour of the petiti oner after setting aside the impugned order of settlement dated 28-7-2011. 6. Ms. Sharma, learned State counsel submits from the record that n o fault can be found with the settlement order as the value of the land of the p etitioner offered as surety was found to be less as per Clause-8 of the NIT. The refore, the impugned order of settlement should not be interfered with. Mr. Ahme d, learned counsel for the respondent No. 7 reiterated the averments made in the counter affidavit and submits that the tender of the petitioner was found to be defective as the petitioner had shown a higher value of the land offered as sur ety whereas as per official assessment the valuation was much less, in fact less than the amount required under Clause 8 of the NIT. He further submits that 25% of the bid value means 25% of the bid value of the whole year and not the bid v alue for one month. He, therefore, prays for dismissal of the writ petition. 7. I have considered the arguments advanced on behalf of both the s ides. To appreciate the rival contentions, it would be apposite to look into the contemporaneous record produced by the learned State counsel. 8. But before that let us first take a closer look at Clause 8 of t he NIT since the interpretation of the same would have a crucial bearing on the out come of the deliberation. On a comparison of the vernacular and the translat ed copy of the NIT, I find that the English version does not reflect an accurate translation of the provisions of Clause 8. Reading Clause 8 as it is, it is seen that the tenderer has to o ffer his own immovable property as surety but the value of such immovable proper ty should be 25% of the settled value. If the value is less than 25%, then he ca n offer immovable property of some other person as surety but the value of such immovable property should not be less than 25% of the value of the Market. The f urther requirement of that clause is that the valuation certificate and the non- encumberance certificate of such immovable property from the competent authority should be submitted at the time of execution of the agreement. Thus, from a clo se examination of the said Clause-8, it is clear that the following requirements have to be fulfilled: (1) The tenderer has to offer immovable property as surety; (2) The value of such property should be equivalent to 25% of the settled va lue; (3) If such valuation is less then 25%, then another landed person can offer his immovable property as surety but the valuation of such immovable property s hould be 25% of the value of the market; and (4) Necessary valuation certificate from the competent authority should be s ubmitted at the time of execution of the agreement. 9. Now, looking into the record, it is seen that in the tender subm itted by the petitioner, against Clause 11(ka), the petitioner mentioned 1.5 big has of land situated at village Tegheria of Mouza-Gobha having Patta No. 79 and Dag No. 136 as surety. The approximate value of the land was given as Rs. 6,00,0 00/-. In the tender submitted by the respondent No. 7, against Clause 11(ka), he had offered 2(two) bighas of land situated at village Guripathar under Mouza-Go bha having Patta No. 38 under Dag No. 112 as surety. The approximate value of th e land was shown as 1,50,000/-. Examination of the comparative statement reveals certain interesting facts. In respect of the petitioner, it has been mentioned in the Column-12, which is the column indicating the value of the surety, the va lue is shown Rs. 6,00,000/- approximately for 1.5 bighas of land but in the Rema rks Column-16, it has been remarked that as per the certificate of the Sub-Regis trar, Morigaon, valuation of the land is Rs. 25,000/- per bigha. However, in res pect of the respondent No. 7, it is simply written as Rs. 1,50,000/- in Column-1 2 and as 1st position in Column-16. The comparative statement which is of 3 page s is signed at the end by the Chief Executive Officer, Morigaon Zila Parishad an d the President, Morigaon Zila Parishad without any date. There is no signature or initial in the first 2(two) pages. No date has also been mentioned anywhere i n the comparative statement. Again, from the note sheet, it is seen that the aut hority treated the tenderers at 1st, 2nd, 5th, 9th, 11th and 14th position as de fective. The note sheet reflects that the tenderers at Sl. Nos. 3, 4, 6, 7, 8, 1 0 and 12 had withdrawn their tenders, which left the tenderer in the 13th positi on i.e. the respondent No. 7 as the highest valid tenderer. A closer look at the note sheet shows that the bid of the petitioner at Rs. 1,31,999/- per month was the 2nd highest whereas the bid of the respondent No. 7 at Rs. 53, 365.00 per m onth was the 13th highest. There is a note dated 26-7-2011, which says that the tenderer offering the highest value of Rs. 1,71,991/-, namely, Sri Tuturam Daima ri did not disclose the particulars of the land and its value in his tender and, therefore, the same was found to be incomplete. Referring to the 2nd highest te nderer i.e. the petitioner, it was noted that his tender was complete but the va lue of the land offered as surety was less as per the office of the Sub-Registra r. But it was also noted that as per the decision of this Court in the case, W.P (C) No. 5378 of 2010 (Meherul Islam Vrs. State of Assam), the petitioner may be given some more time to submit higher land value certificate. But interestingly in the recorded proceeding of the meeting of the Morigaon Zila Parishad held on 26-07-2011, as per the resolution No. 2, it was noted that the tenderers at Sl. Nos. 1, 2, 5, 9, 11 and 14 were found to be defective. Particular reference was made to the tender of the petitioner; it was stated that the valuation of the la nd offered as surety by the 2nd highest tenderer i.e., the petitioner was found to be less as per the valuation of the Sub Registrar. Further noting that the te nderers at Sl. Nos. 3, 4, 6, 7, 8, 10 and 12 having withdrawn their tenders, it left the respondent No. 7 at Sl. No. 13 as the highest amongst the valid tendere rs. Therefore, it was resolved to settle the market with the respondent No. 7 at the bid value offered by him i.e. Rs. 53,365.00 per month. 10. As per the requirement of Clause-8 of the NIT, the tenderer has to offer immovable property as surety, the value of which should be 25% of the s ettled value. If he does not have such immovable property, he can offer immovabl e property of another person as surety but again the value of such immovable pro perty should not be less then 25% of the settled value. The valuation certificat e to that effect from the competent authority should be submitted at the time of execution of the agreement. The execution of the agreement is a step which come s after the settlement. Once the settlement order is issued, the next step is to execute the agreement with the settlement holder. It is at this stage that the land valuation certificate has to be submitted and the valuation of that land as certified should not be less than 25% of the settled value. The settled value i s the monthly settled value and not the yearly value. Even in the impugned settl ement order it is clearly stated that the Market has been settled with the respo ndent No. 7 at the monthly rate of Rs. 53,365/-. Therefore, to say or insist tha t the value of the surety should be 25% of the settled value for the whole year would not be a correct reading of Clause 8. It is also not the requirement of Cl ause-8 to submit the land valuation certificate at the time of submission of the tender; all that is required is that immovable property should be offered as su rety and to give an approximate value of the same. Only after the settlement is made, the settlement holder is to submit the land valuation certificate from the competent authority which should be 25% of the settled value. If the same is no t adequate, he can offer immovable property of some other person and furnish lan d valuation certificate which again should not be less than 25% of the settled v alue. It was not necessary to have the land value assessed by the Sub-Registrar at the time of scrutiny of the tenders, which it appears was done only in the ca se of the petitioner. The purpose behind Clause 8 appears to be two fold - (1) t o discourage frivolous bids and (2) to act as a cushion in case of default by th e settlement holder. 11. Even otherwise, if we take the land valuation as reportedly asse ssed by the Sub-Registrar i.e. Rs. 25,000/- per bigha, as the petitioner had off ered 1.5 bighas as surety, such valuation would come to Rs. 37,500.00, which is more than 25% of Rs. 1,31,999/- i.e. the bid value of the petitioner. Therefore, it cannot be said that the valuation of the land offered as surety by the petit ioner was less as per Clause-8. 12. The tender of the petitioner was wrongly rejected without any va lid reason. The same could not have been treated and rejected as defective. Once the tender of the petitioner is treated as valid, the difference between the tw o bids becomes quite glaring i.e. Rs. 53,365/- of the respondent No. 7 as agains t Rs. 1,31,999/- of the petitioner. The respondent Zila Parishad completely over looked the fact that by wrongly rejecting the case of the petitioner they have c aused substantial loss of public revenue. The respondent Zila Parishad acted in an arbitrary and unreasonable manner and against public interest. Therefore, the settlement given to the respondent No. 7 cannot be justified and the same is in terfered with. The impugned order of settlement dated 28-7-2011 is hereby set as ide. 13. The matter is hereby remanded to the Morigaon Zila Parishad, who will now pass fresh settlement order for the remaining period of the market in terms of the observations made above. 14. Before parting with the record, a note of caution here. The peru sal of the record left me with an uneasy feeling. One gets the impression that t he Morigaon Zila Parishad did not deliberate upon the matter with an open mind. Being a statutory body and a distributive agent of State largesse, the Morigaon Zila Parishad should bear in mind that it has to act in a fair and impartial man ner, keeping in mind the public interest which should always be the guiding prin ciple. 15. Writ Petition is allowed, but there will be no order as to cost.