WP(C) 3520/2008 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND; MEGHALAYA: MANIPUR: TRIPURA: MIZORAM: AND AR UNACHAL PRADESH) WRIT PETITION (C) NO. 3098/2008 Rafiqul Islam, Son of Late Abdus Subhan, Village- Bagariguri, P.O. and P.S.- Juria, District Nagaon, Assam. Petitioner. Vs. 1. The State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Panchayat and Rural Development Department, Dispur, Guwahati. 2. The Nagaon Zilla Parishad, represented by the Chief Executive Officer, Nagaon , District- Nagaon, Assam. 3. The Executive Officer, Nagaon Zilla Parishad, Nagaon, District Nagaon, Assam . 4. Shri Subir Roy, Son of Late Sunil Roy, Village- Kadamani, P.O. & P.S. Juria, District- Nagaon, Assam. Respondents. WRIT PETITON (C) NO. 3520/2008 Imdadul Hoque S/o- Abdus Salam, Village- Kadamani, P. O. Kadamani, P.O. P.S. Juria, District- Nagaon, Assam Petitioner Vs. 1. The State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Panchayat and Rural Development Department, Dispur, Guwahati. 2. The Nagaon Zilla Parishad, represented by the Chief Executive Officer, Nagaon , District- Nagaon, Assam. 3. The Executive Officer, Nagaon Zilla Parishad, Nagaon, District Nagaon, Assam . 4. Shri Subir Roy, Son of Late Sunil Roy, Village- Kadamani, P.O. & P.S. Juria, District- Nagaon, Assam. Respondents. PRESENT THE HON’BLE MR. JUSTICE B.P. KATAKEY For the petitioner : Mr. H.R.A. Choudhury, Senior Advocate. (in WP' No. 3098/08) Mr. A. H. Alamgir Advocate. (in WP' No. 3520/08) For the respondents : Mr. A. M. Mazumdar, Senior Advocate, (For respondent No. 4 in both writ petitions) Mr. P. Roy, G.A. Assam. Date of hearing : 17.09.2008 Date of judgment and order : 17.09.2008 JUDGMENT AND ORDER (ORAL) The process for settlement of Juria Bi-Weekly Market by the Nagaon Zill a Parishad has been initiated by issuing Notice Inviting Tenders (in short the NIT ) dated 28.4.2008 for the period from Ist July, 2008 to 30th June, 2009 invi ting sealed tenders from the intending tenderers fixing 13.6.2008 as the last da te for submission of the tenders in the office Zilla Parishad. In the said NIT i t has been stipulated that the intending tenderers have to submit their tender p apers alongwith the security money @ Rs. 2% of the Govt. value to be deposited in the name of the Chief Executive Officer of Nagaon Zilla Parishad through ban k draft of Lakhimi Gaonlia Bank or any other recognized bank. The said NIT also stipulates that the tenderers will have to submit their tender papers alongwith land revenue clearance certificate issued by the concerned authority and the Zil la Parishad has the power to accept or reject any tender. 2. The petitioner in WP(c) No. 3098/08 and petitioner in WP' No. 3520/08 su bmitted their tender papers quoting Rs. 13,50,000/- and Rs. 15,41,351/- respecti vely. Altogether 18 tenderers including the petitioners and the respondent No. 4 , submitted their tender papers by quoting different rates, which are as follows : Sl. No. Name of the tenderers Bid value 1 Abdul Hashim Rs. 3,200,899/- 2 Imdadul Hoque (petitioner in W.P.' No. 3520/08) Rs. 15,41,351/- 3. Rafiqul Islam (petitioner in W.P.' No. 3098/08) Rs. 13,50,000/- 4. Hasan Ali Rs. 11,50,000/- 5. Amiyo Nag Rs. 10,88,194/- 6. A. Bashar Rs. 9,85,551/- 7. Fakar Uddin Rs. 9,70,000/- 8. Azizul Hoque Rs. 8,05,751/- 9. Ataur Rahman Rs. 7,99,751/- 10. Shafiqul Islam Rs. 7,61,260/- 11. Bikash Saha Rs. 7,51,950/- 12. A. Rafique Rs. 7,05,151/- 13. Jahurul Hoque Rs. 6,66,160/- 14. Shamsul Haque Rs. 6,51,945/- 15. Nazir Hussain Rs. 6,46,160/- 16. Nizam Uddin Rs. 6,28,999/- 17 Subir Roy (Respondent No. 4) Rs. 6,21,999/- 18. Rabbul Hussain Rs. 5,89,921/- 3. After opening the tender papers by the Zilla Parishad a comparative stat ement has been prepared and the General Standing Committee of the Nagaon Zilla P arishad in its meeting dated 24.6.2008 decided to settle the market in question in favour of the respondent No. 4, Subir Roy, who offered Rs. 6, 21, 999/- for s uch settlement and accordingly the Chief Executive Officer of the Zilla Parishad on 24.6.2008 itself issued the order of settlement in favour of respondent No. 4, Shri Subir Roy. Hence the present writ petitions. 4. Since in both the writ petitions, the settlement order dated 24.6.2008 h as been challenged, these are taken up for hearing and disposal together as agr eed by the learned counsel for the parties. 5. Heard Mr. HRA Choudhury, learned senior counsel for the petitioner in WP (c) No. 3098/08, Mr. A. H. Alamgir, learned counsel for the petitioner in W.P.(c ) No. 3520/08. Also heard Mr. P. Roy, learned Government Advocate, Assam, for th e state respondents as well as for the Zilla Parishad and Mr. A.M. Mazumdar, lea rned senior counsel appearing on behalf of the settlement holder respondent No. 4, Shri Subir Roy, in both the writ petitions. 6. Mr. Choudhury, learned senior counsel for the petitioner in WP(c) No. 30 98/08 has submitted that the tender papers submitted by the petitioner after hav ing been found to be valid, not being defective, the settlement ought to have be en offered to the petitioner, in terms of the provisions of Rule 47(10) of the A ssam Panchayat (Financial) Rules, 2002 (hereinafter referred to as the Rules of 2002 ), as the tender papers of the writ petitioner in W.P.(c) No. 3520/2008, w ho offered more amount than the petitioner, has been found to be defective. Acco rding to Mr. Choudhury, Rule 47(10) of the Rules of 2002 provides that settlemen t has to be offered to the highest bidder, unless of course the Zilla Parishad o btain the prior and formal approval from the Govt. for settlement of the market in favour of a bidder whose bid is not highest, which has not been done in the i nstant case, as settlement order has been admittedly issued in favour of the res pondent No. 4 though above him there are 12 valid bidders. It has further been s ubmitted by Mr. Choudhury that the grounds on which the tender submitted by the petitioner has not been considered for settlement is not sustainable in law, as in the NIT there is no indication at all indicating the range in which the offer has to be made and on the other hand it has been stipulated that the highest b ibber would be preferred. It has further been submitted by Mr. Choudhury that cl ause (2) of the NIT has though empowers the Zilla Parishad to accept or reject a ny tenders, it has no power to reject or accept any tender arbitrarily without a ny justifiable reasons for that purpose. Referring to the claim of the petitione r in WP(c) No. 3520/08, it has been submitted by Mr. Choudhury that the petition er of that writ petition though offered Rs. 15,41,351/-, his tender having been found defective, for not depositing the earnest money as required under the NIT, his tender paper has rightly been rejected and therefore he is not entitled to any settlement, though he offered more amount than the writ petitioner in WP(C) No. 3098/08. 7. Mr. AH Alamgir, learned counsel for the petitioner in WP(c) No. 3520/200 8 has submitted that he having offered an amount of Rs. 15,41,351/- which is mor e than the amount offered by the petitioner in WP(c) No. 3098/2008, the market h as to be settled in his favour, he being the highest bidder, in view of the prov isions of Rule 47(10) of the Rules of 2002. Learned counsel, however, did not di spute the fact that the petitioner in the said writ petition did not deposit the earnest money as required pursuant to the NIT dated 28. 4.2008. 8. Mr. Roy, learned counsel appearing on behalf of the State respondents as well as the Zilla Parishad has submitted that the General Standing Committee ha s given the reasons as to why the amount offered by the petitioner and 11 other s who offered more amount than the respondent No. 4, cannot be accepted i.e. due to exorbitant rate quoted by them which would ultimately have adverse effect on the tenders as well as on the general public, therefore no irregularity has bee n committed by the Zilla Parishad in rejecting their offer and settling the mark et in favour of the respondent No. 4, who has quoted a reasonable rate. Mr. Roy , however has submitted that though under Rule 47(10) of the Rules of 2002, prio r and formal approval of the Government is necessary for settling the market in favour of a bidder, who has not offered the highest bid, such formal and prior a pproval has not been taken in the instant case before issuance of order of settl ement on 24.6.2008 by the Chief Executive Officer Nagaon Zilla Parishad. It has further been submitted that this Court at this stage even direct the Zilla Paris had to place the Proceeding of the General Standing Committee before the Governm ent for approval and in case such approval is granted, the respondent No. 4 will continue to manage the market, otherwise it would be settled with the highest v alid bidder. Relating to the claim of the writ petitioner in WP(c) No. 3520/08, it has been submitted by Mr. Roy, learned State counsel that the petitioner in t he said writ petition is not entitled to any relief as his tender paper was foun d to be defective having not deposited the earnest money at all as per the NIT. 9. Mr. Mazumdar, learned senior counsel appearing on behalf of the responde nt No. 4, settlement holder, supporting the argument of the learned state counse l, Mr P. Roy, has submitted that the Zilla Parishad before settling the market i n favour of the respondent No. 4 has taken into consideration the interest of th e public as well as the interest of the consumers and has taken a decision not t o accept exorbitant bid as quoted by the petitioner and 11 other bidders, who qu oted different amounts, which are much more than the respondent No.4. Mr. Mazum dar has also submitted that though prior and formal approval has not been taken by the Zilla Parishad from the Government as required under the provisions of Ru le 47(10) of the Rules of 2002, the Zilla Parishad may now be directed to place the entire proceeding before the Government for approval and in the meantime sin ce the respondent No. 4 has deposited the security to the tune of Rs. 2, 00,000/ - and also paid two kist money amounting to Rs. 1, 00,000/-, the market may be a llowed to be managed by the respondent No. 4 till such proceeding of the Zilla P arishad is approved or disapproved by the Government. Mr. Mazumdar has also subm itted that the petitioner in WP(c) No. 3520/2008 having not deposited the earnes t money, his tender has rightly been rejected by the Government. 10. Mr. Choudhury, in reply to the argument of Mr. P. Roy, the learned State counsel as well as Mr.Mazumdar, learned senior counsel appearing on behalf of r espondent No. 4 that the illegality committed by the Zilla Parishad in issuing s ettlement order dated 24.6.2008 can be rectified subsequently by placing the rec ords before the competent authority and getting the approval of such resolution of the General Standing Committee, has submitted that such a course of action is not permissible in law as Rule 47(10) requires prior and formal approval to be obtained from the competent authority while settling the market in favour of the bidder whose bid is not highest. Mr. Choudhury has also disputed the contention relating to the deposit of kist money and has submitted that even if such kist money is deposited, the order of settlement being illegal, it has to be set asid e and the respondent No.4 in that case may be entitled to refund of the proporti onal kist money, if deposited. 11. It has further been submitted by Mr. Choudhury that the Zilla Parishad h as adopted the pick and chose policy while selecting respondent No. 4 for settle ment. There is no basis why the respondent No. 4 has been preferred, though ther e are other bidders, who have quoted Rs. 7,000/- more than the respondent No. 4 and so also the bidders who have quoted Rs. 22,000/- less than respondent No.4. 12. The facts narrated above are not in dispute. The petitioner in WP(c) No. 3520/08 has admittedly did not deposit the earnest money as required vide NIT d ated 28.4.2008. His tender papers therefore was found to be defective by the Zil la Parishad, which in my opinion rightly so. Therefore, the petitioner in WP(c) No. 3520/08 cannot claim settlement solely on the ground that he has offered hig hest bid. 13. A comparative statement prepared by Nagaon Zilla Parishad reveals the gr ound on which the tenders submitted by the petitioner in WP(c) No. 3098/08 and o ther 11 bidders who offered more amount than the respondent No. 4 have been reje cted. For better appreciation, the note appended to the comparative statement pr epared by the Zilla Parishad is quoted below: The meeting of the General Standing Committee of Nagaon Zilla Parishad held on 24.06.2008 scrutinized and verified the total nos. 18 tenders received in respec t of Juria Bi-Weekly Bazar for the year 2008-09 and on scrutiny it is found that the tenders at Sl. Nos.1, 2 and 4 have no Bank Draft and also due to non-submis sion of Bank draft, the tenders were rejected by the General Standing Committee. On the other hand, the bid value of tenders of Sl. Nos. 3, 5, 6, 7, 8, 9, 10, 1 1, 12, 13, 14 and 15 are unreasonably high and impractical and would lead to exo rbitant high rate, which might result public harassment. The Committee also disc ussed that the Zilla Parishad is an Apex body of the Self Governance comprising of elected representatives. It has responsibility to uplift financial position o f the Zilla Parishad and at the same time it must look for public interest also. Therefore, the General Standing Committee did not consider the higher tenders a t Sl. Nos. 3,5,6,7,8,9,10,11,12,13, 14 and 15 and rejected due to exorbitant rat es and finally decided to settle the Juria Bi Weekly Market with the tender at S l. No. 16 submitted by Shri Subir Roy at his bid value of Rs. 6,21,999.00 only w hich has increased revenues amounting to Rs. 40,248.00 only in comparison the pr evious settlement rate for the year 2007-2008, which was amount of Rs. 5,81,751. 00. 14. In the notice inviting tender, there is however, absolutely no indicatio n about the range in which the tenderers are to bid. In the absence of any such indication in the NIT, the tenders of the petitioner in WP(c) No. 3098/08 as wel l as of the other valid bidders, cannot the rejected on the ground that it is to o exorbitant. The contention of the learned State counsel as well as the learned senior counsel for the respondent No. 4 that the tender papers of such bidders including the petitioner in WP(c) No. 3098/-08 have been rejected keeping in vie w the interest of public as well as the consumers, as they may charge tolls at h igher rate, in the event the market is settled with any one of them, cannot also be accepted in view of the fact that under the provisions of the Assam Panchaya t Act and the Rules framed thereunder, the Zilla Parishad is to fix the rate at which the tolls are to be collected. The tolls are to be collected by successfu l bidder in such fixed rate and they cannot collect the same in any rate other t han the rate fixed by the Zilla Parishad. Hence, by offering more amount and by settling the same with such bidder the tender or the consumers shall not at all be affected. On the other hand the Zilla Parishad shall financially be benefited if the highest bidder is settled with the market, subject of course such tender s are valid. The Zilla Parishad being the settling authority it has to continue to supervise and see that the tolls are collected by the settlement holder in t he rate fixed by it and in the event it is found that the settlement holder is c ollecting tolls at a higher rate than the rate fixed by the Zilla Parishad, the settlement order made in favour of the settlement holder may be liable to cancel led. 15. Further submissions of the learned counsel for the respondents that as C lause 2 of the NIT indicates that the General Standing Committee reserves the ri ghts to accept or reject any tender and therefore, no illegality can be found in rejecting the tender of the petitioner and 11 other bidders, who offered higher amount than the respondent No. 4, also cannot be accepted as the authority cann ot arbitrarily accept or reject any tender when Rule 47(10) provides for settlem ent in favour of the highest bidder. The NIT has also the stipulation that the h ighest bidder would be preferred. 16. Rule 47(10) of the Rules of 2002 provides as under: (10) The tender of highest bidder shall be accepted. Acceptance of tender other than the highest bid shall require the Government prior and formal approval 17. It is, therefore, evident that while settlement in favour of the highest bidder is the rule, the settlement in favour of a bidder, who is not the highes t bidder, is an exception. In the instant case, though the petitioner in WP(c) N o. 3098/08 has offered Rs.13,50,000.00 his bid has been rejected on the ground t hat he has quoted the exorbitant rate, which ground for the reasons recorded abo ve, has been found to be not legal and valid. 18. It also appears from the comparative statement prepared that another ten derer offered exactly Rs. 7,000/- more than the bid offered by respondent No. 4. There is absolutely no indication in the decision taken by the Zilla Parishad a s to why respondent No. 4 has been preferred. Admittedly, the Zilla Parishad bef ore issuing the order of settlement has not obtained the prior and formal approv al of the Govt. as required under the Rule 47(10) of the Rules of 2002. 19. In view the above discussion, the grounds on which offer made by the pet itioner and 11 others are rejected cannot be sustained in law, therefore, the qu estion whether post settlement approval would amount to compliance of Rule 47(10 ) of the Rules of 2002 has not been gone into. The order of settlement is, there fore, set aside. The respondent authorities are directed to settle the market in favour of the highest valid tenderer. 20. WP(c) No. 3098/2008 is accordingly allowed. WP' No. 3520/2000 is dismiss ed. No cost.