WP(C) 4457/2011 BEFORE HON’BLE MR. JUSTICE B D AGARWAL Since the facts in all the aforesaid 3 (three) writ petitions are one and the sa me and since identical issues have been raised therein, al the 3 (three) writ pe titions are being disposed of by this common Judgment. 2. Heard Sri T J Mahanta, learned counsel and Sri K Bhattacharjee, learned counsel for the writ petitioners in WP(C) Nos. 4457 and 4066 of 2011 res pectively. None appeared for the writ petitioner in WP(C) No. 4716 of 2011. I ha ve also heard Sri B J Ghosh, learned Government Counsel appearing for the State respondents. Sri C Barua, learned Senior Counsel appeared for the private respon dent Sri Jashoda Ranjan Nag. 3. The settlement of Nowjan Weekly Bazar for the year 2011-12 is in question in the aforesaid writ petitions. Golaghat Dakshin Anchalik Panchayat h ad invited tenders for settlement of various markets, including the aforesaid ma rket vide NIT dated 30.05.2011. Pursuant to the said notice, as many as 22 tende rs were submitted by different persons. The lowest bidder was one Sri Castom Bas umatory and he offered ‘ 16,23,545/-, whereas one of the writ petitioners, namel y, Sri Mukunda Basumatary, hadoffered ‘ 39,68,499/-. The tender value of the oth er writ petitioner Sri Manik Konwar was ‘ 18,11,888/-, whereas, another writ pet itioner Sri Purna Kanta Gogoi, had offered ‘ 19,55,955/-. The offers of the rema ining tenderers were also more than the amount which was offered by the private respondent Sri Jashoda Ranjan Nag. As per the requirement of Section 109 (6) of the Assam Panchayat Act, 1994, the Anchalik Panchayat forwarded the tender paper s to the Zila Parishad since the official bid as well as the tender amounts were clearly more than ‘ 1,00,000/- per year. It may be mentioned here that the offi cial bid was ‘ 3,30,300/-. On being referred the matter to the Golaghat Zila Par ishad, the market has been settled with the respondent Sri Jashoda Ranjan Nag at an amount of ‘ 16,74,428/-. 4. The aforesaid settlement has been challenged on various grounds. The first and foremost ground is that the settlement is in clear violation of Rule 47 (10) of the Assam Panchayat (Financial) Rules, 2002. For ready reference , the aforesaid rule is reproduced below:- Rule 47 (10): The tender of the highest bidder shall be accepted. Acceptance of tender other than the highest bid shall require the Government prior and form al approval. 5. According to the learned counsel for the writ petitioners, the Z ila Parishad has settled the market without obtaining any approval from the Gove rnment and as such, the settlement order dated 03.07.2011, is dehors to the Rule s and is liable to be set aside. The impugned settlement order has also been ass ailed on the ground that in the previous year also the same market was settled w ith the highest bidder at ‘ 30,07,551/- and as such, there was no reason to alte r from the said practice. In other words, it was contended on behalf of the peti tioners that the market should have been settled with the highest bidder, provid ed his tender was valid in other aspects. It was also contended on behalf of the highest bidder that if for any reason, the settling authority was not willing t o settle the market at ‘ 39,00,000/- & odd, the authority was incumbent to invit e the highest bidder for negotiation. Having not done so, the respondents have v iolated the principles of natural justice. 6. On the other hand, Sri Ghosh, learned State Counsel submitted th at although the market was settled at more than ‘ 30,00,000/- in the previous ye ar but the lessee could not run the market for the entire term and surrendered i t after depositing ‘ 15,13,776/- and as such, the Zila Parishad decided to settl e the market with the private respondent at a lower ratein the public interest. The learned counsel also submitted that if the market is settled at an exorbitan t higher rate it causes hardship to the general public. In support of this submi ssion, the learned Government Counsel referred to the resolution No. 8 of the Ge neral Standing Committee taken on 02.07.2011. 7. Defending the settlement, the learned counsel for the private re spondent also adopted the submissions of the learned Government Counsel. Sri Bar ua, learned Senior Counsel for the private respondent further submitted that the State authority is not bound to accept the highest bid and it can accept even t he lowest bid. In support of this submission, the learned counsel referred to a Judgment of the Supreme Court, rendered in the case of State of Uttar Pradesh -V s-Sri Vijay Bahadur Singh, reported in (1982) 2 SCC 365. Sri Barua also took a p reliminary objection about the maintainability of the writ petition by submittin g that the aggrieved tenderers ought to have approached the Government by way of preferring an appeal as provided under Section 105 (4) and 137 of the Act, read with Rule 47 (9) of the Assam Panchayat Financial Rules, 2002. 8. Apparently, the procedure for settlement of the market has been laid down in Section 105 under Chapter VII of the Assam Panchayat Act, 1994, whe reas, Section 137 falls in Chapter XI, under the marginal heading Miscellaneous . The proviso for referring any case to the Government has been placed just bel ow Section 105 (4), whereas, Section 105 ends with Sub-Section (6). Hence, the p roviso has to be read only with Sub-Section (4) and cannot be read as a general provision for referring all the matters relating to settlement of the markets to the Government. For ready reference, Section 105 (4) is also reproduced below i n extenso: Section 105 (4): All settlement made under Sub-Section (3) shall be subject to the confirmation of the Zila Parishad. Provided that in case of any dispute, the Anchalik Panchayat may refer such case to the Government and the aggrieved party may appeal to the Government whose de cision in this regard shall be final. 9. After going through the entire Section 105, it appears to me tha t the proviso to Section 105 (4) basically relates to pre-settlement disputes an d not post-settlement of Ghats. Even otherwise, the proviso cannot be construed as a statutory prescription for challenging settlement orders. On the same analo gy, Section 137 of the Act and Rule 47 (9) of 2002 Rules, are also not applicabl e to challenge the settlement of any market. Be that as it may, the aforesaid pr ovisions relating to settlement process of market cannot fetter the plenary powe rs of the High Court under Article 226 of the Constitution of India. 10. Coming to the legal principle of the settlement of market with a lower bidder, I find that there is a clear statutory bar to settle the market w ith a bidder other than the highest bidder, either by the Anchalik Panchayat or by the Zila Parishad, without prior and formal approval from the Government. I d o not deem it necessary to dwell-upon this legal issue in detail since the langu age in Rule 47 (10) is clear and unambiguous and in a number of decisions, this Court has also held so. 11. In the judgment of the Hon’ble Supreme Court, rendered in the ca se of Vijay Bahadur Singh (supra), it has been observed that though the Governme nt has the right not to accept the highest bid but there should be good and suff icient reasons for accepting the lower bid. In my considered opinion, if the ten ders are invited for settlement of Government largesse the theory of settlement with the highest bidder should normally be followed and it is the rule. In the present case, the private respondent’s offer was second from the bottom amongst 22 bidders. Hence, practically, the theory of settling with the lowest bidder has been adopted by the Zila Parishad, which cannot be approved in the garb of public interest . 12. In the resolution of the Standing Committee, there is no deliber ation as to how the Anchalik Panchayat or the Zila Parishad would be benefited b y settling the market with the second lowest bidder and why the lowest bidder wa s not considered for settlement, whose bid was more nearer to the official bid, if the argument of the Government Counsel that other bids were too high. Admitte dly, in the previous year also, the same authority had settled the market with t he highest bidder. The other admitted fact is that the previous lessee had at le ast paid half of the settlement amount, that is, more than ‘ 15,00,000/- and des pite this fact, the Anchalik Panchayat fixed the official bid at ‘ 3,30,300/- fo r the year 2010-2011. The official bid was increased only by ‘ 200/- from the pr evious year’s official bid, although the previous lessee had quoted more than ‘ 30 lacs and was able to deposit more than ‘ 15 lacs. Besides this, as many as 18 bidders had quoted more than ‘ 17 lacs and the highest bidder offered ‘ 39,68,4 99/-. Hence, by no stretch of imagination it can be said that the offer of priva te respondent, i.e., ‘ 16,74,428/- was the best offer. 13. In the case of Indrajit Konwar -Vs- The State of Assam & Others (WP(C) No. 2792 of 2010), this Court has observed that if the settling authority takes a decision to settle any market at a reasonable rate it is obliged to com municate the reasonable rate in the tender notice. In the case of Dutta Associat es Pvt. Ltd. -vs- Indo Merchantiles Pvt. Ltd. & Others; reported in (1997) 1 SCC 53, the Hon’ble Supreme Court has observed that awarding of any supply order to a particular tenderer, sidelining other acceptable offers, on the ground that t he bid of other tenderers were not within the viability range cannot be accept ed unless the viability range is mentioned in the NIT itself. 14. In the case before me, there was no such stipulation in the NIT and as such, the tenders of higher bidders could not have been summarily rejecte d. On the basis of previous experience, if the settling authority was of the vie w that it would not be in the public interest to settle the market at more than a specified amount it should have indicated so in the tender notice. I am also o f the view that if the settling authority takes an opinion that a lessee with ex orbitant offer may not be able to run the market for the entire period the autho rity can put stringent conditions in the settlement order. For instance, the sai d authority may insist payment of bid money well in advance. Be that as it may, the legal principle is that after floating the tender the settling authority is prohibited to change the rules and conditions of the game. 15. In the present case, the Zilla Parishad has whimsically taken th e decision that the market should not be settled with the highest bidder in the public interest. In my considered opinion, settling a market with the highest bi dder would equally be in public interest. Hence, I hold that the highest bidder’ s tender has been rejected on insufficient and untenable grounds by the settling authority. 16. For the foregoing reasons the Nowjan Weekly Bazar settled with t he private respondent Sri Jashoda Ranjan Nag vide impugned order dated 03.07.201 1, is hereby set aside. The Zila Parishad is directed to settle the market with the highest bidder, provided, his bid is valid in all respects. If the tender of the highest bidder is found to be defective the settling authority shall procee d to consider the next bidder chronologically. The Zila Parishad is directed to settle the market afresh, within a period of one week from the date of productio n of a certified copy of this judgment. 17. Since the Zila Parishad has flouted the statutory provision of R ule 47 (10) of the Assam Panchayat (Financial) Rules, 2002, san any reason, all the writ petitions are allowed with cost of ‘ 30,000/-. The cost shall be paid b y the Zila Parishad @ ‘ 10,000/- to each of the writ petitioners.