WP(C) 3562/2011 BEFORE THE HON’BLE JUSTICE MR UJJAL BHUYAN J U D G M E N T AND O R D E R The matter relates to settlement of a parghat called the Kadang- Sonapur-Beki Nadir Parghat, which is within the territorial jurisdiction of the Mandia Anchalik Panchayat for the year 2011-12. Mandia Anchalik Panchayat is un der the Barpeta Zilla Parishad. A Notice Inviting Tender (NIT) was issued by the Mandia Anchalik Panchayat on 15-4-2011 inviting tenders for settlement of vario us Hats, Ghats etc. within its jurisdiction for the year 2011-2012, including t he Kadang-Sonapur-Beki Nadir Parghat (briefly the Parghat hereafter). As per t he said NIT, the Government value of the Parghat was fixed at Rs. 40,000/- and t he earnest money at Rs. 2000/-. 2. Clause 3(Ka) of the NIT, which is relevant for adjudication of t he present case, stipulated that a tenderer whose bid value was above Rs. 1,00,0 00/- should submit a Loan Clearance Certificate from the Zilla Parishad. It was stated that submission of such a certificate was mandatory, otherwise the tender would be rejected. The petitioner submitted his tender for the Parghat offering his bid value at Rs. 99,999.99. As his bid value was below Rs. 1,00,000/- he wa s not required to submit such a certificate. It appears altogether 13 tenderers had submitted tenders for the Parghat, including the petitioner and the responde nt No. 6. The tenders were opened on 16-6-2011. The tenders were scrutinized by the General Standing Committee of the Mandia Anchalik Panchayat and thereafter t he comparative statement was prepared. As per the comparative statement prepared , the first highest bidder had withdrawn his tender. The second highest bidder i .e. the respondent No. 6 had offered Rs. 2,86,999/- but in the absence of necess ary document his tender was rejected. The tenders of the tenderers at Sl. Nos. 3, 4 and 5 were also similarly rejected. The tenderer at Sl. No. 6 had also with drawn his tender. That left the petitioner with bid value of Rs. 99,999.99 at Sl . No. 7. In the remarks column in respect of the petitioner it was remarked set tlement given . The said comparative statement as available up to Sl. No. 7 was signed by the President and the Executive Officer as well as by the Members of t he General Standing Committee of the Mandia Anchalik Panchayat. According to the petitioner, as per the direction of the Anchalik Panchayat authorities, he depo sited the first installment of kist money amounting to Rs. 35,000/- on 27-6-2011 . Since the bid value of the highest eligible bidder selected was below Rs. 1,00 ,000/-, the Mandia Anchalik Panchayat forwarded the tender papers along with the comparative statement to the Barpeta Zilla Parishad on 29-6-2011 for confirmati on. The Barpeta Zilla Parishad instead of confirming the decision of the Mandia Anchalik Panchayat, decided to settle the Parghat with the respondent No. 6 at h is bid value of Rs. 2,86,999/- vide order dated 30-6-2011. It is this order of t he Zilla Parishad dated 30-6-2011 which is under challenge in the present procee ding. 3. This Court by order dated 20-7-2011 while issuing notice, stayed the aforesaid order dated 30-6-2011. The respondent No. 6 thereafter filed an a pplication for vacation of the aforesaid order dated 20-7-2011 passed by this Co urt. The said application was registered as Misc. Case No. 2272 of 2011. Both th e misc. case and the main writ petition have been taken up together for consider ation by the Court. 4. The respondent No. 6 in his misc. application, which is treated as his counter affidavit, has stated that he had obtained the tax clearance cert ificate from the Barpeta Zilla Parishad on 7-6-2011 and had annexed it with his tender. According to the respondent No. 6 the comparative statement annexed by t he writ petitioner in the writ petition is not the correct one. He has stated th at he had obtained a copy of the comparative statement from the office of the Zi lla Parishad, which he says is the correct one. According to the respondent No. 6 there was no defect in his tender and that the Anchalik Panchayat had wrongly rejected his tender. Therefore, the decision of the Barpeta Zilla Parishad dated 30-6-2011 settling the Parghat with him is justified and should not be interfer ed with. He prays for dismissal of the writ petition and for vacation of the int erim order dated 20-7-2011. 5. I have heard Mr. R. Ali, learned counsel for the petitioner, Mr. J. Handique, learned State counsel appearing for respondent Nos. 1 to 5 and Mr. J. Ahmed, learned counsel appearing for the respondent No. 6. Though the State has not filed any affidavit, Mr. J. Handique, the learned State counsel has prod uced the record. 6. Section 106 of the Assam Panchayat Act, 1994 (briefly the Act hereafter) provides for settlement of public ferries and distribution of sale pr oceeds thereof. As per the scheme of Section 106, all public ferries other than Govt. ferries within the territorial jurisdiction of the Anchalik Panchayat shal l be settled in the manner prescribed for a period coinciding with and not excee ding one panchayat financial year by inviting tenders. As per Sub-Rule (3) of Se ction 106, the powers of examination and final acceptance of such tenders is ves ted in the General Standing Committee of the Anchalik Panchayat constituted unde r Section 52(1)(a) of the Act. As per Sub-Section (4) of the said Section, all s ettlements made under Sub Section (3) shall be subject to the confirmation of th e Zilla Parishad. As per the 1st proviso to the said sub-section, in case of any dispute, the Anchalik Panchayat may refer such cases to the Government and the aggrieved party may also appeal to the Government whose decision in this regard shall be final. As per the 2nd proviso, the Government may intervene in the matt er of a particular settlement as and when deemed necessary and its decision in t his regard shall be final. Though Section 109 essentially deals with settlement of fisheries by the Anchalik Panchayat, Sub-Section (6) thereof not only deals w ith fisheries but also deals with Hats and Ferries (Ghats/Parghats). As per the said Sub-Section (6), the Hats, Ferries and Fisheries falling under any Anchali k Panchayat within the jurisdiction of Zilla Parishad, the yearly sale value of which is more than Rs. 1,00,000/- shall be settled by the Zilla Parishad concer ned for a period coinciding with and not exceeding one panchayat year. In such a case, the power of examination and final acceptance of such tenders shall be v ested in the General Standing Committee of the Zilla Parishad constituted under Section 81(a) of the Act. 7. A controversy had arisen regarding the interpretation of Sub-Sec tion (6) of Section 109 of the Act particularly with reference to the meaning of the expression yearly sale value . The controversy was set at rest by a Full B ench of this Court in the case of Harez Ali & Another vrs. State of Assam & Othe rs; reported in 2009 (2) GLT 561(FB). The questions which arose for consideratio n before the Full Court were (i) whether yearly sale value would mean the minimu m value fixed by the panchayat while offering the property for settlement by ten der or it is the highest value offered by the eligible highest bidder, and (ii) whether Zilla Parishad is empowered to invite tenders in respect of Hats, Ferri es and Fisheries having yearly sale value of more than Rs. 1,00,000/-. The Full Court after observing that the expression yearly sale value is not defined in the Act, held that yearly sale value of all Hats, Ghats and Fisheries would me an the highest bid amount that is offered by the eligible bidder. If the bid val ue of the eligible highest bidder is less than Rs. 1,00,000/-, the General Stand ing Committee of the Anchalik Panchayat will examine and accept the tender of th e highest eligible bidder and forward it to the Zilla Parishad for confirmation , which is a mandatory requirement. The Full Bench has pointed out that any sett lement made without such confirmation by the Zilla Parishad will not be a legall y valid settlement. The Full Bench further clarified that after submission of al l tender papers before the Anchalik Panchayat if the bid value offered by the el igible highest bidder is found to be more than Rs. 1,00,000/-, the General Stand ing Committee of the Anchalik Panchayat shall immediately forward all such tend er papers submitted by the bidders together with the comparative statement prep ared to the Zilla Parishad concerned for doing the needful. 8. Having noticed the relevant provisions of the Act as interpreted by the Full Bench of this Court, the following situation thus emerge,- tenders for the Hats, Ghats and Fisheries within the territorial jurisdiction of the A nchalik Panchayat will be floated by the President of the Anchalik Panchayat. Th e tenders submitted shall be scrutinized by the General Standing Committee of th e Anchalik Panchayat. If on such scrutiny it is found that the highest bid value amongst the eligible tenderers is below Rs. 1,00,000/-, the settlement is to be made by the Anchalik Panchayat subject to confirmation by the Zilla Parishad. But if the highest bid value amongst the eligible tenderers is found to be more than Rs. 1,00,000/-, the tender papers have to be sent to the Zilla Parishad. I n such a case, the General Standing Committee of the Zilla Parishad shall scruti nize the tender papers and thereafter the final settlement order would be issued by the Zilla Parishad. 9. Thus, the picture that emerges is that there are two stages of s crutiny. In the first stage, the scrutiny will be made by the General Standing C ommittee of the Anchalik Panchayat. If on such scrutiny it is found that the bid value of the highest valid tenderer is less then Rs. 1,00,000/-, the power of s ettlement is vested with the Anchalik Panchayat, subject of course to confirmati on by the Zilla Parishad. The language of Sub-Sections (3) and (4) of Section 10 6 is very clear, which are quoted hereunder for ready reference: (3) The powers of examination and final acceptance of such tenders shall be ves ted in the Standing Committee under Section 52(1)(a). (4) All settlement made under Sub-Section (3) shall be subject to the confirmat ion of the Zilla Parishad. A careful scrutiny of the said provisions clearly show that the decision of the General Standing Committee of the Anchalik Panchayat regarding validity of a ten der is final. Therefore, once the decision is taken by the General Standing Comm ittee of the Anchalik Panchayat regarding the validity of a tender, the same att ains finality. In such a case, the settlement will be made by the Anchalik Panch ayat, subject to confirmation by the Zilla Parishad. However, if on scrutiny of the tender papers, the General Standing Committee of the Anchalik Panchayat find s that the highest bid value of the eligible tenderers is more than Rs. 1,00,000 /-, the tender papers would have to be immediately forwarded to the Zilla Paris had. It is then that the second stage comes into play. On receipt of the tender papers, those would be examined by the General Standing Committee of the Zilla P arishad and the final acceptance of such tenders is vested in the said General S tanding Committee. In such a case, the settlement will be made by the Zilla Pari shad. 10. Having noticed the legal position as indicated above, let us see what has happened in the instant case. 11. In the file containing the tender papers of the respective tende rers, it is seen that all the documents have been tagged together except one doc ument, which is in a loose form. The said document is a Tax Clearance Certificat e dated 7-6-2011 issued by the Chief Executive Officer, Barpeta Zilla Parishad i n favour of the respondent No. 6 certifying that there is no outstanding dues pa yable to the Barpeta Zilla Parishad by the said respondent No. 6. A loose photos tat copy of the proceeding of the General Standing Committee of the Mandia Ancha lik Panchayat dated 23-6-2011 is also found in the record. As per the resolution No. 1, the General Standing Committee resolved that after scrutiny of the tende rs it was decided to settle the Parghat with the petitioner. In the said resolut ion it was mentioned that the first tenderer had withdrawn his tender. In respec t of the second highest bidder i.e. the respondent No. 6 it was noted that as re levant document was not submitted his tender was rejected. For similar reason th e tenders of the 3rd, 4th and 5th highest bidders were also rejected. It was als o noted that the 6th highest tenderer had withdrawn his tender. That brought the petitioner at serial No. 7 into consideration. After noting that the petitioner had submitted the relevant documents, the General Standing Committee took the a foresaid decision to settle the Parghat with the petitioner. In another file of the record presumably of the Zilla Parishad, in Column-10 of the comparative st atement relating to tax clearance certificate of the Zilla Parishad, in respect of the respondent No. 6, it is seen that both ’no’ and ’yes’ were written but st ruck off. The said comparative statement is also considerably different from the copy of the comparative statement annexed to the writ petition inasmuch as in the latter, in the remarks column the seal and signature of the President of the Mandia Anchalik Panchayat are there which is missing in the comparative state ment found in the said record. There are also other material differences. Howeve r, it is seen that on the left hand side of the said comparative statement the P resident of the Barpeta Zilla Parishad put up a note dated 30-6-2011 settling th e Parghat with second highest bidder i.e. the respondent No. 6 at his bid value of Rs. 2,86,999/-, besides this, there are 4(four) other signatories of the Mem bers of the General Standing Committee of the Zilla Parishad. In the proceedings of the Zilla Parishad dated 30-6-2011, it was noted that the 1st highest bidde r had withdrawn his tender, therefore, it was decided to settle the Parghat with the 2nd highest bidder (respondent No. 6) at his bid value of Rs. 2, 86, 999/- . It was noted that the Anchalik Panchayat had rejected the tender of the respo ndent No. 6 on the ground that the said tenderer had not submitted the Tax Clear ance Certificate from the Zilla Parishad but doubt was expressed on the stand ta ken by the Anchalik Panchayat. The Standing Committee of the Zilla Parishad note d that in the column relating to Tax Clearance Certificate of the Zilla Paris had, in respect of the respondent No. 6, once it was written ’yes’ which was s truck off and then it was written ’no’, which was also struck off. The Zilla Par ishad further noted that the respondent No. 6 has produced the Tax Clearance Cer tificate of the Zilla Parishad bearing Sl. No. 110 dated 7-6-2011 and accordingl y his tender was considered to be valid and was accepted. Interestingly, a copy of the said certificate finds place along with the said resolution. However, it is seen that the certificate which is annexed to the resolution of the General S tanding Committee of the Barpeta Zilla Parishad is different in format from the loose certificate which is found in the file containing the tenders of the tende rers. 12. In fact, this Court while considering the misc. case had noticed the material differences. By order dated 15-11-2011 passed in misc. case No. 22 72 of 2011, this Court noted that from the writ petition as well as from the mis c. case it appeared that two separate comparative statements were prepared and t here are material differences in both the comparative statements. Therefore, by order dated 15-11-2011 this Court directed the Chief Executive officer of the Ma ndia Anchalik Panchayat as well as the Chief Executive Officer of the Barpeta Zi lla Parishad to file affidavits and to appear in person with the relevant record on 22-11-2011. On 22-11-2011 the two Officers had appeared before the Court in person. The records which they brought and as referred to above were handed over to the Court by the learned State counsel. 13. From a perusal of the record, I am constrained to observe that t he records have not been properly maintained. The proceedings of the General Sta nding Committee of the Anchalik Panchayat are not available in original except a loose photocopy of the same. Besides, tempering in the comparative statement ha s been noticed. The same has cast a shadow on the fairness of the decision makin g process. In my opinion, it requires a proper investigation by the higher autho rity of the department to find out the persons responsible for such tempering an d to take necessary action against them, otherwise the credibility of the entire settlement system will be eroded. 14. Coming back to the present case, let us again examine what is th e requirement of Clause 3(Ka) of the NIT. The said clause requires that those te rderers whose bid value is above Rs. 1,00,000/- must submit loan clearance certi ficate from the Zilla Parishad. Submission of the said certificate has been made mandatory and if it is not submitted, it is clearly stipulated that such tender s would be rejected. Therefore, the requirement is submission of a Loan Clearanc e Certificate from the office of the Zilla Parishad. In other words, when an app lication comes before the Zilla Parishad for issuance of such a certificate, the Zilla Parishad is required to conduct an inquiry and after satisfying itself, i t has to issue such a certificate. In the instant case, in so far the petitioner is concerned, since his bid value is less than Rs. 1,00,000/-, there is no requ irement for submission of such a certificate. That may perhaps explain why Colum n 10 in the comparative statement in respect of the petitioner is kept blank. Ho wever, in the case of the respondent No. 6, even as per the resolution of the Ge neral Standing Committee of the Zilla Parishad, both the remarks ’yes’ and ’no’ made in the said column have been struck off, which means that there is no remar k against that column. Even in the typed copy of the comparative statement annex ed by the respondent No. 6 himself in his misc. application, against Column-10 i n respect of the respondent No. 6 it is remarked ’no’ and nothing in respect of the petitioner. At this stage it must be pointed be out that the requirement of Clause 3(Ka) is not submission of a Tax Clearance Certificate but a Loan Clearan ce Certificate from the Zilla Parishad. 15. As pointed out above, the decision of the General Standing Commi ttee of the Anchalik Panchayat regarding validity of the tenders is final. The G eneral Standing Committee of the Zilla Parishad will come into the picture only if the General Standing Committee of the Anchalik Panchayat finds that the bid v alue of the highest eligible tenderer is more than Rs. 1,00,000/-. In such a cas e, the tender documents are to be sent to the Zilla Parishad and the General Sta nding Committee of the Zilla Parishad will thereafter scrutinize the tenders an d make the settlement. In the instant case, the General Standing Committee of th e Anchalik Panchayat on scrutiny of the tenders declared the tender of the respo ndent No. 6 as invalid and settled the Parghat with the petitioner, whose bid va lue is below Rs. 1,00,000/-. The said settlement was subject to confirmation by the Zilla Parishad under Sub-Section (4) of Section 106 of the Act. The dictiona ry meaning of the word confirmation means the action on confirming or the state of being confirmed . According to the Black’s Law Dictionary, 6th Edition, conf irmation also means to give formal approval. Therefore, once the matter was scru tinized by the General Standing Committee of the Anchalik Panchayat and the bid of the highest valid tenderer was found to be less then Rs. 1,00,000/-, it was n ot open for the Barpeta Zilla Parishad to sit like an appellate authority over the said decision of the Anchalik Panchayat. All that was required of it was to approve the decision of the Anchalik Panchayat or if it had any doubt, to have sought clarification from the Anchalik Panchayat. The course of action adopted b y the Barpeta Zilla Parishad is, therefore, in the considered opinion of this Co urt, beyond the mandate of the aforesaid provisions of the Act. 16. Mr. J. Ahmed, learned counsel for the respondent No. 6 placed be fore the court a decision of this court in the case of Haji Abdul Mazid vrs. Sta te of Assam and Others; reported in 2008 (2) GLT 64 which appears to be the basi s of an alternative argument of Mr. Ahmed. In this case, the settlement of a wee kly market was challenged by the petitioner therein on the ground that on a comb ined reading of Clauses 3 and 8 of the NIT, his tender could not have been treat ed as invalid and he ought to have been settled with the market. On a reading of the relevant provisions of the NIT, this court noticed that in terms of Clause 3 thereof, preference was to be extended to the highest bidder but sub-clause Kh a made it obligatory on the part of the tenderers to furnish alongwith their ten ders a non-encumbrance certificate in respect of loan, tax, revenue etc. with th e indication that in case of any proof of non payment of such revenue, loan, tax etc. the settlement even if offered would be cancelled after finalization. Clau se-8 of the said NIT provided that if the successful bidder deposits within 7 da ys of settlement the amount offered as a whole, it would be inessential to discl ose the particulars of the property offered by way of mortgage. The said clause required that to avail such benefit, the tenderer concerned would make an under taking to the above, otherwise any tender lacking in particulars of the land off ered as mortgage would not be accepted. It is in the context of the aforesaid cl auses in the NIT that this court after observing that the NIT conditions have t o be construed harmoniously so as to render the same workable, held that in cas e the tenderer in his tender form made a declaration undertaking to pay the ent ire amount of his offer within 7 days of his settlement, he is not required to f urnish the particulars of any immovable property mentioned to be offered as mort gage and that the requirement of submission of non-encumbrance certificate enjoi ned by clause Kha is not inflexibly obligatory in nature in all situations. In t hat view of the matter, when the petitioner made the categorical undertaking in his tender form to deposit the entire amount quoted by him within 7 days of the order of settlement if made in his favour, this court held that the ground of re jection of the petitioner’s tender could not be sustained. 17. I am afraid the proposition enunciated in the above case does no t fit in with the facts in hand and does not support the case of the respondent