IN THE GAUHATI HIGH COURT

(HIGH COURT OF , NAGALAND, MIZORAM & ARUNACHAL PRADESH)

WRIT PETITION (C) NO.4806 OF 2016

Majidur Rahman, Son of Late Major Ali, Resident of Village: Jangal Charali, PO: Kalapani, District: South Salmara – Mankachar, Assam.

…….. Petitioner

-Versus-

, 1. The State of Assam, represented by the Commissioner & Secretary to the , Panchayat & Rural Development Department, , – 781006.

2. The Commissioner, Panchayat & Rural Development, Assam, Juripar, Panjabari, Guwahati – 781037.

3. The Chief Executive Officer, Zilla Parishad, Dhubri, Ward No.1, PIN – 783301.

4. The Mankachar Anchalik Panchayat, represented by the President, Jangal, Mankachar, PIN – 783135.

5. The Executive Officer, Mankachar Anchalik Panchayat, Jangal, Mankachar, PIN – 783135.

6. Akhidul Islam, Son of Osman Goni, Village: Kodaldhowa, PO: Kalapani, Mankachar, PIN – 783135.

……..Respondents

For the petitioner : Mr. B. Chetri, Advocate.

For respondent Nos.1, 2, 3 & 5 : Mrs. D. Das Barman, Government Advocate.

For respondent No.4 : None appears.

For respondent No.6 : Mr. R. Islam, Advocate.

B E F O R E HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

Date of hearing : 31st January, 2017.

Date of Judgment & Order : 15th February, 2017.

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JUDGMENT & ORDER

Heard Mr. B. Chetri, learned counsel for the petitioner. Also heard Mrs. D. Das Barman, learned State counsel, appearing for the respondent Nos.1, 2, 3 & 5 and Mr. R. Islam, learned counsel, appearing for the respondent No.6. None appears for the respondent No.4.

2. By filing this writ petition, the petitioner has prayed for setting aside the settlement order dated 20.07.2016 (Annexure-E of the writ petition) issued by the Secretary/Executive Officer, Mankachar Anchalik Panchayat settling Puthimari Hat in favour of the respondent No.6 and to issue a writ of mandamus to the respondent authorities to settle the same in favour of the petitioner.

3. The facts pleaded in the writ petition, in a nutshell, are that a Notice Inviting Tender (NIT) was issued on 16.05.2016 by the President of Mankachar Anchalik Panchayat for settlement of Puthimari Hat for the year 2016-2017. The petitioner had submitted his tender offering Rs.3,82,321/- enclosing all the documents required to be submitted under the NIT and the tender of the petitioner is the highest valid tender. Name of his guarantor was reflected as Basirul Rahman in some of the documents instead of his actual name Basirul Hoque and accordingly, an affidavit was sworn on 15.06.2016 and same was also submitted. Land valuation certificate was submitted in respect of 11 Bighas 1 Katha 14 Lechas of land of his guarantor Basirul Hoque and such certificate demonstrates that the value of the land is Rs.59,53,500/-. It is pleaded that the comparative statement of the Hat was prepared in an arbitrary manner and the signatures of the members of the General Standing Committee were obtained hurriedly. However, the impugned order of settlement dated 20.07.2016 was issued in favour of the respondent No.6, who had submitted tender for Rs.97,990/- and the tender of the petitioner was rejected on the ground that there is discrepancy in the documents of the guarantor.

4. The respondent No.4 had filed an affidavit. In the said affidavit, it is alleged that the remarks column in the comparative statement was filled up in the handwriting of the Executive Officer of Mankachar Anchalik Panchayat after

WP(C) No.4806/2016 Page 2 of 6 obtaining the signatures of the members. It is also stated that at the time of examination of the tenders with regard to Puthimari Hat, the petitioner’s tender was found to be the highest valid tender with all documents including the copy of the affidavit of Basirul Hoque @ Basirul Islam and subsequently, keeping the members in the dark, the Executive Officer had put his own remarks. It is also stated that accordingly, he had lodged complaint before the Chief Executive Officer, Dhubri Zilla Parishad.

5. The respondent No.3, i.e. the Chief Executive Officer of Dhubri Zilla Parishad stated that no documents pertaining to the tender papers were submitted to the Dhubri Zilla Parishad, except the comparative statement and, therefore, the Zilla Parishad is not aware as to whether the affidavit of Basirul Hoque was submitted along with the tender papers.

6. The respondent No.6 had filed an affidavit contending that the final order of settlement dated 26.07.2016 is not challenged in the writ petition and what is challenged is a temporary settlement order, which was subsequently cancelled and, therefore, the writ petition is liable to be dismissed. In such affidavit, while denying the allegations made in the writ petition, it is stated that the tender of the respondent No.6 was found to be the highest valid tender and accordingly, the Hat was settled with the respondent No.6. It is also stated in the said affidavit that the complaints lodged by the President of the Anchalik Panchayat are motivated.

7. Mr. Chetri, learned counsel for the petitioner has submitted that manipulations made by the Executive Officer of the Mankachar Anchalik Panchayat are fortified by the affidavit of the respondent No.4, who is the President of the Anchalik Panchayat, as he had, in his affidavit, stated that the remarks were put by the Executive Officer without the knowledge of the members of the General Standing Committee. According to him, the petitioner is the highest valid tenderer and, therefore, grant of settlement in favour of respondent No.6 is, per se, arbitrary and illegal. Mr. Chetri submits that as the name of the guarantor was recorded in some documents as Basirul Islam instead of Basirul Hoque, an affidavit was filed to that effect by Basirul Hoque and, therefore, even on that count, the observation in

WP(C) No.4806/2016 Page 3 of 6 the comparative statement showing the ground of rejection of his tender is not correct. He has also placed reliance upon the judgments of this Court in the case of Apurba Das -Vs- State of Assam & Ors., reported in 2009 (3) GLT 406 and Zilla Parishad & Ors. -Vs- Rezia Begum & Ors., reported in 2006 (Suppl.) GLT 585.

8. By producing the records, Mrs. D. Das Barman, learned State counsel submits that though there is an affidavit of Basirul Islam, stating that he is the guarantor of the applicant, the record does not contain any affidavit of Basirul Hoque, as contended by Mr. Chetri. The land document and other documents are in the name of Basirul Hoque, she submits.

9. Mr. Islam, learned counsel appearing for the respondent No.6 submits that the plea taken by the petitioner that the comparative statement is manipulated by the Executive Officer of Mankachar Anchalik Panchayat is an afterthought and besides, such a plea is raised only to favour the petitioner for extraneous consideration. He has submitted that tender of the respondent No.6 being the highest valid tender, the market was rightly settled with the respondent No.6 and no interference is called for.

10. I have considered the submissions of the learned counsel appearing for the parties and have also perused the materials on record.

11. The comparative statement as available in the records belies the claim of the petitioner as well as that of the respondent No.4. 4(four) Anchalik Panchayat members as well as the President of Mankachar Anchalik Panchayat had recommended settlement in favour of the respondent No.6. The recommendation is also a hand written note.

12. Section 105(3) of the Assam Panchayat Act, 1994 (for short, “the Act”), provides that the power of examination and final acceptance of tenders shall be vested on the Standing Committee referred to in Section 52(1)(a) and all settlements made under Sub-section (3) shall be subject to the confirmation of the Zilla Parishad. Therefore, it is obvious that the General Standing Committee had

WP(C) No.4806/2016 Page 4 of 6 accepted the bid of the respondent No.6. The General Standing Committee, in law, could not have accepted the tender of the respondent No.6 if there are higher valid bidders. It stands to reason that because of the remarks made against the tenders of respective tenderers, the General Standing Committee had decided to accept the tender of the respondent No.6. Significantly, in the affidavit of the respondent No.4, recommendation made in favour of the respondent No.6 is not denied and what is sought to be projected is that the remarks column was filled up by the Executive Officer without his knowledge.

13. In the comparative statement, it is recorded against the petitioner as follows:-

“Discrepancy in the documents of the guarantor. The Name of the Jaminder is at some place Basirul Islam and in some place Basirul Hoque. Therefore, the Jamabandi being not acceptable, his tender is rejected.”

14. In the writ petition, the petitioner has annexed an affidavit, purportedly sworn by Basirul Hoque, as Annexure-C3, stating that his actual and correct name is Basirul Hoque. But surprisingly, the said affidavit is sworn by Majidur Rahman, i.e. the petitioner. By filing an additional affidavit, the petitioner has brought on record of the writ petition what is called by him “a correct affidavit”. The serial numbers of both the affidavits are, surprisingly, same. If such an affidavit was there on record, what would have been its value is a different matter altogether but the records produced by Ms. Das do not contain any such affidavit.

15. The comparative statement goes to show that only the respondent No.6 had submitted all the documents, as required under the NIT.

16. In Nagaon Zilla Parishad (supra), this Court had observed that in absence of prior and formal approval of the State Government as required under Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 (for short, “2002 Rules), settlement made in favour of a lower tenderer is not valid. The ratio of the aforesaid case is not attracted in the facts and circumstances of the case inasmuch as the present is not a case where a lower tenderer is sought to be favoured with a settlement order ignoring a higher valid tenderer.

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17. In Apurba Das (supra), this Court had held that tender of the petitioner in the said case being highest and his tender being a regular one, the market ought to have been settled with him. The same is not the case here, inasmuch as this Court has found that the tender of the petitioner was rightly rejected because of the discrepancy with regard to the documents of the guarantor.

18. Considering the matter in its entirety, I find that no case is made out by the petitioner for interference with the order of settlement made in favour of the respondent No.6 and, therefore, the writ petition is dismissed. No costs.

J U D G E

M. Sharma

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