Calcutta High Court (Appellete Side)
Rabin Majhi vs The State Of West Bengal & Ors on 10 May, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
WPA 22046 of 2022
Rabin Majhi
vs.
The State of West Bengal & Ors.
For the petitioner: Mr. Saptangshu Basu, Senior Advocate
Mr. Mritunjoy Chatterjee,
Mr. Amanul Islam, Advocates
For the State: Ms. Manali Ali,
Ms. Amrita Panja Moulick, Advocates
For the respondent Nos. 3&4: Mr. Sarwar Jahan,
Mr. Maidul Islam Kayal, Advocates For the respondent No. 8: Mr. Lakshmi Kumar Gupta, Senior Advocate Mr. S.N.Biswas, Advocate Hearing concluded on: 28.02.2023 Judgment on: 10.05.2023 Shampa Sarkar, J.:-
1. The writ petition has been filed challenging the notice inviting e-
Auction No. 01/DOM/EO/FERRY GHAT/2022-2023 dated September 2, 2022, issued by the Executive Officer, Domkal Panchayat Samiti (in short, the Panchayat Samiti). By the aforementioned e-auction notice, the Executive Officer of the Panchayat Samiti invited applications from bona fide individuals, firms and companies for the purpose of grant of lease of 19 ferry 2 ghats through online mode of bidding. The terms and condition of the e- suction were provided in the said notice.
2. The grounds for challenge of the said notice were that the Executive Officer (BDO) issued the notice for e-auction, without any authorization from the Artha Sanstha Unnayan-O-Parikalpana Sthayee Samiti (in short, the Artha Samiti). According to the petitioner, the said notice was in contravention to Rules 31 and 84 of the West Bengal (Panchayat Samiti) Administration Rules, 2008 (in short, the Rules of 2008). It was further contended that the Executive Officer proceeded with the e-auction and finalized the same in further violation of the provisions of Rule 91(5) of the West Bengal Panchayat (Zilla Parisahd and Panchayat Samiti) Accounts and Finance Rules, 2003 (in short, the Finance Rules of 2003).
3. The writ petitioner was the existing operator in respect of five ferry ghats under the control and management of the Panchayat Samiti. Initially, this Court did not pass any interim order and directed the successful bidder to be added as a respondent and directed exchange of affidavits. The petitioner and the Panchayat Samiti preferred appeals. The Hon'ble Division Bench, upon prima facie, finding that there were violations of the rules by the Executive Officer, made an ad hoc interim arrangement for operation of the 19 ferry ghats through the existing operators, till the matter was finally decided by the Single Bench. The auction process was stayed. The Panchayat Samiti was directed to calculate a reasonable amount that the operators should deposit in order to carry on operation of the ferry ghats. Further direction was that the money deposited by the respondent No.8 as the successful bidder, should be invested in a short term fixed deposit in the 3 name of the Sabhapati of the Samiti, with a scheduled bank offering the highest rate of interest.
4. Upon exchange of affidavits, the writ petition came up for hearing before this Court. This Court had already directed the respondents to file their individual affidavits which included the Executive Officer, the District Magistrate, Murshidabad and the Sabhapati of the Domkal Panchayat Samiti. The Panchayat Samiti filed two affidavits, inter alia, supporting the contention of the writ petitioner and denying the claim of the Executive Officer that the e-auction was initiated and completed on the basis of a decision of the Artha Samiti adopted in a meeting dated July 18, 2022. According to the Mr. Jahan, learned Advocate for the Panchayat Samiti, an offline auction notice was published on June 21, 2022 for settlement of 19 ferry ghats. Only one application was received and the process was dropped. Subsequently, on July 4, 2022, another offline auction notice had been floated. Due to unavailability of suitable bidders, the process was again dropped. Under such a situation, a meeting of the Artha Samiti was held on July 18, 2022. In the said meeting, it was, inter alia, decided that settlement of the 19 ferry ghats should be completed by September, 2022. Till then, the existing operators were to be given an extension. According to the Panchayat Samiti, the Executive Officer was present at the meeting. The said officer had proposed that the higher authorities be informed about the steps that had been taken on and from April 15, 2022 in respect of settlement of the 19 ferry ghats. The Executive Officer suggested that if any direction was received from the higher authorities, the same would be implemented. Suddenly, without further directions from the Artha Samiti, the Executive 4 Officer published the e-auction notice on September 2, 2022. Mr. Jahan contented that the said notice inviting e-auction was published by the Executive Officer, contrary to law. The Artha Samiti, in its meeting dated September 14, 2022, had decided to cancel the e-auction notice. According to the Panchayat Samiti, Rule 91(5) and Rule 100 of the Finance Rules of 2003 ought to have been followed by the Executive Officer. The matter should have been placed before the Artha Samiti as also the tender selection committee, before the process commenced. Mr. Jahan contended that the Executive Officer had himself proposed that further directions from the higher authority with regard to the settlement of the ferry ghats should be taken, but without taking any steps in furtherance to his own proposal unilaterally decided to float the e-auction notice without any intimation either to the higher authority or to the Artha Samiti.
5. The Panchayat Samiti also alleged that the successful bidder i.e. the added respondent No.8 had continued with the operation of the 19 ferry ghats for 25 years until 2021 and on every occasion when an auction was invited by the Panchayat Samiti in terms of the rules and notification of the Government of West Bengal, Finance Department, Audit Branch, the respondent No.8 approached the writ court and obtained interim orders.
6. According to the Panchayat Samiti, the respondent No.8 was not a bona fide bidder and had always stalled earlier attempts of the Panchayat Samiti to settle the ferry ghats through a competitive and transparent process. For the first time in 2021, an auction for settlement of the ferry ghats could be completed and the highest bidders were granted lease of the ferry ghats on the basis of the decision of the tender committee and the 5 Artha Samiti. The writ petitioner was settled five out of 19 ferry ghats. The specific contention of the Panchayat Samiti was that on September 14, 2022 when the Panchayat Samiti decided to cancel the e-auction process which had been floated by the Executive Officer on September 2, 2022, the Executive Officer was present in the said meeting. Thus, all actions taken by the Executive Officer upto execution of the contract with the respondent No.8 were null and void and in disobedience to the decision of the Artha Samiti which had the supreme authority in any matter relating to tenders and auction of ferry ghats. The Panchayat Samiti alleged that its resolution book was taken away by the Executive Officer in order to withhold relevant documents of the past years. The said Executive Officer had circumvented the procedure followed since 2021, for settlement of ferry ghats through a tendering process. In 2021, decisions were taken by the tender committee and ratified by the Artha Samiti in compliance to Rules 31 and 84 of the Administration Rules of 2008 and Rules 91(5) of the Finance Rules of 2003. Thus, Mr. Jahan prayed for setting aside of the impugned auction.
7. The other respondent authorities, namely, the District Panchayat and Rural Development Officer and the District Magistrate, Murshidabad, filed separate affidavits. Ms. Ali, learned Advocate for the state respondents, pointed out to those affidavits in which the state authorities had categorically stated that Rule 31 of the Rules of 2008, empowered the Artha Samiti to formulate a specific guideline and procedure for management of the ferry ghats and such procedure was to be executed by the concerned Executive Officer. That Rule 84(1) of the Administration Rules provided that the Executive Officer of the Panchayat Samiti would be responsible for 6 taking necessary action on the decisions arrived at in the meeting of the Panchayat Samiti and keep the Sabhapati informed of the progress of various developmental activities in the Panchayat Samiti. The problems and difficulties, if any, experienced in the functioning of the Panchayat Samiti were also to be informed to the Sabhapati. Both the authorities further stated that in the absence of any particular procedure or rules with regard to auction or lease of ferry ghats, Rules 31 and 84 of the Administration Rules of 2008, were to be followed. That the Artha Samiti, in terms of Rule 27(3) and Rule 27(4) of the Administration Rules of 2008, had the ultimate power with regard to implementation of programmes and developmental activities involving financial expenses. According to Section 125 of the West Bengal Panchayat Act, 1973, the Sabhapati of the Panchayat Samiti was the Ex-officio Chairman or Karmadhyaksha of the Artha Samiti and was empowered to preside in every meeting. The usual practice and convention was that the Executive Officer i.e. the Block Development Officer would invite the e-auction and also issue work orders upon execution of the contracts/agreements, but such action were to be based on the decisions of the Artha Samiti. Regarding management of the ferry ghats, the Artha Samiti was the final authority and the Executive Officer was required by law, to execute the decisions of the Artha Samiti as also the Panchayat Samiti.
8. The respondent No.8 i.e. the successful bidder filed an affidavit-in- opposition and submitted that the entire process was followed in accordance with law, by the Executive Officer. The decision of the Artha Samiti adopted on July 18, 2022, to the effect that by the end of September, 2022 settlement of 19 ferry ghats should be completed, had been complied with 7 by the Executive Officer. The Executive Officer did not take any independent decision.
9. According to the respondent No.8, more than Rs.30 lakhs had already been deposited and the agreements were executed. If the prayers in the writ petition were allowed, the same would be detrimental to the interest of the respondent No.8 and contrary to the provisions of the law relating to contracts. The Panchayat Samiti would be incurring huge losses if the existing operators were allowed to function by paying much less than the amount quoted by the respondent No.8. Maximization of revenue should be the ultimate goal of the samiti. The e-auction was held on the direction of the Artha Samiti and the action of the Executive Officer was neither contrary to law nor in conflict with the decision of the Artha Samiti. The decision of the Artha Samiti dated July 18, 2022 had been implemented and the e- auction notice had been published. The procedure was fair and transparent. The respondent No.8 was the highest bidder in respect of all the 19 ferry ghats. None of the other existing operators had challenged the process apart from the writ petitioner, who was operating only five out of 19 ferry ghats and who did not participate in the e-tender process, which was under
challenge.
10. The respondent No.8 acquired a right on the basis of the agreement, to continue with the operation of the ferry ghats as the highest bidder. Such agreement was executed between the respondent no.8 and the Executive Officer (who was the legally authorized person) on September 23, 2022. The agreement of lease was a concluded contract.
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11. The respondent No.7, i.e., the Executive Officer (BDO) also filed two sets of affidavits, inter alia, stating that the e-auction was notified on September 2, 2022, on the basis of the Artha Samiti's resolution dated July 18, 2022. Rule 31 of the Rules of 2008 was followed. According to the said Executive Officer, the samiti was losing money as the existing operators were paying Rs.2 lakhs only. He stated that taking note of the rise in the water level during monsoon, the Artha Samiti thought it expedient that the jobs of the operation of the ferry ghats should be entrusted to proper agencies and the e-auction process should be completed for all the 19 ferry ghats within September 2022. Such decision of Artha Samiti dated July 18, 2022 was a direction upon the Executive Officer to complete the auction process by September 2022. Such decision of the Artha Samiti was taken in terms of Rule 31 of the Rules of 2008 and the action of the Executive Officer was in terms of Rule 84(1) of the said Rules. The e-auction notice was issued on September 2, 2022. The technical bid was opened on September 13, 2022. On the basis of the technical evaluation, three bidders were approved as per the Rules. The financial bids were opened on September 16, 2022. The online system was followed to ensure highest level of transparency. Based on the financial bids quoted by the bidders, the respondent No.8 was found to be the highest bidder and was selected. Prior to such selection, a comparative statement of the financial bids was prepared and analysed. The details of the e-auction had been communicated to the Sabhapati and to all the members of the Artha Samiti on September 20, 2022. Neither any grievance nor any objection was received from any member of the Artha Samiti, including the Sabhapati.
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12. The letter of acceptance was issued to the respondent No.8 on September 21, 2022. The highest bidder deposited the entire bid amount and the agreement was executed. That the Panchayat Samiti had suffered loss of revenue in the earlier financial year. The respondent No.8 had offered a much higher amount, for operation of the 19 ferry ghats.
13. Mr. Saptangshu Basu, learned Senior Advocate for the petitioner submitted that Rule 91(5) and 100 of the Rules of 2003 had not been followed. Although the Panchayat Samiti had a tender committee which also decided issues relating to settlement of ferry ghats, the said procedure had not been followed. The impugned notice inviting e-tender could not have been issued in deviation to such existing procedure. Learned Advocate further submitted that the decision of the Artha Samiti dated July 18, 2022, could not, by any stretch of imagination, be considered as a direction upon the Executive Officer to issue the e-auction notice and proceed on the basis thereof, by finalizing the contract without reporting to the Artha Samiti. Even if the contention of the Executive Officer was accepted, and the Artha Samiti's decision to finalise the issue of settlement of the ferry ghats by the end of September 2022 was in the nature of a direction upon the Executive Officer, the Executive Officer, ought to have intimated the tender committee and the Artha Samiti about the technical bids, its evaluation, the financial bids and the subsequent steps that were taken. The comparative statement that was prepared with regard to the financial bids and the final decision to accept the respondent No.8 as the successful bidder ought to have been placed before the Artha Samiti for ratification and further directions, before any letter of acceptance could be issued to the respondent No.8. 10
14. Mr. Basu, further submitted that the decision dated July 18, 2022 clearly recorded that the Executive Officer himself wanted to intimate the higher authority about the situation, specially because on two prior occasions the bidding procedure had failed and the Artha Samiti had decided to allow the existing operators to continue operation of the ferry ghats till the end of September 2022, on the condition that fresh auction for settlement of the 19 ferry ghats for the year 2022-23, should be completed by September 2022.
15. Reliance was also placed on Rules 31 and 84 of the 2008 Rules. The learned Advocate urged the Court to come to the conclusion that the Executive Officer could not have taken any steps from the start to the end of the e-auction, without specific directions and authorizations from the Artha Samiti.
16. Mr. Gupta, learned Senior Advocate appearing on behalf of the respondent No.8 submitted that the Finance Rules of 2003 were not relevant for the purpose of settlement of the ferry ghats. Those Rules applied to tenders dealing with procurement of material and other services. Mr. Gupta further submitted that the true purport and meaning of the resolution adopted by the Artha Samiti in its meeting dated July, 18, 2022 to the effect that the issue of settlement of ferry ghats should be completed by September 2022, was a decision of the said samiti for settlement of the ferry ghats and the Executive Officer was only required to implement such decision, which was done. Hence, the Artha Samiti could not turn around and take a contrary stand, once the highest bidder had been selected and the agreement had been executed. Learned Advocate submitted that on the 11 earlier two occasions, when offline tenders were invited, the petitioner did not challenge those notices. Thus, the challenge to the third attempt of the Panchayat Samiti to settle the ferry ghats, by way of e-auction was suspicious and motivated. The petitioner did not have any grievance when the Panchayat Samiti had decided to invite applications in the offline mode. The challenge to the e-auction notice, smacked of mala fide. As a general procedure, settlement of ferry ghats were done in terms of the memorandum of the Finance Department, Government of West Bengal, which specifically provided that e-tenders should be held in all cases in which the value was Rs. 1 lakh and above.
17. Mr. Gupta submitted that the decision of the Artha Samiti to cancel the e-auction dated September 14, 2022 was bad in law. One of the signatories, namely, Mr. Rintu Mistry, the Deputy Secretary in the office of the BDO, intimated the Executive Officer that his signature had been forged. No such resolution had ever been adopted. The selection of the respondent No.8 was made prior to institution of the writ petition. The writ petition was an afterthought. That the writ petition should be dismissed as it was the outcome of some kind of a nexus or understanding between the Panchayat Samiti and the writ petitioner. The writ petitioner, indirectly, wanted to continue the operation of the existing ferry ghat at a lower rate. The petitioner prevailed upon the decision of the samiti to lease out the ferry ghat on the basis of the e-auction and the Artha Samiti retracted from the decision dated July 18, 2022, by passing a resolution on September 14, 2022, thereby, cancelling the process with retrospective effect. 12
18. Referring to the affidavit filed by the Executive Officer, Mr. Gupta further submitted that the Executive Officer had acted in terms of Rules 3, 31 and 84(1) of the Rules of 2008 and had followed the direction of the Artha Samiti. The final decision was also communicated to the Artha Samiti. The letter of acceptance was issued thereafter. None of the members of the Artha Samiti had ever objected to such decision.
19. Learned senior Advocate urged that the writ petition should be dismissed by upholding the e-auction notice and the decision taken by the authority to grant lease of 19 ferry ghats to the respondent No.8. The period that was lost during litigation should be added to the period of the lease and a fresh agreement should be executed by taking into consideration the time that was consumed during litigation as the respondent No.8 had not been allowed to operate the ferry ghat. Reliance was placed on the decision of the Hon'ble Apex Court in the matter Beg raj Singh vs State of U.P. and Ors. reported in (2003) 1 SCC 726.
20. Having heard the submissions of the respective parties, the Court proceeds to discuss the legal provisions. Rule 3 of the Rules of 2008, provides that the Sabhapati must exercise the powers, perform the functions and discharge the responsibilities conferred upon him or her under the Panchayat Act, through the Executive Officer of the Panchayat Samiti and in doing so he/she shall ensure the following:-
"...(a) proper maintenance of records, registers and returns of the Panchayat Samiti and in this regard shall follow such system and procedures as are generally applicable to the State Government offices and shall also be subject to such orders and directions of the State Government as may be issued from time to time,
(b) performance review of works of the Panchayat Samiti and the employees thereof, 13
(c) proper and timely preparation of budget of estimated receipts and payments of the Panchayat Samiti for the following year and preparation of supplementary and revised estimate of budget of the Panchayat Samiti for the current year,
(d) framing and bringing into force bye-laws of the Panchayat Samiti for realisation of rates, fees, tolls, fines and such other charges subject to the provisions of section 223 as may be decided to be imposed by the Panchayat Samiti,
(e) preparation, circulation and timely submission of the accounts of the Panchayat Samiti,
(f) taking corrective measures on the basis of audit reports, preparation of replies to audit queries and placing them before the Artha Sanstha Unnayan O Parikalpana Sthayee Samiti and the Panchayat Samiti for decisions and final preparation and submission of replies to the appropriate authorities,
(g) preparation of annual administrative report of the Panchayat Samiti,
(h) monitoring of timely holding of the meetings of Sthayee Samitis and review of progress of works and schemes assigned to the Sthayee Samitis,
(i) proper functioning of Sthayee Samitis relating to the activities devolved upon or assigned to them in conformity with the provisions of the Act and rules,
(j) maintenance of register of assets, properties and land vested in the Panchayat Samiti,
(k) timely holding of half yearly and annual meetings of Block Sansad, recording of proceedings thereof and taking follow-up actions,
(l) that no dangerous and offensive trade or business as may be notified by the Government from time to time is carried on within the area of the Panchayat Samiti without any license or permission of the Panchayat Samiti,
(m) that no hat or market is run without any licence of the Panchayat Samiti in its area,
(n) improvement of education, health, nutrition, and livelihood opportunities in the area of the Panchayat Samiti with special emphasis on improving the quality of life of the weaker sections of the society,
(o) monitoring and supervision of all development works undertaken by the Panchayat Samiti,
(p) preparation of perspective plan of the Panchayat Samiti for the five-year term and an annual plan of the Panchayat Samiti for every year in pursuance thereof with the object of achieving economic development and ensuring social justice for all and revise and update the perspective plan as and when necessary on taking into account the resources available for development of livelihood opportunities, infrastructure and civic amenities in the area,
(q) close liaison among the members and the officers of the Panchayat Samiti, the officers of different departments of the State Government and different non-government and other community based 14 organisations working in the area within the territorial jurisdiction of the Panchayat Samiti in order to achieve a co-ordinated approach and convergence of diverse activities in their efforts in different fields of economic and social development.
(2) The Sabhapati may delegate in writing to the Sahakari Sabhapati any of his powers and functions mentioned in sub-rule (1)."
21. Proper functioning of the Artha Samiti is to be ensured by the Sabhapati. Maintenance of records, registers etc. is also the duty of the Sabhapati.
22. There is also no doubt that Rule 31 of the Rules of 2008 empowers the Artha Samiti to formulate and execute schemes relating to the subjects specified in the table including management of hat, bazaar and ferries assigned by the Government to the Panchayat Samitis, amongst others. The relevant provision is quoted below:-
"31. Subjects and functions assigned to different Sthayee Samitis.-
The Sthayee Samitis specified in the entries in column (1) of the Table hereunder shall deal with and formulate and execute schemes relating to, the subjects specified in the corresponding entries in column (2) of the Table.
The Table Artha (i) Finance, (ii) Budget, (iii) Accounts, (iv) Audit, (v) Sanstha Levying of rates, fees, duties and toll charges, (vi) Unnayan O Mobilisation of resources, (vii) Administration and Parikalpana establishment, (viii) Co-ordination and monetary Sthayee supervision of activities of different Sthayee Samitis Samiti including the schemes assigned by different departments of Government. (ix) Preparation and implementation, monitoring and evaluation of Panchayat Samiti plans, (x) Employment generating programmes, (xi) Small savings, (xii) Preparation of resource inventory and data base of Panchayat Samiti planning, (xiiii) Management of hat, bazaar, ferry assigned by Government to Panchayat Samiti, (xiv) Issue of licences on behalf of the Panchayat Samiti, (xv) Preparation of socio economic database in a decentralised manner, (xvi) Organising and managing training of members & functionaries of Gram Panchayat 15 and Panchayat Samiti, (xvii) Any other function not specified for any other Sthayee Samiti, (xviii) Any other matter as may be assigned from time to time, (xix) Implementation of Right to Information Act.
23. Rule 84 provides the powers, functions and duties of the Executive Officer of the Panchayat Samiti. The provision is quoted below:-
"84. Powers, functions and duties of the Executive Officer of Panchayat Samiti (1) The Executive Officer of the Panchayat Samiti (hereinafter in this chapter referred to as the Executive Officer) shall be responsible for taking necessary action on the decisions arrived at in the meetings of the Panchayat Samiti and shall keep the Sabhapati posted with the progress of various development activities in the Panchayat Samiti as also with the problems and difficulties, if any, experienced in the functioning of the Panchayat Samiti from time to time. (2) The Executive Officer shall submit a monthly statement of accounts to the Artha, Sanstha,Unnayan O Parikalpana Sthayee Samiti and such statement of accounts shall, after being examined by such Sthayee Samiti, be laid in the next meeting of the Panchayat Samiti for considering measures for speedy and proper utilisation of the available fund under different heads of account. (3) Unless otherwise stipulated in the Act or the rules or orders made thereunder, correspondence of the Panchayat Samiti shall be carried on by the Executive Officer or, on his behalf, by the Joint Executive officer or any other Officer as may be authorised by him. (4) The Executive Officer shall attend, as far as practicable, all meetings of the Panchayat Samiti, its Sthayee Samitis and Block Sansad and take part in the deliberations.
(5) The Executive Officer shall be responsible for implementation of all programmes and schemes assigned to the Panchayat Samiti by the Panchayats and Rural Development Department or devolved upon the Panchayat Samiti by any other Department of the State Government. (6) The Executive Officer shall be responsible for supervision and monitoring of the progress of different development works taken up by the Panchayat Samiti.
(7) Subject to the general control and supervision of the Panchayat Samiti, the Executive Officer shall be responsible for -
(a) preparation of development plan for five year term and an annual action plan for each year for achieving economic development and ensuring social justice;
(b) preparation of budget of estimated receipts and payments for the following financial year and revised and supplementary budget estimates for the current financial year;16
(c) exercising administrative control and supervision over the establishment of the Panchayat Samiti, the employees borne in the establishment of the Panchayat Samiti and such officers or other employees as the State Government may place under the functional control of the Panchayat Samiti;
(d) receipt of contributions and grants released by the Central or the State Government or by any local authority;
(e) custody of the Panchayat Samiti fund in Treasury and Bank;
(f) all actions relating to realisation of tolls, rates and fees as may be levied by the Panchayat Samiti and all other fund as may be received by or on behalf of the Panchayat Samiti;
(g) preparation of bye-laws;
(h) realisation of fines and penalties as may be imposed by the Panchayat Samiti;
(i) maintaining and keeping in proper custody all the records including all books of accounts of the Panchayat Samiti;
(j) signing the cash book and examining and, if necessary, reconciling the Panchayat Samiti Pass Book issued by the Treasury or Bank from time to time;
(k) maintaining the accounts of Panchayat Samiti and preparation of its monthly receipt-payment accounts;
(l) acting as the Accepting Officer with respect to Annual Proforma Reports of all employees of the Panchayat Samiti;
(m) maintaining co-ordination among the Block level officers in all matters relating to the execution of schemes and works approved by the Panchayat Samiti and its Sthayee Samitis;
(n) issuing necessary directions to the Block level officers for the execution of the schemes and works according to the decisions taken by the Panchayat Samiti and, its Sthayee Samitis in the meeting;
(o) obtaining progress reports from the Block level officers about the execution of such schemes and works and submitting the same to the Panchayat Samiti and its Sthayee Samitis with his comments;
(p) maintaining liaison among the members and the officers of the Panchayat Samiti, the officers of different departments of the State Government and different non-government and other community-
based organisations working in the area under its jurisdiction in order to achieve a co-ordinated approach and convergence of diverse activities in their efforts in different fields of economic and social development in the area and assisting the Sabhapati in maintaining such liaison.
(8) The Executive Officer shall inspect or cause to be inspected the institutions under the management of the Panchayat Samiti and any work undertaken by the Panchayat Samiti or a Sthayee Samiti thereof. He shall also inspect or cause to be inspected the office and works of the Gram Panchayats and the institutions managed by them. The Executive officer shall submit reports of such inspections to the Panchayat Samiti through the Sabhapati.
(9) The Executive Officer shall take effective steps to maintain linkage with the plans and programmes of the Panchayat Samiti and those of 17 the Gram Panchayats within its jurisdiction so that such programmes do not have any conflicting outcome and are mutually supportive and complimentary for achieving the common goal of integrated development and for this purpose, he shall monitor such programmes and inspect the offices of the Gram Panchayats as also programmes and schemes implemented by them."
24. Rule 84(1) provides that the Executive Officer shall be responsible for taking necessary action to implement the decisions arrived by the Panchayat Samiti in the meetings and shall keep the Sabhapati informed about the progress of various developmental activities in the Panchayat Samiti and also about problems that the Officer may face during execution of the decisions of the Panchayat Samiti. The Executive Officer is also required to submit a monthly statement of accounts to the Artha Samiti as per Rule 84(2). Rule 84(7) provides that subject to the general control and supervision of the Panchayat Samiti, the Executive Officer shall be responsible for a series of activities and actions which have been enumerated under 'a' to 'p' thereof. Maintenance of records and keeping them in safe custody is also one of the responsibilities of the Executive Officer.
25. Upon reading the provisions of the Rules of 2008 and the statements of the District Magistrate, District Panchayat and Rural Development Officer and Executive Officer, it is clear that the Executive Officer of the Panchayat Samiti functions on behalf of the Sabhapati and the Panchayat Samiti and executes and implements the decisions of the Panchayat Samiti. All his actions are subject to the general control and supervision of the Panchayat Samiti. The Executive Officer does not have any independent power to take any decision at any stage for implementation of any work or developmental scheme including settlement of ferry ghats, without the direction of the 18 Artha Samiti. In case of settlement of ferry ghats, the entire process of auction, acceptance of bids and execution of the agreement is done under authorization from the Artha Samiti.
26. It is true that on July 18, 2022, the Artha Samiti had held a meeting and had decided to complete the entire process of settlement of 19 ferry ghats by end of September 2022. The Executive Officer was also present at the meeting. It appears that the Executive Officer had himself decided to approach the higher authorities on the issue, especially with regard to the two failed attempts to lease out the 19 ferry ghats through offline auction and further decision to complete the process within September, 2022. The Artha Samiti was of the opinion that settlement of the ferry ghats should be finalized by end of September 2022 and the Executive Officer had himself proposed that the entire situation be informed to the higher authority and directions and suggestions from the higher authority be obtained. Such recording in the resolution, has not been denied by the Executive Officer. The suggestion made by the Executive Officer at the said meeting, does not reflect that the Executive Officer had considered the opinion of the Artha Samiti as a direction to issue the e-auction notice and to complete the process without further reference to the Artha Samiti.
27. Reading the entire resolution as a whole, this Court is constrained to hold that the final decision to accept the e-auction could not have been taken by the Executive Officer, without intimating the Artha Samiti. The decision to float the tender, the technical bid and the financial bid should have been referred to the Artha Samiti for authorization/concurrence. Even if the e-auction notice was published on the basis of the decision taken on 19 July 18, 2022, the subsequent steps with regard to such e-auction from the opening of the technical bid, its evaluation, the opening of the financial bid, the preparation of the financial statement and the decision to accept the respondent No.8 as the highest bidder, should have been placed before the Artha Samiti and upon ratification of the Artha Samiti, the entire matter should have been finalized and the agreements should have been executed.
28. Secondly, the Court finds that there is an internal conflict within the samiti, especially between the Sabhapati and the Executive Officer. The Court also finds from the records that a meeting was held on September 14, 2022 and a decision to cancel the e-auction notice had been taken by the samiti. Thus, when the Artha Samiti had already decided to cancel the e- auction, the Executive Officer could not have proceeded on the basis thereof. The resolution dated September 14, 2022 records that the Executive Officer was present in the meeting, but he objected to the decision and he left the meeting without signing the minutes. Such contention of the Sabhapati has been denied by the Executive Officer, which gives rise to a factual dispute. This writ court cannot enter into a probe with regard to the truth and veracity of the statements made by either party, thereby, transforming this proceeding to a trial on evidence. However, one thing is clear from the facts which have surfaced during the proceeding, i.e., the Sabhapati and the Artha Samiti did not endorse the actions of the Executive Officer and there was total non-cooperation and lack of trust between them. Owing to such animosity, the purpose of the Act was frustrated and parties were not acting in collaboration and in cohesion, for the well being of the Panchayat Samiti 20 and for realization of the provisions of the Act. Mr. Rintu Mistry, the Deputy Secretary denied his signature on the said minutes and alleged forgery.
29. The Executive officer could not proceed with the entire e-auction and execute the agreement without any ratification from the Artha Samiti. The Panchayat Samiti's resolution dated September 14, 2022 speaks volumes about the internal conflict. The letter of Rintu Mistry has been annexed by the Executive Officer, but the writ court is not in a position to decide whether the signature of Rintu Mistry had been forged or not and also decide whether the meeting dated September 14, 2022 had at all been held or the document has been created for the purpose of negating the contentions of the Executive Officer.
30. During the course of hearing, the Court deemed it fit to call for the resolution book in original, in order to ascertain whether in the past the Artha Samiti had been involved in the auctions held for settlement of ferry ghats. A resolution book was produced and the court was shocked to find that only two or three resolutions had been adopted in the entire financial year of 2021-22.
31. The Panchayat Samiti disputed the resolution book and submitted that Executive Officer had wilfully withheld the relevant documents and the resolution book from the Court. Mr. Jahan contended on behalf of the Panchayat Samiti that if the books were produced, they would indicate that the Samiti had acted in accordance with law on earlier occasions and the Artha Samiti had always decided the issues relating to auction of ferry ghats including the one held in 2021.
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32. The powers and duties of the Sabhapati is discharged in terms of the Rule 3 of the Rules of 2003 and the rule casts some duties upon the Sabhapati, which includes maintenance of records and registers, ensuring proper functioning of the Sthayee Samitis and keeping close liaison among the members and the officers of the Panchayat Samiti. Such duties were not discharged in a proper manner.
33. The Court finds that the duty of the Sabhapati to ensure maintenance of the resolution book has not been discharged. On the other hand, the Sabhapati had also taken way the resolution book in which the resolution dated September 14, 2022 had been recorded. The Court is surprised that only one resolution book was produced by the Executive Officer, which did not record proceedings of any meeting that had been held by the Panchayat Samiti, except on one or two stray occasions. None of those meetings relate to settlement of ferry ghats.
34. The Panchayat Samiti and the Executive Officer were not acting in unison. There was no coordinated approach, as was required by law. The decision to hold the e-auction and follow it through was not unanimous. The Panchayat Samiti denied of having either authorized the Executive officer or ratified his actions. The Artha Samiti denies the steps that were taken. There are allegations and counter allegations, which according to the Court is detrimental to the functioning of the Panchayat Samiti and definitely strikes at the very root of the action of the Executive Officer in publishing the e-auction notice and completing the entire procedure upto execution of the agreement with the respondent No.8, without referring the matter to the Artha Samity before accepting the bid of the respondent No.8. The Executive 22 Officer has not been able to show whether the factum of execution of the agreements had been permitted by the Artha Samiti. The Court finds that the entire process was vitiated, for the reasons mentioned hereinabove.
35. The e-auction notice, the acceptance letter addressed to the respondent No.8 and the agreements executed by Executive Officer with the respondent No. 8, are set aside. The Executive Officer acted largely on his own will. Even if the e-auction notice was issued on September 2, 2022, based on the resolution adopted on July 18, 2022, all subsequent steps and actions which were taken till the execution of the agreement ought to have been informed to the Artha Samiti and the Court does not find any record that would suggest that the subsequent actions of the Executive Officer were based on the direction of the Artha Samiti. The Executive Officer has displayed lack of cooperation and coordination. His actions were dogmatic and not in accordance with the Rules.
36. The writ petitioner also has not been able to show that when he had been settled the ferry ghat in 2021, the same was done upon the direction and ratification of the tender committee and Artha Samiti. The Artha samiti had itself decided that by end of September 2022, fresh e-auction would be held and the existing operators would only function till September end 2022. The writ petition cannot oppose the decision to hold e-auction. By virtue of the interim order passed by the Hon'ble Division Bench, the existing operators continued. There is no doubt that revenue has suffered as the respondent No.8 had quoted a much higher amount. However, the Division Bench directed that the Panchayat Samiti should calculate a reasonable sum which should be paid by the existing operators, till the 23 matter is decided by the Court. Moreover, the offline auctions which were called with the consent of the Artha Samiti, failed due to unavailability of bidders. The writ petitioner did not either participate in those auctions or challenge them.
37. The allegation of forgery of the signature of Rintu Mistry and fabrication of the documents etc. cannot be decided in this proceeding, but the Court has found adequate reason to conclude that the Executive Officer did not act on the authorization of the Artha Samiti and the Sabhapati. This is contrary to law and cannot be sustained. The Executive Officer does not have any independent power under the statute to act on his own decision. Neither the District Magistrate nor the District Panchayat and Rural Development Officer have ratified the action of the Executive Officer. They only stated that the Executive Officer must act on the decision of the Artha Samiti and the Artha Samiti had the final say with regard to lease of ferry ghats.
38. In the matter of Dipak Babaria v. State of Gujarat, reported in (2014) 3 SCC 502 , the Hon'ble Apex Court held as follows:-
"61. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This proposition of law laid down in Taylor v. Taylor [(1875) LR 1 Ch D 426 at p. 431.] was first adopted by the Judicial Committee in Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : (1936) 44 LW 583 : AIR 1936 PC 253] and then followed by a Bench of three Judges of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322 : 1954 Cri LJ 910] . This proposition was further explained in para 8 of State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] by a Bench of three Judges in the following words: (AIR p. 361) "8. The rule adopted in Taylor v. Taylor [(1875) LR 1 Ch D 426 at p. 431.] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be 24 exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."
This proposition has been later on reiterated in Chandra Kishore Jha v. Mahavir Prasad [(1999) 8 SCC 266] , Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC 9 : 2001 SCC (Cri) 652] and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. [(2008) 4 SCC 755]"
39. It is a well known principle that if a statute prescribes a method or modality for exercise of power, by necessary implication, the other methods of performance are not acceptable. While relying on the decision of the Privy Council in Nazir Ahmad vs. King Emperor reported in AIR 1936 Privy Council 253 (2), a Bench of three Judges of the Hon'ble Apex Court made following observations in State of Uttar Pradesh vs. Singhara Singh and others reported in AIR 1964 SC 358.
"7. In Nazir Ahmed case, 63 Ind App 372; (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor [(1875) 1 Ch D 426, 431] to a court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under Section 164 and, therefore, held that the Magistrate could not give oral evidence of the confession made to him which he had purported to record under Section 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Sections 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves".
8. The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the 25 rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him."
40. A fresh auction of all the 19 ferry ghats shall be held in accordance with law. The District Magistrate will take over the supervision of the entire process and monitor the steps as both the parties have failed to instil confidence that either had acted or would act in the best interest of the Panchayat Samiti and in a transparent manner. Such auction should be held within four weeks from date of communication of this judgment.
41. This Court directs that the existing operators should pay the proportionate lease rent for the entire period when the matter was pending before this Court and they have been allowed to operate. Taking into consideration that the bid was Rs.30.35 lakhs for 19 ferry ghats as quoted by the respondent No.8, and the existing operators were definitely functioning at a much lower rate, the reasonable sum as directed by the Hon'ble Division Bench to be paid by the existing operators should be calculated taking note of the amount quoted by the respondent No.8. The sum should be close to the amounts quoted by the respondent No.8 in respect of each of the ferry ghats. Public exchequer cannot suffer at the petitioner's instance as no one else had challenged the process. The existing 26 operators cannot get a concession or a discount. Neither the petitioner nor the Panchayat Samiti have been able to show that the ferry ghats were settled in favour of the existing bidders, in accordance with the provisions relied upon by the said parties, in this proceedings. There are no resolutions to that effect.
42. The issues with regard to forgery, fabrication of documents, withholding of the resolution book etc, shall also be subject to deeper probe, scrutiny and enquiry by the District Magistrate and the District Magistrate will also be free to refer some of such issues for expert opinion (hand writing expert) from the appropriate agency.
43. The money deposited by the respondent No.8 which was kept in a short term fixed deposit in the name of the Sabhapati, shall be refunded to the respondent No.8 along with interest that had accrued over and above the said amount, by issuance of an account payee cheque within a period of two weeks from the date of delivery of this judgment. As and when fresh e- auction is held, the petitioner as also the respondent No. 8 and other bidders shall be free to participate, subject to their eligibility and if there is not prior defaults. The District Magistrate will ensure that the amount of lease rent (reasonable sum) is recovered from the existing operators within two weeks from date of delivery of this judgment. The defaulters shall be adequately dealt with and may not be allowed to participate in future.
44. The writ petition is disposed of.
45. There will be no order as to costs.
46. Parties are directed to act on the server copy of this judgment.
(Shampa Sarkar, J.)