Gauhati High Court
Debajit Hazarika vs The State Of Assam And 6 Ors on 24 January, 2020
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/7
GAHC010271602019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 8280/2019
1:DEBAJIT HAZARIKA
S/O- LT SUREN HAZARIKA, R/O- VILL- BONGALIGAON, P.O. BORJURI, P.S.
BOKAKHAT, DIST- GOLAGHAT, ASSAM- 785612
VERSUS
1:THE STATE OF ASSAM AND 6 ORS.
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT
AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY-6
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
DISPUR
GHY-6
3:THE GOLAGHAT ZILA PARISHAD
REP. BY ITS CHIEF EXECUTIVE OFFICER
GOLAGHAT
DIST- GOLAGHAT
ASSAM
4:THE CHIEF EXECUTIVE OFFICER
GOLAGHAT ZILA PARISHAD
DIST- GOLAGHAT
ASSAM
5:THE GENERAL STANDING COMMITTEE OF GOLAGHAT ZILA PARISHAD
GOLAGHAT
ASSAM
REP. BY ITS CHAIRMAN DIST- GOLAGHAT
ASSAM
Page No.# 2/7
6:THE CIRCLE OFFICER
BOKAKHAT REVENUE CIRCLE
DIST- GOLAGHAT
ASSAM
7:ARUNA BORA
W/O- SRI SHIV BORA
R/O- VILL- AHOMGAON
P.O. BORJURI
P.S. BOKAKHAT
DIST- GOLAGHAT
ASSAM
PIN- 78561
Advocate for the Petitioner : MR B D DAS
Advocate for the Respondent : SC, PNRD
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
24. 01. 2020 Heard Mr. B D Das, learned Senior counsel assisted by Mr. D Kalita, learned counsel for the petitioner. Also heard Mr. A Roy, learned Standing counsel for the P&RD Department appearing for the respondent Nos. 1,2,3,4 and 5 and Mr. K Baruah, learned counsel for the respondent No. 7.
The petitioner is aggrieved by the settlement order dated 23.10.2019 issued by the respondent No. 4 thereby settling Sapjuri Weekly Marker under Golaghat Anchalik Panchayat in favour of the respondent No. 7. Against the NIT dated 29.05.2019 for settlement of the Sapjuri Weekly Market, Golaghat issued by the Golaghat West Anchalik Panchayat for the year 2019-20, the petitioner participated in the tender process. The petitioner, after evaluation of the tender process was found to be 3rd highest bidder @ 9,12,400/-. The first bidder, one Sri Kiran Bora had withdrawn his bid and the market was settled vide order dated 02.07.2019 to the 2nd highest bidder, Sri Gopal Saikia who offered Rs. 10,50,101/-. The tender documents Page No.# 3/7 of the said Sri Gopal Saikia was defective. The petitioner filed WP(C) No. 5587/2019 challenging the settlement order dated 02.07.2019 and vide order dated 26.09.2019 passed in the said writ petition by this court set aside the settlement order dated 02.07.2019 and directed the authorities to settle the market in favour of the successful bidder. The petitioner being the 3rd highest bidder was upon the bonafide impression that the market would be settled in his favour in terms of the order passed by this Hon'ble Court. However, on 23.10.2019 vide order of the Chief Executive Officer, Golaghat Zila Parishad, the respondent No. 4 issued the settlement order in favour of the respondent No. 7 who was the 6 th highest bidder.
The petitioner on enquiry came to know that before issuance of the settlement order dated 23.10.2019, the authorities initiated an enquiry on the basis of a complaint filed by the respondent No. 7 and took a fresh decision as regards the valuation of the land offered by the petitioner as security and treated the tender of the petitioner as invalid. The respondent No. 5 in the process reviewed its earlier decision as regards the validity of the tender of the petitioner on the basis of complaint filed by the respondent No. 7. The respondent No. 5 conducted an enquiry behind the back of the petitioner without giving any notice. Accordingly, the petitioner had challenged the decision dated 21.10.2019 taken by the respondent No. 5 and the settlement order dated 23.10.2019 issued by the respondent No. 4 thereby settling the said market to respondent No. 7.
The respondent Nos. 3 and 4 vide joint affidavit-in-opposition had admitted the facts that the bid of the petitioner was cancelled and settled the market with the respondent No. 7. In support of the rejection of the bid of the petitioner the said respondents stated as follows:
"That with regard to the statements made in paragraph 6 and 7 of the writ petition the deponent respectfully states that pursuant to the Hon'ble Court Order dated 26.09.2019 passed in WP(C) 5567/2019, the Golaghat Zila Parishad took up the matter for consideration in compliance with the direction of the Hon'ble Court. In the meantime the respondent No. 7 Smt. Aruna Bora, who had offered the 6 th highest bid filed a complaint on 01.10.2019 as regard the value of land offered by the petitioner and 2 other bidders. After receipt of the aforesaid complaint the respondent No. 4 had Page No.# 4/7 undertaken an enquiry. In the aforesaid enquiry the deponent obtained a report from the Circle Officer, Bokakhat Revenue Circle dated 04.10.2019 as regard the value of petitioner's land and the report from the Circle Officer, Bokakhat Revenue Circle indicated that the 8 Bigha land offered by the petitioner as security stands in the name of the petitioner and his mother jointly and that the same has not been partitioned and if the same is partitioned between the 2 (two) owners, the value of each share would be Rs. 6,00,000/-. The Standing Committee of the Golaghat Zila Parishad considered the records as well as the report submitted by the Circle Officer, Bokakhat Revenue Circle decided that the bid offered by the petitioner is invalid as the value of his land is less than the bid value. The authorities have also taken similar decision in respect of the 4th and 5th highest bidder by rejecting their respective bids and thereafter, decided to settle the market in favour of Smt. Aruna Bora/ respondent No. 7 as her offered bid of Rs. 6,01,301/- who was the 6th highest bidder".
Mr. Das, the learned Senior counsel submits that as per clause 15 of the tender notice the bidder or the guarantor must place a plot of land as security value of which is more than the value of the bid quoted. Copy of the jamabandi, the non-encumbrance certificate and valuation certificate issued by the concerned Deputy Commissioner/ Additional Deputy Commissioner/ Circle Officer in respect of the land given as security are required to be enclosed along with bid of the petitioner. The petitioner submitted the land valuation certificate showing the value of the land given as security measuring 8 Bighas covered by Dag No. 9 of Patta No. 17 of Village Dipholu Pathar under Mouza- Kaziranga as Rs. 12,00,000/- which was much higher than his quoted bid of Rs. 9,12,400/-. The land holding certificate issued by the Circle Officer, Bokakhat Revenue Circle was also issued thereby supporting the fact that the petitioner along with seven others were holding the land covered by Dag No. 9. The co-pattadars also issued NOC in respect of the 8 Bighas of land in respect of the anticipated encumbrance by the petitioner. On the basis of the said document, the petitioner was held to be qualified as the 2 nd highest bidder inasmuch as against the bid value of Rs. 9,12,400/- the land value was Rs. 12,00,000/-. Under such circumstance entertaining of the complaint lodged by the respondent No. 7 as regard the value of the land offered by the petitioner as security could not have been considered without hearing the petitioner. In fact Page No.# 5/7 no notices were issued before taking the decision while the respondents were acting as per the direction passed by the Court vide order dated 26.09.2018 passed in WP(C) No. 5587/2019. Accordingly, the impugned settlement order cannot sustain in the eye of law and liable to be set aside.
Mr. Roy, learned standing counsel supported the action of the respondents inasmuch as the criteria that the land offered by the guarantor or the bidder must be of higher value than the bid submitted by the petitioner. In the present case as the land offered measuring 8 Bighas was standing in the name of both the petitioner and his mother jointly and accordingly if the same is partitioned then the petitioner is entitled to the extent of ½ of the total value i.e. Rs. 6,00,000/- which is below the bid quoted by the petitioner. Mr. Roy further submits that the petitioner cannot raise the grievances in this writ petition as on proper scrutiny and on perusal of the document the ground for elimination of the petitioner was found to be genuine and in support of his submission he relies Macrocosm Builders (M/S) & Anr. Vs. State of Assam & Ors. reported in 2016 (4) GLT 213 Mr. Baruah, the learned counsel for the respondent No. 7 supported the submissions made by Mr. Roy.
The submission of Mr. Roy that the petitioner cannot challenge the settlement of the respondent No. 7 as the petitioner did not qualify in the tender process cannot be accepted inasmuch as the initial settled position is specific and clear that the petitioner qualified as the 2nd highest bidder satisfying all the terms of the tender notice. With the said status the petitioner filed the writ petition i.e. WP(C) 5597/2019 in which, the respondent more specifically respondent Nos. 3 and 4 appeared and now cannot back out from the declaration what they made after opening of the tender declaring the petitioner as the 2 nd highest bidder. This is due to the fact that the respondent Nos. 3 and 4 acted as per the direction of this Hon'ble Court on the strength of an order passed on the basis of the facts pleaded in the writ petition i.e. WP(C) 5587/2019 which crystallized on the date of filing the writ petition. The said settled position cannot be reviewed by the respondent authorities until and unless the same is apprised before the Court which passed the order. Accordingly the submission of Mr. Roy cannot be accepted.
I have given due consideration to the submissions made by the learned counsel. The Page No.# 6/7 petitioner was admittedly the 2nd highest bidder after he qualified in all aspects satisfying the terms and conditions set out in the NIT. The decision in respect of the various bidders was settled and the respondent authorities vide order dated 02.07.2019 settled the market to the 2nd highest bidder, Sri Gopal Saikia. The petitioner challenged the said order of settlement in WP(C) 5587/2019 which was allowed and the respondents were directed to issue a fresh settlement in favour of successful bidder. From the affidavit-in-opposition of the respondent Nos. 3 and 4, they took up the issue of settlement of the market for consideration against in compliance of the direction of this Hon'ble Court. Accordingly, the order which was passed by the Court was on the basis of the facts and figures which crystallized on the date of filing of WP(C) No. 5587/2019. One of the said facts which crystallized is that the petitioner qualified as the 2nd highest bidder in the tender process. Considering those crystallized facts the order was passed and the respondents initiated the action for settling amongst the bidders who were successful in the tender process.
A complaint was lodged by the private respondent No. 7 who was the 6 th highest bidder in respect of the value of the land offered as security by the petitioner and two other bidders. On the basis of the said complaint the respondent No. 4 carried out an enquiry and relied on the report of the Circle Officer that the land measuring 8 Bighas offered by the petitioner as security stood in the name of the petitioner and his mother jointly which was not partitioned. If the same is partitioned, the value of the share of the petitioner would be Rs. 6,00,000/-. The said report was accepted by the respondent No. 4 and came to the conclusion holding the petitioner as the disqualified bidder. No notice was issued to the petitioner before passing the said order. Such action on the part of the respondent, more specifically, respondent No. 4 cannot be accepted inasmuch as the petitioner has the right to be heard before taking any decision which affects him adversely. Further the action of the respondent authorities unsettled the settled position which cannot be permitted more so when the respondents are bound by the order passed in WP(C) 5587/2019 nor they raised any issue of disqualification before this Court and that too before passing the order. In such a situation the petitioner cannot unsettle the settled position and that too without hearing the petitioner.
Accordingly, the decision taken in the meeting in the General Standing Committee dated Page No.# 7/7 21.10.2019 is illegal and invalid and as a consequence the order dated 23.10.2019 issued by the respondent No. 4 is set aside. The respondents more specifically respondent No. 4 shall take necessary action in compliance of the order and the direction dated 26.09.2019 passed by this Hon'ble Court in WP(C) 5587/2019 afresh and shall complete the exercise within a period of 15 (fifteen) days from the receipt of the certified copy of this order. Accordingly, writ petition stands allowed. Interim order passed earlier stands vacated.
JUDGE Comparing Assistant