Adherence to the terms and conditions of the notice inviting tenders (NIT) and the discretion of the Zilla Parishad in the settlement process.

Amitava Roy, J.

1. Both the petitions witness a challenge to the order dated 10.10.03 passed by the Nagaon Zilla Parishad (hereinafter referred to Zilla Parishad) settling the Juria Bi weekly market (hereinafter referred to as the market) with the Respondent No. 4, Md Abu Bakkar Siddique. Though initially by an interim order passed in W.P.(C) No. 9027/03 the impugned settlement was stayed an appeal being W.A. No. 504/03 having been preferred in terms of the order passed therein, the private Respondent is presently operating the market.

2. I have heard Mr N. Dutta, Senior Advocate and Mr. A.K. Goswami, Advocate for the writ Petitioners in W.P.(C) 9027/03 and W.P.(C) No. 9573/03 respectively Mr. A. Goni, learned State Counsel for the official Respondents and Mr. A.M. Mazumdar, Senior Advocate for the Respondent No. 4.

3. The relevant facts necessary for comprehending the issues are that a tender notice was floated on 10.4.03 by the Zilla Parishad inviting tenders inter alia for settlement of the market for the term 1.7.2003 to 30.6.04. The Petitioners, the Respondent No. 4 and others responded to the notice and submitted their tenders. The highest bid was of Rs. 9,15,517/- offered by one Sri Dulu Bora followed by one Md Khairul Islam, Petitioner in W.P.(C) No. 9573/03 at Rs. 7,93,548/-. Md. Muzzamel Haque, Petitioner in W.P.(C) No. 9027/03 was 3rd in the row offering Rs. 6,11,211/-. The Respondent No. 4 quoted Rs. 3,99,853/-. The market by the order dated 25.6.03 was however settled with the Respondent No. 4 at his bid. Incidentally the highest bidder had withdrawn his offer. The settlement was assailed by Md. Muzzamel Haque the Petitioner in W.P.(C) No. 9027/03. His Petitioner (W.P.(C) No. 5353/03) along with other writ petitions were eventually disposed of by a Division Bench of this Court by judgment and order dated 1.10.03 passed in W.A. No. 325/03 and others. The settlement was set aside primarily on the ground that it had been awarded in favour of the private Respondent at a bid lower than that of Shri Dulu Bora without the prior approval of the State Government as required under Rule 47(10) of the Assam Panchayat (Financial) Rules 2002 (hereinafter referred to as the Rules). The matter was remanded to the Zilla Parishad for fresh orders on a consideration of the bids already received. On remand, the Zilla Parishad by the impugned order dated 10.10.03 settled the market again with the Respondent No. 4 at his offer The settlement has been questioned inter alia on the ground that the same had been made in violation of the order of this Court as above and on extraneous considerations beyond the NIT.

4. In the same setting of facts, the Petitioner in W.P.(C) No. 9573/03 has questioned the settlement on the ground that the same is vitiated by irrelevant considerations only to sub serve the interest of Respondent No. 4 in the face of a much higher bid offered by him. Omission to obtain formal approval of the Government as required under Rule 47(10) has also been put forward as a ground of attack.

5. No affidavit in opposition has been filed by the official Respondents. The learned State Counsel has produced the records pertaining to the impugned settlement.

6. Resisting the above contentions the Respondent No. 4 in his counter filed in W.P.(C) No. 9027/03 has pleaded that the tender of the writ Petitioner therein was rejected as he had not submitted the necessary clearance certificate from the Zilla Parishad as prescribed by the NIT. Further the value of the land offered as security was less than his bid value as his Zamindar (surety) had stood guarantor for five tenderers at a time. He also contended that the total area of the land of the said guarantor was much less than what was represented in the tender papers. According to him, out of the 13 tenderers, 7 were disqualified as their tenders were found to be irregular and the highest tenderer having withdrawn out of the valid tenders remaining in the fray, his offer being th