1996 Supreme(Gau) 80

GAUHATI HIGH COURT
J.N.Sarma, J.
Azharul Islam -Appellant
Versus
State of Assam and Ors. -Respondent
Civil Rule No. 4534 of 1995
Decided On : 07-05-1996

The power to make the settlement of Hats is with the Anchalik Panchayat and that power is to be exercised in the mode/manner as prescribed in the Act. Any other mode or method adopted cannot hold the field.

Headnote:

PANCHAYATI RAJ - Settlement of Hats by Anchalik Panchayat - Power of Anchalik Panchayat - Approval of Mahakuma Parishad - Not required - Assam Panchayat Act, 1994, Section 105.

Fact of the Case:

The petitioner challenged the order of the Deputy Secretary to the Government of Assam, Panchayat and Rural Development Department, setting aside the settlement of the petitioner and settling the Langla Bazar with the respondent. The petitioner's tender was Rs.3,33,000/-, while the respondent's tender was Rs.3,25,800/-. The minimum bid amount fixed by the authority was Rs.3,24,500/-. The Anchalik Panchayat settled the bazar with the respondent at Rs.3,25,802/- subject to approval of Mahak Uma Parishad. The Mahakuma Parishad refused to accord approval and sent back the matter to Anchalik Panchayat for making settlement of the bazar at a higher amount offered by the other tenderer. The Anchalik Panchayat, on further scrutiny, found the tender of the petitioner and respondent No.7 to be valid and accepted tender submitted by the petitioner at his offer of Rs.3,33,000/-. The bazar was settled with the petitioner at his tendered amount by the Anchalik Panchayat. The impugned order was passed by the Appellate Authority setting aside the settlement order passed by Ruposhi Anchalik Panchayat in favor of Azaharul Islam and settling the settlement in favor of Md. Yunush Ali at the rate of Rs.3,75,000/-.

Finding of the Court:

1. The power to make the settlement is with the Anchalik Panchayat and that power is to be exercised in the mode/manner as prescribed in the Act. Any other mode or method adopted cannot hold the field. 2. The Mahakuma Parishad has no role to play in the matter and this is absolutely against the mandate of law and the mandate of law requires the settlement to be made in a particular manner and the authority cannot take resort to other manner to make the settlement. 3. The Mahakuma Parishad cannot give any direction to the Anchalik Panchayat inasmuch as that will be against the tenet of law. 4. The order of cancellation of Annexure III which was passed by the Anchalik Panchayat at the behest of Mahakuma Parishad is without authority of law. 5. The rejection of the tender on the ground of non-furnishing of the income tax clearance certificate is not valid and proper. 6. The authority rightly or wrongly found that it was the tender or respondent No.7 which is the only valid tender and in that view of the matter made the settlement with respondent No.7 at a value higher than the value quoted by respondent No.7 and I do not find that to be an illegal or unfair exercise of power.

Issues: 1. Whether the settlement of Hats by Anchalik Panchayat requires the approval of Mahakuma Parishad? 2. Whether the Mahakuma Parishad can give any direction to the Anchalik Panchayat? 3. Whether the rejection of the tender on the ground of non-furnishing of the income tax clearance certificate is valid and proper? 4. Whether the negotiation was made only with respondent No.7 leaving aside the petitioner and that it violated the principle of transparency?

Ratio Decidendi: 1. Section 105 of the Assam Panchayat Act, 1994 gives the absolute power to the Anchalik Panchayat and it speaks only of confirmation by Zilla Parishad. 2. The Mahakuma Parishad has no role to play in the matter and as such this order is absolutely without jurisdiction and must be deemed to be nullity in the eye of law. 3. The proviso to section 105 provides that an aggrieved party may appeal to Government whose decision in this regard shall be final. The question of giving a personal hearing is not provided in the Act itself. 4. The concept of hearing associated with natural justice covers two things: (1) that the persons be given adequate notice of the things to be decided, (2) that he be given adequate hearing. What is adequate will vary from case to case. No rigid standard can be laid down. What is required it must be fair. Fairness is the touchstone and measuring rod/yard stick. 5. The power to make the settlement is with the Anchalik Panchayat and that power is to be exercised in the mode/manner as prescribed in the Act. Any other mode or method adopted cannot hold the field. 6. The Mahakuma Parishad has no role to play in the matter and this is absolutely against the mandate of law and the mandate of law requires the settlement to be made in a particular manner and the authority cannot take resort to other manner to make the settlement. 7. The Mahakuma Parishad cannot give any direction to the Anchalik Panchayat inasmuch as that will be against the tenet of law. 8. The order of cancellation of Annexure III which was passed by the Anchalik Panchayat at the behest of Mahakuma Parishad is without authority of law. 9. In every tender there are certain conditions which are essential and there are certain things which are ancilliary. For not conforming to the essential requirements a tender may be rejected. But if not conforming to the ancilliary things a tender cannot be rejected. 10. The rejection of the tender on the ground of non-furnishing of the income tax clearance certificate is not valid and proper. 11. The principle of negotiation has been crystalised by a number of decisions of the Apex Court and as well as of this Court. Government certainly has a right to enter into a contract with a person well known to it and specifically one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept the lower one in case, it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.

Final Decision: The writ application is dismissed. The stay order passed earlier on 8.11.95 shall stand vacated. The parties are left to bear their own costs.