Kuddus Ali vs State Of Assam And Ors.

Heard Mr. R Ali, learned counsel appearing for the petitioner. Also heard Mr. TC Chutia, learned Additional Senior Government Advocate and

Mr. H Ali, learned counsel appearing on behalf of the respondent No. 7.

The pe(cid:41)(cid:41)oner states that the President of Mandia Anchalik Panchayat issued a tender no(cid:41)ce on 09.05.2017 for se(cid:48)lement of Hat/ Parghats/

Fishery etc. falling under the jurisdic(cid:41)on of the said panchayat for the year 2017-18. The said tender no(cid:41)ce s(cid:41)pulated qualifying criteria of the

bidders and amongst other clauses 15 (kha), and 18 which are relevant and reproduced hereinbelow:-

“(B) In respect of Parghat the tenderer should submit the copy of insurance policy in respect of boat and passengers. A(cid:63)er ge(cid:64)ng the

se(cid:48)lement holder should submit the license of the haul operator and capacity of passengers. The se(cid:48)lement holder should also keep the

articles of safety in the boat otherwise settlement will be cancelled.

If the terms and condition of Part-1 & 2 from serial No. 1 to 17 is not fulfilled, tender will be cancelled.â€​ (Translated from the vernacular)

The tender was opened wherein 10 bidders par(cid:41)cipated which was for “Milijuli Koimari to Tapajil Beki Nodi Parghatâ€. The

pe(cid:41)(cid:41)oner’s bid was found to be valid at his quoted bid of Rs. 61,000/- which was accepted by the Standing Commi(cid:48)ee of Mandia Anchalik

Panchayat (hereina(cid:63)er referred to as ‘Mandia AP). The bid quoted by the respondent No. 7, Sorhab Ali was Rs. 1,10,501/- but as there was

no insurance coverage of his own boat, his bid was rejected. The compara(cid:41)ve statement was prepared by the Mandia AP and vide covering

le(cid:48)er dated 03.07.2017, the Execu(cid:41)ve Officer, Mandia AP sent all the tender documents along with the compara(cid:41)ve statement for

confirma(cid:41)on. The bid of pe(cid:41)(cid:41)oner was found eligible. Vide le(cid:48)er dated 15.07.2017, the Chief Execu(cid:41)ve Officer, Barpeta Zilla Parishad,

respondent No. 3 se(cid:48)led the said Parghat to respondent No. 7. Being aggrieved, the pe(cid:41)(cid:41)oner has filed this writ pe(cid:41)(cid:41)on for quashing the

order dated 15.07.2017 directing the respondent No. 3 to confirm the settlement on the petitioner.

Mr. Ali, learned counsel for the pe(cid:41)(cid:41)oner, submits that the respondent No. 7 did not raise any objec(cid:41)on against the compara(cid:41)ve statement

which speaks about the deficiency on the part of the respondent No. 7 that there was no insurance coverage of the boat in his name. The

respondent No. 3 manipulated the records and prepared a fake compara(cid:41)ve statement showing that there was insurance coverage of the boat

of respondent No. 7. It is further stated that the respondent No. 3 has no power to re-examine the compara(cid:41)ve statement once it is opened by

the Standing Commi(cid:48)ee of Mandia AP. Relying the decision of this court in Abdul Gani v. State of Assam reported in 2012 (4) GLT 1, Mr. Ali

submits that the decision of the Standing Commi(cid:48)ee of the AP is final and Zilla Parishad (hereina(cid:63)er referred to as ‘ZP’) cannot sit as an

appellate authority. But misusing the power, the respondent No. 3 issued the settlement order in favour of the respondent No. 7.

The respondent No. 7 filed his affidavit-in-opposi(cid:41)on. Mr. Ali, learned counsel for the respondent No. 7, submits that Anchalik Panchayat

prepared the compara(cid:41)ve statement with mala fide inten(cid:41)on and rejected the bid of respondent No. 7 on the ground of non-submission of

the insurance coverage of his boat. The Zilla Parishad verified the tender papers and found the bid of respondent No. 7 as valid and highest

bidder and vide order dated 15.07.2017 se(cid:48)led the Parghat with the respondent No. 7. It is the conten(cid:41)on of the learned counsel that an

agreement was made between the respondent No. 7 and one Samsul Haque and as per terms of the said agreement, Samsul Haque let out his

own boat which was insured to the respondent No. 7 on hire for a period of 1 (one) year. On considera(cid:41)on of the said agreement, the

respondent No. 3 settled the Parghat to the respondent No. 7.

The said conten(cid:41)on of the learned counsel for the respondent No. 7 was refuted by the learned counsel for the pe(cid:41)(cid:41)oner that the said

agreement was a forged one and on the basis of such corrupt prac(cid:41)ce the se(cid:48)lement order was issued to the respondent No. 7 which is

required to be interfered.

Mr. Chutia, learned Additional Senior Government Advocate, produced the records of the tender process which is perused.

On perusal of the compara(cid:41)ve statement prepared by the Standing Commi(cid:48)ee of the Anchalik Panchayat, the pe(cid:41)(cid:41)oner was found to fulfil

all the requisite criteria including insurance coverage of his own boat and the same stands in his name. The documents on being examined are

found to be proper and in order as per the affidavit sworn by the pe(cid:41)(cid:41)oner along with his bid. But on scru(cid:41)ny it is found that the bid value of

Rs. 61,000/-shown to be quoted by the pe(cid:41)(cid:41)oner was wri(cid:48)en a(cid:63)er erasing the earlier one quoted using whitener. The said fact of erasing is

not men(cid:41)oned in the affidavit sworn by the pe(cid:41)(cid:41)oner annexed to the bid documents. From the documents submi(cid:48)ed by the pe(cid:41)(cid:41)oner it is

seen that he submi(cid:48)ed all the requisite documents and the said documents so annexed with the tender form tallies with the documents

mentioned in the affidavit sworn by the petitioner dated 12.06.2017.

On scru(cid:41)ny of the documents submi(cid:48)ed by the respondent No. 7 it is seen that an insurance policy standing in the name of Samsul Haque

was submi(cid:48)ed and there is no endorsement of the President of the Anchalik Panchayat. An agreement purportedly executed between the

said respondent No. 7 and Samsul Haque is found annexed along with the documents of respondent No. 7 but without any endorsement of the

President of Anchalik Panchayat nor the Chief Executive Officer, Zilla Parishad. The said agreement is dated

12.06.2017. There is no men(cid:41)on of the said agreement in the affidavit of the respondent No. 7 which was sworn on 12.06.2017. It is the said

agreement which the respondent No. 7 stated in his affidavit-in-opposi(cid:41)on that there was an arrangement for opera(cid:41)ng the boat of Samsul

Haque by him on the basis of which he claims to fulfil the criteria that the bidder must have insurance coverage of the boat. The Standing

Commi(cid:48)ee of the Mandia AP did not consider about the rewri(cid:41)ng of the bid value by the pe(cid:41)(cid:41)oner as it appears from the compara(cid:41)ve

statement. The same was considered by the Zilla Parishad and as per resolu(cid:41)on No. 1 (Unga) of the Standing Commi(cid:48)ee of Barpeta Zilla

Parishad, the bid of the pe(cid:41)(cid:41)oner was cancelled as there was rewri(cid:41)ng of the quoted rate using whitener and as such, the same was rejected.

On the basis of the said resolu(cid:41)on it was decided to se(cid:48)le the Parghat with respondent No. 7 keeping in view the revenue earnings whose

quoted value was Rs. 1,10,501/-.

On close scru(cid:41)ny of the records it is found that vide resolu(cid:41)on No. 2 of the mee(cid:41)ng on 14.07.2017 the Standing Commi(cid:48)ee of Barpeta Zilla

Parishad resolved that any se(cid:48)lement holder with whom the Parghats are se(cid:48)led from amongst the bidders instead of using his own boat

hires any boat then the agreement of such hire is to be deposited in the office of the Zilla Parishad or Anchalik Panchayat and such boat must

be as per the tender terms.

From the records it is seen that the pe(cid:41)(cid:41)oner though sa(cid:41)sfied all the requisite qualifica(cid:41)ons but rewri(cid:41)ng of the said bid without

men(cid:41)oning the same in the affidavit sworn by him amounts to disqualifica(cid:41)on of the pe(cid:41)(cid:41)oner. On the other hand, from the resolu(cid:41)on No. 1

(Unga) of the Standing Commi(cid:48)ee, Barpeta Zilla Parishad, it is seen that one Muhammed Ali who was the highest bidder, the second highest

bidder Surat Ali and the third highest bidder failed to submit various relevant document. The fourth highest bidder, the respondent No. 7

whose bid was considered keeping in view of revenue earning of the Government also failed to submit insurance policy standing in his own

name against his boat. The agreement which is annexed with the bid documents does not find men(cid:41)on in his affidavit so submi(cid:48)ed. Such

omission of men(cid:41)oning of the said agreement between the respondent No. 7 and Samsul Haque goes to show that the said agreement was

brought on record a(cid:63)er opening of the bid. If the said agreement is not considered, the bid of the respondent No. 7 ought to have been

rejected on the ground of non fulfilling Clause 15 (Kha). It is clear that in order to accommodate the respondent No. 7, the respondent No. 3

passed the resolu(cid:41)on in the mee(cid:41)ng of Standing Commi(cid:48)ee dated 14.07.2017. Such prac(cid:41)ce cannot be permi(cid:48)ed to be followed inasmuch as

the tender condi(cid:41)on requires the insurance policy of the boat owned by the bidders. The same is clear viola(cid:41)on of Ar(cid:41)cle 14 of the

Cons(cid:41)tu(cid:41)on of India. Accordingly, it is found that the se(cid:48)lement of the respondent No. 7 is not a valid se(cid:48)lement and such resolu(cid:41)on No. 2 of

the Standing Committee of Barpeta Zilla Parishad dated 14.07.2017 requires quashing the same being invalid.

The conten(cid:41)on of Mr. R Ali, learned counsel for the pe(cid:41)(cid:41)oner that once the Standing Commi(cid:48)ee of the Anchalik Panchayat took a decision

for settlement, it is final and the same must be confirmed by the Zilla Parishad. The said submission cannot be accepted in view of the decision

of this court by the Full Bench in Harej Ali v. State of Assam reported in 2009 (2) GLT 561 wherein it was held that it is mandatory on the part of

the Anchalik Panchayat to forward all tender papers, compara(cid:41)ve Statement and other related papers to the Zilla Parishad for confirma(cid:41)on of

se(cid:48)lement made by the Anchalik Panchayat and any se(cid:48)lement without such confirma(cid:41)on by the Zilla Parishad will not be a legally valid

se(cid:48)lement. Keeping the said ra(cid:41)o in view, it is found that un(cid:41)l and unless the se(cid:48)lement order is confirmed by the Zilla Parishad the same is

voidable and finality cannot be granted to the said settlement order.

Now, coming to the qualifica(cid:41)on of the present pe(cid:41)(cid:41)oner, I in my opinion, hold that the pe(cid:41)(cid:41)oner ought to have men(cid:41)oned about such

rewri(cid:41)ng of the bid value in the affidavit in order to remove the doubt of manipula(cid:41)on a(cid:63)er opening of the bid. Moreover, there is a

suppression of material fact in this writ pe(cid:41)(cid:41)on filed by the pe(cid:41)(cid:41)oner himself. Under such circumstances, I am constrained to hold that the

pe(cid:41)(cid:41)oner is also not en(cid:41)tled for se(cid:48)lement of the said parghat owing to non-explana(cid:41)on of the fact of rewri(cid:41)ng of the bid value a(cid:63)er using

whitener erasing the earlier quoted bid value. In the result, this writ pe(cid:41)(cid:41)on succeeds to the extent that the se(cid:48)lement of the respondent

No. 7 is liable to be set aside and quashed and the pe(cid:41)(cid:41)oner owing to such suppression of material facts is not en(cid:41)tled for the se(cid:48)lement. As

a result, the said Parghat and its toll collec(cid:41)on may be operated on a decision by the Principal Secretary to the Government of Assam,

Panchayat and Rural Development Department to that effect. This writ petition is accordingly disposed of.

Interim order passed earlier stands vacated.