Dismissed

Rafikul Islam v. the State of Assam and 6 Ors.

Gauhati HC11 Mar 2022WP(C)/1502/2022

Case brief

AI extract

What is this about?

This writ petition challenged an office order allowing Zilla Parishad tax collectors to manage a weekly cattle market during its interim suspension following a court order granting settlement to a private bidder. The single judge dismissed the petition, holding that a prior Division Bench order specifically mandated Zilla Parishad management.

What did the court decide?

The writ petition was dismissed. The Office Order dated 25.02.2022 issued by the Darrang Zilla Parishad was held not to call for any interference as it complied with the Division Bench order.

Rafikul Islam Vs the State of Assam and 6 Ors. — Public Procurement and Tenders | Gauhati HC (2022)

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GAHC010039882022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1502/2022

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RAFIKUL ISLAM

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S/O. LT. ABDUL HAQUE, VILL. PANIAKHAT, P.O. PANIAKHAT, P.S. DHULA, DIST. DARRANG, ASSAM, PIN-784116.

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VERSUS

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THE STATE OF ASSAM AND 6 ORS

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI, PIN-781006, ASSAM.

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2:THE DARRANG ZILLA PARISHAD

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REP. BY CHIEF EXECUTIVE OFFICER DARRANG ZILLA PARISHAD P.O. AND P.S. MANGALDOI DIST. DARRANG ASSAM PIN-784125.

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3:THE CHAIRMAN

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DARRANG ZILLA PARISHAD P.O. AND P.S. MANGALDOI DIST. DARRANG ASSAM.

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4:THE CHIEF EXECUTIVE OFFICER

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DARRANG ZILLA PARISHAD P.O. AND P.S. MANGOLDOI DIST. DARRANG

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ASSAM PIN-784115.

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5:THE PUB MANGALDOI ANCHALIK PANCHAYAT

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REP. BY THE EXECUTIVE OFFICER P.O. AND P.S. DHULA DIST. DARRANG ASSAM.

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6:THE PRESIDENT

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PUB MANGALDOI ANCHALIK PANCHAYAT P.O. AND P.S. DHULA DIST. DARRANG ASSAM PIN-784115.

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7:THE EXECUTIVE OFFICER PUB MANGALDOI ANCHALIK PANCHAYAT P.O. AND P.S. DHULA DIST. DARRANG ASSAM PIN-784115

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Advocate for the Petitioner : MR G N SAHEWALLA

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Advocate for the Respondent : SC, P AND R.D.

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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11.03.2022

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Heard Mr. G. N. Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel for the petitioners and Mr. A. Roy, learned Standing Counsel, P&RD Department for the respondent Nos. 1, 2, 4, 5 and 7.

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Pub-Mangaldai Anchalik Panchayat, Dhula, District Darrang on 04.09.2021 issued an NIT for settlement of bazar/hat/ghat/fishery etc. under it including the “Tangni Weekly Cattle Market” under Dhula Gaon Panchayat. With regard to settlement of said “Tangni Weekly Open Market” the petitioner and others submitted their bids. As the Chief Executive Officer, Darrang Zilla

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Parishad, Darrang by order dated 18.12.2021 settled the said Open Market in favour of one Md. Akbar Ali at a bid value of Rs. 8,11,000/- disregarding the highest bid value of Rs. 18,52,709/offered by one bidder, namely, Hasmat Ali, the said bidder (Hasmat Ali) being aggrieved with settlement of said Open Market preferred a writ petition being WP(C) No. 45/2022, wherein amongst others, Md. Akbar Ali is a party respondent No.8.

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The Court by its order dated 06.01.2022 passed in said WP(C) No.45/2022 directed the respondents in the P&RD Department to submit the relevant records regarding settlement of said Cattle Market, but did not pass any interim/stay order though prayed by the said petitioner.

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As such the petitioner of said WP(C) No. 45/2022, namely, Hasmat Ali, being aggrieved preferred an appeal before the Hon’ble Division Bench being WA No. 6/2022 against the said order of the Court dated 06.01.2022 passed in WP(C) No. 45/2022 and in said WA No. 6/2022, said settlement holder of said open Market Md. Akbar Ali was made party respondent No. 8.

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After hearing the parties, the Hon’ble Division Bench by its order dated 11.01.2022 passed in said WA Nos. 6/2022 and 7/2022, directed the learned Single Judge to dispose of the said WP(C) No. 45/2022 as expeditiously as possible, and in the interim, suspended the settlement of said “Tangni Weekly Open Market” issued in favour of respondent No. 8 (i.e., Md. Akbar Ali) till the next date of listing of the matter with further direction that during intervening period said “Tangni Weekly Cattle Market” as well as the “Tangni Weekly Open Market” under Dhula Gaon Panchayat, Darrang shall be maintained by the Pub-Mangaldai Anchalik Panchayat.

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After the said order of the Hon’ble Division Bench dated 11.01.2022, the Pub-Mangaldai Anchalik Panchayat passed an order on 13.01.2022 temporarily handing over the said Open market with one Rafikul Islam to run the same and to collect the tolls, taxes etc. during the intervening period.

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The Darrang Zilla Parishad represented by its Chairman Dhirendra Deka preferred a review petition being Review Pet. No. 24/2022 before the Hon’ble Division Bench praying for review of the order dated 11.01.2022 passed in the connected WA No. 7/2022, stating that with regard to the markets whose yearly sale value is more than Rs. 1 lakh, including the “Tangni Weekly Cattle Market” as well as the “Tangni Weekly Open Market”, following the provisions of Section 109(6) of the Assam Panchayat Act, 1994, such markets should be allowed to run by the Darrang Zilla Parishad during the intervening period and not by the Pub-Mangaldai Anchalik Panchayat as the

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Anchalik Panchayat does not have the jurisdiction as per law to settle the markets whose sale value is more than Rs. 1 lakh.

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Therefore, the review petitioner Darrang Zilla Parishad prayed before the Hon’ble Division Bench to review the said order dated 11.01.2022 passed in WA No. 7/2022 whereby the PubMangaldai Anchalik Panchayat was directed to manage the “Tangni Weekly Cattle Market” and “Tangni Weekly Open Market” under Dhula Gaon Panchayat, Darrang during the intervening period.

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Considering such prayer of the review petitioner Darrang Zilla Parishad, Mangaldai, Darrang and after hearing the parties, the Hon’ble Division Bench by order dated 22.02.2022 in Review Petition No. 24/2022, modified the last paragraph of the order dated 11.01.2022 passed in Writ Appeal No. 7/2022 as follows:

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“Meanwhile, the settlement granted in favour of the respondent No.8 (i.e., Md. Akbar Ali) shall remain suspended till the next date of listing and during the intervening period, the Tangni Weekly Cattle Market as well as Tangni Weekly Open Market under Dhula Gaon Panchayat, Darrang, shall be maintained by the Darrang Zilla Parishad.”

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In compliance of the said order dated 22.02.2022 passed by the Hon’ble Division Bench in Review Pet. No. 24/2022, the Chief Executive Officer, Darrang Zilla Parishad by Office Order No. DZP/Bazar/General/Part/ 1081/2021-22/696 dated 25.02.2022 in the interest to earn government revenue decided to collect tolls from those “Tangni Weekly Cattle Market” and “Tangni Weekly Open Market” and for that purpose allowed two of its Tax Collectors, namely, (i) Sri Anil Barman, Tax Collector, Darrang Zilla Parishad (Tangni Weekly Cattle Market) and (2) Sri Fransis Basumatary, Tax Collector, Darrang Zilla Parishad (Tangni Weekly Open Market) to collect tolls from th ose markets under their supervision in association with local experienced person in collection of tolls, namely, (i) Mosaraf Hussain, Son of Late Alimuddin Ahmed, Hirapara, Dhula with regard to Tangni Weekly Cattle Market and (ii) Marsad Ali, Son of Late Najimuddin Sheikh, 3 No. Thekerabari, Balabari, Dhula with regard to Tangni Weekly Open Market from those two markets with effect from 26.06.2022 directing the Government officials to deposit the amount collected from the markets in the office on the next date, indicating further that the said order may be cancelled at any time (Annexure-VIII to the writ petition).

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The petitioner herein was the lessee of said “Tangni Weekly Open Market” for the year 2020-2021. After the order dated 11.01.2022 passed by the Hon’ble Division Bench in WA No. 6/2022 and due to insufficient numbers of employees with it to collect tax directly and as per the resolution No.1 taken by the General Standing Committee of Pub-Mangaldai Anchalik Panchayat in its meeting dated 13.01.2022, the Executive Officer of Pub-Mangaldai Anchalik Panchayat by its letter No. PMAP/Bazar/101/2021-22/1370 dated 13.01.2022, allowed the petitioner to collect tolls from the said “Tangni Weekly Open Market” directing him to deposit an amount 25% above Rs. 17,733/- per week in advance in terms of the direction issued by the State Government in the Panchayat and Rural Department in its Notification No. PDA.403/2018/11 dated 28.06.2019 (Annexure-III to the writ petition).

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The Executive Officer, Pub-Mangaldai Anchalik Panchayat by the said letter dated 13.01.2022 directed the petitioner not to collect tolls above the Government fixed rate and he has to comply with all the terms and conditions specified in the Tenders issued by the office of the said Anchalik Panchayat for the years 2021-22 and by following the COVID-19 protocols, indicating that said order may be cancelled at any time.

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It is stated that petitioner on 24.02.2022 submitted a representation before the President/Chief Executive Officer, Darrang Zilla Parishad, Mangaldai stating that he is running the said “Tangni Weekly Open Market” for the period 2021-22 in terms of the order of the Darrang Zilla Parishad and Pub-Mangaldai Anchalik Panchayat issued in terms of the Notification No. PDA.403/ 2018/11 dated 28.06.2019 of the Panchayat and Rural Department of the State and that he was the lessee of the said cattle market during the year 2020-21 as per said Notification dated 28.06.2019. In the said representation petitioner prayed before the authorities of the Darrang Zilla Parishad to allow him to run the said open market temporarily in terms of the said Notification dated 28.06.2019.

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Pursuant to the said order dated 22.02.2022 passed by the Hon’ble Division Bench in Review Pet. No. 24/2022, the Executive Officer, Pub-Mangaldai Anchalik Panchayat by its Office Order No. PMAP/Bazar/101/2021-22/1460 dated 25.02.2022 cancelled its earlier order No. PMAP/Bazar/101/ 2021-22/1451 dated 13.01.2022 whereby the petitioner was restrained from collecting tolls from the said “Tangni Weekly Open Market”.

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Alleging that the Darrang Zilla Parishad by the Office Order No. DZP/ Bazar/General/Part/1081/2021-22/696 dated 25.02.2022 have decided to manage the said “Tangni Weekly Open Market” by the Tax Collector with the help of third party, therefore, the same being not in conformity with the Notification No. PDA.403/2018/11 dated 28.06.2019 of the State Government in the Panchayat and Rural Development Department, is bad in law and therefore, the petitioner has preferred this writ petition praying amongst others to set aside and quash the said Office Order dated 25.02.2022 of the Darrang Zilla Parishad and to allow him to run the said “Tangni Weekly Open Market” in the intervening period as he was its previous lessee and that he does not have any outstanding dues from his earlier settlement.

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In the interim the petitioner has prayed that the operation of the impugned Office Order dated 25.02.2022 passed by the Darrang Zilla Parishad should be stayed and to direct the respondent authorities to allow him to run the said “Tangni Weekly Open Market” as he was its previous lessee, there is no dues from his previous settlement and considering the said Notification dated 28.06.2019 issued by the Panchayat and Rural Development Department of the State.

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On perusal of the said Notification dated 28.06.2019 of the Panchayat and Rural Development Department annexed to this petition by the petitioner as Annexure-IV, it is seen that the State Government in the P&RD Department by the same has laid down certain conditions pertaining to interim/temporary arrangement for running of Hats/Ghats/Markets/Fisheries/Pounds etc. that cannot be settled within the stipulated time, i.e., before 30^th June of the Panchayat Financial Year till settlement.

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By the said Notification dated 28.06.2019 the Panchayat and Rural Development Department of the State clearly specified that – whenever any interim arrangement for management of Hats/Ghats/Markets/Fisheries/Pounds etc. are required to be done pending formal settlement due to any Order of the Hon’ble Court or any other reason thereof and where there is no specific order of the Court as to who will manage in the interim period, the Zilla Parishad will manage those Ghats/Hats whose tendered value during the latest bid was more than Rupees 1 (One) Lakh irrespective of the fact whether the Market/Ghat was settled or not at the said tendered value and the other Hats/Ghats etc. will be managed by the Anchalik Panchayat concerned.

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In this regard, Mr. Sahewalla, learned senior counsel for the petitioner has placed the copy

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of the order dated 28.03.2017 passed in WP(C) No.4092/2016, where a Coordinate Bench of this Court in a situation as in the present case, considering the said Notification dated 28.06.2017 of the P&RD Department, passed an order directing the previous lessee to run the said Market for the years 2015-2016 at an enhanced rate of 25% over the previous year’s settled value proportionately for the period of temporary settlement following the Notification of the P&RD Department and cancelling the temporary settlement made in favour of the private respondents of said writ petition.

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From the reading of the order dated 28.03.2017 passed in WP(C) No. 4092/2016 (Mohammad Ali and two others Vs. The State of Assam and seven others) it is seen that the concerned NIT involved in said WP(C) No. 4092/2016 was put to challenge in a suit and in Misc. (J) Case No. 25/2016 and by an order dated 15.06.2016, the learned Civil Judge, Darrang, Mangaldai issued an injunction restraining the defendants therein from accepting the tenders in respect of Markets/Ghats/Parking Yards etc. mentioned in the NIT dated 10.05.2016 and in that circumstances the petitioner has preferred that writ petition as the Chief Executive Officer, Darrang Zilla Parishad, settled the said Markets/Ghats/Parking Yards etc. in favour of respondent Nos. 6, 7 & 8 without considering the said Notification of the P&RD Department dated 11.08.2010. It is to be noted herein that the said Notification dated 11.08.2010 of the P&RD Department was later modified by its said Notification No. PDA.403/2018/11 dated 28.06.2019. From the said case of Mohammad Ali and two others, noted above, it is seen that in the same the Court though passed an order restraining the respondents therein from accepting the tenders relating to settlement of Markets/Ghats/Parking Yards etc. but the Court did not issue any specific order as to who in the interim period will manage the Markets/Ghats/Parking Yards etc. In that situation, the Court passed the order dated 28.03.2017 in said WP(C) No. 4092/2016 allowing its three petitioners to run the concerned Bus Parking, Daily Vegetable Market and the Weekly Livestock Market, respectively at an enhanced rate of 25% over the previous year’s settled value proportionately for the period of temporary settlement following the Notification of the P&RD Department.

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But in the case in hand the Hon’ble Division Bench by order dated 22.02.2022 passed in Review Pet. No. 24/2022 arising out of WA No. 7/2022 specifically provided that the “Tangni Weekly Cattle Market” as well as “Tangni Weekly Open Market” under Dhula Gaon Panchayat, Darrang, shall be maintained by the Darrang Zilla Parishad.

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Therefore, the said case of Mohammad Ali and two others, noted above, placed on behalf of the petitioner is not applicable in the present case.

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It is also seen from the records of the connected Review Petition that the review petitioner Darrang Zilla Parishad placed before the Hon’ble Division Bench that even on earlier occasion said Zilla Paris has managed the Tangni Cattle Market where sale value of said cattle market was more than Rs. 1 lakh, and managed the said market under the supervision of its employees, in association with local experienced person in collection of tolls and in that regard issued Office Order dated 02.08.2019.

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Considering entire aspect of the matter, noted above and as the Hon’ble Division Bench by the said order dated 22.02.2022 specifically directed the Darrang Zilla Parishad to maintain the Tangni Weekly Cattle Market as well as the Tangni Weekly Open Market, both under Dhula Gaon Panchayat, Darrang, during the intervening period and pursuant to the same, as the Darrang Zilla Parishad by the impugned Office Order dated 25.02.2022 have made the interim arrangement to maintain those two markets, this Court is of the opinion that the impugned Office Order No. DZP/Bazar/General/Part/ 1081/2021-22/696 dated 25.02.2022 issued by the Executive Officer, Darrang Zilla Parishad, Mangaldai (Annexure-VIII to the petition) does not call for any interference.

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Accordingly, this writ petition being devoid of merit stands dismissed.

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JUDGE

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Comparing Assistant

Rafikul Islam v. the State of Assam and 6 Ors.

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What is this about?

What did the court decide?

Rafikul Islam v. the State of Assam and 6 Ors.

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