Allowed

Nareswar Dangiari and 2 Ors. v. the State of Assam and 6 Ors.

Gauhati HC17 Nov 2022WP(C)/6322/2022

Case brief

AI extract

What is this about?

Common order disposed two writ petitions regarding the Gorubandha Weekly Market settlement. The Court held that the market settlement extension violated Section 105 of the Assam Panchayat Act, 1994, and set aside the extension order, directing a fresh tender for the remaining financial year.

What did the court decide?

Impugned extension order dated 01.07.2022 set aside; respondent directed to issue fresh tender and select successful bidder by 14.12.2022.

Nareswar Dangiari and 2 Ors. Vs the State of Assam… — Service and Employment | Gauhati HC (2022)

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Page No.# 1/11

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GAHC010195422022

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

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WP(C) NO.6322 OF 2022

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1.NARESWAR DANGIARI AGED ABOUT 52 YEARS, S/O. MATIRAM DANGIARI, VILL. DHEKIPELUWA KACHARI, P.O. GARUBANDHA, P.S. MISSAMARI, P.O. 784506, DIST. SONITPUR, ASSAM.

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2: HITESWAR BASUMATARY AGED ABOUT 44 YEARS, S/O. KHANTAL BASUMATRAY VILL. MEJENGJULI P.S. THELAMARA PIN-784111 DIST. SONITPUR ASSAM.

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3: BHUMIDHAR BORO AGED ABOUT 45 YEARS, S/O. LT. RUNAI BORO VILL. NO.2 DHANMARA P.O. AND P.S. MISSAMARI DIST. SONITPUR ASSAM PIN-784606

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…… .. Petitioners

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- Versus -

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THE STATE OF ASSAM REP. BY THE CHIEF SECRETARY, GOVT. OF ASSAM, DISPUR, GUWAHATI-781006.

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Page No.# 2/11

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2:THE PRINCIPAL SECRETARY PANCHAYAT AND RURAL DEVELOPMENT DEPTT. GOVT. OF ASSAM DISPUR GUWAHATI-781006.

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3:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT DEPTT. GOVT. OF ASSAM, JURIPAR, PANJABARI, GUWAHATI PIN-781037, ASSAM.

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4:THE DEPUTY COMMISSIONER SONITPUR, TEZPUR, ASSAM, PIN-784001. 5:THE CHIEF EXECUTIVE OFFICER SONITPUR ZILLA PARISHAD TEZPUR, ASSAM PIN-784001. 6:THE BLOCK DEVELOPMENT OFFICER AND EXECUTIVE OFFICER DHEKIAJULI ANCHALIK PANCHAYAT P.O. DHEKIAJULI DIST. SONITPUR ASSAM PIN-784110.

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7:SRI. RUPENDRAJIT SARMA AGED ABOUT 33 YEARS, S/O. LT. PRANESWAR SARMA, R/O. WARD NO.6, DEHAKIAJULI, P.O. DHEKIAJULI, DIST. SONITPUR, ASSAM, PIN-784110

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…… .. Respondents

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WP(C) NO.4557 OF 2022

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RUPENDRAJIT SARMA AGED ABOUT 33 YEARS, S/O LATE PRANESWAR SARMA, R/O WARD NO. 6, DHEKIAJULI, P.O. AND P.S.-DHEKIAJULI, PIN-784110

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Page No.# 3/11

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…… .. Petitioner

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- Versus -

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1.THE STATE OF ASSAM REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006

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2:THE PRINCIPAL SECRETARY PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GUWHAATI-781006

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3:THE COMMISSIONER, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, PANJABARI, JURIPAR, GUWAHATI-781037 4:THE DEPUTY COMMISSIONER, SONITPUR DISTRICT, TEZPUR, ASSAM-784001 5:THE CHIEF EXECUITVE OFFICER SONITPUR ZILLA PARISHAD TEZPUR, ASSAM-784001 6:THE PRESIDENT DHEKIAJULI ANCHALIK PANCHAYAT, DHEKIAJULI, SONITPUR, ASSAM-784110 7:THE BLOCK DEVELOPMENT OFFICER CUM EX-OFFICIO SECRETARY, DHEKIAJULI, SONITPUR, ASSAM-78411

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…… .. Respondents

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For the Petitioners (WP(C)6322/2022) : Mr. S.D. Purkayastha, Advocate. Mr. U Choudhury, Advocate. For the Petitioner (WP(C)4557/2022) : Mr. R.P. Sarmah, Senior Advocate. Mr. M.R. Adhikari, Advocate.

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Page No.# 4/11

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For the respondents

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: Mr. NK Debnath, P&RD Department.

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- BEFORE -

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HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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Date of hearing : 17^th November, 2022. Date of Judgment & Order : 17^th November, 2022 .

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Judgment & Order (Oral)

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Heard Mr. MK Adhikari, learned counsel for the petitioner in WP(C) No.

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4557/2022 and the respondent No. 7 in WP(C) No. 6322/2022. Heard Mr. SD Purkayastha, learned counsel for the petitioner in WP(C) No. 6322/2022. Mr. NK Debnath, learned counsel appears for the P&RD Department, while Mr. M Chetia, learned counsel appears for the Deputy Commissioner, Sonitpur and Chief Secretary, Government of Assam. Also heard Mr. Mousam Das/respondent No. 6, Block Development Officer, Dhekiajuli, Sonitpur, who has appeared in person.

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2. Both the writ petitions are being disposed of by this common judgment

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and order, in view of the fact that issues raised by the petitioners are intertwined and pertains to Gorubandha Weekly Market. For easy disposal of the matters, the placement of the parties in the Cause-Title in WP(C) No. 6322/2022

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Page No.# 5/11

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is taken into consideration.

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3. The brief facts of the case is that the respondent No. 7 was running the Gorubandha Weekly Market from the financial year 2019-2022 till 30.06.2022, on the basis of tenders published by the State respondents. As the settlement of the markets (hats) was being done on a yearly basis, in terms of Section 105 of the Assam Panchayat Act, 1994, the term of the respondent No. 7 as the settlement holder of the said market was to end on 30.06.2022. Prior to 30.05.2022, the State respondents issued a Notice Inviting Tender (“NIT” in short) dated 13.05.2022, calling for bids from tenderers for settling the Gorubandha Weekly Market for the year 2022-2023, for the period from 01.07.2022 to 30.06.2023.

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4. The respondent No. 7 and the petitioner submitted their tenders in pursuance to the NIT dated 13.05.2022. However, the respondent also submitted a representation dated 23.05.2022 to the State respondents, praying for extension of the settlement of the market, for a further period of one year. The same not being allowed by the State respondents, the petitioner filed WP(C) No. 3729/2022 praying for extension of the settlement period of the market for one year.

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5. WP(C) No. 3729/2022 was dismissed by this Court vide order dated 06.06.2022.

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6. Though the prayer of the respondent No. 7, for extension of the settlement of the market for a period of one year had initially been rejected by the State respondents and by this Court in WP(C) No. 3729/2022, the State respondents extended the settlement period of the market with the respondent No. 7 vide order dated 01.07.2022, till the selection process for appointment of the successful tender, in pursuance to the NIT dated 13.05.2022 was completed.

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7. Subsequent to the above facts, the President, Dhekiajuli Anchalik Panchayat and the respondent No. 6 issued a notice of re-tender for settlement of the Gorubandha Weekly Market on 04.07.2022. Being aggrieved, the respondent No. 7 filed WP(C) No. 4557/2022, with a prayer that the re-tender notice dated 04.07.2022 should be set aside and that a direction should be issued to the respondent authorities, to consider the bid amount of the respondent No. 7 in terms of the earlier NIT dated 13.05.2022.

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8. This Court vide order dated 05.07.2022 in WP(C) No. 4557/2022,

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passed an interim order to the effect that the re-tender notice should not be finalised by the State respondents.

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9. The respondent No. 6 thereafter issued an order dated 08.07.2022, stating that the re-tender notice dated 04.07.2022 had been cancelled, in compliance with the order dated 05.07.2022 passed in WP(C) No. 4557/2022.

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10. The petitioner herein has now filed the present writ petition, i.e., WP(C)

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No. 6332/2022, praying that the order dated 08.07.2022 issued by the respondent No. 6, cancelling the re-tender notice and the extension of the settlement of the market with the respondent No. 7, vide extension order dated 01.07.2022, should be set aside. The petitioner has also prayed for a direction to be issued to the State respondents, to initiate a fresh tender process for settlement of the Market for the remaining period of the year 2022-2023.

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11. The learned counsel for the petitioner submits that in terms of Section 105 of the Assam Panchayat Act, 1994, markets have to be settled for a period not extending one Panchayat Financial Year by inviting tenders. As the settlement of the market with the respondent No. 7 had been given on a year to year basis, from 2019 till 30.06.2022, the extension given to the settlement period of the market to the respondent No. 7, was in violation of Section 105 of the Assam Panchayat act, 1994. He also submits that this Court in the case of Kosheswar Bharali vs. State of Assam & Ors ., reported in 2000 (3) GLT

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528 had accepted the stand taken by the Government of Assam that there is no provision in the Assam Panchayat Act, 1994, for extension of settlement of a market beyond one year. He accordingly submits that the State respondents should call for a fresh tender.

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12. Mr. MR Adhikari, learned counsel for the respondent No. 7, on the other hand submits that the extension of the settlement period of the market was

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Page No.# 8/11

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prayed for by the petitioner, on the ground that the petitioner could not do normal business due to the COVID-19 Pandemic. He also submits that as the selection process in terms of the NIT dated 13.05.2022 has not been completed, a direction should be issued to the State respondents to settle the market, in pursuant to the NIT dated 13.05.2022. He further submits that as there was no cancellation of the earlier NIT dated 13.05.2022, the re-tender notice dated 04.07.2022 should be set aside.

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13. The respondent No. 6, who has appeared in person has brought the records before this Court. Mr. NK Debnath, learned counsel for the P&RD Department submits that as per the records that are brought today, none of the bids of the tenderers in pursuance to the NIT dated 13.05.2022 can be accepted, inasmuch as, the tenderers have not submitted the required documents called for, in terms of the NIT dated 13.05.2022 in the tenderers forms that was submitted by them. He submits that as per the records brought by the respondent No. 6, the respondent No. 7 had not submitted the following documents:-

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a. Non-encumbrance certificate of the land, which is to be used as security.

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b. Affidavit of mortgage land from co-pattadars.

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c. Income Tax Return certificate.

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Page No.# 9/11

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d. Certificate for financial soundness from Circle Officer, and

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He also submits that the respondent No. 7 has also not submitted the

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following documents from his Zamindar, which are as follows:-

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a. Land valuation certificate from the DC/SDO/CO.

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b. Attested copy of Zamabandi.

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c. Land revenue certificate or Khajana Certificate.

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d. Non-encumbrance certificate of the land.

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e. Affidavit of mortgage land from co-pattadars.

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f. Income Tax Return Certificate.

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g. Certificate for financial soundness from Circle Officer

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h. Affidavit for genuineness of documents submitted.

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i. Tax clearance certificate from Sonitpur Zilla Parishad.

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j. Tax clearance certificate from Dhekiajuli Anchalik Panchayat

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k. Tax clearance certificate from Gaon Panchayat.

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l. Affidavit for advertisement of Government Rule by Zamindars.

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14. Mr. NK Debnath, learned counsel for the P&RD and the respondent No. 6

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submit that if this Court decides that a fresh tender is to be issued, the State respondents will issue a fresh tender on or before 21.11.2022 and the selection

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of the successful tenderer can be completed by 14.12.2022.

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15. I have heard the learned counsels for the parties.

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16. On considering the fact that the respondent No. 7 has not submitted various documents, which is a requirement for being considered for settling the market in terms of the NIT dated 13.05.2022, this Court finds that there is no infirmity with the stand of the State respondents that the respondent No. 7

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cannot be considered for settlement of the market, in terms of the NIT dated 13.05.2022.

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17. Section 105 of the Assam Panchayat Act, 1994 clearly provides that the settlement of a market (hat) shall not exceed one Panchayat Financial Year and that the settlement has to be made by inviting tenderers. In the present case, the settlement of the said market by way of the impugned extension order dated 01.07.2022, clearly shows that Section 105 of the Assam Panchayat Act, 1994 has been violated by the State respondents. In the case of Kosheswar Bharali (supra), this Court had held that the State respondents rejection of the prayer of the petitioner therein, for extension of the settlement of the market beyond one year, to be valid in law, holding that there was no provision in the Assam Panchayat Act, 1994 for extension. In that view of the matter, the extension order dated 01.07.2022 being unsustainable in law, the same is set aside. The respondent No. 7 should not be allowed to collect any further toll from the vendors in the Gorubandha Weekly Market beyond today.

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Page No.# 11/11

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18. At this stage, the counsels for the petitioner, the respondent No. 7 and the State Government submit that a fresh tender may be called. Accordingly, in view of the consent of the parties, the respondent No. 6 who is before this Court and the State respondents are directed to issue a fresh advertisement, for settlement of the Gorubandha Weekly Market, for the remaining period of the Panchayat Financial Year 2022-2023 on or before 21.11.2022 and select the successful tenderer on or before 14.12.2022. It is made clear that the respondent No. 5 shall settle the market in terms of Section 109(6) of the Assam Panchayat Act, 1994. Further, the State respondents shall also make a check-list of the documents required from the intending tenderers at the time of issuance of the fresh tender notice, which should be made known to the intending tenderers.

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19 . The writ petitions are disposed of accordingly.

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JUDGE

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Comparing Assistant

Nareswar Dangiari and 2 Ors. v. the State of Assam and 6 Ors.

Case brief

What is this about?

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Nareswar Dangiari and 2 Ors. v. the State of Assam and 6 Ors.

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