w w w . L a w y e r S e r v i c e s . i n



Khursidul Islam v/s The State of Assam represented by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, Dispur, Guwahati & Others


Company & Directors' Information:- ASSAM COMPANY INDIA LIMITED [Active] CIN = L01132AS1977PLC001685

Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- K K R DEVELOPMENT PVT LTD [Active] CIN = U70101WB1981PTC034258

Company & Directors' Information:- S R RURAL INDIA DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U80302TN2005PTC058249

    Case No. Writ Appeal No. 109 of 2020

    Decided On, 27 November 2020

    At, High Court of Gauhati

    By, THE HONOURABLE ACTING CHIEF JUSTICE MR. N. KOTISWAR SINGH & THE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

    For the Appellants: K.N. Choudhury, Senior Advocate, N. Borah, J. Patowary, Advocates. For the Respondent: R1 to R4, M. Nath, Standing Counsel, A. Roy, Standing Counsel, Panchayat and Rural Development Department, Assam, R6, K.K. Mahanta, Senior Advocate, M.H. Choudhury, Advocate.



Judgment Text

N. Kotiswar Singh, CJ(Acting)1. Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. N. Borah and Mr. J. Patowary, learned counsel for the appellant. Also heard Mr. M. Nath, learned Standing Counsel assisted by Mr. A. Roy, learned Standing Counsel, Panchayat and Rural Development Department appearing for respondent Nos. 1-4 and Mr. K. K. Mahanta, learned senior counsel assisted by Mr. M. H. Choudhury, learned counsel for respondent No. 6.2. The present appeal has been preferred against the judgment and order dated 23.09.2020 passed in W.P.(C) No. 3026 of 2020 along with W.P.(C) No. 2490 of 2020, by which the Learned Single Judge set aside the settlement of Bihiagaon Weekly Market made in favour of the appellant and directed the authorities to settle the same in favour of the writ petitioner (respondent No. 6 herein).3. The facts, in brief, out of which the present appeal has arisen, may be stated as follows. One Gabhoru Anchalik Panchayat floated a Notice Inviting Tenders (NIT) dated 29.05.2019 inviting bids for settlement of various hats/ghats/markets etc. within the jurisdiction of the aforesaid Anchalik Panchayat including Bihiagaon Weekly Market for a period of one year from 01.07.2019 to 30.06.2020. The aforesaid period has been extended by another one year during the pendency of the proceedings.4. As per the aforesaid NIT, the minimum Government value of the said weekly market was fixed at Rs.1,69,105/- and the earnest money required to be deposited was Rs.16,911/-. The writ petitioner in both the writ petitions, Md. Akkash Ali and the present appellant, Khursidul Islam were also bidders. Upon opening of the bids, a comparative chart was prepared by the Anchalik Panchayat and one Jiten Das quoted the highest bid. While the writ petitioner was the second highest bidder, the appellant, the third highest bidder. As per the financial norms as provided under Section 109(6) of the Assam Panchayat Act, 1994 (“the Act”, for short), if the bid value exceeds Rs. 1 lakh, the tender should be considered by the Zilla Parishad and not the Anchalick Panchayat. Accordingly, the tender was referred to the Sonitpur Zilla Parishad for consideration. As regards this, there is no dispute amongst the parties.5. Based on the comparative statement prepared by the Anchalik Panchayat, the General Standing Committee of the Sonitpur Zilla Parishad, by a resolution adopted on 20.07.2019 decided to settle weekly market with the highest bidder, Jiten Das and issued the settlement order dated 24.07.2019 in his favour.6. The aforesaid settlement order issued in favour of Jiten Das was however, challenged by the writ petitioner, Akkash Ali in WP(C) No. 5749 of 2019, contending amongst others that, the bid submitted by Jiten Das did not comply with the requirements of Clause 13 of the NIT. The State of Assam, represented by the Commissioner and Secretary (Panchayat and Rural Development Department), Sonitpur Zilla Parishad, Gabhoru Anchalik Panchayat and Jiten Das were the respondents in the aforesaid case. It may be apposite to mention herein that the present appellant Khursidul Islam was not impleaded as a respondent in the said writ petition. In the aforesaid W.P. (C) No. 5749 of 2019, the Court after hearing the parties and on perusal of the records took the view that the bid submitted by the highest bidder, Jiten Das was not technically responsive and accordingly, set aside the order of settlement dated 24.07.2019 and directed the authorities to settle the Bihiagaon Weekly Market as per the comparative statement already on record by following the terms of the NIT vide judgment and order dated 25.02.2020.7. When the State authorities did not act upon the aforesaid judgment and order dated 25.02.2020, Md. Akkash Ali, respondent No. 6 herein, filed the writ petition, W.P.(C) No. 2490 of 2020 seeking directions, inter alia, to settle the aforesaid weekly market in his favour. During the pendency of the aforesaid writ petition, the Sonitpur Zilla Parishad settled the market in favour of the third highest bidder, Khursidul Islam, the appellant herein, vide order dated 30.03.2020 which came to be challenged by the petitioner, Md. Akkash Ali in W.P. (C) No. 3026 of 2020.8. The Learned Single Judge after hearing the parties, allowed the writ petition, W.P.(C) No. 3026 of 2020 by setting aside the order of settlement dated 30.03.2020 issued in favour of the appellant, Khursidul Islam and directed the Sonitpur Zilla Parishad to issue the order of settlement of the aforesaid Bihiagaon Weekly Market in favour of the petitioner, Md. Akkash Ali and accordingly, both the writ petitions, W.P.(C) No. 2490 of 2020 and W.P.(C) No. 3026 of 2020 were disposed of vide common judgment and order dated 23.09.2020, which is being assailed in this writ appeal.9. In deciding aforesaid writ petitions, the Learned Single Judge, almost entirely relied on the decision in W.P.(C) No. 5749 of 2019 rendered on 25.02.2020, in which it was held by the Court that nowhere on record it was found that on comparing the various documents, the bid of the petitioner (Md. Akkash Ali) was found to be deficient except the bid value which was the second highest, thus repelling the argument advanced by the State/Zilla Parishad Authorities that the petitioner had failed to submit the no objection of the copattadars of the land for security.10. In this regard, it may be apposite to reproduce the relevant portions of the aforesaid judgment dated 25.02.2020 passed in W.P.(C) No. 5749 of 2019, on which reliance was made by Learned Single Judge in the impugned judgment. These read as follows:“18. From the records it is found that the General Standing Committee of Sonitpur Zilla Parishad did not prepare any fresh comparative statement in the form of the one of the Gabhoru Anchalik Panchayat except the bid value and resolved that as the bid value of the respondent No. 5 was highest he was considered for the settlement. Nowhere on record it was found that on comparing the various documents the petitioner was found to be deficient except the bid value which is second highest. Accordingly the submission of Mr. Roy cannot be accepted that the petitioner failed to submit the no-objection of the co-pattadars of the land for security. Similarly the issue of violation of the order dated 03.07.2019 passed in WP(C) 4664/2019 is not within the purview of this court while disposing of this writ petition inasmuch as the court is exercising the jurisdiction of judicial review of the decision making process of the General Standing Committee of the Sonitpur Zilla Parishad in the NIT dated 29.05.2019.19. From the aforesaid discussions, I hold that this writ petition succeeds, the undated resolution of the General Standing Committee of the Sonitpur Zilla Parishad and the consequent impugned order dated 24.07.2019 bearing No. SZP/2019-20/4043 is set aside and quashed. The respondent No. 3 is directed to settle the Bihiagaon Weekly Market as per the comparative statement already on record strictly following the terms of the NIT dated 29.05.2019 being No. GAP/Tender/2019-2020 issued by the respondent No. 4 within a period of 30 (thirty) days from the date of receipt of the copy of this order. Records shall be handed back to Mr. A. Roy, the learned Standing Counsel of P&RD.” (emphasis added).11. The Learned Single Judge in the impugned judgment and order made the observation that the authorities purportedly in compliance of the directions issued in the earlier decision dated 25.02.2020, rescrutinised the bids submitted by the respective bidders and thereafter, selected the appellant, finding him to be the highest valid bidder, thereby reopening the question of eligibility of the bid submitted by the petitioner, which was already set at rest by the Court vide order dated 25.02.2020 in W.P.(C) No. 5749 of 2019, quoted above.12. The Learned Single Judge did not accept the plea of the respondent authorities that in exercise of jurisdiction conferred under Section 109(6) of the Act of 1994, the Zilla Parishad was entitled to prepare the comparative statement and thereafter, issue the order of settlement and was, thus, justified for preparation of a fresh comparative statement in which, the bid submitted by the petitioner, Md. Akkash Ali was found to be technically defective.13. The Learned Single Judge rejected the aforesaid plea of the respondent authorities on the following grounds. It was held by Learned Single Judge that, firstly, as evident from the judgment and order dated 25.02.2020, the General Standing Committee of the Zilla Parishad adopted a resolution deciding to settle the market in favour of the highest bidder, Jiten Das, based on the comparative statement prepared by the Anchalik Panchayat which goes to show that the Zilla Parishad had found the comparative statement free from all defects. It was observed that in the said comparative statement prepared by the Anchalik Panchayat, the bid submitted by the petitioner was also shown to be technically valid. Based on the aforesaid comparative statement prepared by the Anchalik Panchayat, the Sonitpur Zilla Parishad had issued the order of settlement dated 24.07.2019 in favour of Jiten Das. The Learned Single Judge accordingly, concluded that it is quite apparent that the Sonitpur Zilla Parishad had not only accepted the comparative statement prepared by the Anchalik Panchayat to be correct, but also had acted upon it for issuing the settlement order in favour of the highest bidder.14. The Learned Single Judge also observed that, the Court had on earlier occasion in the order dated 25.02.2020 found that the petitioner’s bid was technically valid and therefore, issued a direction to settle the market in accordance with the comparative statement already prepared. According to the Learned Single Judge, the expression, “comparative statement already prepared” mentioned in the judgment and order dated 25.02.2020 in W.P.(C) No. 5749 of 2019 has made it abundantly clear that no leave was granted to the Department to prepare a “fresh” comparative statement nor the respondents have sought leave from the Court to do so. Accordingly, the Learned Single Judge came to the conclusion that there was no scope for the Zilla Parishad to re-scrutinise the bids and prepare a fresh comparative statement so as to arrive at a contrary finding on the bid validity since such a recourse would be in clear violation of the letter and spirit of the judgment and order dated 25.02.2020 passed by this Court.15. The Learned Single Judge also held that the plea regarding invalidity of the technical bid of the petitioner having been raised by the Department and the same having been rejected by the Court by a reasoned order in the earlier round of litigation, the same plea now taken by the official respondents, even though on a slightly different manner, would be barred by the principles of constructive res judicata and accordingly, could not be entertained again.16. The Learned Single Judge held that a co-ordinate Bench can neither comment nor disturb any findings or directions issued by another Bench, that too, on the basis of same materials and in the same circumstances, relying on the decision of the Hon’ble Supreme Court in Vikramjit Singh vs. State of Madhya Pradesh, 1992 Supp (3) SCC 62, wherein it was observed that a co-ordinate Bench would have no authority to upset the earlier order passed by the court. The Learned Single Judge accordingly, took the view that if the respondents were in any manner aggrieved by the judgment and order dated 25.02.2020 there was nothing stopping them from preferring an appeal or filing a review petition against the same, which was not done in this case. The Learned Single Judge also observed that although the petitioner in WP(C) No.5749/2019 had prayed for a writ of mandamus directing the respondent authorities to issue the order of settlement in his favour, yet, the other bidders including the writ appellant was not impleaded as parties to the said proceeding. However, no objection was raised by the Departmental counsel on such count. Further, the Zilla Parishad also did not challenge the judgment and order dated 25.02.2020 passed by the Learned Single Judge in which it was held that the petitioner's bid was technically valid. Accordingly, the Learned Single Judge came to the conclusion that the official respondents could not have questioned the technical validity of the bid submitted by the writ petitioner. The Learned Single Judge also held that in the facts and circumstances of this case, the Zilla Parishad was under legal obligation to issue the order of settlement in favour of the highest valid bidder i.e. the writ petitioner. The Learned Single Judge accordingly, by holding that the bid of the writ petitioner was found to be technically valid by the Court on the earlier occasion in W.P. (C) No. 5749 of 2019, rejected the contention of the respondent authorities that the bid of the writ petitioner was not technically valid.17. The main contention of the appellant before us, as well as the Zilla Parishad, is that the initial comparative statement was prepared by the Gabhoru Anchalik Panchayat and since as per the financial rules, it is the Zilla Parishad which had the authority to consider any bid which is beyond Rs.1 lakh, the Zilla Parishad had the competency to reassess the bids and was not bound by the comparative assessment made by the Gabhoru Anchalik Panchayat. Accordingly, on scrutiny of the tender papers by the Sonitpur Zilla Parishad, it was found that the petitioner, Md. Akkash Ali was found to be non-compliant in respect of Clause 13 of the NIT since he did not submit valid Non-encumbrance Certificate, because of which his bid was not accepted, even though he had quoted the second highest bid. Resultantly, the appellant, though was the third highest bidder was awarded the settlement as his bid was found to be compliant in all respects and as such, the settlement order dated 30.03.2020 issued in favour of the appellant could not be faulted with.18. Though the writ petitioner contended that the Non-encumbrance Certificate submitted by him was valid and as such, the Sonitpur Zilla Parishad could not have rejected the tender of the petitioner on the ground that the Non- encumbrance Certificate was not valid, we are of the view that the Learned Single Judge did not really consider these factual aspects, but rather proceeded to censure the act of the Zilla Parishad in making a fresh assessment by opening the issue of technical validity of the bid submitted by the writ petitioner on the ground that the Zilla Parishad was estopped from examining the same issue relating to validity of the bids which had been already settled by the Court on an earlier occasion in the writ petition, W.P. (C) No. 5749 of 2019. The official respondents have contended that the Court in W.P. (C) No. 5749 of 2019 vide order dated 25.02.2020 had directed the Sonitpur Zilla Parishad to settle the weekly market by strictly following the terms of the NIT dated 29.05.2019, which necessarily required reexamination of the tender papers by the Zilla Parishad, as provided under Section 109(6) of the Assam Panchayat Act, 1994. The Learned Single Judge did not find favour with the said contention on the ground that the Zilla Parishad had already acted upon the comparative statement prepared by the Anchalik Panchayat to be correct and issued the order of settlement in favour of the highest bidder, Jiten Das.19. From the above what clearly appears is that, the Learned Single Judge took the view that the comparative statement prepared by the Anchalik Panchayat was accepted and acted upon by the Zilla Parishad at the time of settlement of the weekly market in favour of the highest bidder, and in the said comparative statement prepared by the Anchalik Panchayat, the bid of the petitioner was found to be technically valid and as such the Zilla Parishad cannot undertake a fresh assessment of the bids. Secondly, the Court in the order dated 25.02.2020 in W.P.(C) No. 5749 of 2019 had directed the Zilla Parishad to settle the market in accordance with the comparative statement already on record, which means that the comparative statement prepared by the Anchalik Panchayat and acted upon by the Zilla Parishad was valid and could be acted upon, which was already on record while making the settlement in favour of the highest bidder, Jiten Das, though the settlement made in favour of the highest bidder was, later on, set aside. And thirdly, the issue relating to technical validity of the bid of the petitioner had already been settled in the earlier proceeding, the action of the Zilla Parishad in reopening the issue of validity of the petitioner’s bid was hit by the principle of constructive res judicata.20. From the above, it is clearly evident that the impugned decision of the Learned Single Judge is almost entirely founded on the observations, findings and directions issued in the order dated 25.02.2020 passed in W.P. (C) No. 5749 of 2019. It is accordingly, necessary to analyse the aforesaid order passed in W.P. (C) No. 5749 of 2019 and the implications of the observations and findings rendered in the said judgment and order.21. It may be noted that in the earlier proceeding in writ petition, WP(C) No. 5749 of 2019, the records were called for by the Court, as has been reflected in Para 12 of the order dated 25.02.2020 in the said writ petition, as follows,“As per the comparative statement, the respondent no. 5 failed to submit any land documents. On the other hand, the petitioner as recorded in the said comparative statement fulfilled the documentary criteria……………..The date of resolution of the General Standing Committee is missing as per the records. ………”From the reading of the aforesaid paragraph, it appears that while the respondent No. 5 therein, i.e., the highest bidder did not submit any land documents and on the other hand, the petitioner, as recorded in the said comparative statement fulfilled the documentary criteria. The above mentioning by the Court regarding submission of documents by the petitioner was on the basis of recording in the comparative statement. We, however, are not sure as to whether such documents filed by the petitioner did suffer from any defect or not. It is also significant to note that it was observed by the Court that the date of resolution of the General Standing Committee was absent. Therefore, even if the petitioner in the aforesaid petition was successful in assailing the settlement of the weekly market made in favour of the respondent no.5 therein, on the ground that he did not fulfil the criteria of the tender by submitting the relevant documents, it cannot be said with certainty that the bid of the writ petitioner did not suffer from any defect at all.22. The proceedings of the General Standing Committee of the Zilla Parishad which initially settled the market in favour of the respondent no. 5 therein, appeared to suffer from certain defects as already observed by the Court in Para no. 12 as discussed above. Further in Para no. 15 of the order dated 25.02.2020, it was also mentioned that “the other particulars as per the NIT which form the criteria for technical qualification of the bidders were not considered”.The relevant sentence in Para no. 15 reads as follows:“……….The respondent no. 5 admittedly did not fulfil these criteria but as respondent no. 5 who was the highest bidder deposited the bank draft of his bid value for which as per the evaluation made by the General Standing Committee of the Zilla Parishad the other particulars as per the NIT which form the criteria for technical qualification of the bidders were not considered…….”23. We have also noted that the Court in the order dated 25.02.2020 also made the observation in Para no. 18 thereof that from the records it is found that the General Standing Committee of Sonitpur Zilla Parishad did not prepare any fresh comparative statement. We also note that the Court also made the observation that nowhere on record it was found that on comparing the various documents the petitioner was found to be deficient except the bid value which is the second highest and accordingly, the submission of the counsel for the State cannot be accepted that the petitioner failed to submit the no objection of the co-pattadars of the land for security.The aforesaid Para no. 18 reads as follows:“18. From the records it is found that the General Standing Committee of Sonitpur Zilla Parishad did not prepare any fresh comparative statement in the form of the one of the Gabhoru Anchalik Panchayat except the bid value and resolved that as the bid value of the respondent No. 5 was highest he was considered for the settlement. Nowhere on record it was found that on comparing the various documents the petitioner was found to be deficient except the bid value which is second highest. Accordingly the submission of Mr. Roy cannot be accepted that the petitioner failed to submit the no-objection of the co-pattadars of the land for security. Similarly the issue of violation of the order dated 03.07.2019 passed in WP(C) 4664/2019 is not within the purview of this court while disposing of this writ petition inasmuch as the court is exercising the jurisdiction of judicial review of the decision making process of the General Standing Committee of the Sonitpur Zilla Parishad in the NIT dated 29.05.2019.”(emphasis added)24. The above observation read with the observations made in Para nos. 12 and 15 discussed above, therefore, gives an indication that the respondent no.5 therein, was deficient in respect of certain criteria. However, as regards the petitioner, the observation of the Court was that the petitioner was not found to be deficient, based on the recordings made in the proceedings of the General Standing Committee. But, it was also observed that the proceedings also suffered from various defects like nonappending of date on the proceeding, nonpreparation of fresh comparative statement etc.25. It is perhaps for the aforesaid reasons that the Court in the order dated 25.02.2020 did not direct the authorities to settle the market in favour of the petitioner. Rather, the Court directed the Zilla Parishad to settle the market as per comparative statement already made by strictly following the terms of the NIT dated 29.05.2019. It may be also noted that once the Court directed the authorities to strictly follow the terms of the NIT, it would mean that the authorities had to ensure that while settling the market, all the terms and conditions mentioned in the NIT were complied with by the successful bidder, in which event, in our view, if the authorities re-examined the validity of the documents, the same cannot be said to be illegal. A limitation was placed on the authorities by the Court by observing that the comparative statement already on the record cannot be ignored. In our view the reference to “comparative statement already on record” in order dated 25.02.2020 of the Court in reality mean that the documents already submitted and figures already reflected in the comparative statement cannot be ignored which however, does not debar the authorities to re-examine or scrutinise to ascertain if the tender documents suffered from any defect or not.26. Perhaps, the most important feature of the said order dated 25.02.2020 is that, it was a decision in a writ petition filed by the second highest bidder, the petitioner Md. Akkash Ali, assailing the settlement of the weekly market in favour of the highest bidder, Jiten Das. The third highest bidder, the appellant was not impleaded as a party in the said writ petition and to that extent, it can be said that the said decision may not be binding upon the appellant. The principle of res judicata is applicable in respect of proceedings, when these are between the same parties. As the appellant was not a party in the earlier writ petition, W.P.(C) No. 5749 of 2019, in our opinion, the decision arrived in cannot have any binding effect as far as the appellant is concerned. Therefore, in our view, the principles of constructive res judicata will not be applicable in the present case, so as to bind the appellant in the present proceeding by any finding arrived at in the previous proceeding where the appellant was not a party.27. The Learned Single Judge in the impugned order dated 23.09.2020 stressed upon this aspect that the issue relating to eligibility of the petitioner was already settled by the Court in the earlier proceeding in W.P.(C) No. 5749 of 2019 and as such, this issue relating to eligibility of the petitioner could not be revisited. Otherwise, it would amount to disturbance by a coordinate Bench of the finding or direction earlier issued by another Bench which is not permissible, relying on the decision in Vikramjit Singh (supra). While, there cannot be any dispute about the legal proposition that the finding recorded or direction issued earlier by a Bench, cannot be disturbed subsequently by another Co-ordinate Bench, in the present case, the issue that is being raised is the eligibility of the petitioner as well as the present appellant. As mentioned above, when the Court on an earlier occasion made some observations about the eligibility of the petitioner, the appellant was not a party in the aforesaid proceedings.28. In G. K. Dudani and Others vs. S.D. Sharma and Others, 1986 Supp SCC 239, it was held that although by reason of the “Explanation” which was inserted in Section 141 of the Code of Civil Procedure, 1908, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code deals with the principle of res judicata, does not in terms apply to any proceeding under Article 226 of the Constitution, the principle of res judicata does apply to writ proceedings under Article 226 of the Constitution of India.29. However, in Syed Mohd. Salie Labbai (dead) by L.Rs and Others vs. Mohd. Hanifa (dead) by L.Rs and Others, (1976) 4 SCC 780, it has been observed that before a plea of res judicata can be given effect, the following conditions must be established: “(1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction.”For the doctrine of res judicata to be applicable in the subsequent proceeding, the matter must be directly and substantially in issue in the subsequent proceeding or the issue must be of the same matter which was directly and substantially in issue in the former proceeding and the former proceeding must have been a proceeding between the same parties or between parties under whom they or any of them claim.30. In Syed Mohd. Salie Labbai (supra), it has been further observed that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous proceeding, and then to find out as to what had been decided by the judgment which would operate as res judicata in the subsequent proceeding.In the case in hand, the appellant was not a party in the writ petition, W.P.(C) No. 5749 of 2019 which was instituted by the writ petitioner (respondent No. 6 herein) to challenge the order of settlement issued in favour of one Jiten Das and the appellant had no opportunity to participate in the said proceeding and as such, the question of putting forth his case in the said proceeding does not arise. On the other hand, the subject-matter in W.P.(C) No. 3026 of 2020 was the order of settlement dated 30.03.2020 made in favour of the appellant, subsequent to the decision rendered on 25.02.2020 in W.P. (C) No. 5749 of 2019. In State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, it has been held that the doctrine of res judicata does not apply if the case is entertained afresh at the behest of other parties.31. In the present case, the findings and observations in the earlier proceedings at best could bind the petitioner and the official respondents therein. However, it cannot bind the appellant herein, and to that extent, the appellant can certainly question the proceedings of the Zilla Parishad regarding the settlement of the market in favour of anybody including the petitioner (respondent No. 6 herein). The right of the appellant to question the proceedings of the authorities in settling the market as well as the validity of the tender documents of the bidders cannot be said to have been extinguished by the observations made in the earlier proceedings in which the appellant was not a party. Thus, assuming that the Court in an earlier proceeding had made a finding that the petitioner (respondent No. 6) was eligible, this will not prevent the appellant from questioning the eligibility of the petitioner (respondent No. 6). In other words, even if the authorities had settled the market in favour of the petitioner on the basis of certain observation made by the Court in W.P.(C) No. 5749 of 2019, in our considered opinion, the appellant who was not a party in the aforesaid writ petition, could still question the settlement made in favour of the petitioner on any ground available to him.32. In course of the proceedings, learned counsel for the State has produced the records and we have again observed, as also recorded in the earlier proceeding in W.P.(C) No. 5749 of 2019, that the date of the resolution of the General Standing Committee is missing in the records. When enquired from the learned Counsel for the State, as to how the General Standing Committee held its meeting, we were informed that the meeting was held through telecommunication by discussing amongst the members of the Committee through telephone because of Covid restrictions. We are not sure whether such a course of action is permissible as all the members did not have physical access to the records pertaining to the tender. Rule 47 of the Assam Panchayat (Financial) Rules, 2002 provides for the procedure for the sale and settlement of markets, ferries, fisheries and ponds. Rule 47(7) of the aforesaid Rules provides that the members of the Committee present s

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hall sign all papers in a tender and shall cause to prepare a comparative statement setting forth full details of the tenders and obtain dated signature of the members on the comparative statement. Rule 47(8) further provides that the Committee shall record the opinion on each tender in the comparative statement duly signed and dated before it is submitted to the authority for acceptance. On perusal of the records produced before us, it is seen that the provisions of Rule 47(7) and (8) have not been complied with. To that extent, the proceedings of the General Standing Committee suffers from the aforesaid irregularities. Even if the aforesaid procedural defects are ignored, in view of the pandemic situation, nevertheless, the bidders must fulfil all the requisite criteria or the terms of the NIT.33. Under the circumstances, though the Learned Single Judge did not have any occasion to examine the records in view of the decision that it was impermissible to have a relook and re-examine a finding which had been already arrived at earlier, we have examined the records to satisfy ourselves as to whether there was any issue relating to the validity of the tender documents of the bidders.34. It has been noticed that the General Standing Committee of the Zilla Parishad did not adhere to the required procedure laid down in the Assam Panchayat (Financial) Rules, 2002, more particularly, Rule 47 thereof prior to issuance of the settlement order dated 30.03.2020 in favour of the appellant.35. In view of the discussions made above, we set aside the judgment and order dated 23.09.2020 passed in W.P.(C) No. 3026 of 2020 and W.P.(C) No. 2490 of 2020 and remand the matter to the respondent authorities with the direction to the Sonitpur Zilla Parishad to have a fresh look at the bids submitted by the bidders other than Jiten Das, in response to the NIT dated 29.05.2019 in respect of Bihiagaon Weekly Market as per the comparative statement prepared already by Gabhoru Anchalik Panchayat and by examining whether the bidders fulfil all other conditions/eligibility criteria. Upon such examination of the bids strictly in terms of the NIT dated 29.05.2019 and the procedure prescribed in the Assam Panchayat (Financial) Rules, 2002, more particularly, Rule 47 thereof, the respondent authorities shall issue a fresh settlement order in favour of the highest valid bidder and/or appropriate order in accordance with law. It is ordered that such exercise shall be completed within a period of 2 (two) weeks from today.36. On 29.09.2020, it was submitted on behalf of the appellant that he was operating Bihiagaon Weekly Market on the basis of the earlier settlement order dated 30.03.2020 and based on such submission, the operation of the impugned judgment and order dated 23.09.2020 was stayed. As the appellant is stated to be operating the market in view of the said interim order, he shall be allowed to operate the same till a fresh settlement order is passed by the respondent authorities in terms of the directions made above. Thereafter, the operation of the Bihiagaon Weekly Market will be in terms of the fresh settlement order or any such appropriate order to be issued in terms of the directions made above.37. With the observations made and directions given above, this writ appeal stands disposed of. There shall, however, be no order as to cost.
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