W.P. (C) Nos. 3231, 3232, 4822, 4823 and 4971 of 2004. Case: Smt. Gangabala Choudhury (Smt.) and Ors. Vs State of Assam and Ors.. Guwahati High Court
| Case Number | W.P. (C) Nos. 3231, 3232, 4822, 4823 and 4971 of 2004 |
| Counsel | For Appellant: N. Dutta, M.K. Choudhury, N. Dhar, P.B. Mazumdar and A. Barkataki, Advs. and For Respondents: K.N. Choudhury, I. Choudhury, V.L. Singh and B. Choudhury, Advs. |
| Judges | Biplab Kumar Sharma, J. |
| Issue | Assam Municipal Act, 1956 - Section 148; Assam Municipal Rules - Rules 1, 2; Constitution of India - Articles 14, 226 |
| Judgement Date | November 24, 2004 |
| Court | Guwahati High Court |
Judgment:
Biplab Kumar Sharma, J.
1. All the writ petitions involving settlement of markets pursuant to NIT centre around the same controversy relating to the methodology adopted towards settlement of markets and accordingly were heard analogously. They are being disposed of by this common judgment and order.
2. Brief facts leading to the filing of the writ petitions are as follows:
W.P. (C) No. 3231/2004.
3. Respondent No. 6 issued NIT dated 24.2.2004 for settlement of 'Chilarai' daily market alongwith some other markets and the Petitioner who was the sitting lessee submitted her tender in response to the same. After issuance of the NIT, the Respondent No. 2 issued direction by Annexure-2 WT message dated 23.3.2004 to all Chairman/Chairpersons of Urban Local Bodies, not to finalise settlement of markets, pounds, parking lots etc. in view of the then ensuing election. By the said WT message, an indication was made that the existing lessees would apply to the Government for extension of lease till 15.5.2004 and the fresh tenders invited would be submitted to the Government before 31.3.2004.
4. The Petitioner, in terms of the aforesaid WT Message, submitted representation dated 29.3.2004 before the Respondent No. 2 praying for extension of the aforesaid daily market upto 15.5.2004, but no extension was given. In the meantime, the Respondent No. 6 intimated the Respondent No. 2 by Annexure-4 letter dated 24.3.2004 about the completion of tender process for settlement of market/mahals of the Municipality in question i.e. Bongaigaon Municipality for the year 2004- 2005 and sending of all the comparative statements of the tenders alongwith all tender documents to him for necessary approval. Pointing out about the expiry date of earlier lease term on 31.3.2004 and the new term was to start from 1st April, 2004 and that there would be loss of Government revenue in case of delay in the matter, the decision to settle the markets/mahals with the highest bidder among the valid tenderers was conveyed. In respect of 'Chilarai' daily market, the second highest bidder i.e. the Petitioner was preferred in view of withdrawal of the highest bidder from the fray and the Petitioner being the second highest bidder. By the said letter, the Respondent No. 2 was requested the grant necessary approval.
5. After issuance of the said letter dated 24.3.2004, the Petitioner was settled with the market at her quoted rate of Rs. 14,75,000.00 in anticipation of the approval of the Government and she was directed to deposit the 1st kist money i.e. the 50% of the total bid money Rs. 7,37,500.00, on or before 26.3.2004 in cash or bank draft drawn in favour of the Respondent No. 6. It was further stated in the settlement order that on failure to deposit the said amount, the lease would be treated as cancelled and further action would be taken as per rules. In response to the settlement so made, the Petitioner deposited the 1st kist money by banker's cheque dated 25.3.2004. Thereafter, the Respondent No. 3 by his letter dated 26.3.2004 requested the Government of Assam, Urban Development Department to accept the tenders with highest bid in respect of the markets/mahals.
6. Amidst the aforesaid development, the impugned order dated 1st April, 2004 was issued by the Respondent No. 6 detailing the Tax Collectors for collection of tax in respect of various markets/mahals including the market in question. This was followed by Annexure-10 letter dated 5.4.2004 issued by the Respondent No. 4, i.e. the Deputy Commissioner, Bongaigaon to the Respondent No. 2 urging for communicating the required approval towards settlement of the markets/mahals.
7. In the aforesaid backdrop, the Petitioner filed the writ petition assailing the legality and validity of Annexure-9 order dated 1st April, 2004 and seeking a further direction to allow the Petitioner to operate the market in terms of order of settlement dated 24.3.2004.
W.P.(C) No. 3232/2004
8. In this case, the market in question is called Chilarai weekly market. Like that of the Petitioner in W.P.(C) No. 3231/2004, the Petitioner in the instant case was settled with the said market and the Petitioner deposited the 50% of his quoted rate which was the highest bid. The bid amount was Rs. 10,00,000.00 and the 50% as the 1st kist money i.e. Rs. 5,00,000.00, was deposited by the Petitioner. However, by the impugned order dated 24.3.2004, the Petitioner was intimated about the decision to cancel the order of settlement and he was directed to wait till Government instruction was received after 15.5.2004. Like that of the other writ petition, the impugned order dated 1.4.2004 covered the Chilarai weekly market and the Petitioner filed the writ petition making same very prayer in respect of Chilarai weekly market and in addition also prayed for setting aside the order dated 26.3.2004 by which the intimation relating to settlement was cancelled.
9. Both the writ petitions were disposed of by two separate orders dated 21.5.2004 with a direction to the Respondents, more particularly the Respondent No. 3 i.e. the Director of Municipal Administration, Assam and the Respondent No. 5 i.e. Bongaigaon Municipal Board to take immediate steps for handing over the markets to the Petitioners so as to enable them to operate the same in accordance with the terms and conditions of the settlement. Such a direction was issued keeping in view that the reason which had come on the way of the Petitioners' settlement as indicated by the learned State Counsel was the elections which had since been completed.
10. After disposal of the writ petitions as aforesaid, two review applications registered and numbered as R.P. No. 75/2004 in W.P.(C) No. 3231/2004 and R.P. No. 74/2004 in W.P.(C) No. 3232/2004 were filed and the review applications were allowed by judgment and order dated 6.8.2004 by setting aside the orders dated 21.5.2004 finally closing the writ petitions. On such review, both the writ petitions got restored for fresh decision. The review applications were allowed on bringing it to the notice of the Court by the review applicants that prior approval of the Government for awarding settlement of any market under the Board, while under super-session, is a necessary pre-condition for the validity thereof, meaning thereby, that any settlement made by the Executive Officer of the Municipality while the Board is under supersession without such approval would be non-est in law.
W.P.(C) No. 4822/2004
11. This writ petition has been filed by the Petitioner in W.P.(C) No. 3231/ 2004 assailing the order of settlement dated 29.5.2004 (Annexure-16) made in favour of the Respondent No. 8 in respect of the same very market, which was earlier settled with her. The approval, which was sought from the Government after making the order of settlement in her favour in anticipation of such approval was not accorded and instead the settlement was made in favour of the Respondent No. 8. It is the case of the Petitioner that such an order could not have been passed without hearing her in breach of the principles of promissory estoppel. According to her, she being the highest bidder, after the withdrawal of the first highest bidder from the fray, instead of settling the market in her favour, it could not have been settled with the Respondent No. 8 who was the fourth highest bidder.
W.P.(C) No. 4823/2004
12. This writ petition has been filed by the Petitioner in W.P.(C) No. 3232/2004 assailing the order dated 29.5.2004 (Annexure-14) by which the 'Chillarai' weekly market has been settled with the Respondent No. 8. As that of the case of the Petitioner in W.P.(C) No. 4822/2004, it is the case of the Petitioner that he being the highest bidder, the Respondent No. 8 could not have been preferred being not the highest bidder. In fact, he is the third highest bidder. Other grounds urged are the same as that of the grounds urged in W.P.(C) No. 4822/2004.
W.P.(C) No. 4971/2004
13. In this writ petition, the Petitioner is concerned with another daily market called Paglasthan daily market. As in the other writ petitions, the Petitioner submitted his tender in response to the NIT and emerged as the highest bidder with his bid amount of Rs. 6,77,777.00. By letter dated 24.3.2004 he was directed to deposit the 50% of the bid amount as the 1st kist money. However, when the Petitioner wanted to deposit the same, the Respondent No. 6 i.e. the Executive Officer, Bongaigaon Municipal Board refused to accept the same and instructed the Petitioner to wait till Government instruction was received. The said letter also stated that the earlier order of settlement made in favour of the Petitioner stood cancelled. By the impugned order dated 19.6.2004, the market was settled with the Respondent No. 8 at annual value of Rs. 4,61,111.00 which is by far less than the offered rate of the Petitioner. Thus, like that of the other Petitioners, the Petitioner in the instant case has also assailed the legality and validity of the said order more or less urging the same very grounds.
14. In both the writ petitions i.e. W.P.(C) No. 4822/2004 and W.P.(C) No. 4823/ 2004, counter affidavits have been filed on behalf of the State of...
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