Thagiram Borah v. State Of Assam And Others

1. The petitioner herein challenges the order of the appellate authority rejecting his appeal and directing the Nowgong Mahkuma Parishad to settle the Kampur Bazar with the O.P No. 4 at the petitioner's bid of Rs. 10,353.00 instead of at ‘the latter's bid of Rs. 9,775.00; and also the order of the Mahkuma Parishad settling the bazar with O.P No. 4 without assigning any reason.

2. Pursuant to tender notice for settlement of the Kampur Bazar for one year ending 30th June, 1980, 8 (eight) persons submitted tenders amongst which the petitioner's was the highest at Rs. 10,353.00 and O.P No. 4's was the next at Rs. 9,775.00. The Mahkuma Parishad settled the bazar with O.P No. 4 at his bid of Rs. 9,775.00 assigning no reason whatsoever as to why the highest bid and the other bids were rejected. On appeal by the petitioner the appellate authority by its order dated 6th Sept. 1979 (Annexure-C) rejected the appeal, observing that the reason assigned by both the Executive Committee as well as by the C.E.C was that O.P No. 4, Shri Mukunda Rajkhowa was the only suitable person to run the bazar smoothly and so the bazar was settled with him under Rule 28(4) of the Assam Panchayati Raj (Administrative) Rules, 1973. It further observed that the Chief Executive Councillor and the members of the Executive Committee were the best persons to select from among the tenderers as they had direct knowledge about the conduct and financial capability of those people and to judge as to who would be most suitable and capable person to run the bazar properly and smoothly in the best interest of the buyers and purchasers.

3. Mr. B.P Bora, learned Counsel for the petitioner, assails the orders on two grounds, viz., (i) that the order of settlement is bad in law as no ground whatsoever has been recorded by the Mahkuma Parishad; and (ii) that the order of the appellate authority that the settlement be made with O.P No. 4 at the petitioner's highest bid is illegal and liable to be quashed.

4. The proceedings of the Executive Committee have been annexed to the petition as Annexure ‘A’. Learned Counsel for the O.P No. 4 has also drawn the Court's attention to a certified copy of the proceeding. In neither of the documents there is any reason whatsoever recorded for rejecting all the tenders, including the highest of the petitioner, except that of the O.P No. 4.

5. Rule 28, sub-rule (4) of the Assam Panchayati Raj (Administrative) Rules provides as follows:—

“28. ** **

(4). After preparation of the comparative statement under Rule 3, above, the Chief Executive Councillor shall place such statement along with the tenders before a meeting of the Executive Committee to be convened for the purpose of selecting the suitable tenders. The Executive Committee shall have the right to reject any tender at their discretion on any reasonable ground recording the ground for such rejection in writing.”

6. This sub-rule makes it obligatory to record the reasons for rejecting any tender. In the absence of any reason so recorded it was not possible for the appellate authority to have scrutinised the reasons for having rejected the petitioner's highest tender and the other tenders, accepting only that of O.P No. 4.

7. Mr. S.M Choudhury, learned counsel for O.P No. 4 submits that the recording of reason is only directory and not mandatory and as such non-recording of reasons should not vitiate the settlement. It is difficult to accept such a contention. If the recording of reasons is held to be directory not obligatory, it will open up a wide vista for nepotism and favouritism in respect at settlement. Besides, it is an accepted principle of law that when public authorities deal with rival claims of citizens and the decision is statutorily subjected to appeal, recording of reasons is necessary for the purposed of enabling the appellate authority to scrutinise and find out the legality or otherwise. The reasons must be reasonable as provided in the Rule. The same principle may also be applicable to writ court which also may need to scrutinise the reasons, to ascertain the justification for interference. In the absence of any reason so recorded the appellate authority had no material before it even to hold that the O.P No. 4 was found to be most suitable. Suitability is a criterion and not a reason. To support such a settlement is indirectly to allow these bodies to pick and choose at sweet will. For these reasons the settlement with O.P No. 4 cannot be allowed to stand.

8. It is an accepted principle of law that the tender and settlement involves the contractual relationship, and a tender is an offer, and settlement is the acceptance thereof. If the O.P No. 4 offered Rs. 9,775.00 he could not have been settled at the petitioner's bid of Rs. 10,353.00 because there was no such tender from O.P No. 4. On this ground also the appellate order is liable to be set aside.

9. In the appellate order it has been observed that the Mahkuma Parishad being in close touch with the tenderers is the best person to select the suitable tenderer, There cannot be any dispute about the proposition. But that does not absolve it from recording reasons. It may be stated that the aim of the Panchayati Raj Act is to enable the Panchayati Raj institutions in the villages of the State to function more effectively as units of self-Government. The Mahkuma Parishad functioning as a unit of the Local-Self Government, so long as it performs its duties according to law with due regard to the statutory provisions and consistent with the purpose of the statute is not liable to be interfered with. The appellate authority may be justified in refusing to interfere, or may not have jurisdiction to interfere.

10. But this is a case of acting in clear disregard of the statutory provisions of law and against the principle of non-discrimination as embodied in the Constitution of India. Selection of a lower tender rejecting the highest tender without assigning any reason for doing so, will amount to veritable discrimination and be violative of Articles 14 and 16 of the Constitution.

11. In the result, the impugned order of settlement and the appellate order are found to be contrary to law; and violative of fundamental right guaranteed in the Constitution of India and of statutory provisions of law; and it is a fit case to quash the impugned orders and to direct the Executive Committee of the Nowgong Mahkuma Parishad to expeditiously settle the Kampur Bazar with the petitioner Shri Thagiram Borah at his bid of Rs. 10,353.00 for the period ending 30th June, 1980, and it is directed accordingly, The petition is allowed. The Rule is made absolute. The parties shall bear their own costs, Send down the records immediately.

12. Petition allowed.