K. Lahiri, A.C.J. -
(1.)SOMETHING is surely wrong somewhere with the settlement of hats and bazars by the Gaon Panchayats and Mahkuma Parishads under the Assam Panchayati Raj Act and the Rules framed there under. In almost every case the unsuccessful tendered prefer appeal to the State Government under Section 138(2) of the Act and thereafter institute writ petitions in the High Court, notwithstanding the fact that the terms of settlement are as short -lived as ephemeras just for one year. To get a settlement for a year or less than a year so much energy and money are marshaled by the tenderers. One can easily realize the weight age of gain or the volume of profit in such settlements. The question that plagues us is whether the rate of minimum offer should be doubled or trebled.
(2.)IN the instant case for an ordinary and small hat known as Nagrijuli Bi -weekly' Bazer, the tenderers offered on the average Rs. 1,50,000/ -. For that bazar in question Government estimated bid was at Rs. 78,706,00 for the previous settlement (1984 -85). In pursuance to the tender notice Respondent No. 3 Shri Birendra Barman offered over Rs. 2,53,000/ - , Nabin Phayal ran neck to neck and offered over Rs. 1,78,000/ - also ran Shri Pradip Sarkar who offered Rs. 1,65,000/ -, and odd, Shri Babul Das offered over Rs. 1.65,000/ - Shri Garga Ram Tudu offered over Rs. 1,32,000/ - Shri Ramen Boro offered over Rs. 1,22,000/ -. The Petitioner Shri Dil Bahadur Karki Chetri was almost last but for the lowest offer of Khan Bahadur Chetri at Rs. 1,01,100/ -and odd. The standing of the Petitioner in so far at the rate offered was 7th out of 8(eight) tenderers. He offered Rs. 1,21,222,22. The Nalbari Mahkuma Parishad, who invited the tenders scrutinized them and found the first six tenders defective for one reason or the other and accepted the offer of the Petitioner, the 7th offerer. The unsuccessful tenderers appealed to the State Government under Section 138 of "the Act''. The appellate authority set aside the order of settlement of the Mohkuma Parishad in favour of the Petitioner. The Mohkuma Parishad held that the offer of Respondent No. 3 at Rs. 2,53,000/ - was on the high side so much so that it was considered by the Mohkuma Parishad as "reckless". The reasons for rejecting the tender of Respondent No. 3, Shri Birendra Barman, are extracted below:
1. Shri Birendra Barman -This tender is rejected on the ground that (1) the bid money of this tender is reckless one as the amount of the bid is more than twice of the amount of the last settlement. In this connection the judgment of Gauhati High Court (1983) 2 GLR 41 in Civil Rule Nos. 1106 and 1169 of 1982 decided on 38 -3 -83.
(ii) Zamindar is black listed.
It is, therefore, seen that the highest tender of Respondent No. 3 was rejected on two fold grounds which were interlinked. The Zaminder was black listed and, therefore, the Mohkuma Parishad could not have recovered any arrear Kist money in the event of default by Respondent No. 3. Indeed if there was no adequate security to ensure recovery of the Kist amounts or tendered amount there was a risk involved in settling the bazar to Respondent No. 3, more so when be offered over Rs. 2,53,000/ -, It was rational for the Mohkuma Parishad to reach the conclusion, However, by a stroke of pen the Mohkuma Parishad held that the offer made by Respondent No. 3 was reckless. Why was it careless and why it should be treated as heedless ? We do not gather anything from the order. Indeed, there is no material to show that Respondent No. 3 was careless, negligent or heedless in offering the tendered amount. The only ground on which inference has been drawn is that the offer made by the Petitioner was more than double the amount of the previous settlement The price of everything is going up and the offer of more than double the amount of the last settlement by itself cannot be a reckless action. To hold action of a person as reckless and to disqualify him needs strong and cogent reasons. However, if the high offer made by Respondent No. 3 is taken into consideration along with the fact that he had no adequate security or surety, the conclusion of the Mohkuma Parishad might be justified as it would have been reckless act on the part of the Mohkuma Parisbad as well to accept the offer without the backing of proper and adequate security to fall back upon to realize the arrear Kist amount in the event of default by Respondent No. 3. In that sense only the Mohkuma Parishad was justified in holding that the acceptance of the offer of Respondent No. 3 without any surety and/or with, a surety who was 'black listed' would be a careless and negligent act on the part of the Mohkuma Parishad.
(3.)WHEN the matter came up before the appellate authority it held that the finding of the Mohkuma Parishad that the surety or Zaminder of Respondent No. 3 was black listed was an erroneous finding. The appellate authority held that there was no material worth -the -name nor was there any material furnished by the Mohkuma Parishad to show that the Zamindar was black listed. It held that the Mohkuma Parishad itself had issued a clearance certificate to the surety or Zamindar of Respondent No. 3. As such, the appellate authority held that the surety was a fit person who had -enough property to secure payment of arrear installments of the Respondent. When the Mohkuma Parishad itself had certified that the Zamindar was a competent one, the finding that he was black listed was indeed a mysterious conclusion. The appellate authority held that when the Zamindar or the surety was fit enough to pay the installment amount, in the event of default made by Respondent No. 3. the offer was not reckless. It also appears to us that the offers made by at least three other tenderers were about two lakhs rupees each. As such, taking the nature and quantum of the offers made by the other tenderers the appellate authority was justified in holding that the offer of Respondent No. 3 was not reckless. The appellate authority held that when the surety was sound the question of refusal to accept the offer of Respondent No. 3 is reckless did not arise. The findings of the appellate authority is supported by materials. If Respondent No. 3 fails to pay the Kist money they can be straightway recovered from the surety in accordance with the provisions of the law. When so many persons offered tenders in the range of Rs. 1,65,000/ - to Rs. 1,75, - 000/ - the offer of Respondent No. 3 cannot be held to be such to term it as reckless or heedless.