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Somnath Das Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. Nos. 512 of 1980 and 33 of 1981
Judge
ActsAssam Panchayat Raj Act, 1973 - Sections 135(2), 138(1) and 138(2); Constitution of India - Article 226
AppellantSomnath Das
RespondentState of Assam and ors.
Appellant AdvocateP. Roy, Adv.
Respondent AdvocateP. Prasad, Govt. Adv.
DispositionPetition allowed
Prior history
K.N. Saikia, J.
1. The writ petitioner herein impugns the Government order in Memo No. PDA. 135/8/12 dated 4-7-80 allowing the Panchayat appeal of respondent No. 6, Baliram Nath and remanding the case to the Nowgong Mahkuma Parishad, meanwhile staying the operation of the impugned settlement order, and the order in Memo No. PDA 135/80/28 dated 8-9-80 dismissing the petitioner's appeal petition dated 25-7-80 against the order dated 5-7-80 settling the Jamunamukh Weekly Bazar with respondent
Excerpt:
- - 427 of 1974 decided on 21-4-75 a division bench of this court held that so long as the order of settlement made by the executive committee is not approved (or disapproved) by the mahkuma parishad, no appeal against the order of the executive committee to the state government is competent under clause (b) of sub-section (1) of section 138. this was reiterated by another division bench of this high court in civil rule no. the order, therefore, is clearly violative of the principles of natural justice and the statutory provisions of section 138 (2) which provides that the state government may at any time call for the records and give such order as may be deemed necessary after examination of such records, and the order of the state government in this regard shall be final......the panchayat appeal of respondent no. 6, baliram nath and remanding the case to the nowgong mahkuma parishad, meanwhile staying the operation of the impugned settlement order, and the order in memo no. pda 135/80/28 dated 8-9-80 dismissing the petitioner's appeal petition dated 25-7-80 against the order dated 5-7-80 settling the jamunamukh weekly bazar with respondent no. 5, and also the fresh sale notice in memo no. n. m. p. 557/80 dated 18-9-80 for settlement of the same bazar.2. pursuant to the sale notice dated 3-4-80 issued by the chief executive councillor, mahkuma parishad. now-gong inviting tenders in respect of jamunamukh weekly bazar for the period from 30-6-80 to 30-6-81 of the five tenders, the petitioner submitted tender offering rs. 2151/-, while respondentno. 5 md......
Judgment:

K.N. Saikia, J.

1. The writ petitioner herein impugns the Government order in Memo No. PDA. 135/8/12 dated 4-7-80 allowing the Panchayat appeal of respondent No. 6, Baliram Nath and remanding the case to the Nowgong Mahkuma Parishad, meanwhile staying the operation of the impugned settlement order, and the order in Memo No. PDA 135/80/28 dated 8-9-80 dismissing the petitioner's appeal petition dated 25-7-80 against the order dated 5-7-80 settling the Jamunamukh Weekly Bazar with respondent No. 5, and also the fresh sale notice in Memo No. N. M. P. 557/80 dated 18-9-80 for settlement of the same bazar.

2. pursuant to the sale notice dated 3-4-80 issued by the Chief Executive Councillor, Mahkuma Parishad. Now-gong inviting tenders in respect of Jamunamukh Weekly Bazar for the period from 30-6-80 to 30-6-81 of the five tenders, the petitioner submitted tender offering Rs. 2151/-, while respondent

No. 5 Md. Abdul Haque Laskar offered Rs. 5051/- and respondent No. 6 Ru-

pees 2551/-. The Executive Committee of the Mahkuma Parishad validly ac-

cepted the petitioner's tender and the Secretary of the Parishad sent the

letter of acceptance to the petitioner vide Memo No. L. M. P. 557/80 dated

23-6-80 and asked him to deposit the first kist money and to complete the

other formalities, as per Rule 28 (6) of the Panchayati Rai (Administrative)

Rules and Clause 5 of the Tender Notice. The Petitioner complied and deposited

the first kist of Rs. 6453/- only by chalan No. 5433 dated 25-6-80 and also ex ecuted the lease deed, whereafter he was delivered possession of the bazar

on 1-7-80. It appears that respondent No. 6, Baliram Nath preferred an appeal

and on perusal thereof and hearing his Advocate, the respondent No. 2 Secre

tary to the Government of Assam, Panchayat and C. D. (A) Branch by his

order in Memo No. PDA. 136/80/12 dated 4-7-80, purported to be passed under Section 138 (2) of the Assam Panchayati Raj Act, 1972, hereinafter called 'the Act', remanded the case to the Mahkuma Parishad for reconsideration and

give valid reasons and meanwhile stayed the operation of the impugned settle-

ment order till the matter was reconsidered and the decision confirmed by

the general body of the Mahkuma Pari shad. The order was communicated to

the Chief Executive Councillor by a telegram No. PDA. 135/80/11 (Annexure

B-l), who in his turn by the impugned order in Memo No. N. M. P. 563/80/10207 dated 4-7-80 (Annexure B) communicated the same to the petitioner and for bade him to manage the bazar. Though the direction, on re

mand, was for reconsideration, because the reasons given earlier were

not adequate, the Executive Committee by its order dated 5-7-80 settled the

bazar with respondent No. 5, Md. Abdul Hague Laskar at his bid of Rs. 5051/-.

Against that order the petitioner filed an appeal under Section 138 (b) (2) read with Section 133 of the Act which the respondent No. 2 dismissed, vide order No. PDA 135/80/28 dated 8-9-80 holding that both the respondent No. 6 and the petitioner would have their turn to get the offer in pursuance of the Government order dated 20-6-80 and Assam Panchayati Raj (Administrative) Rule 1973, Rule 28 Sub-rule (6) and the petitioner's grievance has not yet arisen. Hence this petition. It may be noted that what were the contents of the aforesaid order dated 20-6-80 is not known. It can, however, be inferred that this order was for issue of fresh tenders. The petitioner states that he was not served with that order.

3. The Executive Committee thereafter, invited fresh tenders for the bazar on 18-9-80 (Annexure F).

4. This Court, while issuing Rule on 1-10-80 stayed the operation of the impugned orders dated 4-7-80, 8-9-80 and 18-9-80. The petitioner states that by virtue of the said stay order he is still in possession of the bazar.

5. Mr. P. Roy, the learned counsel for the petitioner submits, that there was no illegality or irregularity in settling the bazar with him by the Executive Committee which was free to accept or reject any tender and he has already deposited the first kist, executed the lease deed and has delivered possession of the bazar; the appeal by respondent No. 6 to the State Government was not maintainable as the settlement order was yet to be approved by the Mahkuma Parishad; even if the appeal was treated as a revision under Section 138 (2) of the Act, the order was illegal inasmuch as no notice was issued to the petitioner, and no records were called for: the settlement order issued to respondent No. 5 ceased to be of any effect; and that the fresh tender could not validly be invited in utter disregard of the petitioner's rights arising out of the settlement.

6. The respondent No. 6 filed an affidavit-in-opposition but none appears on his behalf. The learned Government Advocate does not dispute that no appeal under Section 138 fl) (b) lies until the settlement is approved by the Mahkuma Parishad, but points out that the petitioner's right under the settlement rules came to an end when the bazer was resettled with the respondent No. 5 wherefrom the petitioner did not appeal. The last submission is not correct. In the affidavit-in-opposition on behalf of the respondent No. 6 a copy of the appeal petition filed under Section 138 (b) (2) read with Section 133 of the Act by the petitioner against the order of the Executive Committee dated 5-7-80 settling the bazar with respondent No. 5 is being annexed. The impugned order dated 8-9-80 was passed dismissing that petition. It is, therefore, not correct to say that the petitioner's rights under his settlement came to an end. In this writ petition he impugned this order dated 8-9-80 also.

7. In Dhuliram Bayan v. State of Assam, Civil Rule No. 427 of 1974 decided on 21-4-75 a Division Bench of this Court held that so long as the order of settlement made by the Executive Committee is not approved (or disapproved) by the Mahkuma Parishad, no appeal against the order of the Executive Committee to the State Government is competent under Clause (b) of Sub-section (1) of Section 138. This was reiterated by another Division Bench of this High Court in Civil Rule No. 471 of 1975 decided on 5-9-75. It was further pointed out in the latter case that under Sub-section (2) of Section 138 the State Government may call for the records in any matter from a Gaon Panchayat or Mahkuma Parishad and give such order as may be deemed necessary after examination of such records. The records of settlement of a bazar made by the Executive Committee of a Mahkuma Parishad cannot but be said to be the records of the Mahkuma Parishad. That being so, the State Government has jurisdiction to call for the records of the settlement of a bazar made by the Executive Committee of the Mahkuma Parishad either suo motu or on an application by any aggrieved person. That being so, it has to be ascertained whether the State Government entertained the appeal petition under Sub-section (2) of Section 138 of the Act. In the instant case the order dated 4-7-80 was ex facie under Section 138 (2) of the Act. The petitioner, however, states that no notice of the appeal or application was issued to or received by him. No records of the settlement were also called for, from the Mahkuma Parishad as required under Section 138 (2). These statements find support from the order itself, which mentions that the appeal petition was read, the learned Advocate for the appellant was heard and certified copies of the relevant orders of the Executive Committee were perused. These do not indicate that a notice was issued to the petitioner or that the records of settlement were called. The order, therefore, is clearly violative of the principles of natural justice and the statutory provisions of Section 138 (2) which provides that the State Government may at any time call for the records and give such order as may be deemed necessary after examination of such records, and the order of the State Government in this regard shall be final. Issue of notice to the respondent is re-auired by natural justice. The learned Government Advocate has nothing to show that the records were called for, or that notice was issued to the respondent there. The affidavit-in-opposition filed by the respondent No. 6 also does not contain any such statement. There is, therefore, no escape from the conclusion that the impugned order dated 4-7-80 in violative of Section 138 (2) and the principle of audi alteram partem and is unsustainable; and hence it is quashed. This having been quashed all subsequent and consequential orders, ineffective settlement with the respondent No. 5 dated 5-7-80, the impugned dismissal order dated 8-9-80, the Executive Council's invitation of fresh tenders dated 18-9-80. (Annexure F) have no lees to stand and must similarly be, and are hereby auashed. The settlement in favour of the petitioner having been in conformity with the procedure laid down in Rule 28 of the Assam Panchayati Raj (Administrative) Rules, 1973, and he having deposited the kist and executed the lease, is entitled to the rights and privileges, and subiect to liabilities thereunder.

8. In the result this petition is allowed. The Rule is made absolute. There will be no order as to costs.


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