PUNAMBHAI MADHABHAI PARMAR Vs. BHUPAT DEVSINHBHAI BAROT

JUDGEMENT

(1.) . The petitioners who are elected members of the Respondent No. 4-Tarapur Nagar Panchayat, have filed this petition challenging the Resolution No. 365 passed by the respondent No. 4-Panchayat on 2 5/06/1993 for giving contract for collection of octroi, to the respondent No. 3.

(2.) . It appears that a previous contract for collection of octroi which was given by the Panchayat under Sec. 180 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as 'the Act'), had expired on 2 6/10/1992, but it came to be extended by two months with the permission of the District Development Officer. It appears that there was correspondence between the Panchayat and the District Development Officer in connection with the fixing of upset price for the octroi contract to be given for the ensuing period. By letter dated 10/10/1992 the respondent No. 1 wrote to the District Development Officer seeking permission for the Nagar Panchayat to give private contract for collection of octroi for a period of 2 years and to fix the upset price for the purpose. The upset price was to be fixed keeping in view the revised rates of octroi and in light of the Government circular dated 27/09/1990. Again on 20/11/1992 the District Development Officer was moved to fix the upset price on the basis of the revised rates. The District Development Officer fixed the upset price at Rs. 20,00,000 by his letter dated 9/12/1990 addressed to the Panchayat and directed that further proceedings may be undertaken on the terms indicated in the order for giving the private contract by public auction for the period from 2 7/12/1992 upto 26/12/1993. It was specified that the deposit was to be taken as per the Rules. It was also specified that after the tenders were opened, there could be negotiations with the tenderers to get the highest amount. Pursuant to the order of the District Development Officer, the Panchayat issued public advertisements in two Newspapers having wide circulation. These notices were published on 13/12/1992. It was specified in these notices that a tender deposit of Rs. 2,25,000/ - was to be made by the tenderer and if such amount was not deposited, the offer would not be accepted. It appears that the Talati-cum-Mantri of the respondent-Panchayat wrote letters dated 16/12/1992 to the Taluka Development Officer and the District Development Officer requesting them to remain present in the office of the Panchayat on 21/12/1992 in connection with the opening of the tenders. It appears that by letter dated 21/12/1992, these Officers were informed by the Panchayat that not a single tender was received pursuant to the advertisement uptil 21-12-1992 being the last date for receiving the tenders, as indicated in the advertisement. Thereafter, a letter dated 22-12-1992 was written by the Panchayat to the District Development Officer, stating that the upset price of Rs. 20,00,000.00which was fixed by him, was unrealistic and it should be reduced. It was indicated that it was difficult for the Panchayat to undertake the collection of octroi since it was not having adequate staff. The District Development Officer was requested to fix the upset price around Rupees 8 to 9 lacs. It appears that immediately thereafter, by letter dated 24/12/1992, which was brought to light by the respondent No. 2, District Development Officer that he had informed the Panchayat that there was no reasonable ground for changing the upset price and since the extended period of the contract was to expire on 26/12/1992, the Panchayat should take over the work of collection of octroi from the previous contractor. The District Development Officer thereafter, again wrote letter dated 29/12/1992 to the Panchayat, enquiring as to whether the directions issued under his letter dated 24/12/1992 were carried out. It appears that the Panchayat had taken over the work of collection of octroi from the contractor as directed by the District Development Officer from the date when the extended period of contract had expired. The Panchayat thereafter, wrote letter dated 23/03/1993 to the Deputy District Development Officer, stating that having regard to the recovery in the previous two months, it appeared that the amount of octroi that may be collected by the Panchayat would not exceed Rs. 14,00,000.00 in the year. It was indicated that some contractors had expressed their readiness to get the contract. The Panchayat, therefore, requested the District Development Officer to give his permission for readvertising the matter with a view to invite the contractors. On receipt of such permission the Panchayat was to issue a fresh advertisement. The District Development Officer thereupon enquired from the Panchayat by letter dated 12/05/1993 as to the particulars of the contractors who had shown readiness to take the contract and the amount offered by them. Thereafter, on 27-5- 1993 the Panchayat again wrote a letter to the District Development Officer showing anxiety that there was no sufficient recovery of octroi and requesting the District Development Officer to fix the upset price again and permit the Panchayat to give the contract for collection of octroi. It appears that by letter dated 22-6-1993 the Panchayat gave particulars of five persons who were prepared to accept the contract for the amounts mentioned against their names. It appears that barely 3 days after its letter dated 22-6-1993 giving details of these parsons to the District Development Officer, the Panchayat passed the impugned resolution on 25-6-1993 in which elaborately recording its decision for giving the contract for collection of octroi, it resolved to give the contract to V. K. Desai - the respondent No. 3 herein for a sum of Rs. 15,85,333.33 paise. The respondent No. 3 was handed over the contract from the mid-night of 26/05/1993.

(3.) . It has been contended on behalf of the petitioners that the respondent-Panchayat could not have so suddenly and without inviting any offers, handed over the contract for collection of octroi to the respondent No. 3. It was submitted that the Panchayat ought to have invited tenders or held public auction and could not have doled out a contract for less than the upset price which was fixed by the District Development Officer. It was contended that by the manner in which the contract was given to the respondent No. 3 by ignoring some persons who were desirous of having the contract and by excluding other who would have responded if tender were invited, the Panchayat has acted arbitrarily and in violation of the provisions of Art. 14 of the Constitution and other statutory provisions as per which it could not go beyond the mandate of its superior authority.