Gauhati High Court
Akkash Ali vs The State Of Assam And 4 Ors on 25 February, 2020
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/11
GAHC010186222019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5749/2019
1:AKKASH ALI
S/O- LATE ARFAN ALI, VILL- AMOLAPAM, P.O- NAPAM, P.S- TEZPUR, DIST-
SONITPUR, ASSAM, PIN- 784028
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT, PANJABARI, GHY-
781037
2:THE PRINCIPAL SECRETARY
TO THE GOVT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPTT
DISPUR
GHY- 6
3:THE SONITPUR ZILLA PARISHAD
REP. BY THE CEO
SONITPUR ZILLA PARISHAD
TEZPUR
PIN- 784001
4:THE GABHORU ANCHALIK PANCHAYAT
REP. BY THE EXECUTIVE OFFICER
P.O- DIPUTA
DIST- SONITPUR
ASSAM
PIN- 784150
5:JITEN DAS
Page No.# 2/11
S/O- JATIN DAS
VILL- MAJGAON
P.O- MAJGAON NIKAMUL
P.S- TEZPUR
DIST- SONITPUR
ASSAM
PIN- 78415
Advocate for the Petitioner : MR M H CHOUDHURY
Advocate for the Respondent : SC, PNRD
BEFORE
THE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
25.02.2020 Heard Mr. M. H. Choudhury, the learned counsel for the petitioner. Also heard Mr. N. Borah, the learned counsel for the private respondent No. 5 and Mr. A. Roy, the learned Standing Counsel for the P&RD Department, Assam appearing on behalf of the respondent Nos. 1 to 4.
2. The respondent No. 4 under the Gabhoru Anchalik Panchayat published the NIT dated 29.05.2019 under memo No. GAP/Tender/2019-20 for settlement of markets amongst others, the Bihiagaon Weekly Market at Panchmile in the Sonitpur district for the Panchayat year 2019-2020 with effect from 01.07.2019 to 30.06.2020. The minimum settlement Govt. value was Rs. 1,69,105/- and the earnest money deposit thereof was Rs. 16,911/-. The relevant terms and conditions of the NIT are as follows:
"10(ka):- The bidder whose bid value is above Rs.1,00,000/- (one lakh) shall have to deposit the earnest money of 10% over the said bid pledging in favour of the Chief Executive Officer, (CEO) of the Zilla Parishad in the form of fixed deposit of the Assam Co-operative Apex Bank or any nationalized bank along with the bid.
11: Bidder shall submit his passport size photograph attested by gazette officer.
13. Bidder or the Zamindar (surety) must secure the bid value against land. The land Page No.# 3/11 must be free from all encumbrances supported by, (Ka) copy of jamabandi for the current year, and (kha) by non encumbrance certificate issued by concerned Deputy Commissioner/ SDO(Civil)/Circle officer submitted along with the bid.
16. The terms and conditions from clause 1 to 16 under Part-1 and 2 of tender if not fulfilled, the bid shall stand rejected."
3. Both the petitioner and the private respondent No. 5 along with other bidders participated in the said NIT. The bids were opened on 15.06.2019 and the comparative statement was prepared. The respondent No. 1 issued notification dated 28.06.2019 bearing No. PDA.403/2018/11 and the relevant portion of the notification is reproduced herein below:-
"Para-5: In addition and in order to enhance the collection of own source of Revenue of the Panchayat. The Chief Executive Officers, Zilla Parishads, Executive Officers and Anchalik Panchayats are not to cancel any tender of the Highest bidder merely on the ground of non submission of required documents as per Tender Notice except Court fee and earnest money and to allow such highest bidder to furnish the documents before offering settlement."
4. As per the comparative statement the respondent No. 5 quoted his bid at Rs.2,02,222.02/- who was the highest bidder and on the other hand, the petitioner was the second highest bidder with his bid of Rs.2,00,000.00/-. Further from the comparative statement, the petitioner was shown to be technically qualified but the respondent No. 5 failed to submit the land papers like its valuation, jamabandi copy, etc. Surprisingly, even on such deficiencies on the part of the respondent No. 5, the Executive Officer and the President of respondent No. 4 did not categorize the tender bids of the respondent no. 5 as defective in its remark column and instead it was written that the bank draft of total bid value for settlement was annexed.
5. The petitioner apprehending foul play filed writ petition being WP(C)4664/2019 challenging the said notification dated 28.06.2019 issued by the respondent No. 1. In the said writ petition the present respondent No. 3 was impleaded as respondent No. 4 along with other respondents. This Court vide order dated 03.07.2019 in presence of the learned Standing Counsel for the P&RD Department, Assam passed the following order:-
Page No.# 4/11 "para-9: In the interim, in view of the order dated 14.08.2018 passed by this Court in WP(C) 5023/2018, this Court is inclined to direct the respondents No.4 and 5, namely, The Sonitpur Zilla Parishad (respondent No. 4) and Gabhoru Anchalik Panchayat (respondent No.5) to settle the Bihiagaon Weekly Bazaar (Monday and Thursday of every week) under Panchmile Gaon Panchayat under Gabhoru Anchalik Panchayat covered by NIT dated 29.05.2019 under memo No. GAP. Tender/2019-20 strictly in terms of NIT terms and conditions without being influenced by the contents of Para/Clause-5 quoted above from the herein above referred notification under Memo No.PDA.403/2018/11 dated 28.06.2019".
6. The General Standing Committee, Sonitpur Zilla Parishad vide its resolution dated 20.07.2019 decided to settle the subject market with the respondent No. 5 under the following conditions:
"(i) The selected bidder shall within 7 (seven) days from the date of publication of the notice shall execute and register 3(three) agreements in the office of the Sub-Registrar and the bidder shall bear the expenses on his own.
(ii) After fulfilling the conditions mentioned in serial No. 1 as aforesaid, the selected bidder after submitting all documents deposit the settlement value. The bidder shall have to deposit 30% of the security along with 2(two) monthly installment (kist) within 7(seven) days.
Remaining monthly installment shall be deposited within 7(seven) days of the month.
(iii) One time settlement bidder must deposit the total value of the settled amount of the market and as per Rule 47 (11) (i) shall execute agreement".
7. Thereafter, vide order of the respondent No. 3 bearing No. SZP7/2019-20/4043 dated 24.07.2019 the said market was settled with the respondent No. 5 as per direction of the Panchayat and Rural Development Department, Government of Assam with effect from 24.07.2019 till 30.06.2020.
8. Mr. Choudhury, the learned counsel for the petitioner submits that as per the comparative statement, the petitioner was otherwise successful and the second highest bidder. The comparative statement shows that the respondent No. 5 failed to fulfill the various conditions mainly Clauses 10(Ka), 11 and 13 of the conditions of the sale NIT. Clause 16 stipulates that the aforesaid clauses are mandatory even then the petitioner was deprived from settling the market inasmuch as he was the valid second highest bidder. There was Page No.# 5/11 specific violation of Article 14 of the Constitution of India inasmuch as the respondent No. 5 was selected only because of the fact that he deposited the highest settlement value at a time which was in clear violation of the terms and conditions of the sale NIT. It is further submitted by Mr. Choudhury that the respondent No. 3 along with other official respondents were specifically directed to settle the Bihiagaon Weekly Market under Gabhoru Anchalik Panchayat covered by the said NIT dated 29.05.2019 strictly in terms of NIT without being influenced by the contents of Para/Clause-5 of the notification under Memo No.PDA.403/2018/11 dated 28.06.2019. The resolution of the General Standing Committee of the Zilla Parishad for settling the said market to the respondent No. 5 was taken in the light of the said notification dated 29.06.2019 inasmuch as the Clause-3 of the terms and conditions of the letter dated 20.07.2019 issued by the respondent No. 3 mentioned about the requirements of successful bidder of one time deposit of the settlement value. Accordingly, the learned counsel for the petitioner submits that the respondent No. 3 is liable to contempt proceeding for specific violation of the interim order and the direction passed by this Court in WP(C) No. 4664/2019.
9. The respondent No. 5 filed an affidavit-in-opposition. Referring the statements made therein Mr. Bora, learned counsel submits that the respondent No. 5 submitted all the documents as per the requirements of the NIT. There were no defects in the tender documents. The petitioner was not the highest valid bidder and the on the other hand, the respondent No. 5 enclosed a Bank Draft of the entire bid value of Rs. 2,02,222.22/- along with the tender documents for settlement of the market. As per Clause-13 Bank guarantee of bid value is acceptable and as the Bank draft of the entire bid value was annexed with the tender documents as such land documents were not required inasmuch as the question of depositing security does not arise because of onetime payment of the settled bid value which was accepted and the question of payment of the settlement value on monthly installment also does not arise. There were no violation of the terms and conditions of the NIT. The respondent No. 3 accepted the total amount against the bid value and utilized it and as such the performance guarantee/security and the Clasuse-13 has become redundant. There was no unreasonableness/arbitrariness on the part of the respondent No. 3 who acted on the recommendation of the General Standing Committee of the Zilla Parishad which is not without Page No.# 6/11 the authority to relax some of the tender conditions when the intent of selling/settling the market was with the highest bidder resulting highest revenue earnings. Mr. Bora relies on the following decisions:- (i) B. S. N. Joshi & Sons Ltd Vs- Nair Coal Services Ltd. and Others reported in (2006)( 11 SCC 548, (ii) Om Praksh Sharma Vs- Ramesh Chand Prashar and Others, reported in (2016) 12 SCC 632, (iii) Michigan Rubber (India) Limited Vs- State of Karnataka and others reported in (2012) 8 SCC 216, (iv) Poddar Steel Corporation Vs- Ganesh Engineering Works and Others reported in (1991) 3 SCC 273, (v) Macrocosm Builders (M/S) & ANR Vs- State of Assam & Ors reported in 2016(4) GLT 312, in order to buttress his argument.
10. The respondent No. 3 who is the Chief Executive Officer, Sonitpur Zilla Parishad filed an affidavit-in-opposition and the relevant paragraphs are reproduced herein below:-
"Para-6: That regarding the statement made in paragraphs 3,4,5,6,7,8,9,10,11 & 12 of the petition, your deponent begs to state that the petitioner offered a bid value of Rs.2,00,000/- which is lower than the bid value of the respondent No. 5 i.e. Rs.2,02,222.22/-.
So far as the bid documents submitted by the respondent No. 5 are concerned, he has not submitted the required land document as per Clause No.13 of the Tender Notice but as the respondent No. 5 has submitted Bank Draft for payment of the entire Bid value in onetime, the Bazar Settlement Committee has considered the highest bid value of Sri Jiten Das.
Para-7: That, the statement made paragraphs 1, 2, 3, 4 & 5 are true to my knowledge which I believe to be true and those made in Paragraph 6 being matter of records are true to my information derived there from which I believe to be true and the rest are my humble submission before this Hon'ble Court."
11. Mr. Roy supporting the contents of the said affidavit-in-opposition, would like to project that the petitioner was not technically qualified as he failed to submit no objection from the Co-pattadars of the land offered as security. This submission is countered by Mr. Choudhury, the learned counsel for the petitioner referring to the various documents including the one, a Registered Sale Deed showing that the land measuring 6 Bighas was purchased both by the petitioner and his brother being the surety, upon which both their names were mutated and entered in the jamabandi. The valuation certificate issued by the Circle Officer was assessed only on the said 6 bighas of land but not in respect of the total land covered by the common Page No.# 7/11 patta. His brother who is the surety as the co-pattadar with the petitioner in his affidavit had expressed his no objection and that itself is sufficient to satisfy Clause-13 of the tender terms and conditions.
12. I have considered the submissions of the learned counsel. The records were called for and produced by Mr. Roy. The NIT was issued under Memo No. GAP/Tender/2019-2020 dated 29.05.2019. The last date for submission of the bid was fixed on 15.06.2019 and on that day itself, the bids were notified to be opened. As per the comparative statement, the respondent No. 5 failed to submit any land documents. On the other hand, the petitioner as recorded in the said comparative statement fulfilled the documentary criteria. However, against the respondent No. 5 it is recorded that he deposited the total bid value in the form of bank draft annexed to his tender papers. The General Standing Committee passed a resolution that as the respondent No. 5 was the highest bidder and all his documents were found proper and correct, accordingly, it was resolved to select the respondent No. 5 for settlement of the Bihiagaon Weekly Market. The demand draft of the bid value of the respondent No. 5 is not found in the record. The respondent No. 5 failed to submit the fixed deposit receipt as the earnest money required under Clause 10(a) and instead a demand draft with its validity for 3(three) months of the value of Rs.8,500/- only was submitted along with his bid. The date of resolution of the General Standing Committee is missing as per the records. The Joint Secretary, to the Government of Assam, Panchayat and Rural Development Department issued Notification dated 28.06.2019 bearing No. PDA.403/2018/11 and the relevant portion is reproduced herein bleow:-
"Para 5: In addition and in order to enhance the collection of own source of Revenue of the Panchayat. The Chief Executive Officers, Zilla Parishads, Executive Officers and Anchalik Panchayats are not to cancel any tender of the highest bidder merely on the ground of non submission of required documents as per Tender Notice except Court fee and earnest money and to allow such highest bidder to furnish the documents before offering settlement."
13. The writ petitioner apprehending the imposition of the aforesaid measure vide the Notification dated 28.06.2019 filed WP(C)/4664/2019 for an appropriate writ for setting aside and quashing of the said Notification dated 28.06.2019 with a further direction to follow the terms and conditions given in the NIT dated 29.05.2019 issued by the Executive Officer of the Page No.# 8/11 Gabhoru Anchalik Panchayat. The present respondents leaving aside the respondent No. 5 were made parties in the said writ petition and this Court vide order dated 03.07.2019 in the interim, directed the Chief Executive Officer of Sonitpur Zilla Parishad and the Gabhoru Anchalik Panchayat to settle the subject market strictly in terms of NIT without being influenced by the contents of para/Clause-5 of the said Notification dated 28.06.2019. The said order was passed in presence of Mr. A. Roy, the learned Standing Counsel for the P&RD, Department, Assam. Vide order dated 04.11.2019, in view of the submission of the learned counsel for the petitioner, the present writ petition was directed to be listed with WP(C) No.4664/2019.
14. Mr. Borah and Mr. Roy supported the action of the respondent No. 3 in settling the market with the private respondent No. 5. On the other hand, Mr. Choudhury objected because of specific violation of Clause-13 and 10(Ka) while dosing so.
15. Clause-13 of the NIT stipulates that the bid value must be secured by the bidder or the surety against the land value and the land must be free from all the encumbrance. Alternatively, in lieu of the land documents, the bid value could be secured by Bank guarantee as the security. Clause-10(ka) stipulates deposit of earnest money @ 10% of the bid value above Rs.1,00,000/- in the form of fixed deposit pledging in favour of the Chief Executive Officer of the Zilla Parishad along with the bid. The respondent No. 5 failed to deposit the same rather he submitted a bank draft valid for 3 months that too for Rs.8,500/- as per the records. The respondent No. 5 admittedly did not fulfill these criteria but as the respondent No. 5 who was the highest bidder deposited the bank draft of his bid value for which as per the evaluation made by the General Standing Committee of the Zilla Parishad the other particulars as per the NIT which formed the criteria for technical qualification of the bidders were not considered. The NIT does not consist any such term on the basis of which the said Clause-13 or any other Clauses which forms the terms and conditions could be waived. Further there are no terms in the NIT that if the highest bidder deposit the bid value at a time then also non fulfillment of any criteria could be waived and select the said highest bidder for settlement. This being the position, the settlement to the respondent No. 5 of the subject market is invalid.
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16. In order to buttress the argument of Mr. Borah in support of the respondent No. 5 and the action of the respondent No. 3, Mr. Borah relied various decisions of the Apex Court. In Om Praksh Sharma Vs- Ramesh Chand Prashar and Others, reported in (2016) 12 SCC 632, therein the issue was in respect of the site in question to be sold on outright sale basis. The stipulations therein did not contemplate creation and or continuation of any relationship between the parties calling for continued existence of any particular level of financial parameters on part of the bidder, except the ability to pay the price as per his bid. The appellant therein failed to submit his annual and net worth in last three years as required in the advertisement. Allowing the said appeal, the Hon'ble Apex Court held that the condition was not an essential condition at all but was merely ancillary to achieve the main object that was to ensure that the bid amount was paid promptly. The appellant paid the entire bid amount within the prescribed period and the sale deed was also executed in his favour. The authorities therefore, validly deviate from and not insist upon strict literal compliance. In B. S. N. Joshi & Sons Ltd Vs- Nair Coal Services Ltd. and Others reported in (2006)( 11 SCC 548, considered the various decisions of the Hon'ble Apex Court and held that when a decision was taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidder had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with under judicial review.
17. The object of the NIT is for settlement by way of sale of the market. In order to generate revenue the minimum price is fixed by the government of a particular market and on the basis of the said minimum price, the bidders quoted their rates. In order to satisfy on the credentials by the employer certain terms and conditions are set forth which forms the criteria in order to assess the capability of the bidders for performance of the terms and conditions mainly the payment of the installment. The said sale by way of settlement intends for creation of a relation all throughout the settlement period which normally is for one panchayat year. The said intent for creation of the relation is very much apparent if Rule 47(11) of the Assam Panchayat (Financial) Rules are looked into which stipulates execution of lease agreements. For such purpose the various terms are stipulated and nowhere in the Page No.# 10/11 subject NIT, there is any Clause for relaxation of any of the terms and conditions if the highest bidder submits the total bid value quoted along with the tender documents. Without incorporation of such conditions in the NIT and the subsequent relaxation, in my considered opinion cannot be accepted to be justified. Stipulated clauses more specifically Clause-10(Ka) and 13 are essential terms inasmuch as if the said Clauses are relaxed it would affect many prospective bidders who owing to default in land papers could not participate in the tender nor financially solvent and capable of paying the bank guarantee. The tender condition in the NIT speaks nowhere that deposit of the highest bid onetime along with the bid would qualify him without compliance of Clauses like 10(ka) and 13 of the NIT. The bank guarantee referred in clause-13 in lieu of land documents is the performance guarantee which forms an integral part of the NIT which cannot be relaxed. Accordingly, the act of relaxation of the said Clause which the respondent No. 5 was found deficient are essential and relaxation of the same is bad, for which the decision of the General Standing Committee of Sonitpur Zilla Parishad and the consequent impugned order are liable to be interfered with which I accordingly do by setting aside and quashing the same.
18. From the records it is found that the General Standing Committee of Sonitpur Zilla Parishad did not prepare any fresh comparative statement in the form of the one of the Gabhoru Anchalik Panchayat except the bid value and resolved that as the bid value of the respondent No. 5 was highest he was considered for the settlement. Nowhere on record it was found that on comparing the various documents the petitioner was found to be deficient except the bid value which is second highest. Accordingly the submission of Mr. Roy cannot be accepted that the petitioner failed to submit the no-objection of the co-pattadars of the land for security. Similarly the issue of violation of the order dated 03.07.2019 passed in WP(C) 4664/2019 is not within the purview of this court while disposing of this writ petition inasmuch as the court is exercising the jurisdiction of judicial review of the decision making process of the General Standing Committee of the Sonitpur Zilla Parishad in the NIT dated 29.05.2019.
19. From the aforesaid discussions, I hold that this writ petition succeeds, the undated resolution of the General Standing Committee of the Sonitpur Zilla Parishad and the Page No.# 11/11 consequent impugned order dated 24.07.2019 bearing No. SZP/2019-20/4043 is set aside and quashed. The respondent No. 3 is directed to settle the Bihiagaon Weekly Market as per the comparative statement already on record strictly following the terms of the NIT dated 29.05.2019 being No. GAP/Tender/2019-2020 issued by the respondent No. 4 within a period of 30 (thirty) days from the date of receipt of the copy of this order. Records shall be handed back to Mr. A. Roy, the learned Standing Counsel of P&RD.
JUDGE Comparing Assistant