Gauhati High Court
Dhan Das vs The State Of Assam And 3 Ors on 20 October, 2020
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/11
GAHC010193412019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5908/2019
1:DHAN DAS
S/O LT. BHOGESWAR DAS, R/O VILL. ULUWANI, P.O. BENGANA ATI, P.S.
ULUWANI, DIST. NAGAON, ASSAM, PIN-782137
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT, ASSAM, DISPUR, GUWAHATI-6
2:THE CHIEF EXECUTIVE OFFICER
NAGAON ZILA PARISHAD
3:THE EXECUTIVE OFFICER
KALIABOR ANCHALIK PANCHAYAT
4:NIPEN BARUAH
VILL. GUMUTHA GAON
P.O. KUWARITOL
P.S. KALIABAR
PIN-78213
Advocate for the Petitioner : MR. A K BARUAH
Advocate for the Respondent : MR. M NATH, SC, PNRD
Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI Date : 20-10-2020 Judgment & Order Heard Shri AK Baruah, learned counsel for the petitioner. Also heard Shri M Nath, learned Standing Counsel, Panchayat and Rural Development Department, who has also produced the original records. Though respondent no. 4 has been served, as held by this Court vide order dated 27.02.2020, he has chosen not to contest the writ petition.
2. The facts of the case, as projected by the petitioner, is that pursuant to a Notice Inviting Tender (NIT) dated 31.05.2019 for settlement of various "Bazar/Ghat/Fisheries for the year 2019-2020", the petitioner had submitted his bid for the Uluwani Weekly Market under the Kuweritol Gaon Panchayat in the District of Nagaon (for short hereafter referred to as Market). The bids offered were opened and a Comparative Statement was prepared. It is the case of the petitioner that in spite of the fact that the bid offered by the petitioner was the highest (H1), he could learn that the respondent authorities were proposing to allot the Market to the respondent no.4. Subsequently, the petitioner was able to collect a copy of the provisional list dated 31.07.2019 from which it was clear that the settlement of the Market in question was awarded to the respondent no.4. Therefore, the present writ petition has been instituted.
3. Shri Baruah, learned counsel has submitted that no reasons have been assigned as to why the bid of the petitioner which was regarded as H1 was ignored and revenue being of paramount importance in matter of settlement, such decision is absolutely illegal, arbitrary and unreasonable. By drawing the attention of this Court to the Comparative Statement annexed as Annexure-C to the writ petition, it is submitted that the same did not indicate that the bid of the petitioner suffered from any technical flaws and his offer was Rs.1,66,501/- and that of the respondent No.4 was Rs.1,50,000/-. Therefore, there was a difference of Rs.16,501/- which is substantial from the perspective of the bid value. He submits that if there were any defect in the bid of the petitioner, the same would have been detected at the Page No.# 3/11 time of preparation of the Comparative Statement and, therefore, it can be safely presumed that there were no defects in the bid.
4. Referring to the affidavit-in-opposition filed by the respondent no.2, the learned counsel for the petitioner has submitted that though as per the said affidavit, there were certain defects in the bid submitted, the same not being termed as defects at the time of preparation of the Comparative Statement by the respondents, such grounds cannot be taken in the affidavit. Alternatively, it is submitted that the alleged defects are all curable in nature and, therefore, the bid could not have been termed as defective.
5. Specifically countering the averments made in paragraph 7 of the affidavit-in- opposition, it is submitted by Shri Baruah, learned counsel for the petitioner that the alleged defect nos. (a), (b) and (d) are contrary to the conditions of the NIT and further, the defect no. (c) regarding the affidavit which was stated to be unsigned is a curable defect. Further, referring to the pleadings in the affidavit-in-reply, more specifically a notification dated 28.06.2019, it is submitted that the said notification which has been issued by the highest authority of the Department states in clear terms that the tender of the highest bidder should not be cancelled merely on the ground of non-submission of required documents, except court fee and earnest money and to allow such highest bidder to furnish the documents before offering the settlement.
6. Reference is also made to Rule 47 (10) of the Assam Panchayat (Financial Rules), 2002 (hereafter for short Rules), which lays down that the bid of the highest bidder only shall be accepted and any deviation would require prior and formal approval of the Government.
In support of his projected case, the learned counsel for the petitioner has relied upon the following case laws: -
1. (1991) 3 SCC 273, Poddar Steel Corporation Vs. Ganesh Engineering Works & Ors., Page No.# 4/11
2. MANU/GH/0692/2011, Manik Konwar Vs. State of Assam & Ors.,
3. 1017 (1) GLT 562, Pradip Dutta Vs. Airport's Authority of India & Ors.,
4. AIR 2018 GAU 129, T. Gangkak Enterprises Vs. State of Arunachal Pradesh,
5. MANU/GH/0270/2020, Dilwar Hussain Laskar Vs. The State of Assam &Ors.,
7. In the case of Poddar Steel Corporation (supra), the Hon'ble Supreme Court in paragraph 6 held as follows: -
"6...................................................................................................................... As a matter of general proposition, it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate case. This aspect was examined by this Court in GJ Fernandez v. State of Karnataka and Ors. MANU/SC/0175/1990: [1990] 1 SCR 229 as case dealing with tenders."
8. In the case of Manik Konwar (supra), this Hon'ble Court laid down that there is a clear statutory bar to settle a Market with a bidder other than the highest bidder without prior and formal approval of the Government.
9. This Court in the case of Pradip Dutta (supra), dealt with the nature of the defects, Page No.# 5/11 namely, curable and incurable defects. Requirements which was pre-existing at the time of submission of the document can be said to be curable defect whereas those which did not exist and was subsequently obtained has been termed as an incurable defect.
10. In the case of T. Gangkak Enterprises (supra), the absence of an affidavit was not held to be fatal as the affidavit was not contained in the appendix to the ITB.
11. In the case of Dilwar Hussain Laskar (supra), this Court after referring to the case of Pradip Dutta (supra) had dealt with the aspect of curable and incurable defects.
12. The learned counsel for the petitioner, accordingly, submits that rejection of his bid is liable to be declared illegal and in the corollary, the Market in question is required to be settled with petitioner who claims to be the highest bidder.
13. Per contra, Shri M Nath, learned Standing Counsel for the Department has submitted that the foundation of the projected case of the petitioner is faulty. He submits that the very premise of the challenge is based on the presumption that the bid of the petitioner is the valid highest bid and in this regard, the petitioner has relied upon the Comparative Statement. Referring to Section 109 (6) of the Assam Panchayat Act, 1994 (hereafter referred to as the Act), it is submitted that if the value of the subject is more than Rs.1,00,000/- (one lakh), the settlement would be done by the Zilla Parishad and in this regard, the powers of examination and final settlement are vested with the Standing Committee which has been defined in Section 81 (a) of the Act. In the instant case, there is no dispute that the bid value in question is more than Rs.1,00,000/- (one lakh) and, therefore, the settling authority is the Zilla Parishad through its Standing Committee. No doubt a Comparative Statement was prepared at the level of the Anchalik Panchayat based on the documents submitted by all the bidders as would be evident from the signatures appearing thereon, when it was seen that the bid value was more than Rs.1,00,000/- (one lakh), the same was duly sent to the Nagaon Zilla Parishad for examination and final acceptance.
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14. Specifically drawing the attention of this Court to the affidavit-in-opposition filed by the Department in paragraph 7, it is submitted, amongst others, that there were four major defects which are incurable in nature and simply because of the fact that in all the columns of the Comparative Statement, the remark was 'yes', that by itself would not make an invalid document valid. It is submitted that even for the sake of argument, the defects in rest of the documents can be termed to be curable defects, the defect contained in the affidavit is absolutely incurable. A perusal of the affidavit which is a part of the records would show that the affidavit was not signed anywhere by the petitioner and even the name of the Gaon Panchayat in question have not been specifically mentioned. As regards Clause-5 of the notification dated 28.06.2019 is concerned, it is submitted that though such clause was incorporated in the notification, the same appear to be against the very object of maintaining fairness and transparency in distribution of State largesse and, in fact, this Court in a number of cases has deprecated/read down the said clause as being opposed to the doctrine of fairness. It is submitted that the action of settling the Market with the private respondent is strictly in accordance with law as the bid of the petitioner though higher than the respondent no. 4 was not a valid bid and therefore, there was no obligation on the part of the respondents to offer settlement to the petitioner. In support of his submissions, learned Standing Counsel has relied upon the following decisions: -
1. AIR 2009 Gau 132, Harez Ali & Ors. Vs. State of Assam &Ors.,
2. (2009) 3 GLR 847, Larsing M. Vs. Meghalaya Tourism Development Corpn.
Ltd. &Ors.,
3. 2016 (4) GLT 312, Macrocosm Builders (M/S) & Anr. Vs. State of Assam &Ors.,
4. WP(C) No.4616/2016, Ritwick Gogoi Vs. The State of Assam (unreported - decided on 02.05.2017),
5. WP(C) No.4664/2019 (Akkash Ali vs. The State of Assam & Ors.),
6. 2020 (1) GLT 273, Ridley Life Science Pvt. Ltd. Vs. The State of Assam &Ors., Page No.# 7/11
15. A Full Bench of this Court in the case of Harez Ali (supra), has laid down the requirement of making settlement by the Zilla Parishad in case the bid value is more than Rs.1,00,000/- (one lakh) in accordance with the provisions in the Act and, therefore, the procedure adopted in the present case cannot be faulted with.
16. This Court in the case of Larsing M. (supra), has laid down that to successfully challenge the settlement given to other, the petitioner himself has to meet all the eligibility criterion. A similar view has been expressed by this Court in the case of Macrocosm Builders (M/S) & Anr. (supra).
17. In the case of Ritwick Gogoi (supra), it has been held that a defective bidder was not entitled to any Mandamus for settlement of the Market in his favour.
18. In the case of Ridley Life Science Pvt. Ltd. (supra), this Court after discussing the settled position of law as laid down by the Hon'ble Supreme Court in the cases of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651, Air India Ltd. Vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617, Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation, reported in (2000) 5 SCC 287 and Michigan Rubber (India) Ltd. Vs. State of Karnataka & Ors., reported in (2012) 8 SCC 216, has observed that in exercise of powers of judicial review, the scope of interference in a tender matter is extremely limited and should be restricted to arbitrary, discriminatory or action actuated by bias.
19. The interim order dated 03.07.2019, passed by this Court in the case of Akkash Ali (supra) has been placed to bring home the fact that Clause-5 of the notification dated 28.06.2019 was deprecated by this Court.
20. By referring to the clauses of the NIT in question, more specifically, Clauses-13, 14 Page No.# 8/11 and 16, it is submitted that the aforesaid conditions are mandatory and non-fulfillment would render a bid defective. It is further submitted that the settlement being for a period of one year and the same having been over, there is no live cause of challenge in the writ petition. As observed earlier, the records in originals have been placed before me and the same are explained by the learned Standing Counsel.
21. Shri Baruah, learned counsel for the petitioner in his rejoinder, however, submits that the alleged defects were curable defects and even assuming that those were incurable defects, as per Clause-5 of the notification dated 28.06.2019, the petitioner should have been given an opportunity to rectify the same. In any case, the defect was due to oversight. It is finally submitted that the impugned action is wholly unreasonable and there is no nexus with the object sought to be achieved. As regards the argument on lack of live cause of action, it is submitted that due to the present pandemic concerning COVID 19, a notification has been issued on the strength of which, the respondent no. 4, being the existing settlement holder, has been given extension for a year.
22. The rival submissions made by the learned counsel for the parties have been duly considered and the records placed before this Court have been carefully perused.
23. At the outset, the issue as to whether there is any live cause of action needs to be dealt with. Though it is a fact that the impugned settlement was for one year from the period 31.07.2019 to 30.07.2020, vide notification brought on record dated 29.05.2020, existing settlement has been extended for a further period of one year. In view of the same, this Court is of the opinion that there is live cause of action which would require an adjudication.
24. It is an admitted fact that the law requires settlement to be made with the highest bidder and any deviation would require the prior approval of the Government. However, what is important to note is that the mandatory requirement for a bidder to be adjudged as the highest bidder is to fulfill each and every requirements of the conditions of the NIT. In short, the requirement is to be a 'valid highest bidder'. For ready reference, Rule 47 (10) of the Page No.# 9/11 Rules is extracted hereunder: -
"Rule 47 (10) The tender of highest bidder shall be accepted. Acceptance of tender other than the highest bid shall require the "Government" prior and formal approval."
25. In the instant case, though ex facie the Comparative Statement may give an indication that the bid of the petitioner is valid, it appears that the same was prepared at the Anchalik Panchayat level and since the bids were more than one lakh, the examination and decision of the bids were required to be done by the Zilla Parishad through its Standing Committee as per Section 109 (6) read with Section 81 (a) of the Act. The said provisions of law are extracted hereinbelow: -
"Section 109 (6) The Hats, Ferries and Fisheries falling under any Anchalik Panchayat within the jurisdiction of Zilla Parishad the yearly sale value of which is more than rupees one lakh shall be settled by the Zilla Parishad concerned for a period coinciding with and not exceeding one Panchayat Financial year as under Section 105, 106 and 109 in the manner prescribed. The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee as under Section 81 (i) (a). The distribution of sale proceeds shall be in the manner as prescribed in the foregoing sections."
26. So far as the issue of nature of the defects is concerned i.e., curable or incurable, even assuming that defects nos. (a), (b) and (d) contained in paragraph 7 of the affidavit-in- opposition dated 24.10.2019 are curable, the defect no. (c) regarding the affidavit cannot be termed, by any stretch of imagination, to be a curable defect. A perusal of the affidavit would disclose that none of the pages of the affidavit contain the signature of the petitioner though the same appears to be attested by a Notary and identified by a witness. That apart, the name of the Gaon Panchayat has also been left blank. The sanctity of an affidavit cannot be Page No.# 10/11 compromised at any stage as it is by this affidavit, a bidder gives the undertaking to abide by the terms and conditions of the NIT in question dated 15.07.2019. At this stage, one may gainfully refer to the decision of the Hon'ble Apex Court in (2001) 5 SCC 289 wherein the importance and sanctity of an affidavit have been highlighted. For ready reference, the relevant part of paragraph 13 is quoted hereinbelow: -
"13.................................................................................................................. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy."
Under such facts and circumstances, this Court is not inclined to accept the submission that the defect ought to have been termed as a curable defect as the same would amount to doing away with the very object of distribution of State largesse by means of a tender process.
27. So far as the argument regarding Clause-5 of the notification dated 28.06.2019 is concerned, apart from the fact that the same would not be in consonance with maintaining fairness and transparency in the process of distribution of State largesse, this Court is of the view that the same would be in derogation of the requirement of fulfilling the necessary conditions of the NIT. In this connection, the learned counsel for the Department has already brought on record the view expressed by this Court on the said clause in the case of Akkash Ali (supra).
29. As regards the case laws relied upon by the petitioner, this Court is of the opinion that the defect regarding the affidavit is an incurable defect and so far as the bid of the petitioner is concerned, the same cannot be treated to be a valid bid. Though the Hon'ble Supreme Court has held that it is the decision making process which is required to be examined in exercise of powers of judicial review, it is seen that in the instant case, the decision has been arrived at by the authorities by taking into consideration the relevant materials on record. It is also seen that the decision is not based on any irrelevant or extraneous factors.
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30. In view of the above, this Court is of the opinion that no case for exercise of powers under Article 226 of the Constitution of India is made out and accordingly, the writ petition is dismissed. The records are returned back to the learned Standing Counsel.
31. No order as to costs.
JUDGE Comparing Assistant