Gauhati High Court
M/S United Enterprise vs The Guwahati Municipal Corporation And ... on 25 March, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010134832021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4448/2021
M/S UNITED ENTERPRISE
REP. BY MS USHA NATH BARMAN, AGED ABOUT 36 YEARS, PROPRIETOR
BAMUNIMAIDAM, MRD ROAD, HOUSE NO.19, GOVERNMENT PRESS, GHY-
21
VERSUS
THE GUWAHATI MUNICIPAL CORPORATION AND 2 ORS.
REP. BY THE COMM., GUWAHATI MUNICIPAL CORPORATION, PANBAZAR,
GHY-01, DIST.- KAMRUP (M), ASSAM
2:THE COMMISSIONER
GUWAHATI MUNICIPAL CORPORATION
VETERINARY BRANCH
LAKHTOKIA
GHY-01
3:UPAMA PATOWARI
R/O- CHINAKI PATH
RUKMINI NAGAR
P.O. DISPUR
GHY-06
KAMRUP (M
Advocate for the Petitioner : MR. Y S MANNAN
Advocate for the Respondent : SC, GMC
Page No.# 2/6 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 25/03/2022 Heard Mr. Y S Mannan, learned counsel for the petitioner and Mr. S Bora, learned Standing counsel, Guwahati Municipal Corporation (GMC) for the respondent Nos. 1 & 2. Also heard Mr. M Islam, learned counsel for the respondent No. 3.
Matter relates to settlement of GMC's Goat Market, ALPCO (Assam Livestock and Poultry Corporation] at Juripar.
Though, the petitioner was found to be the highest bidder for settlement of said Goat Market for the year 2021-2022, disregarding his such offer, the respondent GMC have settled the said Goat Market with the respondent No. 3, who is only the 2 nd highest bidder. Being aggrieved, the petitioner has preferred this writ petition.
Respondents in the GMC have filed its affidavit in the matter.
It is contended by the petitioner that though the relevant tender was for the period from 01.04.2021 to 31.03.2022, but the said Goat Market was not settled w.e.f. 01.04.2021 and as such, he came to the belief that the said tender process has been cancelled. But after about 5 months, said Goat market was settled with the respondent No. 3 for a period of 7 months from 01.09.2021 to 31.03.2022 depriving him.
It is stated by the petitioner that for the said Goat Market, he offered bid value of Rs. 76,46,400/-, whereas the respondent No. 3 offered an amount of Rs. 56,10,150/- for it, both value inclusive of GST. The respondent in the GMC in arbitrarily settling the said Goat market with the respondent No. 3 not only deprived the petitioner but also the Corporation itself as well as the Government to earn sufficient revenue being offered by him.
Petitioner has annexed the relevant Tender Notice dated 10.02.2021 (Annexure-1) and also the Tender Document (Annexure-2) for the said Goat Market for the year 2021-2022 issued by the respondent GMC.
Page No.# 3/6 From the comparative statement of the participant bidders for the said Goat Market for the year 2021-2022, annexed with the writ petition (Annexure-3), the petitioner has placed that respondent GMC considered him to be the H1 bidder, whereas the respondent No. 3 as the H2 bidder and the third bidder, namely, M/s. Maa Kamakhya Enterprise as the H3 bidder. From the said comparative statement, the petitioner has also placed that the respondent GMC found that the respondent No. 3 did not mention GST amount separately in her bid document.
It is submitted by the petitioner that the respondent GMC illegally settled the said Goat Market with the respondent No. 3 by the impugned settlement order No. GVT./F- 06/2021-22/118/191 dated 24.08.2021 issued by the Commissioner, GMC and therefore, the petitioner urged that the said settlement, being bad in law on the grounds stated by him, should be set aside and quashed and prayed that the said market should be settled with him being the highest bidder.
Mr. Bora, learned Standing counsel, GMC submitted that before the said Goat Market could be settled in terms of the NIT dated 10.02.2021, the Model Code of Conduct for Assembly Election 2021 came into force and therefore, it took time to settle the said market.
Placing the impugned tender notice dated 10.02.2021 (Annexure-1), Mr. Bora, learned counsel for the GMC submitted that the estimated value of the said market was fixed at Rs. 22,00,000/-, whereas the petitioner has offered bid value of Rs. 64,80,000/- with 18% GST on the same i.e., Rs. 11,64,400/-, in total Rs. 76,46,400/- and the respondent GMC found the said offer of the petitioner for the said goat market as exorbitant and therefore, the offer of the petitioner though being H1 bidder was not considered by the respondents GMC.
Placing the comparative statement of the bidders (Annexure-3), Mr. Bora stated that the respondent No. 3 offered Rs. 56,10,150/- with GST, whereas the 3 rd highest bidder offered Rs. 30,00,000/- with GST. Though, the offer of the 3 rd highest bidder was above the estimated value fixed for the said market but he was found to be a defaulter in payment of up-to-date GMC Property Tax and therefore, his offer for the said market was rejected. Mr. Bora, learned counsel for the respondent GMC stated that thereafter the bid value offered by Page No.# 4/6 the respondent No.3 for the said goat market was accepted.
It is also submitted by Mr. Bora, that the respondent No. 3 had already taken possession of the said market on 31.08.2021 depositing 50% of the settlement value of Rs. 27,48,486/- for the said 7 months period from 01.09.2021 to 31.03.2022 with GST.
Mr. Bora has also placed before the Court that the tender documents (Annexure-2) does not contain any such provision or any specific clause that the bidder has to provide separate GST with their bid value. He also stated that the same is neither a pre-condition specified in the relevant NIT nor a mandatory provision prescribed in it required to be filled up by an intending bidder for the said Goat Market.
Mr. Bora, learned Standing counsel, GMC from the tender document (Annexure-2) placed before the Court that the Clause-8, where it is specified that -
"The Commissioner reserves the right to accept or to reject any or all tenders without assigning any reason thereof recording in writing or verbal. The highest tender may not necessarily be accepted. The decision of the Commissioner, GMC in the matter of acceptance or rejection of tenders shall be final and binding on all concerned.
Tenders which do not fulfill any one or more prescribed conditions or are incomplete in any form will be liable to be rejected forthwith."
As such, Mr. Bora, learned Standing counsel, GMC submits that the writ petition preferred by the petitioner should be dismissed.
It is well settled that the employer has the right to incorporate the tender clause as suitable for it. It is also settled that the "State" or the authority, which can be held to be "State" within the meaning of Article 12 of the Constitution, is not bound to accept the highest tender/offer or bid and the Government could validly retain its power to accept or reject the highest bid in the interest of public revenue.
In the cases of Trilochan Mishra -Vs- State of Orissa reported in (1971) 3 SCC 153, State of U.P. -Vs- Vijay Bahadur Singh, reported in (1982) 2 SCC 365 and State of Orissa -Vs-
Page No.# 5/6 Harinarayan Jaiswal reported in (1972) 2 SCC 36, the Hon'ble Supreme Court have held that the Government is under no obligation to accept the highest bid and that no rights accrue to the bidder merely because his bid happened to be the highest. The Hon'ble Court also observed that the Government has the right, for good and sufficient reason, not to accept the highest bid but even to prefer a tenderer other than the highest bidder.
In the Case of Vijay Bahadur Singh (supra), the Hon'ble Apex Court further observed that the power conferred on the Government by the Act to refuse to accept the highest bid, cannot be confined to inadequacy of bid only. There may be variety of other good and sufficient reasons to reject the same.
The Hon'ble Supreme Court in the case of Meerut Development Authority -Vs- Assn. of Management Studies, reported in (2009) 6 SCC 171 have laid down that -
27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.
29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favouritism.
After hearing the learned counsels for the parties, going through the documents annexed by the petitioner and the affidavit of the respondents GMC, it is seen that against the estimated value of Rs.22,00,000/- for the said Goat Market of GMC, the petitioner offered Rs.64,80,000/- almost 3 times above the said estimated price and the conditions of the Page No.# 6/6 tender documents allows the GMC authorities to accept or reject any or all such tenders without assigning any reason thereof, recording in writing or verbal. Further, the tender clauses also allows the GMC authorities that it may not necessarily accepted the highest bid where the decision of the Commissioner of GMC in the matter of acceptance or rejection of tenders is final and binding on all concerned.
In the case in hand, the respondents GMC did not accept the offer of the petitioner for the said Goat Market though it was the highest offer, finding the said offer is much higher than the estimated value of the said market and is much above the market price. Moreover, as specified in the tender document, the Commissioner of GMC being the employer has the right to reject any such highest offer.
Considering all the above, the Court is of the view that the impugned order of settlement of said Goat Market with the respondent No. 3 vide No. GVT./F-06/2021- 22/118/191 dated 24.08.2021 issued by the Commissioner, GMC respondent No. 2, being not arbitrary in nature, does not call for any interference.
Accordingly, this writ petition, being devoid of any merit, stands dismissed.
JUDGE Comparing Assistant