Calcutta High Court (Appellete Side)
Sasti Pada Nandi vs The State Of West Bengal & Ors on 8 July, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
08.07.2019
07
RP Ct.10
WP 16338 (W) of 2017
Sasti Pada Nandi
Vs.
The State of West Bengal & Ors.
Mr. Moloy Basu, Sr. Adv.,
Mr. Partha Ghosh, Adv.
.... For the Petitioner
Mr. Subhabrata Datta, Adv.,
Mr. Benazir Ahmed, Adv.
.... For the State
This is a writ petition challenging the order dated May 24, 2017.
By the said order the Zilla Parishad purported to comply with an order of
the Coordinate Bench dated 24.05.2017 passed in Writ Petition No.
12375 (W) of 2017 in an earlier round of litigation.
The undisputed facts are that a tender was invited by a Zilla
Parishad, a constitutional delegate having independent existence under
Part 9 of the Constitution of India. Of the many clauses in the notice
there was a clause allowing the Zilla Parishad to cancel any bid or the
tender at any stage without assigning reasons. It is an admitted position
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that there was no clause citing the maximum rates of toll tax which
could be levied by the successful bidder in respect of use of the rates. It
is also an admitted position that the notice inviting tender was duly
published and, therefore, amounted to a representation, a binding
representation, which was published about the conditions of the notice
inviting tender. The writ petitioner duly submitted his bid, was held
successful and was asked to deposit more than one (01) crore of rupees
which he duly did. Thereafter, the respondent Zilla Parishad purported to
cancel his bid and asked him to take refund of the money that he had deposited. This was done wholly on the basis of a Government Order issued by the Panchayat and Rural Development Department of 2005 vintage as appears from page 21 of the Affidavit-in-Opposition. It is an admitted position that the Zilla Parishad did not know of this Government Order nor was it present to its mind when the tender was floated, bids were submitted and bids were accepted. Admittedly the said Government Order was not notified and remained an internal circular. At best it was a decision under Article 166(3) of the Constitution of India which would not in the normal course of events bind another delegate of the Constitution such as the Zilla Parishad. In this view of the matter the Coordinate Bench had passed an order referred to above. The following paragraphs of the said order passed by the Coordinate Bench appears to be of great importance:-
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"Considering the submissions advanced by the learned advocates for the parties and after perusing the record, in my considered view, pursuant to the notice inviting e-tender dated 6th January, 2017, the petitioner being an experienced contractor, offered his bid. Ultimately the petitioner, being the highest tenderer, was directed by the Additional District Magistrate, Bankura and the Additional Executive Officer, Bankura Zilla Parishad, Bankura, the respondent no.5 vide its letter dated 27th January, 2017 to deposit bid amount of Rs. 1,01,01,111/-. It is also evident that on 9th February, 2017 the petitioner has already deposited such amount through bank draft. Therefore, the respondent no.5 is under obligation to execute the agreement as per the terms of the notice inviting e-tender dated 6th January, 2017.
In my view, it is completely internal affair between the respondents. The petitioner has no access to that. Therefore, the respondent no.5, who floated the e-tender, is thereby directed to execute the said agreement pursuant to such e-tender dated 6th January, 2017. The court also cannot ignore the fact that as per the order of the Additional District Magistrate, Bankura and the Additional Executive Officer, Bankura Zilla Parishad, Bankura, the respondent no.5 the petitioner has already deposited the entire bid amount on 9th February, 2017. Furthermore, the respondent no.5 is directed to serve notice within one week from the date upon the petitioner for negotiation of toll charge.
Under the circumstances, I direct the Additional District Magistrate, Bankura and the Additional Executive Officer, Bankura Zilla Parishad, Bankura, the respondent no.5 after negotiation with the petitioner regarding fixation of rate of toll charge to execute the agreement with the petitioner within four weeks from the date and thereafter issue the work order in favour of the petitioner."
This order achieved finality. Therefore, three (03) things achieved finality:-
The finding that the Government Order at page 21 of the Affidavit- in-Opposition that the Government Order dated 17.02.2005 was an internal circular and the petitioner or their bidders or even the Zilla 4 Parishad did not know of it; that the Zilla Parishad was under an obligation to sign an agreement with the petitioner and to issue a work order on it and finally the entire process of negotiation was to be held between the writ petitioner as the successful bidder whose bid had been accepted and the Zilla Parishad before the work order was issued.
Mr. Datta appearing on behalf of the State of West Bengal and Mr. Ganguly appearing on behalf of the Zilla Parishad both relied upon this last point to submit that the order dated May 24, 2017 was rightly passed. They submitted that the mandate was for the Zilla Parishad to take certain steps after negotiation and if negotiation failed they would have no option but to treat the bid as cancelled and as a consequence refund the amount deposited by the petitioner. It is the specific case that the writ petitioner failed to negotiate and arrive at a charge lower than the maximum rate of toll tax as ordained by the respondent no.1 by the said Government Order dated February 17, 2005 at page 21 of the Affidavit-in-Opposition. Even otherwise both submitted that if the tender whose notice was floated by the notice dated January 06, 2017 did not consider the State Government Order dated February 17, 2005 then it was a mistake which the respondents could correct. They submitted that while the proper course should have been cancellation of the tender and issuing a fresh tender with it being clearly mentioned that the maximum toll tax possible could not exceed the limit given in the said Government Order dated February 17, 2005, the effect would have been the 5 cancellation of the present bid. Both these submissions suffer from the fallacy as to what negotiation means and how far the Government Order is applicable to the Zilla Parishad.
The word "negotiation" envisages a process of discussing within agreed parameters with a view to achieving a solution which may be a compromise or a situation of give and take where some parts are accepted some are not. It certainty does not mean abjectly accepting any clause as to fixation of price or in this case maximum rate of toll tax which is alien to the tender. It is not the natural meaning of the word negotiation. It is only "Through The Looking Glass" that Humpty Dumpty could claim to have a word mean precisely what he intended it to mean regardless of the accepted meaning of the word. Therefore, I do not find that the refusal of the writ petitioner to accept the said maximum rate of toll charge according to the Government Order dated February 17, 2005 to be a failure to agree to make negotiation. If the writ petitioner had even reduced one rupee from this bid or been open to doing so that would have been a negotiation for the purposes of the order passed by the Coordinate Bench.
The second fallacy is the binding nature of the Government Order dated February 17, 2005. While this Government Order is stated to be passed in terms of certain provisions of the West Bengal Zilla Parishad (Election, Constitution and Administration) Rules, 1964 continued under West Bengal Panchayat Act, 1973 there is nothing to show that this was 6 notified and thus the finding that this was an internal circular of the State issued to the Zilla Parishad continues to bind these parties, at best the same could be construed to be an action taken under Article 166(3) of the Constitution of India which would not bind another constitutional delegate acting under Part 9 of the Constitution of India. Today, the State of West Bengal submits that the Zilla Parishad committed a mistake and should be allowed to correct it. Despite the aforesaid in the earlier round of litigation no such leave was granted. It is too late in the day for the respondents to allege a mistake to undo the effect of its action on the petitioner. The writ petitioner has altered its position to its material prejudice by depositing more than rupees one crore and making infrastructural arrangements worth even more on the basis of the express stipulations by the Zilla Parishad pursuant to acceptance of the writ petitioner's bid. It would be inequitable to allow the respondents to resile; rather it would sub-serve the ends of justice if the respondents are directed to give effect to the said Government Order if notified with effect from the next tender floated by it, and that too with due publicity to the said Government Order.
It is trite that the Government Order is not a statute and so estoppel can be pleaded to operate against it. Accordingly, I find merit in the writ petition.
Accordingly, there shall be an order in terms of prayers 'A' and as a consequence a direction on the respondent authorities particularly to 7 Zilla Parishad through its Executive Officers to execute the agreement pursuant to the notice inviting tender dated January 06, 2017 and issue a work order in favour of the writ petitioner within a fortnight from the date of communication of this order.
There shall be no order as to costs.
(PROTIK PRAKASH BANERJEE, J.)