Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 9 Ors on 23 November, 2022
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/21
GAHC010200552022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C)/4377/2022
SURUJ JAMAL AND 3 ORS
S/O. AKBAK ALI MULLAH
A RESIDENT OF VILL.- NO. 3 BARUAJHAR
P.O.- BECHIMARI
DIST.- DARRANG
ASSAM.
2: ABUL KASHEM
S/O NADER ALI
A RESIDENT OF VILL.- BARUAJHAR
P.O. BECHIMARI
DIST.- DARRANG
ASSAM.
3: MAHMUD HUSSAIN
S/O. MUKTAR HUSSAIN
A RESIDENT OF VILL.- NO. 3 CHIKANMATI
P.O. BECHIMARI
DIST.- DARRANG
ASSAM.
4: ABDUL KARIM
S/O- AHAJUDDIN AHMED
A RESIDENT OF VILL.- BARUAJHAR
P.O. BECHIMARI
DIST.- DARRANG
ASSAM.
VERSUS
THE STATE OF ASSAM AND 9 ORS
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
Page No.# 2/21
GUWAHATI-06.
2:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE CHIEF EXECUTIVE OFFICER
DARRANG ZILLA PARISHAD
DARRANG
MANGALDOI
P.O. AND P.S. MANGALDOI
DISTRICT- DARRANG
ASSAM.
4:THE CHAIRMAN
DARRANG ZILLA PARISHAD
DARRANG
MANGALDOI
PO. AND P.S. MANGALDOI
DIST.- DARRANG
ASSAM
PIN- 784115.
5:THE EXECUTIVE OFFICER
BECHIMARI ANCHALIK PANCHAYAT
P.O.- BECHIMARI
DIST.- DARRANG
ASSAM
PIN-
6:THE PRESIDENT
BECHIMARI ANCHALIK PANCHAYAT
P.O.- BECHIMARI
DIST.- DARRANG
ASSAM
PIN-
7:OMAR ALI
S/O NASHER ALI
VILL- BECHAMARI
DIST- NAGAON
ASSAM.
8:AMIJUL HAQUE
S/O LT. AHAMMAD ALI
VILLAGE NO. 5
BARUAJHAR
P.O- CHAKRABASH
DIST- NAGAON
ASSAM.
9:SHORAB ALI
S/O NASHER ALI
Page No.# 3/21
VILLAGE-BECHAMARI
DISTRICT- NAGAON
ASSAM.
10:ABDUL SAMAD
S/O NASHER ALI
VILLAGE-BECHAMARI
DIST- NAGAON
ASSAM
PIN-784514
------------
Advocate for : MR. A R BHUYAN Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 9 ORS WP(C)/3656/2022 BAPAN BARMAN S/O- PRAKASH BARMAN R/O- VILL.- BHERBHERIBILL P.O. BHERBHERIBILL P.S. DHULA DIST. DARRANG ASSAM PIN- 784525.
VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-6.
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-6.
3:THE CHIEF EXECUTIVE OFFICER DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGALDOI DIST. DARRANG ASSAM Page No.# 4/21 PIN- 784115.
4:THE CHAIRMAN DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGALDOI DIST. DARRANG ASSAM PIN- 784115.
5:THE EXECUTIVE OFFICER PUB KALAIGAON ANCHALIK PANCHAYAT P.O. AND P.S. KALAIGAON DIST. DARRANG ASSAM PIN- 784190.
6:THE PRESIDENT PUB KALAIGAON ANCHALIK PANCHAYAT P.O. AND P.S. KALAIGAON DIST. DARRANG ASSAM PIN- 784190.
------------
Advocate for : MR F K R AHMED Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 5 ORS WP(C)/3320/2022 SIBARAM DEKA S/O LT. SISHURAM DEKA R/O VILL. NO. 2 MAJGAON P.O. AND P.S. DHULA DIST DARRANG ASSAM PIN-784146 VERSUS THE STATE OF ASSAM AND 7 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR GUWAHATI-6 2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR GUWAHATI-6 Page No.# 5/21 3:THE CHIEF EXECUTIVE OFFICER DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGAODOI DIST. DARRANG ASSAM PIN-784115 4:THE CHAIRMAN DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGAODOI DIST. DARRANG ASSAM PIN-784115 5:THE EXECUTIVE OFFICER PUB NANGALDOI ANCHALIK PANCHAYAT P.O. AND P.S. DHULA DIST. DARRANG ASSAM PIN-784115 6:THE PRESIDENT PUB MANGALDOI ANCHALIK PANCHAYAT P.O. AND P.S. DHULA DIST. DARRANG ASSAM PIN-784115 7:HANIF ALI AHMED S/O LT. ALIMUDDIN AHMED R/O VILL- HIRAPARA P.O AND P.S- DHULA DIST- DARRANG ASSAM PIN- 784125.
8:JAYNAL ABDIN S/O LT. BABAR ALI R/O VILL BAGDIA P.O- BHAKATPARA P.S- DHULA DIST- DARRANG ASSM PIN- 784125.
------------
Advocate for : MR F K R AHMED Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 7 ORS Page No.# 6/21 WP(C)/3996/2022 MD. NABI HUSSAIN S/O- ABDUL KARIM R/O- VILL.- CHENIBARI P.O. BHERBHERIBILL P.S. DHULA DIST. DARRANG ASSAM PIN- 784525.
VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-6.
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-6.
3:THE CHIEF EXECUTIVE OFFICER DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM PIN- 784115.
4:THE CHAIRMAN DARRANG ZILLA PARISHAD DARRANG MANGALDAI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM PIN- 784115.
5:THE EXECUTIVE OFFICER PUB KALAIGAON ANCHALIK PANCHAYAT P.O. AND P.S. KALAIGAON DIST. DARRANG ASSAM PIN- 784190.
6:THE PRESIDENT Page No.# 7/21 PUB KALAIGAON ANCHALIK PANCHAYAT P.O. AND P.S. KALAIGAON DIST. DARRANG ASSAM PIN- 784190.
------------
Advocate for : MR F K R AHMED Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 5 ORS WP(C)/3752/2022 PRIYA NATH NATH AND ANR.
S/O. LT. DHANEISWAR NATH VILL. BOINAOJA P.O. AULACHOWKA P.S. MANGALDOI PIN-784529 DIST. DARRANG ASSAM.
2: JAYANTA BORA S/O. LT. CHAMAK CHANDRA BORA VILL. BOINAOJA P.O. AULACHOWKA P.S. MANGALDOI PIN-784529 DIST. DARRANG ASSAM.
VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR GUWAHATI-781006 DIST. KAMRUP (M) ASSAM.
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPTT. DISPUR GUWAHATI-781006 DIST. KAMRUP (M) Page No.# 8/21 ASSAM.
3:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT DEPTT. ASSAM JURIPAR PANJABARI GUWAHATI-37.
4:THE DARRANG ZILLA PARISHAD MANGALDOI REP. BY ITS CHAIRMAN P.O. MANGALDOI DIST. DARRANG ASSAM PIN-784125.
5:THE CHIEF EXECUTIVE OFFICER DARRANG ZILLA PARISHAD MANGALDOI P.O. MANGALDOI DIST. DARRANG ASSAM PIN-784125.
6:THE PACHIM MANGALDOI ANCHALIK PANCHAYAT BANGLAGARH RE.P BY ITS PRESIDENT P.O. MANGALDOI DIST. DARRANG ASSAM PIN-784125.
7:THE EXECUTIVE OFFICER PACHIM MANGALDAI ANCHALIK PANCHAYAT BANGLAGARH P.O. MANGALDOI DIST. DARRANG ASSAM PIN-784125.
------------
Advocate for : MR. A SARMA Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 6 ORS Page No.# 9/21 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI Date : 23-11-2022 Judgment & Order The Hon'ble Supreme Court in the landmark cases of Michigan Rubber (India) Ltd. Vs. State of Karnataka & Ors. , reported in (2012) 8 SCC 216 has laid down certain principles to be followed in matters pertaining to distribution of State largesse by way of tender. In paragraph 23 of the said judgment, the following has been stated:
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding Page No.# 10/21 a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government."
2. In another landmark case, namely, Caretel Infotech Ltd. Vs. Hindustan Petroleum Corporation Ltd. & Ors., reported in (2019) 14 SCC 81, the Hon'ble Supreme Court has laid down that the owner/maker of the contract is the best person whose interpretation is generally required to be accepted.
3. In fact the aforesaid principles were laid down by the Hon'ble Supreme Court about two decades earlier in the case of Tata Cellular which would be referred to later in this judgment. With that background, this Court is required to consider and determine the issue raised in this bunch of writ petitions. In these writ petitions, a common challenge has been made to a particular clause of the Notice Inviting Tender (NIT) floated by the Panchayat and Rural Development Department (P&RD) for settlement of various Markets, Ghats, Par Ghats, Meen Mahals etc. The settlements are pertaining to the district of Darrang. The principal contention of the petitioners is that the Clause, in question, is in the teeth of Article 14 as it gives an undue advantage to a class of bidders which is against the concept of maintaining fairness Page No.# 11/21 and transparency in tender system.
4. Before going to the issue, the facts of the case are required to be narrated in brief.
5. As indicated above, there are five writ petitioners in which a common question has been raised challenging the validity of the impugned Clause. The first writ petition, namely, WP(C)3320/2022 concerns two numbers of markets, viz, i) Tangny Weekly Cattle Market and ii) Tangny Open Market. In WP(C)/3656/2022, the concerned market is Ambachak Weekly Open Market. In WP(C)/3752/2022, two markets are involved, namely, i) Banglagarh Open Market and ii) Banglagarh Cattle Market.
6. In WP(C)/3996/2022, the concerned market is Ambachak Weekly Cattle Market and in WP(C)/4377/2022, the concerned markets are - i) Bechimari Daily Vegetable Market and Bechimari Weekly Open Market. In the aforesaid WP(C)/4377/2022, there are four numbers of petitioners. The petitioner nos. 2 and 4 had submitted their bids for Bechimari Daily Vegetable Market whereas the petitioner no. 3 had submitted his bid for Bechimari Weekly Open market, the petitioner no. 1, however, did not submit his bid.
7. I have heard Shri FKR Ahmed, learned counsel for the petitioners in WP(C)/3320, 3656 & 3996/2022; Shri K Kalita, learned counsel for the petitioners in WP(C)/3752/2022 and Shri MAI Hussain, learned counsel for the petitioners in WP(C)/4377/2022. I have also heard Shri NK Dev Nath, learned Standing Counsel, P&RD Department; Shri B Rahman, learned counsel representing the respondent nos. 7 to 10 in WP(C)/4377/2022, who have been newly impleaded as well as Shri S Islam, learned counsel appears for the respondent nos. 7 and 8 in WP(C)/3320/2022.
Page No.# 12/21
8. The learned counsel for the petitioners have immediately drawn the attention of the offending Clause in the NIT which is Clause 10 in four of the cases and Clause 11 in one of the cases and it is not in dispute that the expression/wordings in both the Clauses are exactly the same. By the aforesaid Clause, it has been stipulated that the bid of the highest bidder would be accepted for consideration and the said bidder would be given 3 days time for submission of necessary documents, except Court fee and Earnest Money deposit and if the said bidder fails to do so, the second highest bidder would be offered the settlement with the same conditions. Assailing the aforesaid Clause, the submissions of the learned counsel for the petitioners are that the said Clause is in gross violation of the Right to Equality as a favourable treatment has been sought to be given to a bidder whose bid itself is an invalid one. It is submitted that the importance of the quantum contained in a bid would be of relevance only when the bid is adjudged to be a valid bid and unless and until, necessary documents and criteria are submitted or met by a bidder, the bid cannot be considered as a valid bid and is liable to be rejected. It is further submitted that the said Clause itself is in violation of another Clause of the same NIT, namely, Clause 17 which is also numbered as 18 in few of the tenders. Clause 17 states that if any of the conditions mentioned in the preceding clauses are not fulfilled, the tender application is to be rejected. It is contended that in view of such clear stipulation in the NIT, the scope of consideration under the offensive Clause will not arise at all and therefore, the aforesaid Clause is liable to be declared unreasonable and accordingly, be set aside.
9. The learned counsel for the petitioners have strenuously argued that highest bid actually means the highest valid bid and in this regard, a decision of this Court in the case of Md. Jalal Uddin Vs. State of Assam & Ors. , reported in (2015) 2 GLT 1097 has been pressed into service. The relevant paragraphs are 13 and 14 and those are quoted hereinbelow:
Page No.# 13/21 "13. Rule 47(10) of the Rules reads as follows:-
The tender of the highest bidder shall be accepted and that acceptance of tender other than the highest bidder shall require prior and formal approval of the government.
14. This Court in WP(C) No. 5992/2014 (Durga Charan Mandal vs. The State of Assam and ors.), while interpreting Rule 47(10) of the Rules, vide judgment and order dated 18.3.2015, had held as follows:
22. Process, in the context of a notice inviting tender, encompasses within its ambit, amongst others, preparation of a comparative statement, evaluation of the tenders and rejection of tenders not conforming to the requirements of the Notice Inviting Tender. Sections 105(3), 106(3) and 109(3) also provide for examination of tenders by the General Standing Committee. The highest tender, after examination and evaluation, in a given case, may be rejected. Once rejected, such a tender cannot come into consideration for the purpose of acceptance or settlement. If the words, highest bidder occurring in Rule 47(10) of the Rules is given literal meaning, examination or evaluation of tenders, as contemplated in the Act, will be rendered meaningless and it will result in a situation of acceptance of a tender, irrespective of the fact as to whether or not the tenderer fulfils the eligibility criteria and other terms and conditions. Surely, this is not what the legislature contemplated. The expression, the tender of the highest bidder shall be accepted would, by necessary implication, mean that the highest valid tenderer will be considered for acceptance or settlement and, therefore, Rule 47(10) of the Rules has to be understood to mean that the tender of the highest valid tenderer shall be accepted and that acceptance of tender, other Page No.# 14/21 than the highest valid tenderer, shall require prior and formal approval of the government."
10. It is submitted that the sanctity and fairness involved in a bid process would be grossly violated by presence of the offending Clause which would bring in the element of bias and favouritism. It is further submitted that the offending Clause would be an impediment in an equal level playing field amongst the competitive bidders. Shri Kalita, learned counsel for the petitioner in WP(C)/3752/2022 additionally submits that the offending Clause has been adopted from a model NIT which itself is the subject matter of challenge in WP(C)/5010/2022 which has been instituted by the petitioner in this Court and the said writ petition is pending. Shri MAI Hussain, learned counsel for the petitioner in WP(C)/4377/2022 submits that so far as his case is concerned, the offending Clause is Clause 11 which is, however, exactly similar to the Clause 10 in the other cases.
11. The learned counsel for the petitioners submits that it is the process which they are concerned about and after following the procedure as recognized by law, the settlement can be done with the valid highest bidder.
12. Countering the arguments made on behalf of the petitioners, Shri Dev Nath, learned Standing Counsel, P&RD Department has, at the outset, questioned the locus of the petitioners to maintain the present challenge. He submits that out of the petitioners, only few have submitted their bids and therefore, on the behest of a stranger, who has not even offered his bid, the present challenge cannot be maintained. The learned Standing Counsel further submits that Clause 10 which is a subject matter of challenge, is an enabling provision with the objective to gather the maximum revenue. Shri Dev Nath, learned Standing Counsel submits that in Government contracts, it is not in dispute that revenue is of paramount importance Page No.# 15/21 and in the instant case, 3 days time is granted to the highest bidder so that the interest of the State can be served. It is further submitted that the petitioners do not have any fundamental rights to carry on business with the Government and they cannot dictate the terms of the NIT as it is a field strictly within the domain of the tendering authorities. Referring to WP(C)/4377/2022, the learned Standing Counsel submitted that the same is, otherwise also not liable to be entertained as there are four numbers of petitioners with conflicting interest in two markets. He has contended that unless the challenge is independently made, a common petition is otherwise not maintainable.
13. Shri Dev Nath, learned Standing Counsel has placed reliance upon the following case laws:
i) (2020) 1 GLT 273 (Ridley Life Science Pvt. Ltd. Vs. State of Assam & Anr.) and
ii) (2012) 8 SCC 216 (Michigan Rubber (India) Ltd. Vs. State of Karnataka & Ors.).
14. This Court in the case of Ridley Life Science Pvt. Ltd. (supra) had, after discussion of the law laid down by the Hon'ble Supreme Court in a number of similar matters, laid down, amongst others that the State can choose its own terms and it is the best judge.
15. The reference of Michigan Rubber (India) Pvt. Ltd. (supra) has already been made above by this Court and thus is not repeated.
16. The learned Standing Counsel further submits that there are interim orders in all Page No.# 16/21 the writ petitions and the settlements being for a period of 1 year wherein 5 months have already elapsed, the interim orders should be vacated and the settlements be directed to be made in accordance with law. Shri Dev Nath further submits that Clause 10 is a general clause applicable to all and therefore, question of discrimination would not arise at all. He further submits that the period to rectify is only 3 days which is done in the interest of public as at times, important documents are not readily available and have to be searched out or obtained for which a minimum period of 3 days time is offered. As stated above, it is reiterated that the only objective is to fetch the maximum revenue by the State.
17. Shri Rahman, learned counsel has appeared for the respondent nos. 7 to 10 in WP(C)/4377/2022. As indicated above, the same respondents had got themselves impleaded in the writ petition by filing an interlocutory application.
18. Endorsing the submissions of the learned Standing Counsel of the Department, Shri Rahman, learned counsel has submitted that the bid of the respondents for the Markets in question, are as follows:
i) Bechimari Weekly Cattle Market - Rs. 18,51,101/-;
ii) Bechimari Bus Parking - Rs. 10,00,000/-;
iii) Bechimari Weekly Open Market - Rs. 15,00,000/-;
iv) Bechimari Daily Vegetable Market - Rs.6,43,200/-.
He further submits that in so far as the Bechimari Weekly Cattle Market and Bechimari Bus Parking are concerned, the petitioners have not submitted any bid and therefore, the said two Markets should, otherwise be outside the purview of the present challenge. Shri Rahman, learned counsel submits that the date of opening of the Page No.# 17/21 tenders was fixed on 13.07.2022. However, as per the order of this Court dated 30.06.2022, the settlement has not been done. He further submits that the period of settlement being 1 year, the interim order is required to be vacated and the settlement be done with the valid highest bidder in accordance with law. He further submits that the entire challenge formulated is an afterthought only to continue with the existing system as the petitioners are either the lessees or have been set up by the earlier lessees.
19. Shri Islam, learned counsel appearing for the respondent nos. 7 and 8 in WP(C)/3320/2022 submits that the said respondents have submitted their bids in the following manner:
i) Tangny Weekly Open Market - Rs. 10,50,201/- and
ii) Tangny Weekly Cattle Market - Rs. 51,15,501/-.
He submits that upon opening of the bids in terms of the orders passed by this Court, it is revealed that the position of the petitioner is 13 with bid amount of Rs. 8,81,000/- and it has become apparent that the present writ petitions are nothing but an abuse of the process to make wrongful gain.
20. Shri FKR Ahmed, learned counsel for the petitioners places reliance upon an order dated 17.05.2022 passed by this Court in WP(C)/27/2022 ( Rafikul Islam Vs. State of Assam & Ors.) in which this Court has dealt with a similar subject matter and against the said judgment dated 17.05.2022, a writ appeal, being WA/204/2022 is pending. Shri Ahmed has submitted that the present arrangement has been done in accordance with Government notification and at an escalated rate of 25% above the earlier offered rate.
Page No.# 18/21
21. The rival submissions made by the parties have been duly considered and the materials placed before this Court have been carefully examined.
22. Before going to the issue involved, this Court is of the opinion that the examination of the same would be restricted for only those petitioners who have locus to maintain the present challenge. In other words, the present exercise cannot be turned to be a mere mechanical one where an issue has been raised by a party who would not be in any way affected by the result of the same. In the instant case, it appears that few of the petitioners did not even submit the bid and so far as one of the petitioners is concerned, his bid is 13 th in rank so far as financial aspect is concerned. For those petitioners, this Court is not inclined to examine the issue on merits even if a case is made out as the result of the same is not going to have any effect, whatsoever on the said petitioner.
23. Having said that, the issue is required to be adjudicated so far as the petitioners, who have submitted their bids in response to the aforesaid NIT, are concerned. The challenge is regarding a clause which gives 3 days time to a highest bidder to submit/furnish documents in support of the bid as required under the NIT. A minute examination of the said Clause would show that such liberty is given for documents other than Earnest Money Deposit and Court fee. A bid without being accompanied by Court fee and Earnest Money, in any manner, cannot be taken into consideration. However, in case of other documents which are also necessary to construe the bid to be valid bid, 3 days time is given to the bidder whose financial bid is, otherwise found to be the highest. This Court finds force in the contention of the learned Standing Counsel of the Department that the objective is only to ensure that maximum revenue is fetched in the tender for allotment of Markets, Ghats, Meen Mahal etc. This Court has further noticed that the period granted is limited to 3 days enabling a highest Page No.# 19/21 bidder to furnish the documents which might, in a given case, not be available or could not be searched at the time of submission of the bid on the last date. The Clause further stipulates that the liberty is not an unlimited one but only for 3 days whereafter the turn of the second highest bidder would come with the same conditions. Such a Clause, in the considered opinion of this Court cannot be termed or construed as unreasonable or arbitrary and rather, the same appears to be in consonance with the principles of fairness and transparency, as a fair opportunity is given to ensure that maximum revenue is earned by the State.
24. The Hon'ble Supreme Court in the case of Fasih Chaudhary v. D.G., Doordarshan, reported in (1989) 1 SCC 89 has laid down that the employer should be given some leverage for making the decision and there should be free play in joints. The relevant paragraph is extracted hereinbelow:
"6. While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, "free play in the joints" is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will."
25. The aforesaid expression "free play in joints" has, again been reiterated in the land mark case of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651 wherein the following has been laid down:
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
Page No.# 20/21 (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
26. This Court in the cases of Tarun Bharali Vs. State of Assam & Ors. , reported in 1991 (2) GLR 296 and Jogeswar Doley Vs. State of Assam, reported in 1992 (1) GLR 134 (DB) has laid down that in matters where revenue is concerned, the quantum is of paramount importance.
27. The present adjudication is also to be done by taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Michigan Rubber (India) Pvt. Ltd. (supra), in which it has been laid down that in matters of formulating conditions of tender, great latitude is to be conceded to the State authority and such latitude is not to be interfered with unless, it has been inserted with a malicious intention or to Page No.# 21/21 favour a particular party.
28. In the instant case, no such case of mala fide or favouritism has been made out as the Clause in question is a general one which is meant only for the party whose bid is the highest.
29. In view of the aforesaid facts and circumstances and the discussions made above, this Court is of the opinion that no case for interference is made out and accordingly, the writ petitions stand dismissed. Interim orders passed earlier stand vacated. As substantial time has already passed in a settlement of 1 year, immediate steps are directed to be be taken to settle the Markets, Ghats, Parghats, Meen Mhals etc. in question with the valid highest bidder strictly in accordance with law. The aforesaid exercise is directed to be completed expeditiously and in any case within an outer limit of 3 weeks from today. The parties may furnish certified copy of this order to the concerned authorities for doing the needful. Till the settlement is done with the valid highest bidder, the Ghats, Par Ghats, Meen Mahals etc. in question shall be run departmentally.
JUDGE Comparing Assistant