Gauhati High Court
Mosaraf Hussain vs The State Of Assam And 7 Ors on 20 March, 2020
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/9
GAHC010259462019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7813/2019
1:MOSARAF HUSSAIN
S/O. LT. ALIMUDDIN AHMED, VILL. HIRAPARA, P.O. DHULA, DIST.
DARRANG, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 7 ORS.
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-
781006.
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
ASSAM
JURUPAR
PUNJABARI
GUWAHATI-37.
3:THE DY. COMMISSIONER
DARRANG
MANGALDAI
P.O. MANGALDAI
DIST. DARRANG
ASSAM
PIN-784125.
4:THE DARRANG ZILLA PARISHAD
MANGALDAI
REP. BY THE CHAIRPERSON
DARRANG ZILLA PARISHAD
P.O. MANGALDAI
DIST. DARRANG
Page No.# 2/9
ASSAM
PIN-784125.
5:THE CHIEF EXECUTIVE OFFICER
DARRANG ZILLA PARISHAD
MANGALDAI
P.O. MANGALDAI
DIST. DARRANG
ASSAM
PIN-784125.
6:THE PUB- MANGALDAI ANCHALIK PANCHAYAT
DHULA REP. BY ITS CHAIRPERSON
VILL. AND P.O. DHULA
DIST. DARRANG
ASSAM
PIN-784146.
7:THE EXECUTIVE OFFICER
PUB-MANGALDAI ANCHALIK PANCHAYAT
DHULA
VILL. AND P.O. DHULA
DIST. DARRANG
ASSAM
PIN-784146.
8:MAINUL HAQUE
S/O. SADEK ALI
VILL. KHATANIAPARA
P.O. DHULA
DIST. DARRANG
ASSAM
PIN-784146
Advocate for the Petitioner : MS. M BARMAN
Advocate for the Respondent : GA, ASSAM
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
Page No.# 3/9
For the Petitioner :Mr. UK Nair, Sr. Advocate
Mr. M Islam, Advocate.
For the respondents : Mr. GN Sahewalla, Sr. Advocate
Mr. A Roy,
Advocate.
Date of hearing : 20.03.2020
Date of Judgment/ Order : 20.03.2020
JUDGMENT & ORDER (ORAL)
Heard Mr. UK Nair, learned Senior counsel assisted by Mr. M Islam, learned counsel for the petitioner. Also heard Mr. GN Sahewalla, learned Senior counsel assisted by Mr. A Chetia, learned counsel for the respondent No. 8 and Mr. A Roy, learned standing counsel for P&RD Department representing respondent Nos. 1 to 7.
2. Notice inviting tender (NIT) No. PMAP 11/ Market/2018-19/12-182 dated 29.05.2019 was issued by the authority of the Pub-Mangaldai Anchalik Panchayat, Dhula under Darrang Zilla Parishad in the district of Darrang. The respondent No. 5, Chief Executive Officer, Darrang Zilla Parishad settled the Tangni Animal Market in favour of the respondent No. 8, whose bid was lower than the one of the petitioner being the highest bidder. The said settlement was issued on 03.10.2019 bearing No. DZP/ Market/Gen./784/2019-20/281.
3. Mr. Nair submits that the petitioner quoted the bid of Rs. 41,00,909/- and on the other hand respondent No. 8 quoted Rs. 15,15,501/-. It is an admitted fact that as required under clause 13 of the condition of the NIT the land value of the land pledged as security was below the quoted bid of the petitioner. Referring to the comparative statement the concerned Anchalik Panchayat recommended the bid of the petitioner considering the same to be the highest. The Zilla Parishad while settling the market, without assigning any reasons thereof preferred respondent No. 8 who was the 5 th highest bidder in an illegal and arbitrary manner. The petitioner being the highest bidder and as the value of the land submitted as security was lesser than the bid value which is a deficiency, the petitioner ought to have provided with the settlement by allowing an opportunity to the petitioner to refurnish such security covering the bid value or by providing additional land/ bank guarantee to cover up the land value. The Page No.# 4/9 bid of the petitioner is more than double the one on the basis of which the settlement was done with the respondent No. 8. This has caused a substantial loss in the revenue earnings to the respondent State. On perusal of the comparative statement the respondent No. 8 also failed to submit the no objection from the admitted co-pattadars of the land submitted as security.
4. The respondent No. 8 filed an affidavit-in-opposition and stated that the brother of the petitioner one Md. Mubarak Hussain who was earlier settled the said animal market was a defaulter in the payment of the kist amount for the period from 01.07.2011 to 08.02.2012 and to that effect letter dated 13.03.2012 was issued directing the said Mubarak Hussain to deposit the same. In response to the said affidavit-in-opposition a reply affidavit was filed by the petitioner thereby denying the said fact of defaulter of his brother and in support of the said contention non-defaulter certificate dated 05.07.2019 supporting the fact that the said brother was not a defaulter issued by the Chief Executive Officer, Darrang Zilla Parishad who is the respondent No. 5 in the petition is valid. On the other hand, as against the statement in the affidavit-in-opposition of the respondent No. 8 that some of the certificates submitted alongwith the quotation were photocopies and without signatures of the petitioner in original, it was replied that such defect is curable. While filing the re-joinder affidavit against the affidavit-in-reply of the respondent No. 8 the petitioner relied the certificate dated 15.07.2019 issued by the respondent No. 5, the Chief Executive Officer, Darrang Zilla Parishad who certified the said brother of the petitioner to be a defaulter. As there is contradiction in respect of the stand of both respondent No. 8 and the petitioner, the respondent No. 5 was directed to file affidavit in respect of the genuineness of the certificate issued on 05.07.2019 supporting the fact that the brother of the petitioner was not a defaulter. An affidavit-in- opposition was filed by the said respondent No. 5 and stated that the photographs affixed with the tender form by the petitioner were not attested as per clause 11 of the tender notice, xerox copies of Jamabandi, non-encumbrance certificate, tax clearance certificate of the guarantor were submitted, the land value of the petitioner was less than his bid value and did not submit no objection certificate of the co-pattadars of the land so secured. However, as per direction of this court the respondent No. 5 filed an affidavit stating that the said certificate dated 05.07.2019 was inadvertently issued. Mr. Sahewalla relying the statements Page No.# 5/9 made in affidavit-in-opposition by the respondent No. 8 submits that the petitioner under no circumstances could be held to be a valid bidder on the ground of defaultership of the brother of the petitioner who stood as the guarantor. Further, as there is specific violation of clause 13 of the terms and conditions of the tender, the petitioner as such is not entitled for settlement though his bid was highest.
5. Mr. Roy produced the records and submits that the petitioner has no locus standi to question the settlement in favour of the respondent No. 8 when his tender was rejected due to non-fulfillment of the various criteria set out in the terms and conditions in the NIT. The respondent No. 5 stated in the affidavit-in-opposition that the petitioner failed to produce the original certificate/ jamabandi and the photographs affixed in the tender form were not attested as required under clause 11 of the tender notice. In support of the contention in respect of the locus standi of the petitioner Mr. Roy relies on Larshin M. Vs Meghalaya Tourism Development Corpn. Ltd. and Anr. Reported in 2008(2) GLT 564 and Macrocosm Builders (M/S) & Anr. Vs. State of Assam reported in 2016(4) GLT 312.
6. I have given due consideration to the submissions made by the learned counsel. On perusal of the records, it is found that the bid value of the petitioner is Rs. 41,00,909/-. The petitioner submitted land document in respect of 5 Bighas 4 Kathas 13 Lechas of land and the total value is Rs. 19,72,000/-. From the said comparative statement of the General Standing Committee of the Pub Mangaldai Anchalik Panchayat it is found that rests of the criteria are fulfilled by the petitioner. The respondent No. 8 on the other hand, failed to submit no objection of the co-pattadars of the land submitted as security. The General Standing Committee, Darrang Zilla Parishad on examination came to the finding that the petitioner was deficient in the followings:
a. Photographs annexed to the tender papers were not certified,
b. The tax clearance certificate,
c. Certificate of deposit land revenue and
d. Jamabandi were Xerox copy but not original,
7. On the other hand as per opinion of the General Standing Committee, Darrang Zilla Parishad, the tender papers of the respondent No. 8 were found to be proper in all respect Page No.# 6/9 and as such he was opined to be the proper person to be settled with the said market. On scrutiny of the tender papers of the petitioner it is found that the certificate as referred hereinabove are all photocopies except the affidavits which are in original. The land value is found to be lesser than the bid value of the petitioner. On similar scrutiny of the tender papers of the respondent No. 8 most of the documents are photocopies and as security the petitioner offered land covered by Dag No. 432, KP Patta No. 86 of Village Karmipara under mouza Dalgaon, land measuring 2 Bighas 2 Kathas 10 Lechas of village Gorapori Chapori under mouza Dalgaon covered by Dag No. 49 K.P. Patta No. 24, land measuring 2 Bighas 1 Katha 14 Lechas of village Khataniapara under mouza Dalgaon covered by Dag No. 203 of K.P. Patta No. 117. The copy of the jamabandi of K.P. Patta No. 117 is perused and it is found that the name of the petitioner is recorded in the land covered by said K.P. Patta No. 117 by way of inheritance on the death of his father Sadek Ali Pradhan whose name was recorded along with one Sri Samsul Haque. It is found that the land offered as security by the respondent No. 8 are possessed by co-pattadars and the required no objection from the said co-pattadars in giving the said land as security is not found on record. In the comparative statement prepared by the Anchalik Panchayat it is specifically recorded about the said deficiency on the part of the respondent No. 8. Clause 13 of the terms and condition of the NIT is reproduced hereinbelow:
"13. The bidders or his guarantors must pledge land on the basis of the value of the tendered bid. Such pledge should be accompanied by non-encumbrance and valuation certificates from the concerned Deputy Commissioner/ Sub-Divisional Officer (Civil)/ Circle Officer (Revenue). Revenue clearance receipts, bakijai- free certificate, municipal tax clearance receipt (in case of urban dweller) also must be submitted along with. The tender form must be signed by the guarantor. In lieu of land, bank guarantee of equivalent value may also be submitted. One bidder is allowed to submit bid for only one market/ ghat/ fishery. A person who is the bidder himself or a surety for a bidder cannot submit bid for another market/ ghat/fishery and also cannot stand surety for another. Permission/ consent of the co-pattadars of the land desired to be pledged is a must. All documents enclosed with the tender form must belong to the current year."
8. From the aforesaid condition it is clear and apparent that the bid value must be Page No.# 7/9 secured either by the land value so provided as security or if land records are not available then by way of bank guarantee equivalent to the bid value. From the comparison and on scrutiny of the records it is found that the land value does not cover the bid value of the petitioner. Mr. Nair submitted that as the bid value was highest under such circumstances the respondents ought to have given a chance to the petitioner in order to put other land as security or in the form of bank guarantee in order to cover the deficit value of land. The said submission cannot be accepted inasmuch as the petitioner was fully aware of the land value at the time of submission of the tender papers. Though in lieu of land, bank guarantee equivalent to the bid value is acceptable the said option cannot be given to the petitioner inasmuch as knowing fully well that the land value does not cover the bid value he did not opt for submission of the bank guarantee. Accordingly, he is estopped from doing so subsequently. The rests of the grounds as pointed by the General Standing Committee of the Zilla Parishad are not relevant inasmuch as it is the tender form which cannot be accepted in the Xerox mode as stipulated in the tender condition. Accordingly, there is specific violation of clause 13 of the NIT on the part of the petitioner.
9. The respondent No. 8 failed to submit no objection of the co-pattadars in respect of the land offered as security. The copy of the jamabandi hereinabove stated supported the said fact of co-pattadars possession. Clause 13 mandates that consent of the co-pattadars of such land submitted as security is mandatory which is required to be fulfilled. Though the Anchalik Panchayat in the comparative statement specifically mentioned about non- submission of the no objection by the co-pattadars, however, the General Standing Committee of the Darrang Zilla Parishad did not consider the same and came to the opinion that the bid of the respondent No. 8 is proper and acceptable. The said opinion of the General Standing Committee is absolutely in violation to the provision of clause 13 and also clause 16 of the terms of the tender which stipulates that non-fulfillment of the criteria stipulated under clause 1 to clause 16 would lead to rejection of the bid. As hereinabove stated, the respondent No. 8 failed to fulfill the criteria under clause 13 of the terms and conditions of the NIT and such deficiency is well covered by clause 16 resulting rejection of the bid. The General Standing Committee, Darrang Zilla Parishad cannot overcome the said deficiency inasmuch as clause 16 does not allow the bid of the respondent No. 8 to be Page No.# 8/9 considered at all. The General Standing Committee of the Darrang Zilla Parishad failed to apply the criteria notified as the terms and conditions of the NIT uniformly on all participants in the tender process resulting arbitrariness in the decision making process of it. Accordingly, the settlement in favour of the respondent No. 8 is hit under clause 16 of the terms and condition of the NIT and the impugned settlement order is liable to be set aside and quashed.
10. Mr. Roy raised the issue of locus standi of the petitioner. It is no doubt true that unqualified tenderer has no locus to challenge any terms and condition of tender process wherein he participated. In Larshin M. Vs Meghalaya Tourism Development Corpn. Ltd. and Anr (supra), the petitioner therein participated and on failure to secure the contract, he challenged the bidding process on the ground of vagueness in the bidding criteria. Petitioner demonstrably not qualified to participate in the bidding process so it was held that the petitioner having participated in the process cannot turn around at a belated stage and say that the process is unfair or arbitrary or vague. In Macrocosm Builders (M/S) & Anr. Vs. State of Assam (supra), the case of the writ petitioner was that it being eligible in terms of the tender notice the official respondents committed error in eliminating it from the fray. Thereafter, the court upon scrutiny and on perusal of the original documents of the writ petitioner came to the finding that the elimination was not perverse and as such it was held that the petitioner had no locus standi to maintain the writ petition.
11. There is no bar in filing the writ petition there by raising the grievances of participant in a tender process who was not selected and in order to approach this court for exercising the jurisdiction of judicial review in my considered opinion, there cannot be any bar if the criteria applied for selection was not uniform on all the participants. While exercising the jurisdiction of judicial review it is decision making process which is examined by this writ court and once it is concluded that the decision making process was not proper and arbitrariness was also noticed, the writ petition filed by the petitioner who was disqualified can be brought to its logical conclusion thereby expressing the opinion after such judicial review by this court. Accordingly, I do not find any force in the submission of Mr. Roy.
12. Finally, I conclude that the rejection of the bid of the petitioner is proper and on the other hand the decision of the General Standing Committee, Darrang Zilla Parishad and the letter dated 19.07.2019 thereby settling the animal market vide letter No. DZP/ Page No.# 9/9 Market/Gen./794/2019-20/281 on respondent No. 8 is set aside and quashed. The respondent No. 4 is accordingly directed to take necessary steps in order to settle the said market at the earliest subject to approval from the Government. This writ petition is disposed of accordingly. No costs.
13. Mr. Roy shall take back the records.
JUDGE Comparing Assistant