Calcutta High Court (Appellete Side)
In Re : Basudev Halder vs The State Of West Bengal & Ors on 18 March, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
18.03.2019
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Item No 04 Court No.15 Avijit Mitra W.P. No. 405 (W) of 2019 + C.A.N. No.2402 of 2019 In re : Basudev Halder
- Versus -
The State of West Bengal & Ors.
Mr. Sarwar Jahan, Ms. Mousumi Mitra, Mr. Ashraful Huq For the Petitioner Mr. Malay Krishna De, Mr. Ranjit Rajak For the State Respondents Mr. Debabrata Saharay, Sr. Adv.
Mr. Tanay Chakraborty, Mr. Rajiv Lochan Chakraborty, Ms. Vaswati Chakraborty Mr. Arnab Sinha, Mr. Priyajit Kundu For the Respondent nos. 4 to 6 Mr. Jahan, learned advocate appearing for the petitioner submits that the petitioner participated in an auction process initiated by a Notice Inviting e-Auction (in short, NieA) dated 5th December, 2018 issued by the respondent no.5 pertaining to thirteen ferry ghats including Satui Ferry Ghat. The petitioner submitted his bid for Satui Ferry Ghat (in short, the said ferry ghat). The base rate for the said ferry ghat was Rs.508479/-. Upon opening of the financial bid it was found that the highest financial bid was Rs.3099279/- and the bid submitted by the petitioner was Rs.610079/- . The highest bidder, however, failed to deposit the bid amount and as such, the petitioner submitted a representation to the respondent no.5 to accept his bid, which was the second highest. Without considering the said representation, the authorities 2 initiated a re-auction process pertaining to the said ferry ghat by issuing a NieA dated 7th January, 2019.
According to Mr. Jahan, the authorities ought to have settled the said ferry ghat in favour of the petitioner as he was the second highest bidder. Without enhancing the base rate, the respondent no.5 had no jurisdiction to initiate a re-auction process.
He further argues that the authorities have acted in a manner which would benefit a private party at the cost of the authorities and such arbitrariness warrants interference of this Court.
Records reveal that being prima facie satisfied that without enhancing the base rate the authorities could not have initiated a re-auction process, this Court passed an interim order on 10th January, 2019 directing that all steps in the second e-auction shall remain stayed till the end of February, 2019 or, until further orders, whichever is earlier. The said interim order was extended by this Court till the end of March, 2019 or until further orders whichever is earlier. For vacating the said interim order, the respondent no.4 filed an application being CAN No.2402 of 2019.
Mr. Saha Ray, learned senior advocate appearing for the respondent nos. 4 to 6 submits that the highest bidder in the first auction process quoted a price of Rs. 3099279/-. Surprisingly thereafter, the said bidder declined to accept the offer to operate the said ferry ghat. The difference of rate in between the first bidder and the second bidder was about Rs.24 lakh. Such high rate was quoted with an intent to dislodge all the participants and after emerging to be successful on the basis of amount quoted, the said bidder declined to accept the offer to operate so that the respondents can have no alternative but to settle the said ferry ghat in favour of the petitioner, 3 who had quoted the second highest rate. In fact, the first bidder had inducted the petitioner as a dummy candidate so that he can get the offer to operate the said ferry ghat on the basis of the quoted amount of Rs. 610079/-.
He submits that such misleading actions on the part of the highest bidder and the petitioner prompted the authorities to take a decision to conduct a re-auction, to get more participants and a better offer.
Drawing the attention of this Court to clauses 6 and 13 of the first NieA, Mr. Saha Ray submits that the authorities had every right to cancel the first auction process as they were sought to be mislead by the highest bidder. The discretion exercised by the authorities cannot be construed to be unreasonable or arbitrary. The petitioner being the second highest bidder did not earn any indefeasible right to get settlement of the said ferry ghat.
He, however, admits that the authorities ought to have incorporated proper terms in the tender documents to ensure that a participant does not get any opportunity to quote multiple rates consecutively and under such circumstances the authorities should be granted an opportunity to initiate a fresh e-auction process incorporating appropriate terms, in which the petitioner can also participate. Complaints were lodged to the effect that many persons could not participate in the e- auction process and the authorities even received representations quoting prices much higher than that of the petitioner.
He further submits that Rule 99 of the West Bengal Panchayat (Zilla Parishad and Panchayat Samity) Accounts and Financial Rules, 2003 (in short, the said Rules of 2003) confers jurisdiction upon the authority to conduct a re-auction. The Central Vigilance 4 Commission guidelines also provides for re-auction when the price quoted is unreasonably high.
In reply, Mr. Jahan submits that Rule 99 of the said Rules of 2003 has no manner of application in the instant case and that the re-auction process was initiated even without enhancing the base rate.
Indisputably, an e-auction notice was issued on 5th December, 2018 pertaining to thirteen ferry ghats. The petitioner submitted his bid for the said ferry ghat. The highest financial bid for the said ferry ghat was of Rs. 3099279/-. The petitioner quoted a price of Rs.610079/-. The highest bidder thereafter declined to accept the offer to operate the said ferry ghat and as such, the Zilla Parishad authorities took a decision to conduct a re-auction process for the said ferry ghat. In explanation of such decision, it has been contended that the e-auction process initiated by a NieA dated 5th December, 2018 was an open tender process. In the same, after the petitioner's bid of Rs.610079/- , one bidder went on quoting multiple higher rates consecutively in an ascending order and his last quoted price was Rs. 3900815/-. It was an impossibility for any other bidder to match the bid price quoted by first bidder. The authorities thereafter offered the highest bidder to operate the said ferry ghat. At that juncture, the said bidder declined to accept the offer so that the authorities can have no other option but to give the offer to the petitioner whose difference in price with the highest bidder was of more than an amount of Rs.24 lakhs. The said sequence clearly reveals that an attempt was made to mislead the authorities and to leave no option for them but to accept the price quoted by the petitioner and as a consequence thereof the State exchequer would suffer. In a series of e-auction process for other ferry ghats also the same 5 attempt was made by the participating bidders. The reasoning given on behalf of the respondent nos.4 to 6 that in the facts and circumstances of the case they should be allowed to initiate a fresh e-auction process is a plausible one. No right stood vested upon the petitioner on the basis of his empanelment in the second place.
In the said conspectus, the re-auction process initiated by the e-auction notice dated 7th January, 2019, borrowing the base rate and the terms of the NieA dated 5th December, 2018, shall also not be proceeded with by the respondents and the respondent nos.4 to 6 are directed to conduct a fresh e-auction process for the said ferry ghat incorporating appropriate terms in order to ensure transparency and to sufficiently insulate the said auction process so that no advantage can be taken by any participant. In the said auction process the authorities shall fix a higher base rate. The petitioner would be at liberty to participate in the said auction process.
It is, however, made clear that in the event no rate is quoted in the fresh e- auction process for the said ferry ghat, higher than that of the price quoted by the petitioner in the first e-auction process, the authorities shall offer to settle the said ferry ghat in favour of the petitioner accepting the price he quoted in the first e- auction process being Rs. 610079/-.
With the above observations and directions, the writ petition and the connected application are disposed of.
There shall however be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
6(Tapabrata Chakraborty, J.)