Gauhati High Court
Nihar Ranjan Hazarika vs The State Of Assam And 5 Ors on 18 December, 2020
Equivalent citations: AIRONLINE 2020 GAU 510
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010110622020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3420/2020
NIHAR RANJAN HAZARIKA
S/O SRI DILIP HAZARIKA, R/O VILL. TELIADONGA PUKHURI PAR, P.O.
BHARLUA TINIALI, P.S. GAURISAGAR, DIST. SIVASAGAR, ASSAM, PIN-
785664
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
FISHERY DEPTT. HAVING ITS OFFICE AT DISPUR, GUWAHATI-781006, DIST.
KAMRUP (M), ASSAM
2:THE SECRETARY
TO THE GOVT. OF ASSAM
FISHERY DEPTT. HAVING ITS OFFICE AT DISPUR
GUWAHATI-781006
DIST. KAMRUP (M)
ASSAM
3:THE ASSAM FISHERIES DEVELOPMENT CORPORATION LTD.
A GOVT. OF ASSAM UNDERTAKING
REP. BY ITS MANAGING DIRECTOR
HAVING ITS OFFICE AT CHACHAL
VIP ROAD
GUWAHATI-781036
KAMRUP (M)
ASSAM
4:THE MANAGING DIRECTOR
ASSAM FISHERIES DEVELOPMENT CORPORATION LTD. A GOVT. OF
ASSAM UNDERTAKING HAVING ITS OFFICE AT CHACHAL
VIP ROAD
Page No.# 2/13
GUWAHATI-781036
KAMRUP (M)
ASSAM
5:THE DEPUTY COMMISSIONER
SIVASAGAR
HAVING ITS OFFICE AT SIVASAGAR TOWN
DIST. SIVASAGAR
ASSAM
PIN-785640
6:BABUL DAS
S/O LT. KON DAS
R/O NAMDONGIA BANGALI
P.O. GAURISAGAR
PIN-785664
DIST. SIVASAGAR
ASSA
Linked Case : WP(C)/2762/2020
DILIP HAZARIKA
S/O- LATE JURAM HAZARIKA
R/O- VILL- TELIADONGA PUKHURI PAR
P.O- BHARLUA TINIALI
P.S- GAURISAGAR
DIST- SIVASAGAR
ASSAM
PIN- 785664
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
FISHERY DEPTT
HAVING ITS OFFICE AT DISPUR
GUWAHATI- 781006
DIST- KAMRUP(M)
ASSAM
2:THE SECRETARY
TO THE GOVT OF ASSAM
FISHERY DEPTT
HAVING ITS OFFICE AT DISPUR
GUWAHATI- 781006
Page No.# 3/13
DIST- KAMRUP(M)
ASSAM
3:THE ASSAM FISHERIES DEVELOPMENT CORPORATION LTD
A GOVT OF ASSAM UNDERTAKING
REP. BY ITS MANAGING DIRECTOR
HAVING ITS OFFICE AT CHACHAL
VIP ROAD
GUWAHATI- 781036
KAMRUP(M)
ASSAM
4:THE MANAGING DIRECTOR
AFDCL
A GOVT OF ASSAM UNDERTAKING HAVING ITS OFFICE AT CHACHAL
VIP ROAD
GUWAHATI- 781036
KAMRUP(M)
ASSAM
5:THE DEPUTY COMMISSIONER
SIVASAGAR
HAVING ITS OFFICE AT SIVASAGAR TOWN
DIST- SIVASAGAR
ASSAM
6:BABUL DAS
S/O- LATE KON DAS
R/O- NAMDONGIA BANGALI
P.O- GAURISAGAR
PIN- 785664
DIST- SIVASAGAR
ASSAM
------------
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. P. Mahanta, Advocate : Mr. H. Buragohain, Advocate For respondent Nos.1 to 4 : Mr. P. Sarmah, Standing Counsel For respondent No.5 : Mr. D. Doley, Govt. Advocate For respondent No.6 : Mr. S. Borthakur, Advocate Date of hearing : 11.12.2020 Date of judgment : 18.12.2020 Page No.# 4/13 JUDGMENT AND ORDER (CAV) Heard Mr. P. Mahanta, learned counsel for the petitioner in W.P.(C) 3420/2020 and Mr. H. Buragohain, learned counsel for the petitioner in W.P.(C) 2762/2020. Also heard Mr. P. Sarmah, learned standing counsel for respondent nos. 1 to 4, Mr. D. Doley, learned Govt. Advocate appearing for respondent no. 5 and Mr. S. Borthakur, learned counsel for respondent no.6.
2) At the instance of the learned counsel for the parties, the matter had been heard at the 'admission' stage and it is seen that the subject matter of both the writ petitions being inter-connected, and arises out of the same cause of action, which is not disputed by any of the parties at the Bar.
3) The petitioner in W.P.(C) 2762/2020 had filed the said writ petition under Article 226 of the Constitution of India for assailing the legality of the order dated 27.05.2020 passed by the Assam Fishery Development Corporation Ltd. (respondent no.3; hereinafter referred to as 'AFDC Ltd.' for brevity) by which Teliadunga Krishnachigakur Fishery in the district of Sivasagar was settled with respondent no.6 for a period of 7 (seven) years. The petitioner in WP(C) 2672/2020 was the first highest bidder. It is submitted by the learned counsel for the petitioners in both the writ petitions that the petitioners were not informed about the rejection of their respective highest and second highest bid and the consequent settlement of the fishery with the respondent no.6, whose bid was lowest out of the four bidders. It is submitted that the petitioners in both the writ petitions came to learn about the settlement of the fishery in question with the respondent no.6, i.e. the lowest bidder upon receipt of a caveat filed by the respondent no.6, which was registered as Caveat No. 333/2020. Hence, it is submitted that as because both the petitioners were not provided with a copy of the impugned order, the petitioners could not annex the said order, but they have made specific prayer to quash the impugned order.
Page No.# 5/13
4) The petitioner in petitioner in W.P.(C) 3420/2020 projects himself to be the second highest bidder in respect of the same fishery and it is the case of the petitioner that if the tender submitted by the highest bidder was not acceptable, no reason was assigned as to why the bid of the petitioner therein was not acceptable while rejecting his bid.
5) The learned counsel for the petitioners has submitted that the tender notice no. 1/2020 dated 18.02.2020 did not contain either the maximum bid value or any viable range. Therefore, by referring to ratio laid down in the case of Jewti N.G.O. Vs. State of Assam & Ors., 2017 (4) GLT 762 , decided by this Court, it is submitted that rejection of the first and second highest bids of the petitioners was not tenable. It is also submitted that in the two bid system, the technical bid submitted by various tenderers was opened on 07.03.2020 and the bid submitted by the petitioner was found technically responsive, but without intimating to the petitioners the date on which price bids would be opened, the price bids were opened behind the back of the petitioners and the respondent nos.3 and 4 had arbitrarily settled the tender with the respondent no.6, whose bid was the lowest amongst four bidders. It is also submitted that although the respondent no.6 was not technically qualified, his bid was accepted, which is in aberration of Rule 12 of the Assam Fishery Rules, 1953.
6) Per contra, the learned departmental standing counsel has submitted that the cited judgment was not applicable in the present case in hand and that the rejection of the bid of both the petitioners is justified as the bids were exorbitant and there was every likelihood that if the fishery was settled with the petitioners in both the writ petitions, they would commit default, which would cause losses to the respondent no.3. Moreover, it is submitted that viability range is prescribed in Article 5.1 of the Articles of Association of respondent no.3, as such, the rejection of the bids submitted by the petitioners was justified. It is submitted that the respondent no.3 is not a profit making company, and that one of its objects is to ensure that the actual fishermen actually earn their livelihood. Supporting the said stand, the learned counsel for the respondent no.6 has argued to justify the impugned order and it is submitted that as per rules of pleading, as the writ petition does not contain Page No.# 6/13 any specific pleading in respect of the impugned order, the Court may not like to find fault with the impugned order, which ought not to be interfered with. It is submitted that in the present case in hand, the Assam Fishery Development Corporation Ltd. being an expert body on fishery has settled the fishery in favour of the respondent no.6 after examining the all aspects of the bids and, as such, this Court ought not to substitute its opinion against the well considered decision of an expert body as this Court was not the appellate authority in the matter of settlement of tenders and that this Court may exercise power of judicial review to examine lawfulness of the decision but not its soundness. In support of his submissions, the learned counsel has relied upon the following cases, viz., (1) Central Coalfields Ltd. Vs. SLL- SML JV., (2016) 8 SCC 622; (2) Municipal Corporation, Ujjan Vs. BVG India Ltd., (2018) 5 SCC 462; (3) JSW Infrastructure Ltd. Vs. Kakinada Sea Ports Ltd., (2017) 4 SCC 170.
7) Upon hearing the learned counsel for the parties, perused the pleadings and records contained in two departmental files produced by the learned standing counsel for the respondent nos. 1 to 4.
8) It is seen that the impugned order speaks about the past yield of the fishery, but the record as produced does not reveal any document showing yield of the concerned fishery in any previous years. The records also do not contain any document regarding the value on which the same fishery was settled in any of the previous years. Therefore, from the records produced, there can be no other conclusion save and except that while rejecting the bids submitted by the three highest bidders and while settling the fishery with the respondent no.6, the respondent nos. 3 and 4 have relied on some material which is neither available in the record produced nor the gist of such document is found to have been recorded in any of the note sheets contained in two office files produced. In the note sheet, the authorities of respondent nos. 3 and 4 have stated that the respondent no.6 had quoted 2302.75 kg. per hectare and that other bidders had quoted 3736.0 kg. per hectare, 3431.16 kg. per hectare, and 2762.70 kg. per hectare. However, such figures are not found written in the bid documents submitted by any of the bidders, nor such specific particulars have been entered in the comparative statement prepared by the authorities. Moreover, one intriguing fact is that Page No.# 7/13 as per the minutes of discussion on selection of tenderers for settlement of beels for 2020-21, as contained in pages 2 to 7 of the note-sheet of file no. AFDC.486/2020, settlement was considered for as many as 19 fisheries, but the weight and area wise (i.e. kg. and hectare) breakup was calculated only in respect of the "Teliadunga Krishnachigakur" fishery. However, there is no explanation in the note sheet why such an departure was made in the present case in hand.
9) One of the argument made by the learned counsel for the respondents was to the effect that the respondent nos. 1 to 4 had calculated the viable range and found that the bid submitted by the respondent no.6 was reasonable and that the bids submitted by the other bidders was exorbitant and as respondent no.3 is not a profit making company and that one of its objects is to ensure that the actual fishermen actually earn their livelihood, there was no illegality in settling the tender for the fishery in question with respondent no.6, which was in consonance with Article 5.1 of the Articles of Association and such settlement would secure livelihood of fishermen and would secure the revenue of the respondent nos. 4 and 5. The said argument appears to be appealing, but yet it is not found acceptable because the object of the respondent no.1 at sl. no. 1 is "to undertake development of fisheries in the State and ensure increased production". However, in the meeting minutes dated 22.05.2020, there is no discussion to the effect that in the past the respondent nos. 4 and 5 did not ensure increased production of fish and therefore, there is no possibility for the three highest bidders to get an increased production. It would be relevant to mention herein that although the tender in question was under two bid system, i.e., technical bid and financial bid, the respondent nos. 4 and 5 have only produced the file relating to financial bid, which contains no supporting documents. However, for the reasons best known to the respondent nos. 4 and 5, the file relating to technical bids of the fishery in question has been withheld.
"As per the minutes dated 22.05.2020, the officers of the respondent nos. 4 and 5 have recorded as follows:- "Further, the technical bid projected by all the four bidders shows that the technical bid submitted by Shri Babul Das is more reasonable among all which is in support the surroundings of the Beel as well as productive area. He Page No.# 8/13 quoted 2302.75 Kg/Ha which is proper and acceptable as per the past record of the Beels but the other bidders have quote 3736.0 Kg/Ha, 3431.16 Kg/Ha and 2762.70 Kg/Ha cannot be acceptable and seems to be imaginary having no knowledge over Beel. It will not be appropriate to allow persons who has no knowledge over because the Corporation has to secure the livelihood of the Fisherman as well as to secure earning of revenue.
Because not only being the previous Lessee but having sufficient knowledge of fishing and management of the Beel Corporation may go for management of Teliadanga Beel in faour of Shri Babul Biswas. The rate quoted by him will be benefited for both Corporation and Shri Babul Biswas."
10) As indicated above, as the file relating to technical bid has been withheld, thus, in the absence of any supporting documents, there is no material before this Court to accept the correctness of the logic based on which the herein before quoted observations has been made.
11) In light of the cases cited by the learned counsel for the parties, the plea of rejection of bids submitted by three highest bidders on ground of being outside viability range has been examined. In this regard, although in the affidavit- in- opposition, the respondent nos. 3 and 4 has stated that quotation of respondent no.6 was feasible, but the notice inviting tender does not provide that bids must conform to the viable range determined by the respondent nos. 3 and 4. In the records produced, no noting is found to have been made prior to opening of technical and financial bids to the effect that the respondent nos. 3 and 4 had laid down the viable range. Therefore, it is apparent that in the present case in hand, the rules of the game were changed to after the game was over, which only benefitted the respondent no.6. In this regard, the observations made by the Supreme Court of India in para-43 of the case of Central Coalfields Ltd. (supra), cited by the learned counsel for the respondent no.6 is found to operate against the respondent nos. 3 and 4 because they had failed to maintain a level playing field. The decision to have a viable bidding range did not Page No.# 9/13 precede opening of tenders, but such a decision was taken after both the two bids were opened. For the same reasons, the Court has no hesitation to hold that the decision to have a viability range for evaluating financial bid is arbitrary, not in consonance with level playing field concept and the decision making process was made after financial bid was opened in such a manner that only the respondent no.6 out of the four bidders had profited by such a decision, as such, the said decision is found to hit by the principle of bias. Moreover, had the respondent nos. 3 and 4 given notice about fresh conditions for submitting tenders, it is equally possible that more bidders would have participated in the bidding system based on viability range. As per the ratio laid down in the case of Jagadish Mandal Vs. State of Orissa & Ors., (2007) 14 SCC 517, two questions which is required to be posed by Courts before interfering in tender matters are (i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone; and (ii) whether public interest is affected. On the distinguishable facts of the present case in hand, the answers to both the questions are found in the affirmative. In respect of first question, as already held herein before, the impugned decision is found to favour the respondent no.6. In respect of the second question, as the fishery was settled with lowest bidder by rejecting three valid highest bid, in no stretch of imagination would aid any public interest, as it would result in collecting lesser revenue by respondent no.3, which is an instrumentality of the State and it is preposterous to even think that higher income made by respondent no.3 would not benefit the public exchequer. Moreover, the respondent nos. 3 and 4 had rejected two highest bids by imposing a condition and/or criteria, which was not envisaged in the notice inviting tender. The officers of the respondent nos. 3 and 4 did not record in the minutes dated 22.05.2020 that the decision to accept bids within their pre-conceived viable range was based on Article 5.1 of the Articles of Association of respondent no.3 and that no material has been disclosed before this Court to show that all along the respondent nos. 3 and 4 have uniformly followed the procedure of accepting bids within viable range for settling all their fisheries. Therefore, in light of the discussions above, the inevitable conclusion of the Court is that the impugned order dated 27.05.2020, by the respondent nos. 3 and 4, settling the fishery in question with the respondent no.6 has failed in the test of arbitrariness, fairness, unreasonableness and bias, and resultantly, the said decision cannot be held to be lawful. Had the respondent nos. 3 and 4 taken such a decision by giving prior notice to all concerned, the decision could have Page No.# 10/13 been saved as being sound, but it is not so in the present case in hand.
12) This was definitely not a case of aberration of some tender conditions or procedural aberration on part of the respondent nos. 3 and 4 in settling the fishery, but it is a case where by virtue of a hitherto hidden criteria, the fishery in question was settled with the respondent no.6 and, as such, the ratio as propounded in the case of Central Coalfields Ltd. (supra) and Jagadish Mandal (supra), does not come to the aid of the petitioner in any manner whatsoever.
13) The Court is conscious of the ratio laid down by the Supreme Court of India case of Tata Cellular Vs. Union of India, (1994) 6 SCC 651 to the effect that (i) there should be judicial restraint in review of administrative actions; (ii) the Courts should not act like a Court of appeal; it cannot review the decision but can only review the decision making process; (iii) the Court does not usually have the necessary expertise to correct such technical decisions; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries. In the present case in hand, all these four factors are found to operate against the decision making process for the reasons already assigned herein before, which are not reiterated again for the purpose of brevity. In this regard, no technical aspect is required to be considered so arrive at a finding that the decision taken by the respondent nos. 3 and 4 went outside the boundaries mentioned in the tender documents and moreover, this is not a case where any attempt has been made by the Court to interpret any document or tender condition. Therefore, the case of JSW Infrastructure Ltd. Vs. Kakinada Seaports Ltd., cited by the learned counsel for the respondent no.6 would not help to espouse the cause of the said respondent in any manner.
14) We may refer the case of Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd., (1996) 0 Supreme(SC) 1921. In the said case, the tender submitted by the appellant therein was accepted by the authorities by considering the viability range. In the said case, the Supreme Court of India had held the acceptance of the tender by considering Page No.# 11/13 the viability range to be illegal and observed that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender and it was further held that the entire procedure followed by the authorities in accepting the tender of appellant therein was unfair and opposed to norms which the government should follow in such matters, viz., openness, transparency and fair dealing. Therefore, the ratio that can be culled out from the said judgment is that if the authorities propose to accept a tender on the basis of viability range, it should have been made a part of the tender condition and thereby put all prospective bidders to notice. The coordinate Bench of this Court in the case of Jewti N.G.O. (supra), under similar circumstances had held the rejection of tender on the ground of quoting exorbitantly high bids as bad because of absence of condition in the NIT that abnormally high price bids would be rejected and laid down the ratio that rejection of bids for reasons not disclosed in the NIT to be totally impermissible. Moreover, it was observed that permitting such recourse would, in the opinion of this Court, not only afford potential ground for favouritism leading to pre- settlement litigation amongst the bidders but would also stand to frustrate the every purpose of inviting tenders. It may be mentioned that in para-18 of the said case of Jewti N.G.O. (supra), this Court had observed that if the authorities are of the view that predatory price offers should be discouraged and such bids should be eliminated at the threshold, there is nothing preventing them from incorporating suitable clauses in the NIT providing for the same. It was also observed that the authorities may even impose stringent default conditions in the NIT so as to act as a deterrent for such bidders quoting unrealistic price and that apart, the option of insisting on additional security from the successful bidder if the price is found to be abnormally high, is also available with the authorities.
15) One more issue raised by the learned counsel for the respondent no.6 was that there was no pleading in respect of the impugned order and that the impugned order was not annexed to the writ petition. This argument is found to devoid of any merit because the respondent no.6 is not found to have suffered any prejudice by non- annexing of the document in the writ petition because the said document was very much available with the respondent nos. 1 to 4 and 6 and the respondent no.6 had also referred to it in Caveat no.
Page No.# 12/13 333 of 2020 filed on 29.05.2020. Moreover, there is a specific pleading in the writ petition that the said document was not served and/or communicated to the petitioners, which is not specifically denied by the respondent nos. 1 to 4 in their affidavit- in- opposition. Therefore, the respondent nos.1 to 4 and 6 cannot be permitted to take advantage of non- supply of the impugned order dated 27.05.2020 to the petitioners by the respondent nos.1 to 4.
16) Therefore, coming to the present case in hand, the impugned order passed by the Managing Director, AFDC Ltd. (respondent no.4), under Memo No. AFDC-486/2020 dated 123-A dated 27.05.2020 by which the respondent nos. 3 and 4 had accepted the lowest bid submitted by the respondent no.6 by rejecting the three higher bids including the highest and second highest bids submitted by the petitioners in the two writ petitions, is held to be arbitrary, suffering from the vice of being unfair, opposed to norms which the government should follow in such matters, viz., openness, transparency and fair dealing and that the decision making process by the respondent nos. 3 and 4 is held to be vitiated by unfairness and bias. The decision of rejection of the bids submitted by the three highest tenderers, whose tenders were otherwise technically valid by ignoring the higher price offered is not sustainable on facts and in law. Resultantly, the Court has no hesitation in setting aside and quashing the said impugned order under memo no. AFDC-486/2020 dated 123-A dated 27.05.2020 passed by the respondent no.4. As a sequel to the same, the respondent nos. 3 and 4 are hereby commanded to pass appropriate orders to set aside, recall and/or rescind any consequential order that might have been passed by them to settle Teliadunga Krishnachigakur Fishery in the District of Sivasagar in favour of respondent no.6, namely, Babul Das. The respondent nos. 3 and 4 are further commanded to pass appropriate orders to settle the said Teliadunga Krishnachigakur Fishery in the District of Sivasagar in favour of the highest valid bidder. The said to directions should be complied with by the respondent nos. 3 and 4 within a outer period of 3 weeks from the date of receipt of the certified copy of this order. It is needless to observe that the respondent no.6 shall be entitled to claim refund of that part of their kist money for the cancelled settlement period.
17) Both the writ petitions stand allowed to the extent as indicated above, Page No.# 13/13 however, without cost.
18) Departmental records consisting of two files be returned back.
JUDGE Comparing Assistant