IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) WP(C)No.5570/2016 1. Md. Nur Uddin Vs. The State of Assam and 4 Ors. Petitioner Respondents WP(C)No.5217/2016 1. Md. Shiyar Uddin Vs. The State of Assam & 6 Ors. Petitioner Respondents WP(C)No.3624/2016 1. Md. Shiyar Uddin Vs. The State of Assam & 5 Ors. Petitioner Respondents WP(C)No.936/2017 1. Mainul Hoque Chowdhury Vs. The State of Assam & 4 Ors. Petitioner Respondents WP(C)No.7230/2016 1. Md. Habij Uddin Vs. The State of Assam Petitioner Respondents
2 B E F O R E HON BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA Advocates for the Petitioner : Mr. A Sarma In WP(C)No.5570/2016 Mr. K Kalita Mr. S Choudhury Advocates for the Respondents : Mr. D Nath In WP(C)No.5570/2016 Govt. Advocate Mr. FKR Ahmed(R-5) Mr. DA Laskar (R-5) Advocates for the Petitioner : Mr. MK Hussain In WP(C)No.5217/2016 Ms. K Sarma Ms. SY Ahmed Mr. KI Mazumder Mr. A Choudhury Mr. S Islam Ms. M Konch Advocates for the Respondents : Mr. D Nath In WP(C)No.5217/2016 Govt. Advocate Mr. A Sarma(R-7) Mr. K Kalita (R-7) Mr. S Chowdhury (R-7) Advocates for the Petitioner : Mr. MK Hussain In WP(C)No.3624/2016 Ms. K Sarma Ms. SY Ahmed Advocates for the Respondents : Mr. D Nath In WP(C)No.3624/2016 Govt. Advocate Advocates for the Petitioner : Mr. N Dutta In WP(C)No.936/2017 Senior Advocate Mr. FKR Ahmed Mr. AA Ahmed Mr. SB Rahman Mr. SSS Rahman Mr. AW Aman Advocates for the Respondents : Mr. D Nath In WP(C)No.936/2017 Govt. Advocate Mr. A Sarma(R-5) Mr. K Kalita (R-5)
3 Mr. S Chowdhury (R-5) Ms. P Khound(R-5) Advocates for the Petitioner : Mr. R Mazumdar In WP(C)No.7230/2016 Mr. M Dutta Advocates for the Respondents : Mr. D Nath In WP(C)No.3624/2016 Govt. Advocate Date of hearing & Judgment : 12.05.2017 JUDGMENT & ORDER (ORAL) Heard Mr.N Dutta, learned Senior counsel assisted by Mr. FKR Ahmed, learned counsel for the petitioner in WP(C)No.936/2017 and Mr. S Islam, learned counsel for the petitioner in WP(C)No.5217/2016. Also heard Mr. A Sarma, learned counsel for the petitioner in WP(C)No.5570/2016 as well as for the respondent No.7 in WP(C)No.5217/2016 and respondent No.5 in WP(C)No.936/2017 respectively and Mr. R Mazumdar, learned counsel for the petitioner in WP(C) No.7230/2016. 2. As all the writ petitions assail the common order dated 08.08.2016 of the Chief Executive Officer, Nagaon Zilla Parishad, which is an order of settlement of the Balisatra Bi-weekly Market in favour of the respondent No.5 and as the learned counsel Mr. A Sarma is representing the said respondent No.5 in WP(C)No.936/2017, therefore, it is deemed appropriate that the said respondents need not be heard any further in the said writ petitions. 3. The issues for determination and the grounds for challenge being the same in all the four writ petitions and as the respondents are represented in all the above writ petitions, it appears that there is sufficient representation of the respondents in all the four writ petitions. 4. A NIT was issued by the Executive Officer-cum-Ex-Officio Secretary of the Batdruba Anchalik Panchayat dated 01.05.2016, inter alia, inviting
4 tendered bids for settlement of, amongst others, the Balisatra Bi-weekly Bazar. The Government rate for the year 2015-2016 for the said Balisatra Biweekly Bazar was fixed at Rs.6,30,000/- while the earnest money was fixed at Rs.31,500/-. Clause 7 of the NIT, inter alia, provides that once the tendered bid is submitted, the same cannot be withdrawn and after it is so done, if the bidder, who is settled with the market refuses to accept the settlement, the earnest money would be forfeited. Clause 26 Gha further provides that notice would be issued by the Zilla Parishad and the Anchalik Panchayat indicating the approved rate at which the settlement holders would take the toll/tax from the respective stall operator in the market. 5. Upon opening of the tendered bids, a comparative statement was prepared by the respondent, Nagaon Zilla Parishad. As per the comparative statement, the petitioner in WP(C)No.936/2017, had offered the value of Rs.83,50,111/- and it is stated that in respect of all the requirements enumerated in the comparative statement, the said tenderer had submitted all the required documents. In respect of the petitioner in WP(C)No.5217/2016, it is stated that the said tenderer had quoted the rate of Rs.82,02,910/- and the said tenderer has also submitted all the required documents. In respect of the petitioner in WP(C)No.7230/2016, it is stated that the said tenderer had quoted a rate of Rs.66,12,712/- and had also submitted all the documents as enumerated in the comparative statement. 6. The comparative statement further states that the respondent No.5 in favour of whom the settlement was made had quoted a rate of Rs.61,00,061/- and that the said tenderer had also submitted all the required documents as enumerated in the comparative statement. It is also noticed that at the end of the comparative statement a note had been put up indicating that though the tenders placed at Sl.Nos.2, 4, 5, 7, 9, 10 and 11 of the comparative statement, are all found to be valid tenders in all respects, but the rate offered by each of them are much more higher in comparison to the previous year, and, therefore, there is an apprehension of there being excessive tax burden for the general people and, as such, for public interest, the tendered bid of the said tenderers ought not be considered for settlement.
5 Accordingly, it is stated that the general standing committee had taken an anonymous decision to settle the market in respect of respondent No.5, who had quoted a rate of Rs.61,00,061/-. It may be noticed that the petitioner in WP(C)No.936/2017 had quoted a rate of Rs.83,50,111/-, the petitioner in WP(C) in WP(C)No.5217/2016 had quoted a rate of Rs.82,02,910/-, the petitioner in WP(C)No.7230/2016 had quoted a rate of Rs.66,12,712/-, whereas on the other hand, the respondent No.5 had quoted a rate of Rs. Rs.61,00,061/-. 7. It is further noticed that although a view had been taken by the general standing committee that the rates offered by the writ petitioners are much more higher than in comparison to the previous year but nowhere in the comparative statement it has been stated as to what was the rate in the previous year. Accordingly, pursuant to the said decision of the general standing committee, the respondent No.5 was issued the work order dated 08.08.2016, which in some other place has also stated to be 01.08.2016. From Annexure-D of the writ petition being the order dated 21.09.2016, it is also noticed that the respondent No.5 upon being settled with the market, in question, had not deposited the 30% security money of his quoted amount till the date of the said order. Accordingly, the settlement holder was directed to deposit the amount. 8. In the aforesaid premises, Mr. N Dutta, learned Senior counsel appearing for the writ petitioners have urged that the decision of the general standing committee to reject the bids of the other tenderers on a stated reason that the bids offered by them are much more higher than in comparison to the previous year is legally not acceptable in view of the law laid down by the Hon ble Supreme Court in Dutta Associates Vs. Indo Merchantile Pvt. Ltd. reported in (1997) 1 SCC 53 and Jespar J. Slong Vs. the State of Meghalaya & Ors. reported in (2004) 11 SCC 485. It is submitted that in both the aforesaid 2(two) decisions, the Hon ble Supreme Court was deliberating upon the question as to whether the concept of viable range in respect of the tenders is permissible under law.
6 9. Mr. Dutta, learned Senior counsel also submitted that under Rule 47 (10) of the Assam Panchayat and (Financial) Rules, 2002, (for short the Rules of 2002), the tender of the highest bidder shall be accepted and acceptance of a tender other than that of the highest bidder shall be made subject to the prior approval of the Government. By referring to the vernacular order of settlement dated 08.08.2016/01.08.2016 it has been brought to the notice of this Court that the said order of settlement states that for the purpose of settlement against his tendered bid if Rs.16,00,061/- the matter has been referred to the Govt. for its approval. 10. Mr. Dutta, by referring to the vernacular words, Sapekhya, has referred the meaning of the said word as given in the Assamese dictionary Akhonic Asomiya Sabdo Khoj, which provides that it means depending or depended upon. Accordingly, the learned Senior counsel interprets that the settlement order dated 08.08.2016/01.08.2016 as an order which is subject to or depending on the approval of the Government as provided under Rule 47(10) of the Rules of 2002. 11. Accordingly, it is the submission of the learned Senior counsel that as per the information available with the writ petitioner, the said order of settlement has not been given its approval by the Government as required under Rule 47(10) and as such the order of settlement dated 08.08.2016/01.08.2016 is nonest and its status would be considered to be an order without its jurisdiction. 12. Mr. A Sarma, learned counsel for respondent No.5, on the other hand, by relying upon the decision of this Court, rendered in Jalal Uddin & Ors. Vs. the State of Assam and others reported in 2015 (2) GLT 1097 in paragraph 14 had urged that the expression highest bidder appearing in Rule 47(10) has to be read to be the valid highest bidder. According to the learned counsel a mere highest bid would not meet the requirement of Rule 47(10) and, in fact, the bid of the said highest bidder would have to be valid in all respect. Accordingly, Mr. Sarma by referring to the decision of the General Standing Committee has contended that the bid of the petitioners are not valid bids.
7 13. Mr. Sarma also refers to Annexure-1 of the affidavit-in-opposition filed by the respondent No.5, which is a letter from the writ petitioner in WP(C)No.936/2017, which, inter alia, provides that as the Standing Committee is yet to settle the market, the said writ petitioner will not object if the authorities settle the market with any of the bidder and that he will not file a case in the Court for the purpose, therefore, a request was made for return of the bank draft containing the earnest money. 14. Mr. Sarma also refers to the Annexure-2 to the affidavit-in-opposition letter dated 17.03.2017 of One Md. Fazar Ali, which says that the writ petitioner in WP(C)No.936/2017 had submitted a document being a land certificate, by forging/fabricating the signature of the said Fazar Ali. Mr. Sarma also refers to the Affidavit annexed as Annexure-3 to the said affidavitin-opposition by one Niranjan Dev Goswami stating that he wants to withdraw himself as a bailor to the writ petitioner. Accordingly, it is the submission of the learned counsel for respondent No.5 that because of the aforesaid discrepancies of submitting false documents the bid of the petitioners in WP(C)No.936/2017 is not a valid bid. 15. Mr. Dutta, on the other hand, by referring to the affidavit-in-opposition filed by the writ petitioner in WP(C)No.936/2017 had brought to the notice of this Court that in response thereof the writ petitioner had sworn an affidavit stating that he had not submitted any letter dated 19.07.2016 to the Nagaon Zilla Parishad requesting that his bank draft be returned back, and that he had never signed any such letter. Mr. Dutta also refers to an affidavit which is annexed as Annexure-3 to the writ petition. Mr. Dutta further refers to another affidavit, filed by Md. Fazar Ali stating that he has signed as a guarantor to the writ petitioner and that he had not filed any complaint petition dated 17.03.2017 and that he had not put any signature to the complaint petition dated 17.03.2017. On the other hand, the learned Senior counsel also refers to another affidavit annexed as Annexure-16 at page 23 of the affidavit-in-opposition filed by Niranjan Dev Goswami, wherein it is stated that he had not put any signature in any affidavit dated 28.03.2017.
8 Accordingly, it is the submission of the learned Senior counsel that the documents referred by the respondent No.5 to project that the writ petitioner had withdrawn his bid and that he had submitted false documents is itself incorrect and the respondent No.5, on the other hand, submitted false document before this Court. 16. Mr. Dutta, further refers to clause 7 of the NIT which, inter alia, provides that in any circumstance once a bid having been submitted the same cannot be withdrawn by the bidder and that in the event, the bidder does not accept the settlement offered, the earnest money would be forfeited. Accordingly, Mr. Dutta makes an alternative argument that even after the said letter of withdrawal is given by the petitioner, the same would be contrary to the provisions of the terms and condition of the tender and, as such, the same cannot be taken into consideration by the settling authorities. 17. As regards the issues raised in this writ petition that the settling authorities cannot introduce the concept of viable range after the settlement of the bid documents had already been settled by the Apex Court in Dutta Associates Vs. Indo Merchantile Pvt. Ltd.(supra). In the said decision, the Hon ble Supreme Court has held that all such tenderers are prudent businessman and they know the consequence of rate that they may submit. In such view, any appreciation by the said authorities to bring out the concept of viable range after the settlement of the bid is made so as to oust any such tenderer would be unacceptable. 18. The aforesaid question was given further consideration by the Hon ble Supreme Court in Jespar J. Slong (supra) wherein in paragraph 21, the Supreme Court had held in paragraph 21 as under: 21. The respondent-state owns a weigh bridge at Morkjniange. The income from this weigh bridge is received from the fees charged for weighment of trucks which pass through route in which this weigh bridge is situated. We are told that these trucks mostly carry coal from Jaintia hills to Gauhati. As per the notification the person operating the weigh bridge can only charge a sum of Rs.30/- for a loaded truck and Rs.10/- for an unloaded
9 truck. Therefore, the fee to be collected from the transporters for weighment of their vehicles is fixed and it does not vary with the amount of bid offered by the contractor. This is not a contract of supply where a contractor by manipulating the price may cause loss to public at large. This is not a contract which would have any effect on the price of coal, since weighment charges are fixed by the government and the contractor has no right to increase the same. Payment of bid amount is purely a matter between the contractor and the State. As a matter of fact obtaining higher revenue by accepting the eligible highest bid would only be in public interest because State stands to gain more revenue. The offering of the bid after knowing the commercial value of the contract is a matter left to the business acumen or prudence of the tenderer. No third party s interest is involved in such contract. Therefore, in our opinion, application of principle of predatory pricing is wholly alien to this type of contract. Mere offer of a fancy or high bid by itself does not make the bid a predatory bid in this type of contract. If the State decides to give its largesse to public it has an obligation to see that it fetches the best possible value for the same, provided otherwise it does not in any manner affects the rights of other citizens. No bidder has any right in law to demand the State to give away its largesse for an amount which he considers to be reasonable even when there are bidders willing to pay more for it. Principal of monopoly also does not come into play in these types of contracts. 19. On perusal of paragraph 21 of Jespar J. Slong (supra) case what is apparent is that when the contract is for the purpose of collection of fees or toll and the fees to be collected for the purpose is fixed by the authorities and it is not open for the contractors to manipulate the price which may cause loss to the public at large and thirdly, where the terms and conditions of the contract is such that the contract amount had been paid in advance to the authorities, the question, that a rate which the authorities considers to be considerably higher than the desired rate would not effect the public interest in any manner. On the other hand, the Hon ble Supreme Court was of the view that higher the rate the bidder would quote it would serve public interest as there would be higher generation of revenue. In view of the aforesaid provision of law laid down by the Hon ble Supreme Court, the stand taken by
10 the respondent authorities that the bid value of the writ petitioners are much more higher than in comparison to the previous year and that there is an apprehension of excessive tax burden on the general people and that it would be against the public interest, is found to be not acceptable. As already eluded earlier, clause 27 Gha of the NIT clearly provides that the settling authorities would fix the rate on which collection would be made by the settlement holder and shall be duly notified and displayed for the public. Therefore, it being the position, the provision of the General Standing Committee that there would be excessive tax burden on the general public is also found to be unacceptable. 20. In view of such conclusion of this Court the reasons given by the General Standing Committee for refusing to accept the otherwise valid bid of the highest bidder and consequently arriving at a decision to settle the market, in question, with the respondent No.5 is also found to be unacceptable and contrary to the law. As regards the other contention, as to the requirement of Rule 47(10) of the 2002 Rules, a reading of the said Rules would make it apparently clear that, otherwise, the tender of the highest bidder shall be acceptable, but if for any other reason, the acceptance of the tender of the highest bidder is not accepted, it would require the prior approval of the Government. In the absence of any other provision, the said provision that the acceptance of a bid other than the highest bid requires the prior and formal approval of the Government appears to this Court as a mandatory provision. The said provision has been incorporated as a measure to check against the possible arbitrary decision by the said authority to award the contract to a bidder, who is a bidder other than the highest bidder and also as a measure to avoid such arbitrariness. 21. On the submission of Mr. A Sarma, learned counsel for respondent No.5 that this Court has already held that the expression highest bidder shall has to be read as valid highest bidder, this court finds sufficient force in the aforesaid submission and deems it appropriate that the expression highest bidder has to be read as valid highest bidder. Accordingly, the submission made by the learned counsel for respondent No.5 as to whether the bids
11 submitted by the petitioner are otherwise valid bid or not requires some examination. The first ground stated by Mr. Sarma to substantiate his case that the bids of the petitioners are not a valid bid is that the committee had taken a decision that their bids are excessively high in comparison to the previous years. In view of the finding already arrived at by this Court that such view is not tenable in law, the submission of Mr. Sarma that the bid of the petitioner is not a valid bid is found to be unacceptable. As regards the other grounds taken by Mr. Sarma that the writ petitioner had withdrawn his bid by the letter dated 17.03.2017 and that the guarantor of the writ petitioner in WP(C)No.936/2017 has stated that the signature was obtained by fraud, also has to be examined in the context of the reply that has been given by the writ petitioners to such question raised by the respondent No.5. The writ petitioner by his affidavit annexed as Annexure-D to the affidavit-inreply had clearly stated that he has never signed any such letter, which gives an indication that the said letter dated 19.07.2017 is probably a fraudulent letter. Be that as it may, without going into the merits of the issues raised to adjudicate whether the letter was fraudulent or not, this Court is of the view that the said issue having been raised by respondent No.5 the burden under Section 103 is on the said respondent to proof that the said letter is a fraudulent document. In the absence of any such material being produced in addition to the said letter, this Court cannot adjudicate upon the said question and, therefore, the said issue raised upon by the respondent No.5 has to be rejected at present. 22. Similarly, in respect of the objection raised that the signature of guarantor of the writ petitioner in WP(C)No.936/2017 was obtained by fraud, the writ petitioner has subsequently filed an affidavit which clearly states that the letter produced by the respondent No.5 is a fraudulent letter and that he had not put any signature on the letter. Accordingly, in the absence of any such burden of proof being discharged by respondent No.5, this Court again comes to the conclusion that the said issue need not be adjudicated at present. In view of the aforesaid findings and conclusion, this Court is of the view that the rejection of the bids of the valid highest bidder is found to be arbitrary and without any acceptable reason and, accordingly, as the said
12 reason for rejection has been found to be arbitrary, the consequential decision and order to settle the market, in question, with the respondent No.5 is also found to be arbitrary. Further, as the required mandatory approval under Section 47(10) of the Rules of 2002 has not been obtained in these cases, as revealed from the records produced by the learned State counsel, the settlement order is also found to be non est and made without following the due procedure of the law as provided by the statutes. 23. In view of the above, as the order of settlement dated 08.08.2016/01.08.2016 made in favour of the respondent No.5 has been set aside, this Court deems it appropriate that the settling authority would take a fresh decision on the matter by taking into consideration the aforesaid finding of this Court and arrive at a decision as to with whom the settlement is to be made. As the question raised by respondent No.5 that the letter dated 19.07.2016 and the affidavits dated 17.03.2017 and 20.03.2017 submitted by the petitioners and the guarantor of the petitioners, respectively, had not been adjudicated by this Court, the settling authority while considering the fresh settlement shall also give due consideration to the same. 24. While giving its due consideration, the settling authority would also take into account the consequential denial of the petitioner as well as by the guarantor of the petitioner that the said purported signatures are fraudulent would also be given its due consideration. As agreed to by the learned counsel for the parties to arrive at an appropriate decision, the said authority may give personal hearing to all the parties to present their respective stand. It is made clear that the settling authority will give a fresh consideration on the basis of the materials already available on record but in order to arrive at a conclusion regarding the fraudulent submission of the letters dated 19.07.2017 and the affidavit dated 17.03.2017 and 28.03.2017, the settling authority will take into account further materials that may be produced by the writ petitioner in WP(C)No.936/2017.
13 25. The aforesaid exercise be carried out within a period of 15(fifteen) days from the date of receipt of a certified copy of this order. Till such final decision is taken, it is provided that the market, in question, may be run departmentally without the aid and assistance and involvement of any person involved with either of the writ petitioner and or the respondent No.5. 26. Consequently, it is, directed that the earnest money of respondent No.5 be refunded. 27. At the end of hearing, Mr. D Nath, learned State counsel refers that by the interim order dated 27.03.2017 in WP(C)No.1858/2017, the respondent No.5 herein is required to allow to run the market, in question. It is provided that the issues involved in WP(C)No.1858/2017 was entirely on a different premises which had no connection with the decision arrived at in this writ petition. The said interim order was passed on the premises that the respective guarantors of respondent No.5 had withdrawn and re-emerged. Therefore, it is provided that the said interim order dated 27.03.2017 shall not come in the way of the settling authorities in arriving at a fresh decision as ordered in this batch of writ petitions. 28. In terms of the above, the above writ petitions stands disposed of. Shivani JUDGE