Quashed

Kamal Dutta v. the State of Assam and 7 Ors.

Gauhati HC1 Feb 2018WP(C)/4191/2017

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an order granting weekly market settlement to the lowest bidder, holding that rejecting a higher bidder due to document lapses while ignoring identical defects in the lowest bidder's tender violated Article 14. The matter was remanded for a fresh decision using uniform standards.

What did the court decide?

Impugned order dated 29-06-2017 set aside and referred back to respondent No. 4 for fresh decision within three weeks.

Kamal Dutta Vs the State of Assam and 7 Ors. — Public Procurement and Tenders | Gauhati HC (2018)

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GAHC010030722017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4191/2017

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1:KAMAL DUTTA

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S/O- SRI HIREN DUTTA, VILL- NO.2 TAMULI GAON, P.O- BILGAON, P.SBARPATHAR, PIN- 785602, BARPATHAR, GOLAGHAT, ASSAM

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VERSUS

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1:THE STATE OF ASSAM and 7 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT, DISPUR, GUWAHATI-06

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2:THE DIRECTOR PANCHAYAT AND RURAL DEVELOPMENT DEPTT. PANJABARI

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GUWAHATI-37

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3:THE DEPUTY COMMISSIONER GOLAGHAT ASSAM

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4:THE GOLAGHAT ZILLA PARISHAD REP. BY THE CHIEF EXECUTIVE OFFICER GOLAGHAT ASSAM

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5:THE GOLAGHAT SOUTH ANCHALIK PANCHAYAT REP. BY THE EXECUTIVE OFFICER-CUM- SECRETARY SARUPATHAR DIST- GOLAGHAT ASSAM

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6:THE PRESIDENT GOLAGHAT SOUTH ANCHALIK PANCHAYAT SARUPATHAR

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DIST- GOLAGHAT ASSAM

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7:PRASANTA CHETIA S/O- SRI BABUL CHETIA P.O- BARPATHAR VILL 2 NO. WARD P.O BARPATHAR PIN- 785602 DIST- GOLAGHAT ASSAM 8:LAKHI KANTA BORO S/O- SRI RATNESWAR BORO VILL- BASAPATHAR P.O- BARPATHAR PIN- 785602 DIST- GOLAGHAT ASSA

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Advocate for the Petitioner : MS.A DAS

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 01-02-2018

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Heard Dr. B.N. Gogoi, learned counsel for the writ petitioner. Also heard Mr. S.R. Baruah, learned Govt. Advocate, Assam appearing for the respondent Nos. 1 to 5. None appears for the respondent Nos. 6 to 8 despite service of notice.

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The order dated 29-06-2017 issued by the Executive Engineer-cum-Secretary of the South Golaghat Anchalik Panchayat, Sarupathar granting settlement of the Bilgaon Weekly Market for the period 01-07-2017 to 30-06-2018 in favour of respondent No. 7 is under challenge in this writ petition.

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Mr. Gogoi, learned counsel for the petitioner submits that having quoted an amount of

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Rs. 1,61,000.66/-, the petitioner had emerged as the 2^nd highest bidder amongst the five tenderers who had submitted their bids responding to the NIT dated 08-05-2017 issued by the authorities for settlement of the weekly market. Although, the respondent No. 8 had quoted Rs. 3,00,001/-, yet, he was disqualified for being a person belonging to the BPL category. As such, it was the petitioner who was the highest bidder and therefore, ought to have been favoured with the order of settlement. Notwithstanding the same, the settlement order was issued in favour of the respondent No. 7 who was the lowest bidder and had quoted only an amount of Rs. 61,00,101/-. Hence, this writ petition.

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By referring to the pleadings brought on record, Mr. Gogoi submits that the writ petitioner had duly submitted the affidavit as per Clause- 19 of the NIT but the same was rejected on the ground that it was not executed by the guarantor. He submits that while similar lapses on the part of the respondent No. 7, as is apparent from the comparative statement, had been overlooked by the authorities but in case of the writ petitioner, a completely different standard has been adopted only to deny him the order of settlement. As such, Mr. Gogoi submits that this is a clear case of discriminatory treatment having been meted out to the petitioner only to extend undue favour to the respondent No. 7.

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From a perusal of the materials on record, it appears that the writ petitioner had failed to furnish certain documents along with the tender papers which included an agreement accepting to abide by the regulations and also the no defaulter certificate. What is also apparent from the record is that even the respondent No. 7 had failed to submit co-pattadars consent, no defaulter certificate. As per the terms of the NIT, all the documents required to be annexed to the tender are of equal importance. If that be so, then it is apparent that both the writ petitioner and the respondent No. 7 have failed to submit certain vital documents

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along with their tender papers which were required in the NIT.

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The learned Govt. Advocate has failed to give any satisfactory reply as to why the defects in petitioners tender was taken note of but similar defects in the tender of the respondent No. 7, as noted above, was ignored by the authorities while granting the order of settlement.

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Since there is a substantial difference in the rate quoted by the writ petitioner and the respondent No. 7 as indicated above, it is evident that by granting settlement in favour of the respondent No. 7 the Anchalik Panchayat has suffered loss of revenue.

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It is no doubt true that the writ petitioner had failed to submit proper agreement as per the requirement of Clause- 19 (Ka) of the NIT. But it is equally true even the respondent No. 7 had failed to enclose certain vital documents along with the tender and there is no convincing answer as to why those defects were condoned by the authority. The respondent No. 7 has also choosen not to appear and defend the order of settlement despite service of notice.

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Law as regards Govt. tenders is well settled. While processing the tenders, the public authorities must ensure that a fair and transparent process is adopted whereby equal treatment is given to all the tenderors. If a tender process is attended with an element of discrimination and favoritism, then the same cannot stand the scrutiny of law on the touch stone of Article 14 of the Constitution of India. In the present case, it is apparent from the record that the authorities had adopted different standards while processing the tenders of the writ petitioner and the respondent No. 7. The authorities cannot reject one tender on the ground of non-furnishing of documents and accept the other by ignoring deficiency of similar nature, more so when such a decision has the effect of causing substantial loss of revenue to

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the Anchalik Panchayat.

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In view of the above, the impugned order dated 29-06-2017 is held to be unsustainable in law and is accordingly set aside.

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This matter is now referred back to the respondent No. 4 to take a fresh decision on the question of granting settlement of the weekly market for the remaining period, after employing uniform standards of processing, in the light of the observation made here-inabove.

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The process as directed above, be completed as expeditiously as possible but no later then 03 weeks from the date of receipt of a certified copy of this order.

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The outcome of the fresh assessment process be initiated to the parties in writing.

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Writ petition stands disposed of.

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Send back the record.

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JUDGE

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Comparing Assistant

Kamal Dutta v. the State of Assam and 7 Ors.

Case brief

What is this about?

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Kamal Dutta v. the State of Assam and 7 Ors.

Case brief

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