Allowed

Kamala Sarmah v. the State of Assam and 7 Ors.

Gauhati HC3 Apr 2018WP(C)/4424/2017

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of a bid for market settlement, the Gauhati High Court held that an ambiguous tender clause specifying the financial soundness certificate issuer could not justify rejecting a higher bid. Distinguishing a Supreme Court precedent, the Court emphasized past practice and security deposit, quashing the order in favor of the lower bidder.

What did the court decide?

Set aside the impugned order of settlement dated 10.7.2017 in favor of Respondent No. 8 and direct respondents to pass an order of settlement in favor of the petitioner.

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

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GAHC010031982017

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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) 4424/2017

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1:KAMALA SARMAH

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S/O LATE DIMADHAR SARMAH, R/O VILL-BOCHACHUK, PO-BHIMPORA BLIAJAN, PS-BOGINODI, DIST. LAKHIMPUR, ASSAM, PIN-787030

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VERSUS

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1:THE STATE OF ASSAM and 7 ORS.

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TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-6

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2:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM

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3:THE DEPUTY COMMISSIONER NORTH LAKHIMPUR ASSAM

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4:LAKHIMPUR ZILLA PARISHAD REP. BY ITS CHIEF EXECUTIVE OFFICER LAKHIMPUR ASSAM-78707

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5:THE CHIEF EXECUTIVE OFFICER LAKHIMPUR ZILLA PARISHAD ASSAM-787007

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6:BOGINODI ANCHALIK PANCHAYAT REP. BY ITS PRESIDENT BOGINODI PO-BOGINODI DIST. LAKHIMPUR ASSAM

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Page No.# 2/7

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PIN-787030

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7:THE EXECUTIVE OFFICER BOGINODI ANCHALIK PANCHAYAT PO-BOGINODI LAKHIMPUR ASSAM PIN-787030

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8:SRI BITUMONI SARMAH S/O LT. MUNINDRA SARMA R/O VILL-UTTAR KULABALI PS- BOGINODI DIST-LAKHIMPUR ASSAM PIN-787030

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9:SHRI SOMGAL SWARGIARI S/O. LATE RAMEN SWARGIARI R/O. VILL. SINGIDOLONI P.O. BORKHELIA P.S. BOGINODI

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10:SHRI GOKUL PAMEGAM S/O. LATE NANDESWAR PAMEGAM VILL. NANDAN NAGAR P.O. AND P.S. BOGINODI

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11:SHRI ARUN PAMEGAM S/O. LATE LUKNATH PAMEGAM R/O. VILL. NANDAN NAGAR P.O. BOGINODI

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12:SHRI BIJOY JUMAR TAID S/O. LATE PADMA TAID R/O. VILL. HEKERA JAN P.O. BOGINODI

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13:SHRI SEKANDRA PEGU S/O. MR. BHIGURAM PEGU R/O. VILL. SINGORI P.O. GOROIMAR

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Page No.# 3/7

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Advocate for the Petitioner : MR. B.D. DAS, MS.R DEKA

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Advocate for the Respondent : MR. J. CHUTIA,

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MR. A CHAKRAVORTY,

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MR.K KALITA

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BEFORE HONOURABLE MR. JUSTICE ARUP KUMAR GOSWAMI

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JUDGMENT

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Date : 03-04-2018

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Heard Mr. B.D. Das, learned senior counsel for the petitioner. Also heard Mr. J. Chutia, learned counsel appearing for the respondent Nos. 4 and 5, Mr. A. Chakravorty, learned State counsel appearing for respondent Nos. 1, 2, 3 and 7 and Mr. K. Kalita, learned counsel appearing for respondent No. 8. None appears for respondent Nos. 6, 9 to 13 despite service of notice.

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The petitioner, respondent Nos. 8, 9 to 13 and some other tenderers totaling 13 tenderers had submitted their respective tenders in response to a Notice Inviting Tender (NIT) dated 3.6.2017 issued by the President of Boginadi Anchalik Panchayat inviting bids for settlement of 13 markets, ghats, fisheries, etc., including Boginadi Weekly Market (Tuesday), for the period from 1.7.2017 to 30.6.2018. The petitioner had submitted bid for Rs. 8,39,999/- and the respondent No. 8 had submitted his tender for Rs. 8,31,165/-. As the value of the tenders submitted was more than Rs. 1,00,000/-, the Anchalik Panchayat forwarded the papers including the tender papers and comparative statement prepared to the Lakhimpur Zilla Parishad.

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By the order dated 10.7.2017, the Chief Executive Officer, Lakhimpur Zilla Parishad communicated acceptance of tender of the respondent No. 8 at his tender value.

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Admittedly, rate quoted by the petitioner was higher than the rate of the respondent No. 8. Respondent Nos. 9 to 13 had submitted tenders quoting rates higher than the

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Page No.# 4/7

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petitioner and the respondent No. 8. As noticed above, the higher tenderers had chosen not to respond to this proceeding.

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In the affidavit filed by respondent Nos. 4 and 5, it is stated that the tender of the petitioner is defective as the petitioner did not submit financial soundness certificate in terms of Clause 11 of the NIT from the competent authority but had submitted the same from the Mauzadar. It is also stated that the financial soundness certificate is required to be issued by the Circle Officer of the concerned Revenue Circle of the State of Assam.

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It is not in dispute that the petitioner had submitted financial soundness certificate from the Mauzadar and that the respondent No. 8 had submitted the same from the jurisdictional Circle Officer.

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At this stage, it will be relevant to note Clause 11 of the NIT (translated into English): “Tenderers will have to submit the Financial Soundness Certificate from appropriate departmental authority with the bid document.”

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It is clear that the aforesaid Clause 11 is very ambiguous and it is not indicated as to who is the competent departmental authority to issue such financial soundness certificate.

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Mr. Das has submitted that in the previous years, settlements had been offered to tenderers who had submitted financial soundness certificate from Mauzadars and the comparative statement prepared this year also demonstrates that a substantial number of tenderers had submitted their tenders with financial soundness certificate from the Mauzadar. In this connection, he draws my attention to paragraph 4 of the additional affidavit filed by the petitioner. He has further submitted that nothing is brought on record by the respondent Nos. 4 and 5 or by the State respondents to demonstrate that Circle Officer is a competent authority to issue financial soundness certificate. That apart, it is submitted by him that the petitioner had provided as security his own land valued at Rs. 8,40,000/-, which is duly certified by the Circle Officer of the Revenue Circle in question and therefore, in view of the ambiguity in Clause 11 of the NIT, it will be unreasonable to reject the tender of the

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petitioner. He has also submitted that respondent No. 8 did not offer his own land but had taken the assistance of his guarantors in providing security.

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Mr. Chutia has submitted that even if in the past, financial soundness certificates issued by the Mauzadar had been accepted for the purpose of grant of settlement, a wrong committed cannot be perpetuated. He has submitted that Mauzadar has got no other authority other than collecting revenue in terms of the Assam Land and Revenue Regulations, 1886. He had relied upon the case of State of Assam & ors. vs. Radha Kanoo, reported in 1997 (2) GLT (SC) 35.

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On a pointed query of the Court as to whether any power has been vested in the Circle Officer to issue financial soundness certificate, Mr. Chutia has very fairly submitted that he does not have any such instruction. He, however, submits that the Circle Officer is recognized as the Administrative Head of Revenue Circle and therefore, it is considered that he has got competence to issue such certificate.

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Mr. Kalita endorses the submissions of Mr. Chutia.

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In absence of any instruction, Mr. Chakravorty does not offer any arguments with regard to the issue raised in the petition.

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A notice inviting tender must indicate the terms and conditions without any ambiguity and in clear terms. Clause 11 of the NIT falls far short in terms of clarity.

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Perusal of the comparative statement produced by Mr. Chutia goes to show that it was opined by the Standing Committee of the Zilla Parishad that the financial soundness certificate issued by the Circle Office would be considered as valid and acceptable as his certificate was dependent on land valuation.

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At paragraph 4 of the additional affidavit filed by the petitioner, it is stated that the Chief Executive Officer, Lakhimpur Zilla Parishad had settled the market with one Gokul

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Sonowal for the year 2013-2014, with respondent No. 10 for year 2014-2015 and with respondent No. 9 for the year 2015-2016 on the basis of the financial soundness certificate issued by the Mauzadar.

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In Radha Kanoo (supra), it was observed that Mauzadar is a local revenue collection agent of the Government to collect revenue in respect of the persons who rightly and lawfully entered into possession of the lands pursuant to the orders under Rule 16 of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 and that the Mauzadar has no power to collect such land revenue from a trespasser. The ratio laid down is not applicable to the facts of the case.

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In the instant case, the petitioner had submitted land valuation certificate duly certified by the Circle officer in respect of his own land as security. Such certificate demonstrates that the bid of the petitioner was covered by the value of the land. If in Clause 11 of the NIT it was very specifically mentioned from which authority the tenderers have to obtain the financial soundness certificate and if a tenderer had not enclosed along with his tender such certificate from the specified authority, it could have been a different proposition altogether. But when the tendering authority itself had not mentioned the authority who is competent to issue such certificate and it kept the provision absolutely vague and when the past practices reveal that financial soundness certificate issued by Mauzadar was accepted for the purpose of grant of settlement, without going into the question as to whether the Mauzadar is otherwise competent to issue financial soundness certificate, I am of the considered opinion that the petitioner having quoted higher rate than respondent No. 8 cannot be deprived of the settlement, on the ground that his tender is defective.

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In that view of the matter, the impugned order of settlement dated 10.7.2017 made in favour of respondent No. 8 is set aside and the respondents are directed to pass order of settlement in favour of the petitioner for the remaining period of settlement. This will be done within a period of 2 (two) weeks from today.

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Writ petition stands allowed in terms of the above. No cost.

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JUDGE

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Comparing Assistant

Kamala Sarmah v. the State of Assam and 7 Ors.

Case brief

What is this about?

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Kamala Sarmah v. the State of Assam and 7 Ors.

Case brief

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