Allowed

Kukil Das v. the State of Assam and 17 Ors.

Gauhati HC5 Sept 2019WP(C)/5769/2019

Case brief

AI extract

What is this about?

Writ petitioner challenged settlement of Sulung Daily Market awarded to lowest bidder for allegedly exorbitant prices quoted by others. Court held evaluation based on undisclosed criteria violated Article 14 and settled award without government sanction breached Rule 47(10).

What did the court decide?

Impugned order dated 31.07.2019 set aside; respondents directed to re-evaluate bids within 15 days and obtain prior Government approval before issuing fresh settlement order.

Kukil Das Vs the State of Assam and 17 Ors. — Public Procurement and Tenders | Gauhati HC (2019)

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GAHC010189302019

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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) 5769/2019

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1:KUKIL DAS

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S/O- SRI RAJEN DAS, R/O- VILL- NO. 4 BORGHULI, P.O. BORGHULI, P.S. ULUONI, DIST- NAGAON, PIN- 782143, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 17 ORS.

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REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY-6, KAMRUP (M) DIST., ASSAM 2:NAGAON ZILLA PARISHAD NAGAON PIN- 782001 DIST- NAGAON ASSAM REP. BY THE CHIEF EXECUTIVE OFFICER

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3:PRESIDENT NAGAON ZILLA PARISHAD NAGAON PIN- 782001 DIST- NAGAON ASSAM 4:THE CHIEF EXECUTIVE OFFICER NAGAON ZILLA PARISHAD NAGAON PIN- 782001 DIST- NAGAON ASSAM

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5:PACHIM KALIABOR ANCHALIK PANCHAYAT P.O. MISSA PIN- 782138 DIST- NAGAON ASSAM REP. BY ITS PRESIDENT

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6:THE PRESIDENT PACHIM KALIABOR ANCHALIK PANCHAYAT P.O. MISSA PIN- 782138 DIST- NAGAON ASSAM

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7:THE EXECUTIVE OFFICER AND SECY. PACHIM KALIABOR ANCHALIK PANCHAYAT P.O. MISSA PIN- 782138 DIST- NAGAON ASSAM

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8:KARTIK DAS S/O- LT YUDHISTHIR DAS R/O- VILL- KUHIMARI P.O. KUHIMARI P.S. ULUONI DIST- NAGAON PIN- 782143 ASSAM

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9:MUKUNDA DAS S/O- SRI RAJEN DAS R/O- VILL- NO. 4 BORGHULI P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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10:RAJEN DAS S/O- LT RAMESH DAS R/O- VILL- NO. 4 BORGHULI P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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11:NANDA KISHORE SAHHANI S/O- LT SUNDAR SAHANI R/O- VILL- NO. 1 BHURBANDHA P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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12:SIBU DAS S/O- SRI NIKHIL DAS R/O- VILL- NO. 4 GAKHIRKHAITY P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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13:MURAL MIZAR S/O- LT BINIRAM MIZAR R/O- VILL- NO. 4 BORGHULI P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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14:BIDYA KANTA UPADHAYA S/O- LT GANGARAM UPADHAYA R/O- VILL- NO 1 BHURBANDHA P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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15:PREM NARAYAN KHANAL S/O- LT INDRA PRASAD KHANAL R/O- VILL- NO. 1 BHURBANDHA P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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16:KRISHNA LUITEL S/O- LT DEVI PRASAD LUITEL R/O- VILL- NO. 4 BORGHULI P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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17:GANESH UPADHYAYA S/O- NILAKANTA UPADHYAYA R/O- VILL- NO. 1 BHURBANDHA P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 782143

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18:TIKARAM UPADHYAYA S/O- BHIMLAL UPADHYAYA R/O- VILL- NO. 1 BHURBANDHA P.O. BORGHULI P.S. ULUONI DIST- NAGAON ASSAM PIN- 78214

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Advocate for the Petitioner : MR A D CHOUDHURY

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Advocate for the Respondent : SC, PNRD

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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JUDGMENT AND ORDER (Oral)

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Date : 05-09-2019

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Heard Mr. M. Mahanta, learned counsel appearing for the writ petitioner. I have also heard Mr. M. Nath, learned Standing Counsel, P & RD, Assam, appearing on behalf of the respondent Nos.1, 2, 4 and 7. Mr. N. C. Das, learned senior counsel assisted by Mr. S. R. Rabha, learned counsel, has appeared on behalf of the respondent No.8. Mr. A. Kalita, learned counsel, is present on behalf of the respondent Nos.9 to 18.

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The order of settlement of the Sulung Daily Market under the Pachim Kaliabor Anchalik Panchayat in the district of Nagaon, dated 31.07.2019, issued in favour of the respondent No.8 is under challenge in the present writ petition. Pachim Kaliabor Anchalik Panchayat had earlier issued NIT dated 01.06.2019 inviting bids for settlement of various markets including the Sulung Daily Market as indicated in the NIT. Responding to the NIT dated 01.06.2019, as many as 18 tenderers had submitted their bids for the Sulung Daily Market. After opening the bids, the writ petitioner herein was found to have quoted the price of Rs.13,84,845/- per annum and had emerged at Serial No.13 in order of price quoted by the bidders whereas the respondent No.8 was the lowest bidder placed at serial No.18 having quoted Rs.6,87,959.25 per annum. The grievance expressed in this writ petition pertains to the manner in which the bids were evaluated by the respondents leading to issuance of the order of settlement dated 31.07.2019 in favour of the respondent No.8 who was the lowest bidder.

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Mr. Mahanta, learned counsel for the petitioner, submits that the tender of the respondent No.8, besides being technically defective, was also the lowest bid and therefore, in view of the specific provision of Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002, the respondents did not have the authority or jurisdiction to issue the order of settlement in favour of the respondent No.8 without

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obtaining prior approval of the Government. By referring to the materials available on record, Mr. Mahanta has argued that the market in question was settled in the year 2014 for an annual rate of Rs.11,99,988.00 and thereafter, in the year 2016 for a sum of Rs.13,20,000.00 per annum. That apart, in the tender notice itself, had indicated reserve price of the market as Rs.5,31,141/- per annum. Such being the position, there was no justifiable ground for the respondent No.4 to issue the impugned order of settlement dated 31.07.2019 in favour of the respondent No.8 by ignoring the higher offer made by his client. The learned counsel has, therefore, prayed for setting aside the impugned order dated 31.07.2019 and for issuing a mandamus for settling the market with his client.

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Mr. Nath, learned Standing Counsel, P & RD, has produced the records. A perusal of the relevant records goes to show that the only reason why the settlement was awarded in favour of the respondent No.8 for the annual revenue of Rs.6,87,959.20 was on account of the fact that all other 17 bidders were found to have quoted exorbitant price which according to the authorities, were not realistic and therefore, could pose difficulties in realisation of the kist money.

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Mr. N. C. Das, learned senior counsel appearing for the respondent No.8, submits that the bid submitted by his client was balanced and reasonable and that is why it was accepted by the Zila Parishad. The learned senior counsel has further argued that the Government is yet to convey its approval as per Rule 47(10) of the Rules of 2002 and therefore, the writ petition is premature. On such count a prayer has been made to dismiss the writ petition.

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Mr. A. Kalita, learned counsel for the respondent Nos.9 to 18, has submitted that after the order of settlement was issued in favour of the respondent No.8, his clients have withdrawn from the tender process by seeking refund of the earnest money and therefore, they do not have any surviving interest in the matter.

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I have considered the arguments made on behalf of the parties and have gone through the

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materials available on record.

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There is no dispute about the fact that amongst the 18 tenderers who had submitted their bids in response to the NIT dated 01.06.2019 for settlement of Sulung Daily Market, the respondent No.8 was the lowest bidder. The highest bidder had quoted Rs.35,80,082.00 per annum, whereas the writ petitioner had quoted Rs.13,84,845.00 per annum. Since the respondent Nos.9 to 18 have taken a stand that they are no longer interested in the tender process, hence, it would not be necessary for this Court to refer to the prices quoted by them. There is also no dispute in this case about the fact that the only ground on which the order of settlement was awarded in favour of the respondent No.8 at the lowest price was on account of the fact that the higher rates quoted by the other tenderers were found to be exorbitant. However, what is significant to note herein is that there is no clause in the NIT which even remotely indicates that such a criterion would be employed while evaluating the bids.

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In the case of Satya Barman Vs. The State of Assam & others rendered by this Court on 13.05.2015 in WP(C) Nos.3469/2014 and 3476/2014 it has been categorically held that the tenders for settlement of markets/huts etc. cannot be evaluated on the basis of undisclosed criteria evolved after opening of the bids. In that case also, bids were invited for settlement of a bazaar but after evaluating the bids, order of settlement was not awarded in favour of the highest bidder. Instead, the 3^rd highest bidder was conferred with the settlement. On a challenge made to the order of settlement by the highest bidder, the respondents took a plea that the price quoted by the highest bidder was exorbitant and therefore, was not accepted. By rejecting the plea of the respondents, this Court had categorically held that since the NIT did not disclose that exorbitant price would be a criterion for rejection of the bids and in view of the fact that there was no mention in the NIT as to what amount would be considered as exorbitant, the decision of the authorities was held to be arbitrary and therefore, in violation of Article 14 of the Constitution of India.

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In the present case also, as noted above, no such criteria regarding exorbitant price was laid down in the NIT. Therefore, it is clear that after opening the bids the respondents have devised an additional/undisclosed criterion to reject higher bids.

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Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002, is reproduced herein for ready reference :-

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“ (10) The tender of highest bidder shall be accepted. Acceptance of tender other than the highest bid shall require the “Government” prior and formal approval.”

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From a plain reading of Rule 47(10) of the Rules 2002 it is clear that the authorities would have to obtain prior approval from the Government in case the order of settlement is not issued to the highest tenderer.

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In the instant case, as noted above, the respondent No.8 is not the highest bidder and there are other tenderers who have quoted higher price than the petitioner. The bids of such tenderers were also found to be technically responsive. As such, there was no scope for the respondent No.4 to issue the order of settlement in favour of the respondent No.8 without obtaining the prior approval of the Government.

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For the reasons stated herein above, this Court is of the unhesitant opinion that the impugned order dated 31.07.2019 has not only been issued in violation of the principles of fairness as enshrined in Article 14 of the Constitution of India but the same also contravenes the provision of Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002 . As such, the impugned order of settlement dated 31.07.2019 stands set aside.

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Considering the fact that the process of evaluation of the bids have been held to be erroneous by this Court, I direct the respondent authorities to re-evaluate the bids based on the criteria laid down in the NIT and issue a fresh order of settlement to the successful bidder. It is made clear that in the event

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they choose to accept the tender of any bidder other than the highest bidder, then “prior” approval of the Government shall be obtained before issuing the order of settlement. The aforesaid exercise be carried as expeditiously as possible, preferably within a period of 15 days from the date of receipt of a certified copy of this order.

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Since the financial year has already commenced, hence, it is provided that the respondents would be at liberty to make interim arrangement for operating the market until such time the final order of settlement, in terms of the order of this Court, is issued to the successful bidder.

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With the above observation this writ petition stands disposed of.

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Records be returned.

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JUDGE

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Comparing Assistant

Kukil Das v. the State of Assam and 17 Ors.

Case brief

What is this about?

What did the court decide?

Kukil Das v. the State of Assam and 17 Ors.

Case brief

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