A writ appeal filed by the third highest bidder challenging the government's decision to issue a fresh tender for leasing water-logging area rights. The Court dismissed the appeal, holding that the fresh tender was not illegal and the appellant had no right to a contract.
The appeal is dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010121772022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.273 OF 2022
Fayjul Hoque, Son of Makaddas Ali,
Resident of Village: Shalchapra Part-II, PO: Silchar, PS: Silchar Sadar, District: Cachar, Assam, PIN - 788001.
…… ..Appellant
- Versus -
4. Jiaur Rahman,
C/o Joint Director (Zone), Animal, Husbandry and Veterinary Department, Assam, Silchar, District: Cachar, Assam, PIN - 788001
5. Khalendra Chandra Das,
C/o Joint Director (Zone), Animal, Husbandry and Veterinary Department, Assam, Silchar, District: Cachar, Assam, PIN - 788001
…… ..Respondents
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– B E F O R E –
HON’BLE THE CHIEF JUSTICE MR. R.m. Chhaya HON’BLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellant : Mr. R. Majumdar, Advocate.
For Respondent Nos.1 to 3 : Mr. R.K. Borah, Additional Senior
Government Advocate, Assam.
Date of Judgment & Order : 8th September, 2022 .
JUDGMENT & ORDER
(R.M. Chhaya, CJ.)
Feeling aggrieved and dissatisfied by the common order dated 11.05.2022 passed by the learned Single Judge in WP(C) No.840/2022 and WP(C) No.4900/2021, the writ petitioner of WP(C) No.4900/2021 has preferred this appeal.
2. The following facts emerge from the record of this appeal. The respondent No.3 issued a tender notice dated 22.10.2019 for leasing of water logging area of Vocational training Centre, Salchapra, Silchar in the district of Cachar. In response to the tender notice so issued by the respondent No.3, the appellant/original petitioner along with other 5(five) bidders submitted their bids. After following the conditions of the tender notice, the respondent authorities scrutinized the tenders, wherein it was found that 6(six) tenderers
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quoted the rates as under:-
| Sl. No. | Name of Tenderers | Ratequoted |
|---|---|---|
| 1. | Jiaur Rahman, Saipur Pt-II | 6,30,000/- |
| 2. | Misbauddin, Salchapra Pt-II | 1,30,000/- |
| 3. | Fayzul Hoque, Salchapra Pt-II | 3,82,000/- |
| 4. | Michak Ali, Salchapra Pt-II | 2,32,000/- |
| 5. | Khelendra Ch. Das, Salchapra Pt-II | 4,30,000/- |
| 6. | Ala Uddin, Salchapra Pt-I | 2,65,000/- |
3. The record establishes the fact that the appellant was the third highest bidder. One Jiaur Rahman being the highest bidder at Rs.6,30,000/-. The said facts were noted in the meeting of the Tender Committee, which opened the tender on 08.11.2019. It is the case of the appellant/ original petitioner that the highest bidder and the second highest bidder did not continue their bids in the sense that though they participated in the tender process and quoted the price, they were not ready to accept the contract and, therefore, as the appellant/original petitioner emerged to be the third highest bidder, the respondent authorities ought to have completed the tender process and awarded the contract to the appellant/original petitioner.
4. On other grounds as raised in the writ petition, the appellant/original petitioner asserted before the learned Single Judge that the action of the respondent in issuing a fresh tender notice on 13.09.2021 is dehors the
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provisions of the Assam Public Procurement Act, 2017 (hereinafter referred to as “the 2017 Act”) read with Assam Public Procurement Rules, 2020 (hereinafter referred to as “the 2020 Rules”). It was also contended before the learned Single Judge that even though the provisions of the 2017 Act and the 2020 Rules empowers the authorities to extend the time, the same was not extended and even though the first tender issued on 22.10.2019 was not abandoned, the respondents resorted to the de-novo process by issuance of a fresh tender notice on 13.09.2021. On such bundle of facts, the action of the respondents for issuing de-novo process was challenged by way of WP(C) No.4900/2021 under Article 226 of the Constitution of India.
5. The respondent authorities have filed their affidavit-in-opposition before the learned Single Judge and contended that there is no record to show that the first and the second highest bidders are not interested in execution of the tender and that they had not withdrawn their offers. The respondent authorities contended before the learned Single Judge that because of Covid19 pandemic since March, 2020, the normal functioning of the Office of the respondent was disrupted and as there was considerable delay to get normalcy, the second tender was issued.
6. Countering the contentions raised by the appellant/original petitioner that the second tender notice was not published properly, the respondents have brought on record photocopies of two newspapers, i.e. “Jugashankha” - a Bengali newspaper and “Eastern Chronicle” - an English newspapers dated 14.09.2021. It was contended by the respondents that there was no malafide intention on the part of the respondents to hang the tender process till September, 2021 and, therefore, the fresh tender notice was initiated on 13.09.2021. The contention that a short notice of less than 72 hours was given
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only to accommodate certain persons of respondents’ choice was brushed aside by the respondents as baseless and false.
7. The learned Single Judge, by the order impugned, was pleased to dismiss the writ petitions on all grounds raised by the appellant and hence this appeal.
8. Heard Mr. R. Majumdar, learned counsel for the appellant/original petitioner. Also heard Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1 to 3.
9. Mr. R. Majumdar, learned counsel appearing for the appellant/original petitioner contended that even though the first and the second highest bidders expressed their unwillingness to accept and continue with the bids, the respondent authorities did not consider the third highest bid given by the appellant, which according to Mr. Majumdar, was erroneous. Mr. Majumdar vehemently contended that as per Section 9 of the 2017 Act, the time frame for processing could have been provided in the second tender notice. Referring to Rule 24 of the 2020 Rules, it was contended by Mr. Majumdar, learned counsel appearing for the appellant/original petitioner that as provided under Rule 24(A)(iii) of the 2020 Rules, the date of opening of the bids could have been fixed at least after 21(twenty-one) clear days counted from the date of the publication of the latest advertisement inviting bids.
10. Mr. R. Majumdar, learned counsel appearing for the appellant/original petitioner also contended that even though the Rules provide for extension of time, the respondent authorities have neither extended the same nor cancelled the earlier bid, which was based upon the Notice Inviting Tender (NIT) dated 22.10.2019. It is further contended by Mr. Majumdar that even the respondent
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authorities have not given wide publicity and even though the first tender was not abandoned, the second tender notice was given for 3(three) years period, whereas the first tender notice was for 2(two) years period. On the aforesaid ground, Mr. R. Majumdar, learned counsel appearing for the appellant/original petitioner contended that the learned Single Judge has committed an error in not considering the grounds raised by the appellant and, therefore, this Court may interfere with the same in exercise of its appellate jurisdiction and allow the appeal, as prayed for.
11. Per contra, Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1 to 3 has supported the impugned order and has relied upon the affidavit-in-opposition filed before the learned Single Judge. Mr. Borah reiterated that because of the COVID-19 pandemic, the tender notice dated 22.10.2019 could not be acted upon further upto the month of August, 2021 and, therefore, the respondents took conscious decision to issue a fresh notice to avoid any further delay. Mr. Borah contended that the wide publicity was given in two newspapers, one in Bengali and the other in English, as averred in the affidavit-in-opposition, which has not been denied by the appellant/original petitioner and a short notice of 72 hours was given in order to ensure that the work may start as early as possible. According to Mr. Borah, the proceedings of the second tender notice has culminated into and acceptance of contract by the respondent authorities in favour of one party, who has offered Rs.4,00,000/- (Rupees Four Lakhs) for 3(three) years. Mr. Borah also contended that the appellant/original petitioner did not participate in the proceedings of the second tender notice and, therefore, now he cannot be permitted to raise any objection against the same. Mr. Bora contended that the appeal being meritless and misconceived
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and hence the same deserves to be dismissed.
12. No other or further submissions, contentions or grounds have been raised by the learned counsels appearing for the respective parties.
13. Having heard the learned counsels appearing for the parties and on perusal of the record of the writ petition as well as the impugned order, it is a matter of fact that a tender notice came to be issued on 22.10.2019 pursuant to which the appellant along with 5(five) other persons submitted their bids. It is a matter of fact that from 24.03.2020, there was wide spread COVID-19 pandemic and the working of the whole country had come to almost a standstill and, therefore, it cannot be said that the respondent authorities have not proceeded further in pursuance to the tender notice dated 22.10.2019 for any oblique motive. It is a matter of fact that the malafides are neither alleged nor there is any iota of evidence as regards malafide intention of the respondents in not completing the proceedings of the first tender notice dated 22.10.2019. It is a matter of fact that the appellant/original petitioner was one of the bidder, who had made offer of Rs.3,82,000/- for the period of 2(two) years. However, there was no concluded contract between the appellant/original petitioner and the respondents. It is also a matter of fact that the appellant/original petitioner has not submitted his bid pursuant to the subject tender notice dated 13.09.2021.
14. Considering the affidavit-in-opposition filed before the learned Single Judge, the tender notice was published in two newspapers, namely, “Jugashankha” and “Eastern Chronicle” and, therefore, it cannot be said that the tender notice dated 13.09.2021 was not widely published.
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15. As regards the second limb of argument made by Mr. R. Majumdar, learned counsel for the appellant/original petitioner, it would be appropriate to refer to the provisions of the 2017 Act. Preamble of the said Act reads as under:-
“Preamble
Whereas, it is expedient to establish legal foundations for procedures for procurement by public entities so as to ensure, -
(i) timely delivery of its intended outcomes with efficiency, economy, professionalism and public accountability from its officers and staff;
(ii) the highest standards of transparency, fairness, equality towards its bidders;
(iii) support to policies of the State on social, economic and environmental issues;
(iv) assurance to public and other stakeholders regarding probity and integrity of the process.”
16. The word “Procurement” is defined under Section 2(u) of the 2017 Act as under:-
“2(u) ‘Procurement’ or ‘public procurement’ means the acquisition by purchase, lease, licence or otherwise of works, goods or services, including award of Public Private Partnership projects, by a procuring entity whether directly or through an agency with which a contract for procurement services is entered into, but does not include any acquisition without consideration, and ‘procure’ or ‘procured’ shall be construed accordingly.”
17. Section 3(2) of the 2017 Act provides thus:-
“(2) For the purposes of this Act, ‘procuring entity’ means, -
(b) any State Public Sector Enterprise owned or controlled by the State Government;
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(c) any entity established or constituted by the Constitution of India whose expenditure is met from the Consolidated Fund of the State;
(d) any entity or board or corporation or authority or society or trust or autonomous entity (by whatever name called) established or constituted by an Act of the State Legislature or an entity owned or controlled by the State Government;
(e) any other entity which the State Government may, by notification, specify to be a procuring entity for the purpose of this Act, being an entity that receives substantial financial assistance from the State Government in so far as the utilization of such assistance towards procurement is concerned.
(f) any procurement support agency or procurement agent or any agent procurement consultant involved in procurement on behalf of the procuring entities specified in clauses (a) to (e) above.”
18. Bare reading of the aforesaid provisions of the 2017 Act clearly postulates that what was provided by procurement is the acquisition by purchase, lease, licence or otherwise of works, goods or services, including award of Public Private Partnership projects, by a procuring entity whether directly or through any agency. The instant tender notice was not for procurement of any goods or services but it was for giving right of fisheries and removing the water logging in the area, which was subject matter of the tender notice.
19. Considering the aforesaid provisions of the 2017 Act and the 2020 Rules as well as considering the tender notice dated 13.09.2021, the tender notice was issued for leasing of water logged area for a period of 3(three) years. Similarly, the first tender notice, which is the subject matter of the present petition, also was for leasing of water logged area. Hence, the tender notice is not for any procurement. The appellant/original petitioner not having participated in the second tender notice, in absence of any concluded contract between the appellant/original petitioner and the respondent authorities,
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cannot raise the objection that the fresh notice dated 13.09.2021 is wrongly issued. There is nothing on record to show that the said notice was issued to accommodate anybody in particular neither there is any other contentions raised against the notice dated 13.09.2021. During pandemic, the proceedings could not be further taken up and it is for the authority issuing the tender notice to decide whether to crop a tender notice and issue a fresh notice or to continue with the first notice. In absence of any illegality or malafide otherwise, the same cannot be termed as “illegal”.
20. As rightly recorded by the learned Single Judge, there is nothing on record to show that the first bidder and the second bidder had shown their unwillingness to accept the tender process. Merely because the appellant/original petitioner was the third highest bidder, he cannot claim as a matter of right that the tender should have been awarded to him.
21. In light of the aforesaid, this Court is of the opinion that the learned Single Judge has not committed any error, which requires interference of this Court by exercising its appellate jurisdiction. The appeal, therefore, fails and is accordingly dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
3 issues framed by the court
Whether the High Court can interfere with the Single Judge's order dismissig the allegation of illegal issuance of a fresh tender notice.
Whether a bidder can claim as a matter of right to be awarded a contract merely because they were the highest bidder in a previous tender.
Whether the notice for leasing water logged area constitutes 'procurement' under the Assam Public Procurement Act, 2017.
2 provisions across 2 enactments
Fayjul Hoque
The State of Assam
The Director, Animal, Husbandry and Veterinary Department, Assam
The Joint Director (Zone), Animal, Husbandry and Veterinary Department, Assam
R.M. Chhaya
Soumitra Saikia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
