Allowed

Sekura Boro v. the State of Assam and 6 Ors.

Gauhati HC1 Sept 2022WP(C)/4986/2022

Case brief

AI extract

What is this about?

Writ petition challenging a settlement order granted to a non-highest bidder in a market lease tender. The High Court quashed the order for arbitrariness, holding that the authority failed to follow the highest-bidder rule stipulated in the NIT and relied on undefined criteria. It directed the respondents to reconsider the petitioner's offer.

What did the court decide?

The settlement order dated 18/07/2022 was quashed. Respondents directed to settle the market with the petitioner within four weeks.

Sekura Boro Vs the State of Assam and 6 Ors. — Specific Performance | Gauhati HC (2022)

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GAHC010150622022

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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)/4986/2022

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SEKURA BORO

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S/O- LATE RAJIN BORO, R/O- VILL.- BHALAGURI, P.O. HUDUKHATA, P.S. SALBARI, DIST. BAKSA, BTR, ASSAM, PIN- 781318.

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VERSUS

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THE STATE OF ASSAM AND 6 ORS. REPRESENTED BY THE PRINCIPAL SECRETARY, PANCHAYAT AND RURAL DEVELOPMENT, DISPUR, GUWAHATI-781006.

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2:PRINCIPAL SECRETARY BODOLAND TERRITORIAL COUNCIL KOKRAJHAR BTR ASSAM-783370.

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3:MARKET SETTLEMENT COMMITTEE BTR REPRESENTED BY ITS CHAIRMAN KOKRAJHAR ASSAM-783370.

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4:DEPUTY COMMISSIONER BAKSA DISTRICT BTR ASSAM-781372.

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5:CIRCLE OFFICER JALAH REVENUE CIRCLE JALAHGHAT DIST. BAKSA ASSAM-781327.

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6:BLOCK DEVELOPMENT OFFICER JALAH DEVELOPMENT BLOCK JALAHGHAT DIST. BAKSA ASSAM-781327.

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7:SUJIT BORO S/O- TARUN BORO R/O- VILL.- PAKRIGURI P.O. SALBARI DIST. BAKSA BTR ASSAM-781318

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Advocate for the Petitioner : MR. K SARMA

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Advocate for the Respondent : SC, P AND R.D.

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 01/09/2022

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Heard Mr. K. Sarma, learned counsel for the writ petitioner. Also heard Ms. R.B. Bora, learned Standing Counsel, BTC, appearing for the respondent nos. 2, 3 and 6, Mr. S. Dutta, learned Standing Counsel, Panchayat and Rural Development Department, Assam, appearing for the respondent no. 1 and Ms. M. Barman, learned Government Advocate, Assam, representing the respondent nos. 4 and 5. None has appeared for the respondent no. 7 despite service of notice.

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The order dated 18/07/2022, by means of which, the respondent no. 7 has been engaged to collect tolls in respect of the Salbari Bazar (Bi-weekly market) with effect from 01/07/2022 until the issuance of formal settlement order by the Secretary, BTC, Kokrajhar, is under challenge in this writ petition.

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The facts of the case, in a nutshell, are as follows :-

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The respondent no. 6 had issued NIT dated 20/06/2022 (sic) inviting bids for settlement of Markets/Go-hats/Parking/Parghats/Ferries/Cattle Pounds etc under the jurisdiction of Jalah Development Block, Jalah for the year 2021-2022. The schedule rate of the market was fixed at RS. 1,83,300/-. In response to the NIT dated 20/06/2022, the writ petitioner herein had submitted his

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offer seeking settlement of Salbari Bazar (Bi-weekly market). On opening the bids, it was found that the petitioner had quoted an amount of Rs. 6,31,522/- whereas the respondent no. 7 had quoted Rs. 3,66,551/-. Comparative statement prepared by the authorities goes to show that the documents submitted by the writ petitioner and the respondent no. 7 as well as another bidder, viz. Nabin Gayari, who had quoted Rs. 3,42,811/-, were found to be in order and, therefore, the writ petitioner was the valid highest bidder. Notwithstanding the same, the impugned order has been issued in favour of the respondent no. 7. Hence, this writ petition.

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The official respondents have not filed any affidavit despite the time granted by this Court. However, Ms. Bora has produced the records and submits that as per Clause-11 of the NIT dated 20/06/2022, the authorities were not bound to settle the market with the highest bidder. She submits that in this case, the decision to settle the market with the respondent no. 7 was taken on account of the fact that by quoting a very high amount, the petitioner would collect higher toll and in that process unnecessarily burden the public. Ms. Bora has, however, submitted in her usual fairness that no reason whatsoever, for not accepting the offer of the petitioner has been recorded in the official file.

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By placing reliance on a decision of this Court rendered in the case of Saitya Barman Vs. the State of Assam and 4 others [WP(C) 3476/2014] as well as another decision rendered in the case of Dishnath Basumatary Vs. State of Assam and others [WP(C) 4670/2019], Mr. Sarma, learned counsel for the writ petitioner submits that the issue raised in this writ petition is well settled by the law laid down in the aforesaid decisions of this Court. Therefore, the impugned order of settlement is liable to be set aside and a direction be issued to the respondents to consider the offer made by the writ petitioner.

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As noticed above, the only ground stated by the learned Standing Counsel, BTC, for rejecting the bid of the petitioner was by placing reliance on clause 11 of the NIT. As such, I deem it appropriate to reproduce clause -11 of the NIT for ready reference :-

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“11. The competent authority shall make settlement with the highest bidder if all the necessary documents and Government Revenue are found at order. In case of settlement is not made with the highest bidder, the competent authority before awarding the settlement shall record reasons in writing for necessary enquiry as regard to ascertain the attending circumstances at the concerned Market/Go-hats/Parking/Par-ghats/Ferry/Cattle Pound, etc. The competent authority shall also keep in mind the public interest as to the absurdity of the rates offered by the intending tenderers. The tender documents itself provides the rate which shall be charged from petty vendors by the successful bidder and no one shall charge of single

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penny more than the prescribed rate causing burden to the poor vendors who come to sell their crops and other items in the market.”

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In the case of Saitya Barman and others (supra), the Block Development Officer of Tihu Barama Development Block, Baksa coming under the BTC authorities had floated a similar tender and thereafter, the authorities had refused to accept the offer made by the highest bidder and instead, decided to issue the order of settlement in favour of the second highest bidder. In that case also, a similar stand was taken by the official respondents by contending that the authorities were not bound to accept the tender submitted by the highest bidder. By rejecting such plea of the respondents, this Court while interfering with the impugned order, had made the following observations in paragraphs 18 and 19, which are quoted herein below for ready reference :-

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“18. There can hardly be any doubt about the fact that the tendering authorities would be at liberty to decide the terms and conditions in a tender and al so decide as to what criteria should be employed for evaluation of the bids. However, whatever terms and conditions the authorities choose to adopt for processing the bids must be notified in the Tender Notice itself or at least informed to the bidders at any stage prior to the submission of the bid by giving sufficient notice to the intending tenderers in respect thereof. The Tendering authorities cannot evolve bid evaluation criteria subsequent to the opening of the bid nor can they employ un-disclosed criteria for evaluation of the bids so as to reject a tender for such a recourse would not only be unfair to the bidders but would also be violative of the rules of transparency. Fairness and reasonableness in state action are necessary so as to ensure equality within the meaning of Article 14 of the Constitution and therefore, fairness, openness and transparency are like the hallmark of purity in a tender process conducted by the state or its instrumentality.

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In the instant case, what was indicated in the tender notice is that bids that are found to be quoting abnormally high amount would be liable to be rejected. What amount would be considered as abnormal had not been indicated anywhere in the tender notice. The term abnormal is an amorphous quantity for the purpose of evaluation of the bids. Inserting tender conditions that are amorphous in nature only leaves room for manipulation leading to

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favouritism. If the decision of the tendering authority was to reject bids that were more than double the government schedule rate then, fairness demanded that the said condition be clearly spelt out in the Tender Notice itself since such a criteria would come into play for rejecting the bids. It is the admitted position of fact that the bidders had not been informed

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about such a evaluation criteria before submission of the bid. Having failed to clearly mention such bid evaluation criteria prior to submission of the tenders, evolving and employing a new criteria for evaluation/ rejection of the tenders after the bids were opened and the rates were known would amount to changing the rules of the game after it has been played.”

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In the present case also, there is no indication in the NIT as to what amount quoted by the bidder would be treated as exorbitant. Therefore, the impugned decision is clearly hit by the law laid down in the case of Saitya Barman (Supra).

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By referring to a decision of the learned Single Judge of this Court tendered in the case of

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M/s. United Enterprise Vs. the Guwahati Municipal Corporation and others [WP(C)

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4448/2021] , Ms. Bora, learned Standing Counsel, BTC, submits that it would be open for the tendering authorities not to accept the bid submitted by the highest bidder without assigning any reason thereof. I am afraid, the said contention of the learned Standing Counsel, BTC, cannot be accepted in the facts and circumstances of this case for the following reasons. Firstly, the tender clause -11 itself mentions that the settlement shall be made in favour of the highest bidder if all the necessary documents and Government revenue are found to be in order. There is no dispute about the fact that the documents submitted by the petitioner along with the tender have been found to be in order and he had also quoted the highest revenue.

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Secondly, clause-11 itself lays down a binding criteria upon the successful bidder restraining him from charging even a single penny more than the prescribed rate so as to avoid any burden on the poor vendors. If that be so, it is not understood as to how the petitioner, by quoting a higher price, could impose higher burden on the vendor, inasmuch as, any violation of the tender clause would automatically render him liable to be proceeded against for violation of the terms of the contract.

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In the case of M/s. United Enterprise (supra) , the learned Single Judge had made the observations by relying upon the decision of the Supreme Court rendered in the case of Meerut Development Authority Vs. Association of Management Studies reported in (2009) 6 SCC

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171 , wherein it has been held that the terms and condition of tender cannot be challenged and the bidders are entitled to only a right to equality and fair treatment. It is no doubt correct that the authority has a right not to accept the highest bid, if there exists good and sufficient reason for not doing so. However, as noticed above, in this case, there is no reason whatsoever, available in the official record for not accepting the offer made by the highest bidder. On the contrary, the reason cited by the learned Standing Counsel, BTC, also appears to be wholly untenable in the teeth Clause-

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11 of of the tender of the NIT.

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For the reasons stated above, I am of the view that the impugned order dated 18/07/2022 is vitiated by complete arbitrariness and, therefore, the same is liable to be set aside by this Court. The settlement order dated 18/07/2022 is therefore, quashed. The respondents shall now take a decision on the question of settling the market with the writ petitioner as per the terms and condition of the NIT within a period of four weeks from the date of receipt of a certified copy of this order. Writ petition stands closed.

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JUDGE

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sukhamay

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Comparing Assistant

Sekura Boro v. the State of Assam and 6 Ors.

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Sekura Boro v. the State of Assam and 6 Ors.

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