Gauhati High Court dismissed three writ petitions challenging the rejection of ferry service bids. The Court upheld the rejection of the petitioner's bids due to failure to upload a Land Revenue Clearance Certificate online, emphasizing rigid enforcement of tender terms over bid amount superiority.
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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GAHC010010362023
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/305/2023
BACCHU DUTTA
S/O- LATE PRAMULYA CHANDRA DUTTA, R/O- VILL.- MALUGRAM, DEVI PRASAD SCHOOL ROAD, P.O. SILCHAR, P.S. SILCHAR, DIST. CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, INLAND WATER TRANSPORT DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR
INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI-781007.
3:THE EXECUTIVE ENGINEER INLAND WATER TRANSPORT DIVISION CHANDMARI TARAPUR P.O. SILCHAR DIST. CACHAR ASSAM
4:FAKHAR UDDIN BARBHUIYA S/O- LATE HARUN RASHID BARBHUIYA R/O- GOSSAIPUR PART-III UDHARBAND
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DIST. CACHAR ASSAM PIN- 788030
Advocate for the Petitioner : MR. J I BORBHUIYA
Advocate for the Respondent : SC, IWT
Linked Case : WP(C)/835/2023
BACCHU DUTTA
S/O LT. PRAMULYA CHANDRA DUTTA R/O VILL. MALUGRAM DEVI PRASAD SCHOOL ROAD P.O. SILCHAR P.S SILCHAR DIST. CACHAR ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM INLAND WATER TRANSPORT DEPTT. DISPUR GUWAHATI 6
2:THE DIRECTOR
INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI 781007 3:THE EXECUTIVE ENGINEER INLAND WATER TRANSPORT DIVISION CHANDMARI TARAPUR P.O. SILCHAR DIST. CACHAR ASSAM 4:THE DEPATRMENTAL TENDER COMMITTEE INLAND WATER TRANSPORT DEPTT. HEADED BY THE DIRECTOR INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI 781007 5:FAKHAR UDDIN BARBHUIYA S/O LT. HARUN RASHID BARBHUIYA R/O GOSSAIPUR PART III UDHARBAND DIST. CACHAR ASSAM PIN 788030
-----------Advocate for : MR J I BARBHUIYA Advocate for : SC IWT appearing for THE STATE OF ASSAM AND 4 ORS.
Linked Case : WP(C)/1606/2023
BACCHU DUTTA
S/O LT. PRAMULYA CHANDRA DUTTA R/O VILL. MALUGRAM DEVI PRASAD
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SCHOOL ROAD P.O. SILCHAR P.S SILCHAR DIST. CACHAR ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM INLAND WATER TRANSPORT DEPTT. DISPUR GUWAHATI 6
2:THE DIRECTOR INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI 781007 3:THE EXECUIVE ENGINEER INLAND WATER TRANSPORT DIVISION CHANDMARI TARAPUR P.O. SILCHAR DIST. CACHAR ASSAM 4:THE DEPARTMENTAL TENDER COMMITTEE INLAND WATER TRANSPORT DEPTT. HEADED BY THE DIRECTOR INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI 7 5:FAKHAR UDDIN BARBHUIYA S/O LT. HARUN RASHID BARBHUIYA R/O GOSSAIPUR PART III UDHARBAND DIST. CACHAR ASSAM PIN 788030
-----------Advocate for : MR. J I BORBHUIYA Advocate for : SC IWT appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : WP(C)/8323/2022
FAKHAR UDDIN BARBHUIYA S/O- LATE HARUN RASHID BARBHUIYA R/O- GOSSAIPUR PART III UDHARBAND DIST. CACHAR ASSAM PIN- 788030.
VERSUS
THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM TRANSPORT DEPARTMENT DISPUR GUWAHATI-06.
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2:THE DIRECTOR INLAND WATER TRANSPORT ASSAM ULUBARI GUWAHATI-781007 KAMRUP(M). 3:EXECUTIVE ENGINEER INLAND WATER TRANSPORT DIVISION CHANDMARI T.V. STATION ROAD TARAPUR SILCHAR PIN- 788003 DIST. CACHAR. 4:BACCHU DUTTA S/O- LATE PRAMULLYA CHANDRA DUTTA R/O- DEVI PRASAD ROAD MALUGRAM SILCHAR DIST. CACHAR ASSAM PIN- 788002. -----------Advocate for : MR. P MAHANTA Advocate for : SC TRANSPORT appearing for THE STATE OF ASSAM AND 3 ORS
Advocates :
For Petitioner In W.P.[C] no. 305/2023, In W.P.[C] no. 835/2023, In W.P.[C] no. 1606/2023 & Respondent no. 4 in W.P.[C] no. 5323/2022 : Mr. J.I. Borbhuiya, Advocate. For Petitioner In W.P.[C] no. 8323/2022, For Respondent no. 4 In W.P.[C] no. 305/2023, For Respondent no. 5
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In W.P.[C] no. 835/2023 & In W.P.[C] no. 1606/2023 & : Mr. P. Mahanta, Advocate For Respondent nos. 1, 2 & 3 In W.P.[C] no. 8323/2022 & In W.P.[C] no. 305/2023, For Respondent nos. 1, 2, 3 & 4 In W.P.[C] no. 835/2023 & In W.P.[C] no. 1606/2023 : Ms. M.D. Borah, Standing Counsel, Transport Department Date of Hearing, Judgment & Order : 09.11.2023
BEFORE
HON’BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
All these 4 [four] writ petitions, instituted under Article 226 of the Constitution of India, have been preferred in respect of competitive bidding processes undertaken by the respondent Directorate of Inland Water Transport, Assam for settlement of 2 [two] ferry services viz. [i] Jatinga Ferry Service, and [ii] Rajnagar Ferry Service. As the subject-matter of all the writ petitions are connected with each other, all the four writ petitions are taken up together at the admission stage at the request of the learned counsel for the parties for the purpose of adjudicating the common issues involved in the writ petitions.
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3.1. As per the Tender Notice dated 18.07.2022, the Base Value for Jatinga Ferry Service for the period: 2022 – 2024 [per year] was fixed at Rs. 2,28,392/-. In respect of Jatinga Ferry Service, the Tendering Authority received 4 [four] nos. of bids from [i] Abdur Rahman Mazumder, [ii] Bacchu Dutta [the writ petitioner in W.P.[C] no. 305/2023, W.P.[C] no. 835/2023 & W.P.[C] no. 1606/2023], [iii] Fakar Uddin Borbhuiya [the writ petitioner in W.P.[C] no. 8323/2022] & [iv] Khairul Islam Borbhuiya.
3.2. In respect of Rajnagar Ferry Service, the Tendering Authority received 4 [four] nos. of bids from [i] Abdur Rahman Mazumder, [ii] Bacchu Dutta [the writ petitioner in W.P.[C] no. 305/2023, W.P.[C] no. 835/2023 & W.P.[C] no. 1606/2023], [iii] Fakar Uddin Borbhuiya [the writ petitioner in W.P.[C] no. 8323/2022] & [iv] Khairul Islam Borbhuiya. In the Tender Notice dated 18.07.2022, the Base Value for Rajnagar Ferry Service for the period : 2022 - 2024 [per year] was fixed at Rs. 1,30,445/-.
3.3. The writ petitioner in the writ petitions, W.P.[C] no. 305/2023, W.P.[C] no. 835/2023 & In W.P.[C] no. 1606/2023 and the respondent no. 4 in the writ petition, W.P.[C] no. 5323/2022 on one hand and the writ petitioner in the writ petition, W.P.[C] no. 8323/2022, for the respondent no. 4 in the writ petition, W.P.[C] no. 305/2023, and for the respondent no. 5 in the writ petitions, W.P.[C] no. 835/2023 & W.P. [C] no. 1606/2023, on the other hand, are hereinafter referred to hereinafter by their respective names, for the sake of easy reference.
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petitioner – Bacchu Dutta; [ii] the petitioner – Fakar Uddin Borbhuiya; and [iii] Khairul Islam Borbhuiya; compliant to the terms and conditions of the Tender Notice. Observing so, the Departmental Tender Committee decided to accept the bids of those three bidders and the technical bid of the 4th bidder viz. Abdul Rahman Mazumder was rejected on the ground that he failed to submit a proper Land Valuation Certificate.
4.1. Similarly, after scrutiny of the technical bids of the 4 [four] participant bidders in respect of Rajnagar Ferry Service and preparation of a Comparative Statement, the Departmental Tender Committee found the technical bids of [i] the petitioner – Bacchu Dutta; [ii] the petitioner – Fakar Uddin Borbhuiya; and [iii] Khairul Islam Borbhuiya; compliant to the terms and conditions of the Tender Notice. Observing so, the Departmental Tender Committee decided to accept the bids of those three bidders and the technical bid of the 4th bidder viz. Abdul Rahman Mazumder was rejected on the ground that he failed to submit a proper Land Valuation Certificate.
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Bacchu Dutta should have been rejected as non-compliant. The said compliant lodged by the petitioner – Fakar Uddin Borbhuiya was forwarded to the office of the Director, Inland Water Transport, Assam in due course.
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inter alia to the effect that the technical bids of the rival bidder i.e. the petitioner – Bacchu Dutta could not have been accepted as he did not submit the specific document in compliance of Clause 4 of the Tender Application Form read with Clause 7 of the Detail Terms and Conditions of the Tender Notice.
9.1. As per the Tender Application Form, a participant bidder had to submit the following land documents :-
[i] Periodic patta/Jamabandi.
[ii] Land Valuation Certificate issued from DC/ADC/SCO[S]/SDO[C].
9.2. As per clause 7 of the Detail Terms and Conditions of the Tender Notice for leasing out of ferry services for the Financial Years : 2022 – 2024, a bidder had to submit a Certificate in support of periodic patta land in his own name within the District or the Sub-Division of value not less than the bid/tender money from the Deputy Commissioner[DC]/Additional Deputy Commissioner[ADC]/Sadar Sub-Divisional Officer of the District [SDO Sadar] or Sub-Divisional Officer [Civil] of the SubDivision concerned [SDO-Civil]. A bidder had to submit an up-to-date Non-Encumbrance certificate regarding the land under periodic patta from the DC/ADC/SDO Sadar/SDO[Civil] of Sub-Division concerned. In addition, a bidder was also required to submit a Land Revenue Clearance certificate from the concerned Mouzadar. It was set forth that if there were more than one pattadar, a No Objection Certificate from the co-pattadar had to be submitted. The land documents and the land valuation of a successful bidder against any ferry service would not be accepted in respect of other ferry service if the valuation did not cover the total bid amount. Clause 2 thereof had laid down that the bidders had to submit the bid documents through e-procurement portal via on-line mode only and with all requisite documents mentioned in the Detail Terms and Conditions of the Tender Notice. As per Clause 23 thereof, the bidder had to participate through on-line e-procurement portal only. Clause 24 had prescribed that the bids submitted would be opened only on-line through the e-procurement portal and
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the participant bidders could attend the same by logging into the e-procurement portal. In Clause 25, it was prescribed that the participant bidders were also required to submit hard copies of their bid documents which were uploaded in the portal to the office of the Executive Engineer, Inland Water Transport Division, Silchar. It was clearly specified therein that the bids would be finalized only on the basis of the documents submitted in the on-line portal.
11.1. The Revised Comparative Statements prepared by the Executive Engineer, Inland Water
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Transport Division, Silchar in respect of Jatinga Ferry Service were placed before the Departmental Tender Committee recording the comments as regards responsiveness or otherwise of the technical bids of the participant bidders. In the said Review Meeting, the Departmental Tender Committee after going through the bids of the 4 [four] participant bidders, had found the technical bids of bidders viz. [i] Fakar Uddin Borbhuiya [the petitioner in W.P.[C] no. 8323/2022]; and [ii] Khairul Islam Borbhuiya compliant to the terms and conditions of the Tender Notice. The Departmental Tender Committee had found the bids of the other two bidders, that is, [i] Abdur Rahman Mazumder and [ii] Bacchu Dutta [the petitioner in W.P.[C] no. 305/2023, W.P.[C] no. 835/2023 & W.P.[C] no. 1606/2023] non-compliant to the terms and conditions of the Tender Notice dated 18.07.2022. In the Minutes of the Departmental Tender Committee Meeting held on 12.01.2023, it was observed that the petitioner – Bacchu Dutta failed to submit the Land Revenue Clearance certificate.
11.2. In respect of the Rajnagar Ferry Service also, the Departmental Tender Committee had found the bids of the petitioner – Bacchu Dutta and another participant bidder – Abdur Rahman Mazumder non-compliant to the terms and conditions of the Tender Notice dated 18.07.2022. The ground for nonacceptance of the technical bids of the petitioner – Bacchu Dutta in respect of Rajnagar Ferry Service was similar to the ground of rejection of his technical bid in respect of Jatinga Ferry Service.
11.3. For ready reference, the excerpts of the Minutes of the Review Meeting of the Departmental Tender Committee, held on 12.01.2023, in respect of [i] Jatinga Ferry Service, and [ii] Rajnagar Ferry Service, are extracted herein below :-
1. Jatinga Ferry Service
As per the Revised Comparative Statement submitted by the Executive Engineer, IWT Division, Silchar, it is found that 4 [four] bides have participated in the tendering process for settlement of Jatinga Ferry Service for the financial year 2022-24. All the bidders have deposited their required amount of earnest money along with the tender. The estimated value of the ferry service is Rs. 2,28,392.00 per year.
The name of the bidders and documents submitted are mentioned below :-
Name of bidders Documents Submitted/Not Submitted
[i] Abdur Rahman Mazumder - Failed to submit proper Land Valuation Certificate
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Also, the name of the qualified bidders and offered amounts are as mentioned below:-
Name of bidders Offered amount
1. Fakar Uddin Borbhuiya - Rs. 3,82,700.00
2. Khairul Islam Borbhuiya - Rs. 2,33,000.00
It is also mentioned that Fakar Uddin Borbhuiya has lodged a complaint against the land documents of Bacchu Dutta and both Bacchu Dutta and Khairul Islam Borbhuiya have lodged complaint against the land documents of Fakar Uddin Borbhuiya. All the complaint petitions were sent to the Deputy Commissioner, Cachar for verification.
Decision :- Tender committee re-viewed it’s earlier decision and decides to accept the tenders of Fakar Uddin Borbhuiya and Khairul Islam Borbhuiya and rejected the tenders of Bacchu Dutta and Abdur Rahman Mazumder and recommends the name of Fakar Uddin Borbhuiya for settlement of Jatinga ferry service at his bid amount of Rs. 3,82,700.00 per year for the remaining period of the financial year 2022-24. The proposal for settlement of the ferry service will be sent to the Government after receiving the favourable report of land documents of Fakar Uddin Borbhuiya from the Deputy Commissioner, Cachar.
2. Rajnagar ferry service
As per the Revised Comparative Statement submitted by the Executive Engineer, IWT Division Silchar, it is found that 4 (four) bidders have participated in the tendering process for settlement of Jatinga Ferry Service for the financial year 2022-24. All the bidders have deposited their required amount of earnest money along with the tender. The estimated value of the ferry service is Rs. 1,30,445.00 per year.
The name of the bidders and documents submitted are mentioned below:-
Name of bidders Documents Submitted/Not Submitted
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[iv] Khairul Islam Borbhuiya - All document submitted as per NIT
Also, the name of the qualified bidders and offered amounts are as mentioned below:-
[i] Fakar Uddin Borbhuiya - Rs. 3,44,700.00
[ii] Khairul Islam Borbhuiya - Rs. 2,77,000.00
It is also mentioned that Fakar Uddin Borbhuiya has lodged a complaint against the land documents of Bacchu Dutta and both Bacchu Dutta and Khairul Islam Borbhuiya have lodged complaint against the land documents of Fakar Uddin Borbhuiya. All the complaint petitions were sent to the Deputy Commissioner, Cachar for verification.
Decision:- Tender committee re-viewed it's earlier decision and decides to accept the tenders of Fakar Uddin Borbhuiya and Khairul Islam Borbhuiya and to reject the tenders of Bacchu Dutta and Abdur Rahman Mazumder and recommends the name of Fakar Uddin Borbhuiya for settlement of Rajnagar ferry service at his bid amount of Rs 3,44,700.00 per year for the remaining period of the financial year 2022-24. The proposal for settlement of the ferry service will be sent to Government after receiving the favourable report of land documents of Fakar Uddin Borbhuiya from the Deputy Commissioner, Cachar.
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– Bacchu Dutta had submitted land revenue deposit challans with his bids at the time of submission of the bids for the two ferry services on 09.08.2022. By referring to the Challan Form dated 16.07.2022, annexed to the case papers, Mr. Borbhuiya has strenuously urged that the petitioner – Bacchu Dutta has owned periodic patta land measuring 3 Bighas and the petitioner – Bacchu Dutta had paid the entire land revenue in respect of the said periodic patta land he had offered while seeking settlement of the two ferry services in his favour. From the counter-affidavit filed by the Director, IWT, Assam, it has emerged that the petitioner – Bacchu Dutta had submitted the copy of the Land Revenue Clearance Certificate at the Office of the Executive Engineer, Inland Water Transport Division, Silchar with the hard copies of his bids. It has been categorically asserted in the said counter affidavit that the petitioner – Bacchu Dutta did not submit the Land Revenue Clearance Certificate with his on-line bid, as mandated by Clause 25 of the Tender Notice. The said stand of the Tendering Authority, that is, the Director, IWT, Assam has not been specifically traversed by the petitioner – Bacchu Dutta.
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Clearance Certificate must be from the concerned Mouzadar. In such view of the matter, the submission advanced by the petitioner – Bacchu Dutta that the Challan Form evidencing deposit of land revenue in respect of his periodic patta land is to be equated with a Land Revenue Clearance Certificate issued by the concerned Mouzadar cannot be countenanced. A contention has been advanced by Mr. Borbhuiya, learned counsel for the petitioner – Bacchu Dutta that the petitioner – Fakar Uddin Borbhuiya had also deposited a Challan Form evidencing deposit of land revenue at the time of submission of his on-line bids like the one submitted by the petitioner – Bacchu Dutta. On query made to Mr. Borbhuiya as to whether such a plea has been taken in any of the three writ petitions preferred by the petitioner – Bacchu Dutta, he has fairly submitted that such a plea has not been taken in any of the 3 [three] writ petitions. The technical bids were opened in the e-procurement portal and the documents submitted by the participant bidders in respect of two ferry services - [i] Jatinga Ferry Service and [ii] Rajnagar Ferry Service were visible to all the participant bidders in the said portal at the time of opening of the technical bids. When the petitioner – Fakar Uddin Borbhuiya made a complaint as regards the deficiency in respect of the Land Revenue Clearance Certificate in respect of the petitioner – Bacchu Dutta, the petitioner – Bacchu Dutta could have raised such a plea in respect of the deficiency, if any, found in respect of the Land Revenue Clearance Certificate submitted by the petitioner – Fakar Uddin Borbhuiya in his complaint lodged and he could have easily included such contention in the complaint filed by him on 23.12.2022. In view of such fact situation, the plea raised at the time of hearing of Mr. Borbhuiya is not acceptable.
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manifestly in consonance with the Tender Notice and the Tender Document and sub-serves the purpose for which the bids were invited, the court only looks into the aspect as to whether the decision is lawful and it is not the purpose of the court to see as to whether the decision is sound. While it is submitted that the total bid values offered by the petitioner – Bacchu Dutta was higher than the total bid values offered by the petitioner – Fakar Uddin Borbhuiya, it is settled that price is not the only criteria in the matter of awarding the settlement, at the expense of transparency and fairness of the process. Such a contention is not available to be raised by the petitioner – Bacchu Dutta as his bids submitted in respect of the two ferry services were found to be non-compliant to the terms and conditions set forth in the Tender Notice and the Tender Document.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the petitioner's bids ought to be accepted despite failing to submit a Land Revenue Clearance Certificate online?
Whether the tendering authority can reject bids for non-compliance with tender conditions regarding land document submission?
1 provisions across 1 enactments
Bacchu Dutta
The State of Assam
Fakar Uddin Barbhuiya
Manish Choudhury
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
