Petitioner challenged Clause 10 of a tender notice for settlement of a bazaar market after his settlement was set aside in related writ petitions. The court held he could not challenge the clause mid-selection since he had participated in the tender process without objecting to it, applying Division Bench precedent.
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GAHC010016392024
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/511/2024
AMRAN HUSSAIN LASKAR
S/O LATE SAMAR ALI, VILL- HAIDUBI, P.O.-BATAMARI, DIST-NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI-781006
2:THE NAGAON ZILLA PARISHAD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER NAGAON ZILLA PARISHAD P.O. AND DIST-NAGAON ASSAM PIN-782001
3:THE CHIEF EXECUTIVE OFFICER NAGAON ZILLA PARISHAD NAGAON P.O. AND DIST- NAGAON ASSAM PIN-782001
4:THE BATADRAVA ANCHALIK PANCHAYAT REPRESENTED BY ITS EXECUTIVE OFFICER P.O.-DHING DIST-NAGAON ASSAM PIN-782123
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5:THE EXECUTIVE OFFICER BATADRAVA ANCHALIK PANCHAYAT P.O.-DHING DIST-NAGAON ASSAM PIN-782123 6:MD. MUKTAR HUSSAIN S/O MD. HAFIZ UDDIN VILL- LANGIA P.O.-JENGONI DIST-NAGAON ASSAM PIN-782122 7:RAIS UDDIN AHMED S/O LATE TAMUJ UDDIN VILL- LANGIA P.O.-JENGONI DIST-NAGAON ASSAM PIN-78212
BEFORE
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the Petitioner : Mr. D.A. Kaiyu. …. Advocate For the respondent nos.1 to 5 : Mr. S. Dutta …. Advocate. For the respondent no.6 : Mr. A. Sarma …. Advocate. Date of hearing : 09.02.2024 Date of judgment : 13.02.2023
JUDGMENT AND ORDER (CAV)
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Dutta, learned counsel for the respondent nos.1 to 5 and Mr. A. Sarma, learned counsel for the respondent no.6.
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10 of the NIT dated 29.04.2023.
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NIT dated 29.04.2023.
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interim order staying Clause 10 of the Tender Notice was vacated, vide order dated 23.01.2024. However, the petitioner herein, who was the respondent No. 7 in WP(C) 3325/2023, was given the liberty to raise his grievance by filing an appropriate application, though there is no record of the grievance of the petitioner in WP(C) 3325/2023. As such, the stay on Clause 10 of the NIT dated 29.04.2023 is not in existence any longer.
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set aside. One set of bidders would be those, who submit all the required documents, as mentioned in the tender notice along with their tenders. On the other hand, the other set of bidders would be those who do not submit the required documents along with their tenders. However, in the event of those bidders who have quoted the highest bids, without enclosing the required documents along with their tenders, being selected, they are required to submit the required documents mentioned in the NIT within three days. He submits that the said Clause being in violation of Rule 47 (10) of the Assam Panchayat (Financial) Rules, 2002 (in short, 2002 Rules) and Article 14 of the Constitution of India, the said Clause 10 has to be set aside. In support of his submission that Clause-10 should be set aside, the learned counsel has relied upon the judgment and order dated 17.05.2022, passed by this Court in WP(C) 6902/2021 (Abdus Samad -vs- State of Assam and 7 others), wherein a Coordinate Bench of this Court has held that Clause 10 was opposed to the principle of equality prescribed under Article 14 of the Constitution of India and Rule 47(10) of the 2002 Rules.
“47(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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cannot now challenge Clause 10 of the tender notice. They submit that the Division Bench of this Court in WA No. 395/2022 (Sibaram Deka -vs- State of Assam and 7 others), was hearing a matter pertaining to the challenge made to Clause 10 of the NIT. The learned Single Bench had declined to hear the case of the appellant, on the ground that as the appellant therein was placed in the 13th position in terms of the bid offered by him, any decision on Clause 10 would not have any effect whatsoever on the appellant. The Division Bench held in its judgment dated 31.05.2023 that as the appellant had not made a challenge to the offending Clause 10 of the NIT and had participated in the tender process, he could not turn around and challenge Clause 10 of the tender, when he was unsuccessful in the tender process. The Division Bench held as follows :
“The law is well settled that when a tenderer participates in a tender process without objection and subsequently found to be not successful, a challenge to the process is precluded. Such a tenderer cannot be allowed to run around and contend that the process was unfair by virtue of existence of a Clause in the NIT ”.
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order on Clause 10 was also vacated. Thus, a fresh settlement was to be made as per the order dated 11.01.2024 in WP(C) 4757/2023 and 7469/2023, in terms of the tender notice dated 29.04.2023, which includes Clause-10. The facts and circumstances of the case show that the validity of Clause 10 of the tender notice was never an issue between the petitioner and the respondents, as the petitioner had also participated in the tender process without making challenge to Clause 10 earlier. It was only due to a challenge made in WP(C) No.3325/2023 that the petitioner had himself impleaded into the said case as a respondent. However, WP(C) No.3325/2023 was dismissed as withdrawn. In the view of this Court, the judgment of the Division Bench of this Court passed in WA No. 395/2022, would apply to the facts of this case. As such, the petitioner cannot now be allowed to turn around and challenge the validity of Clause 10 in the middle of the selection proceedings, as he did not challenge the same earlier.
JUDGE
Comparing Assistant
1 issue framed by the court
Can a tenderer who participated without objection later challenge Clause 10 of the NIT after failing in the tender process?
Colour shows how this judgement treated each authority
Abdus Samad -vs- State of Assam and 7 othersReferred¶13
WP(C) 6902/2021
Sibaram Deka -vs- State of Assam and 7 othersApplied¶18
WA No. 395/2022
2 provisions across 2 enactments
Amran Hussain Laskar
The State of Assam
The Nagaon Zilla Parishad
The Chief Executive Officer, Nagaon Zilla Parishad
The Batadrava Anchalik Panchayat
The Executive Officer, Batadrava Anchalik Panchayat
Michael Zothankhuma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
