Partly allowed

Rishab Kumar Borah v. the State of Assam and 4 Ors.

Gauhati HC7 May 2025WP(C)/1671/2024

Case brief

AI extract

What is this about?

The Gauhati High Court set aside the rejection of the petitioner's tender regarding a reused affidavit but upheld disqualification for missing signatures on mandatory documents. The Court also quashed the licence awarded to respondent no. 5 for violating the requirement of a Chartered Accountant-certified Income Tax Return. The matter was remanded for further consideration.

What did the court decide?

Rejection on affidavit grounds set aside; disqualification for missing signatures upheld; licence to respondent no. 5 set aside; file remanded to State respondents.

Rishab Kumar Borah Vs the State of Assam and… — Public Procurement and Tenders | Gauhati HC (2025)

Page No.# 1/8

GAHC010061402024

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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)/1671/2024

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RISHAB KUMAR BORAH

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S/O- TARUN KUMAR BORAH, R/O- CHANDMARI HARMOTI, HARMUTI GAON, NORTH LAKHIMPUR, LAKHIMPUR, ASSAM, PIN- 7864160.

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VERSUS

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THE STATE OF ASSAM AND 4 ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF EXCISE, DISPUR, GUWAHATI, ASSAM

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2:THE COMMISSIONER OF EXCISE ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI ASSAM

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3:THE DISTRICT COMMISSIONER LAKHIMPUR ASSAM

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4:THE TENDER/ BID COMMITTEE

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FOR GRANT OF FRESH IMFL OFF SHOPS IN LAKHIMPUR DISTRICT REPRESENTED BY THE DISTRICT COMMISSIONER (EXCISE) CUM CHAIRMAN LAKHIMPUR ASSAM

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5:SITANANDA HAZARIKA S/O- SRI KAMESHWAR HAZARIKA R/O- KACHAJULI GABHARU TUNIJAN

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Page No.# 2/8

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LAKHIMPUR ASSAM PIN- 784160

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Advocate for the Petitioner : MS. M KECHII,

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Advocate for the Respondent : GA, ASSAM, MS. A K CHOPHI (r-5),MR. M BISWAS (r-5),SC, EXCISE DEPTT.

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 08-05-2025

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Heard Mr. PJ Saikia, learned senior counsel assisted by Mr. KJ Saikia, learned counsel for the petitioner. Also heard Mr. RR Gogoi, learned Standing Counsel, Excise Department as well as Mr. M Biswas, learned counsel for the respondent No. 5.

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2. The petitioner’s grievance is that his Technical Bid has been disqualified on the ground that the affidavit submitted by him pursuant to tender notice dated 06.01.2024, regarding the petitioner not having any excise shop/licence, could not have been submitted again in pursuance to the present tender notice dated 23.02.2024. The second ground of rejection of the petitioner’s Technical Bid was that the signature of the petitioner was not found in some of the uploaded documents, which was mandatory as per guidelines in the tender notice.

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3. The petitioner’s case is that he had participated in the Notice Inviting e-Bid (in short NIB) dated 06.01.2024 for grant of IMFL Retail “OFF” Licence for Shop No.LKP-2, Harmutty Centre, Harmutty, Lakhimpur District. The petitioner and the respondent No. 5 submitted their bids. However, the bids of both the

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Page No.# 3/8

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petitioner and the respondent No. 5 were disqualified by the State respondents. Thereafter, the State respondents issued a fresh notice, inviting E-Bid dated 23.02.2024 (hereinafter referred to as ‘NIB dated 23.02.2024’). However, the petitioner’s Technical Bid was disqualified for the reasons which are reflected in the Comparative Statement of bidders compiled by the State respondents, which are as follows:-

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“1. Affidavit regarding no excise shop/licence having previously submitted. 2. Signature of bidder not found in some uploaded documents which is mandatory as per guidelines.”

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4. The petitioner’s counsel submits that the subsequent NIB dated 23.02.2024 provided that the terms and conditions of the previous NIB would have to be followed. He submits that the affidavit stating that the petitioner had no excise shop or licence, which had been submitted pursuant to the earlier NIB dated 06.01.2024, was again used by the petitioner in the subsequent NIB dated 23.02.2024. He submits that there being no bar for using the same affidavit in the subsequent NIB, the disqualification of the petitioner’s Technical Bid on that ground was not justified. He also submits that the pages of the tender document, which had been uploaded by the petitioner, were not required to be signed. He submits that only the pages of the hardcopy of the tender document, which was the original tender document, were required to be signed.

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5. The petitioner’s counsel submits that the respondent No.5 did not sign all the tender documents which had been uploaded and as such, the Technical Bid of the respondent no.5 should also have been rejected or in the alternative, the petitioner’s Technical Bid should also have been declared responsive. He further submits that the Income Tax Return and the Balance-Sheet of the respondent

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Page No.# 4/8

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no.5 had not been certified by a Chartered Accountant, as required by Clause 2.1 of the NIB.

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6. The petitioner’s counsel submits that a co-ordinate Bench of this Court, had in a similar case, i.e., WP(C) 1384/2024 and other cases, set aside the licence allotted to the bidder, who had submitted Income Tax Return, which had not been certified by a Chartered Accountant, as mandated in Clause 2.1 of the Bid Document. He submits that as the respondent No. 5 had not submitted his Income Tax Return duly certified by a Chartered Accountant in terms of Clause 2.1 of the Bid Document, the awarding of the licence to the respondent No. 5 should be set aside and a fresh tender should be issued.

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7. Mr. RR Gogoi, learned Standing Counsel, Excise Department submits that as the petitioner did not sign all the pages of his uploaded tender documents and as the same was a mandatory requirement, there was no infirmity with the disqualification of the petitioner’s technical bid. He fairly submits that there is no bar on the petitioner to submit the affidavit submitted in response to the earlier NIB dated 06.01.2024, in the present NIB dated 23.02.2024.

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8. Mr. RR Gogoi, learned Standing Counsel, Excise Department submits that all the documents in the bid submitted by a tenderer need not be signed. He submits that the documents that comprises a bid is clearly provided in Clause 6 and Clause 6.2.1 to Clause 6.2.20 of the Bid Document specifically provides the documents that have to be submitted by a tenderer. It is only those documents mentioned in Clause 6.2.1. to Clause 6.2.20 of the Bid Document that have to be signed and documents which do not pertain to Clause 6.2.1 to Clause 6.2.20 need not be signed, as they are not required for considering the bid of a tenderer.

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Page No.# 5/8

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9. Mr. RR Gogoi, learned Standing Counsel, Excise Department submits that the respondent No. 5 had not signed one document, i.e., a declaration made by the owner of the plot of land stating that the land, wherein the petitioner was going to set up shop if allotted the licence, was his land and that it was free from any encumbrance. He submits that the said document is not a document required under Clause 6.2.1 to Clause 6.2.20 of the Bid Document, inasmuch as, the respondent No. 5 and the land owner had already submitted a tenancy agreement in terms of Clause 6.2.1 to Clause 6.2.20, which was executed by them.

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10. Mr. RR Gogoi, learned Standing Counsel, Excise Department has submitted the tender documents submitted by the petitioner and the respondent No. 5, for perusal of this Court.

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On perusal of the tender documents of the petitioner, it is found that a number of documents, including the Income Tax Return of the petitioner, had not been signed by the petitioner. A glance at the documents submitted by the petitioner shows that there are more than 10 (ten) documents that has not been signed by the petitioner, which includes the Income Tax Returns.

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11. The tender documents submitted by the respondent No. 5, on the other hand shows that the respondent No. 5 had not signed one document, i.e., the affidavit made by the owner of the land, which was not a required document, in terms of Clause 6.2.1 to Clause 6.2.20 of the Bid Document.

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12. Mr. M Biswas, learned counsel for the respondent No. 5 submits that the issue as to whether the Income Tax Return is to be duly certified by a Chartered

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Accountant is an essential condition, as per Clause 2.1 of the Bid Document, is under consideration before the Division Bench of this Court, inasmuch as, a challenge has been made to the decision of the judgment of a co-ordinate Bench of this Court in WP(C) 1384/2024 and others, wherein the allotment of tenders to bidders, who had submitted Income Tax Return which was not certified by a Chartered Accountant, had been cancelled. He submits that though Clause 2.1 of the Bid Document requires a Chartered Accountant’s certified Income Tax Return to be submitted in the bid, the same is not a requirement in terms of the decision of the Institute of Chartered Accountants of India which is published in FAQs on Unique Document Identification Number “UDIN”.

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13. I have heard the learned counsels for the parties.

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14. The State respondents’ counsel having admitted the fact that the rejection of the petitioner’s bid on the ground of having submitted the same affidavit twice, regarding the bidder not having a Excise shop/licence, in the earlier tender notice and the present tender notice, was not in violation of the tender conditions, this Court finds that disqualification of the petitioner’s tender/bid on the said ground to be arbitrary. Accordingly, the rejection of the petitioner’s tender on the said ground is set aside. The other issue to be decided is as to whether the absence of the signature of the petitioner in some his bid documents, pertaining to 6.2.1 to 6.2.20 of the bid document, violated an essential condition of the NIB.

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15. In the case of Ramana Dayaram Shetty vs. International Airport Authority of India & Others , reported in (1979) 3 SCC 489 , the Supreme

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Court has held that it was a settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.

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16. In the case of Meerut Development Authority vs. Association of Management Studies & Another , reported in (2009) 6 SCC 171 , the Supreme Court has held that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person, with a view to eliminate all others from participating in the biding process. It further held that the bidders participating in the tender process have no other right except the right to equality and fair treatment, free from hidden agenda, in the matter of evaluation of competitive bids offered by interested persons in response to NIT.

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17. On considering the fact that the terms and conditions of the NIB requires a bidder to sign all his bid documents pertaining to Clause 6.2.1 to 6.2.20 of the Bid Document and the same not having been done by the petitioner, which includes his Income Tax Return documents, this Court does not find any infirmity with the disqualification of the petitioner’s tender on that count, as an essential condition of the NIB had been violated.

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18. In respect to the question, as to whether the respondent No. 5 could have been awarded the licence, despite not having submitted the Chartered Accountant certified Income Tax Return, this Court finds that the requirement of

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Page No.# 8/8

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submitting the Income Tax Return duly certified by Chartered Accountant, is an essential condition of the tender notice, in terms of Clause 2.1 of the Bid Document.

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19. In that view of the matter, this Court finds that the award of the licence to the respondent No. 5 could not have been done, by violating an essential condition of the tender. Further, there is no challenge to Clause 2.1 of the Bid Document by any of the parties. The allotment of the IMFL Retail “OFF” Licence to the respondent No. 5 is accordingly set aside.

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20. In view of the reasons stated above, the matter is remanded back to the State respondents, to consider as to whether any other other valid tenderers, whose bids can be considered for allotment of the IMFL Retail “OFF” Licence. The State respondents should take a decision as to whether the said remaining valid bids of tenderers should be allotted the IMFL Retail “OFF” Licence in terms of the NIB dated 23.02.2024. However, in the event the State respondents are of the view that the rates offered by the remaining valid bidders/tenderers are not reasonable, they are given the liberty to issue a fresh NIB for allotment of the IMFL Retail “OFF” Licence.

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21. The writ petition is disposed of accordingly.

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JUDGE

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Comparing Assistant

Rishab Kumar Borah v. the State of Assam and 4 Ors.

Case brief

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What did the court decide?

Rishab Kumar Borah v. the State of Assam and 4 Ors.

Case brief

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