Debajit Hazarika vs State Of Assam

Sl.

No.",Bidder number,Bid value offered

,,

1,Bidder no. 1,"Rs. 23,51,000/-

2,Bidder no. 1 [the petitioner],"Rs. 15,51,000/-

3,Bidder no. 2 [the respondent no. 6],"Rs. 15,00,000/-

4,Bidder no. 4,"Rs. 13,85,451/-

5,Bidder no. 5,"Rs. 12, 71, 951/-

6,Bidder no. 6,"Rs. 11,76,121/-

7,Bidder no. 7,"Rs. 9,78,121/-

8,Bidder no. 8,"Rs. 9,30,101/-

9,Bidder no. 9,"Rs. 8,88,000/-

10,Bidder no. 10,"Rs. 6,81,000/-

11,Bidder no. 11,"Rs. 6,10,101/-

Mr. Roy, learned Standing Counsel, P&RD Department has submitted that the General Standing Committee of the Zilla Parishad in its meeting held",,

on 25.06.2021 had evaluated the bids submitted by all the 11 bidders along with their offered bid values. The General Standing Committee found the,,

bid of one Sri Yubanath Dutta, who offered a bid value of Rs. 23,51,000/-, the bid of the petitioner and the bid of the respondent no. 6 as valid ones",,

along with few other bids. The General Standing Committee had also considered the then prevailing situation due to Covid-19 pandemic and the,,

conditions of the local people. Having considered those aspects, the General Standing Committee had arrived at an decision that the bid values offered",,

by the first highest bidder and the second highest bidder were exhorbitant ones and thus, decided not to accept their bids. He has, however, fairly",,

submitted that while accepting the bid of the respondent no. 6, whose bid was the third highest, prior and formal approval from the State Government,",,

as required under Rule 47[10] of the Rules, 2002, was not obtained. He has placed the relevant records of settlement including the minutes of the",,

meeting of the General Standing Committee held on 25.06.2021. By referring to the affidavit-in-opposition filed by the respondent no. 4 i.e. the Chief,,

Executive Officer, Golaghat Zilla Parishad, Mr. Roy has submitted that the land offered by the guarantor of the respondent no. 6 did not belong to him.",,

It has further been averred therein that the petitioner also did not furnish a consent letter/no objection certificate from one of the co-pattadars of the,,

land which the petitioner submitted as security. He has, thus, submitted that the bid of the petitioner was also deficient.",,

Mr. Bora, learned counsel for the respondent no. 6 has submitted that the initial order of settlement dated 27.02.2021 was for the period up to",,

31.12.2021. On 20.12.2021, another settlement order was issued in favour of the respondent no. 6 whereby the market has been settled again in his",,

favour for the period up to 28.02.2022. Pursuant to the said order dated 20.12.2021, the respondent no. 6 has already deposited the amount that was",,

asked for. As the subsequent settlement order dated 20.12.2021 has not been put to challenge in this writ petition, the writ petition, according to him, is",,

not maintainable. He has further submitted that the observation regarding exhorbitant bid values offered by the first highest bidder and the second,,

highest bidder taken by the General Standing Committee of the Zilla Parishad was proper and justified as it was taken considering the then prevailing,,

situation due to Covid-19 pandemic and the conditions of the local people who would do business in the market. Referring to the decision of the,,

Hon’ble Supreme Court of India in Jagdish Mandal vs. State of Orissa, reported in [2007] 14 SCC 517, he has submitted that if the decision",,

relating to award of contract is bona fide and is in public interest, the courts will not, in exercise of power of judicial review, interfere even if a",,

procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to,,

protect private interest at the cost of public interest, or to decide contractual disputes. It is his further contention that the writ petition is not",,

maintainable for non-joinder of necessary parties as the writ petitioner herein has not impleaded the other bidders, especially Sri Yubanath Dutta,",,

whose bid was also found to be a valid and higher one than both the petitioner and the respondent no. 6. To buttress his said contention, he has relied",,

upon a decision of this Court rendered in the writ petition, W.P.[C] no. 4616/2016 [Ritwick Gogoi vs. State of Assam and others], decided on",,

02.05.2017.,,

In reply, Mr. Das, learned senior counsel for the petitioner has submitted that non-joinder of necessary party will not come in the way of",,

adjudication of the writ petition because of the primary contention of the writ petitioner herein is infraction of the statutory rule contained in Rule,,

47[10] of the Rules, 2002 on the part of the General Standing Committee of Golaghat Zilla Parishad in settling the market in question pursuant to the",,

Tender Notice dated 06.05.2021. Moreover, it appears that the first highest bidder is not aggrieved by the impugned decision regarding the settlement",,

as he has not challenged the same. The decision in Jagdish Mandal [supra] is not applicable in the facts and circumstances of the case as in the said,,

case, no statutory rule was involved. Rather, it is the decision in Jespar I. Slong vs. State of Meghalaya and others, reported in [2004] 11 SCC 485,",,

which will be applicable in the case.,,

I have considered the submissions of the learned counsel for the parties and also perused the materials brought on record by the parties through,,

their pleadings. I have also gone through the records of settlement, produced by Mr. Roy, learned Standing Counsel, P&RD Department and the",,

decisions cited by the parties.,,

It is settled that a bidder who has participated in a competitive bidding process atleast has a right to equality and fair treatment in the matter of,,

evaluation of competitive bid offered by him in response to a notice inviting tender in a transparent manner and free from any hidden agenda and in,,

that respect, he is entitled to be treated in a fair, equal and non-discriminatory manner in the matter of evaluation of his bid. A bidder has an",,

enforceable right to that limited extent before the Court and the Court can definitely examine the issue as to whether the petitioner has been treated,,

unfairly or discriminated against. An obligation is also cast on the tendering authority to proceed with the matter in fair, just and transparent manner by",,

undertaking the exercise in accordance with law.,,

As have been noted above, 11 bidders responded to the Tender Notice dated 06.05.2021. After receipt of the bids from the 11 bidders, the",,

Anchalik Panchayat opened the bids and after going through the documents submitted along with the bids, the Anchalik Panchayat processed the",,

same and forwarded the entire matter to the Zilla Parishad for its decision. The Government value fixed for Sapjuri Weekly Market, as per the Tender",,

Notice, was Rs. 60,638/-. As per the provisions of the Assam Panchayat Act, 1994, all tender notices, in respect of markets, ghats and fisheries,",,

irrespective of the yearly sale value of such property, are required to be floated by the concerned Anchalik Panchayat. However, after submission of",,

all tender papers before the Anchalik Panchayat, if the bid value offered by the eligible highest bidder is found to be more than Rs. 1,00,000/-, the",,

Standing General Committee of Anchalik Panchayat, constituted under Section 52 of the Assam Panchayat Act, 1994, requires to forward all such",,

tender papers submitted by the bidders together with a comparative statement prepared and processed, to the concerned Zilla Parishad, for doing the",,

needful at their end. Section 109[6] of the Assam Panchayat Act, 1994 has laid down that the powers of examination and final acceptance of such",,

tender shall be vested in the General Standing Committee of the concerned Zilla Parishad constituted under Section 81 of the Assam Panchayat Act,",,

1994. The said position has also been clarified by the Full Bench decision of this Court in Harej Ali and another vs. the State of Assam and others,",,

reported in 2009 [2] GLT 561. Admittedly, many of the valid bids submitted in respect of Sapjuri Weekly Market had bid values more than Rs.",,

1,00,000/- for one year. Thus, it is the Zilla Parishad who was to finally accept the tender and pass the order of settlement.",,

Sub-Rule [10] of Rule 47 of the Assam Panchayat [Financial] Rules, 2002 reads as follows :-",,

Rules and Procedures for the Sale and Settlement of Markets, Ferries, Fisheries and Ponds",,

Rule 47[10] â€" The tender of highest bidder shall be accepted. Acceptance of tender other than the highest bid shall require the “Governmentâ€,,

prior and formal approval.,,

Rule 47[10] has been incorporated in the Rules, 2002 so that the settling authority cannot deviate arbitrarily from the norm of settling ordinarily the",,

market with the highest valid bidder without prior approval of the higher authority, that is, the State Government. Rule 47[10] also came to be",,

considered by this Court in Sarat Gogoi [supra]. It has been held therein that in a case where the highest bidder is sought to be not given the,,

settlement and the settlement is sought to be offered to a next higher bidder, prior and formal approval of the Government is required to be taken. In",,

the event no prior and formal approval is taken by the Zilla Parishad while issuing the settlement order in favour of a bidder who is not the highest,,

valid bidder, then the settlement given to such a bidder would not be sustainable, being violative of Rule 47[10] of the Rules, 2002.",,

In the context of the above, when records of settlement including the minutes of the meeting of the General Standing Committee held on",,

25.06.2021 and the stand taken by the respondent no. 4 in his affidavit are perused, it is found that the General Standing Committee upon evaluation of",,

the bids, had found that the first highest bidder viz. Yubanath Dutta and the second highest bidder i.e. the petitioner had submitted all the requisite",,

documents in terms of the Tender Notice. Having observed so, the General Standing Committee had held that the bids of both the first highest bidder",,

and the second highest bidder as acceptable, meaning thereby, their bids were valid ones. The respondent no. 4, in the affidavit-in-opposition, has also",,

averred that all the documents submitted by the petitioner were found in order by the General Standing Committee of the Zilla Parishad. It has further,,

been admitted by the respondent no. 4 in his said affidavit-in-opposition that no prior and formal approval was obtained from the State Government,,

towards compliance of Rules 47[10] of the Rules, 2002. The records of settlement also do not reveal that any prior and formal approval was taken",,

from the State Government prior to making the order of settlement.,,

The reasons given by the General Standing Committee about finding the bid values offered by the said two bidders as exhorbitant were two, firstly,",,

the then prevailing situation due to Covid-19 pandemic; and secondly, the poor economic conditions of the farmers of the nearby areas. The said two",,

bid values were Rs. 23,51,000/- and Rs. 15,51,000/- respectively. The learned counsel for the respondents have, however, been not able to provide any",,

cogent reason as to how a bid value of Rs. 15,51,000/-, offered by the petitioner, can be treated to be exhorbitant vis-Ã -vis the bid value of Rs.",,

15,00,000/-, offered by the respondent no. 6.",,

14.1. The question of terming the bid value offered by the petitioner as an exhorbitant one is to be considered in the context of the nature of settlement,,

qua the provisions of the Assam Panchayat Act, 1994.",,

14.2. In this context, the observations made by the Hon’ble Supreme Court of India in Jespar I. Slong vs. State of Meghalaya and others, reported",,

in [2004] 11 SCC 485, can be referred to at first. The State of Meghalaya owned a weighbridge at Morkjniange which it had decided to lease out to",,

the contractors who were willing to take it on lease on yearly basis and for that purpose, it issued a notice inviting tender. When the tendering authority",,

settled the weighbridge in favour of one of the bidders at Rs. 1.21 crore, the same was challenged before the High Court. It was held by the High",,

Court that the bid, at which it was accepted, was speculative and predatory. When the matter reached the Hon’ble Supreme Court of India, the",,

Hon’ble Supreme Court of India noticed that the income from the weighbridge was to be received from the fees charged for weighment of trucks,,

which would pass through the route on which the weighbridge was situated. The trucks mostly used to carry coal and as per the relevant notification,",,

the person operating the weighbridge, could only charge a sum of Rs. 30/- for a loaded truck and Rs. 10/- for an unloaded truck. In such scenario, it",,

was observed that the fee to be collected from the transporters for weighment of their vehicle was fixed and it would not vary with the amount of bid,,

offered by the contractor. The contract would not have any effect on the price of coal, since weighment charges were fixed by the Government and",,

the contractor had no right to increase the same, thereby, to cause loss to the public. It has been held that the payment of the bid amount is purely a",,

matter between the contractor and the State. As a matter of fact, obtaining higher revenue by accepting the eligible highest bid would only be in public",,

interest because the State stands to gain more revenue in that way. It has also been observed that offering of the bid after knowing the commercial,,

value of the contract is a matter left to the business acumen or prudence of the tenderer and no third party’s interest is involved in such a,,

contract. If the State decides to give its largesse to the public it has an obligation to see it fetches the best possible value for the same, provided",,

otherwise it does not in any manner affect the rights of other persons.,,

14.3. The bidders are considered to be prudent businessmen who prepare their tenders by taking into consideration a host of factors including the,,

terms and conditions incorporated in the tender document, the estimated amount and the quantums of profit they are likely to earn and accordingly,",,

they arrive at their tendered bid values. One prepares his tender to the best of his estimation, by quoting his tendered bid value at a definite amount on",,

the premise that at such amount, he would be able to perform the obligations under the contract if the tender is settled in his favour and at the same",,

time, would also be able to earn a particular amount of profit. A number of bidders participate in a tender process and the bidders tender different bid",,

values but only one of them emerges successful. Thus, the preparation of the tendered bid value is at the risk and peril of rejection of one’s tender",,

if the same does not emerge as the highest valid one and a tender process is always competitive.,,

14.4. Reverting back to the facts of the case, it is an admitted position that a lessee if he is settled with a market under the aegis of the Zilla Parishad",,

and/or Anchalik Panchayat, has to collect the fees in the market only at the rates fixed by the Anchalik Panchayat and/or Zilla Parishad. The lessee",,

cannot collect fees at a higher rate than the rate fixed by the Anchalik Panchayat and/or Zilla Parishad. As per the terms and conditions of the Tender,,

Notice, the lessee at all times, has to keep the rates of fees prescribed by the Anchalik Panchayat and/or Zilla Parishad by installing a notice board at",,

a conspicuous place in the market so that it is noticeable to all concerned. Therefore, the rates of fees to be collected by the lessee are fixed and such",,

rates of fees do not vary with the amount of bid offered by a bidder and there is no correlation between the prescribed rates of fees to be collected in,,

the market and the lease value at which the market has been settled with. The settlement of the market in view of the fact that the lessee has to,,

collect the fees at the prescribed rate will not have any effect on any third person like a local farmer whether the market is settled with the first,,

highest valid bidder or any other bidder. But, acceptance of a bid of a lower valid bidder would result in lesser revenue to the State Exchequer. Thus,",,

the settlement of Sapjuri Weekly Market made by the General Standing Committee of the Zilla Parishad in favour of the respondent no. 6 at his bid,,

value of Rs. 15,00,000/- in ignorance of the higher bid values of Rs. 23,51,000/- and Rs. 15,51,000/- offered by one Sri Yubanath Dutta and the",,

petitioner respectively, despite the fact that it found those two bids as valid ones, by taking into consideration irrelevant factors in the decision making",,

process is clearly not in the public interest. The decision making process for distribution of State largesses is found to be guided by irrelevant factors,,

which has resulted in causing loss to the State Exchequer, thereby, making the process arbitrary, unfair and discriminatory",,

14.5. Though in certain situations acceptance of a lesser bid may be permissible but in case of settlement of a market under the aegis of the Anchalik,,

Panchayat and/or Zilla Parishad, the same is ordinarily required to be settled in favour of the highest valid bidder as per the Rule 47[10] of the Rules,",,

2002. In the event the General Standing Committee, a statutorily constituted body, decides to settle the market in favour of a bidder other than the",,

highest valid bidder then it has to obtain prior and formal approval from the State Government, which has not been taken in the case in hand. The fact",,

that there are higher valid bidders than the respondent no. 6 is also admitted by him in his affidavit-in-opposition.,,

The decision, relied upon by the learned counsel for the respondent no. 6, in Jagdish Mandal [supra] is found to be not of any assistance as to the",,

case of the respondent no. 6 for at least two reasons.,,

15.1. It has been held in Jagdish Mandal [supra] that the judicial review of administrative action is intended to prevent arbitrariness, irrationality,",,

unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice",,

or decision is ‘sound’. If the said observation is taken into consideration in the context of the fact situation obtaining in the case in hand, it is",,

found that the General Standing Committee of the Zilla Parishad while settling the market in favour of the respondent no. 6 has clearly acted in,,

violation of the statutory prescription contained in Rule 47[10] of the Rules, 2002. Viewed in that context, the decision of the General Standing",,

Committee is clearly not lawful.,,

15.2. It has been observed in Jagdish Mandal [Supra] also to the effect that if the decision relating to award of contract is bona fide and is in public,,

interest, the courts will not interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made in exercise of power of",,

judicial review. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide",,

contractual disputes. In Jagdish Mandal [supra], the disputes pertained to award of an irrigation project by the Water Resources Department,",,

Government of Orissa in favour of the lowest bidder on the ground that the earnest money deposit submitted by him was non-compiant to the,,

conditions of the tender notice. In the case in hand, the subject-matter pertains to settlement of a market to be operated under the aegis of the",,

Anchalik Panchayat and/or the Zilla Parishad. The settlement of the irrigation project was to be made on the basis of evaluation of the tenders,,

submitted by the tenderers without there being any necessity to comply with any statutory provision but only by the conditions of the tender notice,,

whereas the settlement of a market like the present one, is to be made on the basis of the evaluation of the bids submitted by the bidders not only on",,

the basis of the conditions of the tender notice but the same has also to be in compliance with the statutory prescription contained in Rule 47[10] of the,,

Rules, 2002.",,

15.3. It is well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well settled that,,

even a slight distinction in fact or an additional or different fact may make a lot of difference in the decision making process. On the analysis of the,,

factual matrices obtaining in Jagdish Mandal [supra] and the case in hand, the ratio of the said decision is not found applicable to the case in hand for",,

the reasons discussed hereinabove. The reasons recorded by the General Standing Committee in its meeting held on 25.06.2021 and the contentions,,

advanced by the learned counsel for the respondents about finding the bid values offered by the first highest bidder and the second highest bidder as,,

exhorbitant are found to be of arbitrary and without substance.,,

The decision in Ritwick Gogoi [supra] was rendered in a case where the bid of the petitioner therein was declared to be a defective one and the,,

concerned market viz. Silghat Daily Market was settled in favour of a bidder who had quoted a lesser bid value than the petitioner but the bid was a,,

valid one. When the petitioner challenged the said settlement, this Court found the bid of the petitioner therein again to be a defective one. The",,

violation of the provision of Rule 47[10] of the Rules, 2002 was not directly an issue in Ritwick Gogoi [supra] whereas the violation of the prescription",,

contained in Rule 47[10] of the Rules, 2002 is directly an issue in the case in hand. Thus, the case of Ritwick Gogoi [supra] does not come in",,

assistance of the respondent no. 6. The decision is also found distinguishable in view of the clear admission on the part of the respondent no. 6 herein,,

in his affidavit-in-opposition where he has admitted that there were two other bidders who offered higher bid values than him and those two bids were,,

in order.,,

The contention advanced by Mr. Bora as regards not challenging the subsequent settlement order dated 20.12.2021, is also found to be bereft of",,

substance. From a perusal of the settlement order dated 20.12.2021, it is found that the said settlement has also been made pursuant to the decision",,

dated 25.06.2021 of the General Standing Committee of the Zilla Parishad. By the said order, the respondent no. 6 has been asked to deposit his",,

subsequent installment. As has also been noticed above, by the Tender Notice dated 06.05.2021, the bids were invited for settlement of Sapjuri",,

Weekly Market for one year for the year 2021-2022 up to 30.06.2022. Thus, the settlement order dated 20.12.2021 is only in consequence of the",,

decision of the General Standing Committee dated 25.06.2021 and in continuation of the earlier order of settlement dated 20.07.2021. As the challenge,,

in the instant writ petition is made with regard to the order of settlement dated 20.07.2021 on the premise that Rule 47[10] of the Rules, 2002 was not",,

followed in making the settlement of Sapjuri Weekly Market, which is a mandatory prescription, the question of not challenging the subsequent",,

settlement order dated 20.07.2021, which is merely a consequential order in continuation of the earlier settlement order dated 25.06.2021, does not",,

make the writ petition not maintainable. Moreover, the respondent authorities in the Zilla Parishad are silent on the aspect as to why, at the first",,

instance, the market was settled for a shorter period than one year when bids were invited by the Tender Notice dated 06.05.2021 for settlement of",,

the market for a period of one year up to 30.06.2022. The grounds referred by the respondent no. 4 about deficiencies in the bids of the respondent,,

no. 6 as well as the petitioner are not found by the General Standing Committee of Zilla Parishad during the course of its evaluation of the bids, as",,

found recorded in the minutes of the meeting dated 25.06.2021.,,

In view of the discussion made above and the reasons assigned therein, more particularly, in view of violation of Rule 47[10] of the Rules, 2002 on",,

the part of the General Standing Committee of the Zilla Parishad, the process of settlement resulting into the order of settlement in favour of the",,

respondent no. 6 is found to be vitiated one due to taking into account irrelevant factors in the decision making process and non-compliance of the,,

statutory prescription contained in Rule 47[10] of the Rules, 2002 and the same is liable to be set aside. It is accordingly set aside.",,

Consequently, the Zilla Parishad is directed to revisit the matter of settlement once again on the basis of the records containing the tender",,

documents of the participating valid bidders and to arrive at a decision on the settlement of Sapjuri Weekly Market for the subsequent period up to,,

30.06.2022, as indicated in the Tender Notice dated 06.05.2021, in compliance of Rule 47[10] Rules, 2002. The entire exercise shall be undertaken and",,

completed on or before 15.02.2022.,,

At this stage, Mr. Bora, learned counsel for the respondent no. 6 has submitted that the respondent no. 6 has already deposited the installment",,

amount to operate the market upto 28.02.2022 and the respondent no. 6 is presently operating the market. Thus, he may be allowed to operate the",,

market till 28.02.2022.,,

In view of the directions given above, the respondent no. 6 may be permitted to operate the market up to 15.02.2022 and if after that, any excess",,

amount of installment for the period from 16.02.2022 is found to be refunded to the respondent no. 6 due to deposit already made by him, the same",,

shall be refunded by the respondent authorities forthwith thereafter.,,

With the observations made and directions given above, the writ petition stands allowed to the extent indicated above. There shall, however, be no",,

order as to cost.,,