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Judgment
1.Heard Mr. A. Sarma, learned counsel appearing for the petitioner. Also heard Mr. S.B. Sarma, learned Standing counsel, Assam Fisheries
Development Corporation Ltd. (AFDC).
Pursuant to a Notice Inviting Tender (NIT) dated 17.04.2017, issued by the respondent No. 2, i.e., Managing Director, AFDC, the petitioner had
participated for settlement of Punguni Beel Fishery in the district of Golaghat, Assam. The petitioner had submitted his tender quoting his rate of
Annual Revenue at Rs. 2,42,200.00.
Contending that despite the petitioner having emerged as the highest valid tenderer with the rejection of the bid of one Paban Das, who had quoted
Rs. 2,70,200.00 as Annual Revenue, he was entitled to get the settlement of the fishery in question and that although the fishery was remaining khas
from January, 2017, settlement order was not issued in favour of the petitioner, the petitioner had approached this court earlier by filing a writ petition
under Article 226 of the Constitution of India, which was registered as WP(C) 5322/2017, wherein said Paban Das was arrayed as respondent No. 3.
In the said writ petition, despite service of notice, Paban Das had not entered appearance.
An interim order was passed in the said writ petition on 15.11.2017 providing that pendency of the case shall not be a bar for final settlement of the
Punguni Beel by the AFDC. While the said writ petition was pending consideration, the respondent No. 2, i.e., Managing Director, AFDC, passed an
order dated 03.01.2018, whereby a direction was given to the Beel Manager to take steps for collecting revenue by engaging local fishermen till final
settlement of the fishery. Thereafter, on 05.04.2018, an order was passed by the respondent No. 2 for initiation of fresh tender process for settlement
of the said fishery by rejecting the bids submitted pursuant to the earlier NIT dated 17.04.2017.
The petitioner had filed an interlocutory application in WP(C) 5322/2017 bringing on record the aforesaid order dated 03.01.2018. By an order
passed today, WP(C) 5322/2017 as well as I.A. (C) 103/2018 were disposed of as infructuous.
The present writ petition is filed challenging the said orders dated 03.01.2018 and 05.04.2018.
Mr. S. B. Sarma, learned Standing counsel, AFDC, has produced the records pertaining to the tender process in question. Mr. A. Sarma, learned
counsel for the petitioner has examined the records produced by the learned Standing counsel, AFDC.
Learned counsel for the petitioner has submitted that the impugned order dated 05.04.2018 had been passed only to deprive the petitioner from
getting settlement of the fishery, as it is evident from the report of the tender committee, as reflected in the Comparative Statement, that the tender of
the petitioner was not defective. He further submits that the petitioner is a layman and not conversant with the nitty-gritty of submission of tender and,
therefore, the fact that Paban Das, another tenderer, was a witness in his tender form should not be held against him, because, if the petitioner had
really wanted to have a pre-concert with Paban Das, he would have adopted other discreet methods which would not have been as apparent as in the
instant case. He further submits that the records would reveal that there is no apparent reason as to why no decision was taken for an inordinately
long period of time causing substantial loss of Government revenue. He submits that it appears to him that the officers of the respondent corporation
think that they are not accountable for the gross delay in taking a decision one way or the other. He contends that if the decision had been taken
immediately after submission of tenders, some legitimacy could have been attached to the purported irregularity of the petitioner’s tender, but not
at this distance of time. He has also pointed out that though the tender of the petitioner was valid, the 5th highest bidder was sought to be granted
settlement by subordinate authorities of AFDC which, however, did not materialize. It is strenuously argued by him that the authorities having invited
tenders cannot procrastinate settlement of the fishery in question as it is detrimental to augmentation of Government revenue. He further submits that
the difference in the rate of the petitioner and the highest bidder is marginal and the petitioner is prepared to accept the settlement at the rate offered
by Paban Das, i.e., the highest tenderer.
Mr. S. B. Sarma, by drawing attention of the court to page 22 and page 62 of the records produced by him, has submitted that not only the
petitioner had acted as witness in the tender of Paban Das and vice-versa, but even the project papers submitted by them, including the mistakes
therein are identical and, therefore, submission of the learned counsel for the petitioner that the same was done out of ignorance cannot be accepted.
He submits that tender was required to be submitted in sealed envelope to maintain secrecy and when the petitioner and the said Paban Das had acted
in the manner as is noticed, the conclusion that was arrived at in the impugned order that they wanted to subvert the tender process, cannot be faulted
with. He submits that in the facts of this case, the Court ought not to invoke its extra ordinary jurisdiction in exercise of powers under Article 226 of
the Constitution of India. With regard to the delay in bringing the tender process to its culmination, Mr. S. B. Sarma has admitted that there was,
indeed, delay in the instant case, but he stoutly denies that there was any improper or mala fide intention as no other tenderer had been settled with the
fishery arbitrarily. He contends that the order dated 03.01.2018 was issued only for a limited period and, that too, for engaging local fishermen. He
submits that the said order is no longer in force and, presently, the fishery is lying khas without any fishing activity taking place in the fishery. He has
further submitted that the departmental authorities had processed the file for settlement and the same was sent to the Chairman of the AFDC for
approval, but without any decision being taken, the file was returned on 13.03.2018 and thereafter, the file was processed and a proposal for re-
tendering was submitted, which was approved by the Chairman of the AFDC on 27.03.2018.
I have considered the submissions of the learned counsel for the parties and have perused the materials on record as well as the records produced
by Mr. S.B. Sarma.
In the impugned order dated 05.04.2018, it was observed as follows: On perusal of the Comparative Statements along with tender application, it is
found that tender applicants, namely, Sri Paban Das and Sri Jaharlal Das are the witness of their tender applications although the application of Sri
Paban Das was declared defective by tender committee. Sri Parameswar Das, S/o Late Lalson Das was he witness in tender application of both of
them. Following such unhealthy process, both of them are acting in preconcert and have managed to eliminate fair competition of bid value in the
tender process. Their technical bid application reflects similar tune in quoting the same figures confirming discloser of secrecy of bid value. Being the
1st and 2nd highest bidder in the tender process both of them have failed to maintain fairness and confidence before accepting an offer in public
interest. Such action of Sri Paban Das and Sri Jaharlal Das is mala fide, arbitrary and therefore, corporation cannot allow such illegal proceeding
further. Hence, their applications are rejected. Hence, in order to protect fairness as well as considering the production of fish and revenue, all tender
applications are rejected and a fresh tender would be initiated for settlement of Punguni Minmahal urgently within April-May, 2018.â€
From the above, it is seen that Paban Das, otherwise the highest bidder, was the witness in the petitioner’s tender and the petitioner was
witness in the tender of Paban Das and that one Parameswar Das was witness in the tender of both of Paban Das and Jaharlal Das. I am inclined to
accept that the view taken by the respondent No. 2 that the petitioner and the aforesaid Paban Das had resorted to an unhealthy practice and had
acted in a pre-concerted manner cannot be said to be a totally perverse view. Mr. S. B. Sarma, learned counsel for the respondents is also right in
submitting that both the petitioner and Paban Das had submitted photocopies of identical documents, containing same mistakes, relating to the project
for fish production.
The court will not hazard a guess or comment on the submission of the learned counsel for the petitioner that if the petitioner and Paban Das had
really wanted to act in a pre-concerted manner, they would not have taken recourse to such process which is apparent on the face of the records, but
would have found out better ways to subvert the tender process. Fact remains there was no sanctity in their tenders.
Therefore, the order dated 05.04.2018 is not interfered with. However, this court cannot help but observe that the respondents, after initiating a
tender process, cannot adopt a lackadaisical approach. The respondents will ensure that in future no inordinate delay takes place in bringing a tender
process to its logical conclusion. It must be remembered that all are accountable for their actions or inactions.
The writ petition is dismissed. No cost.
Let the records be returned back to Mr. S. B. Sarma, learned Standing counsel, AFDC.