Nihar Ranjan Hazarika vs State Of Assam And Ors

1) Heard Mr. P. Mahanta, learned counsel for the petitioner in W.P.(C) 3420/2020 and Mr. H. Buragohain, learned counsel for the petitioner in W.P.

(C) 2762/2020. Also heard Mr. P. Sarmah, learned standing counsel for respondent nos. 1 to 4, Mr. D. Doley, learned Govt. Advocate appearing for

respondent no. 5 and Mr. S. Borthakur, learned counsel for respondent no.6.

2) At the instance of the learned counsel for the parties, the matter had been heard at the ‘admission’ stage and it is seen that the subject

matter of both the writ petitions being inter-connected, and arises out of the same cause of action, which is not disputed by any of the parties at the

Bar.

3) The petitioner in W.P.(C) 2762/2020 had filed the said writ petition under Article 226 of the Constitution of India for assailing the legality of the

order dated 27.05.2020 passed by the Assam Fishery Development Corporation Ltd. (respondent no.3; hereinafter referred to as ‘AFDC Ltd.’

for brevity) by which Teliadunga Krishnachigakur Fishery in the district of Sivasagar was settled with respondent no.6 for a period of 7 (seven) years.

The petitioner in WP(C) 2672/2020 was the first highest bidder. It is submitted by the learned counsel for the petitioners in both the writ petitions that

the petitioners were not informed about the rejection of their respective highest and second highest bid and the consequent settlement of the fishery

with the respondent no.6, whose bid was lowest out of the four bidders. It is submitted that the petitioners in both the writ petitions came to learn about

the settlement of the fishery in question with the respondent no.6, i.e. the lowest bidder upon receipt of a caveat filed by the respondent no.6, which

was registered as Caveat No. 333/2020. Hence, it is submitted that as because both the petitioners were not provided with a copy of the impugned

order, the petitioners could not annex the said order, but they have made specific prayer to quash the impugned order.

4) The petitioner in petitioner in W.P.(C) 3420/2020 projects himself to be the second highest bidder in respect of the same fishery and it is the case of

the petitioner that if the tender submitted by the highest bidder was not acceptable, no reason was assigned as to why the bid of the petitioner therein

was not acceptable while rejecting his bid.

5) The learned counsel for the petitioners has submitted that the tender notice no. 1/2020 dated 18.02.2020 did not contain either the maximum bid

value or any viable range. Therefore, by referring to ratio laid down in the case of Jewti N.G.O. Vs. State of Assam & Ors., 2017 (4) GLT 762,

decided by this Court, it is submitted that rejection of the first and second highest bids of the petitioners was not tenable. It is also submitted that in the

two bid system, the technical bid submitted by various tenderers was opened on 07.03.2020 and the bid submitted by the petitioner was found

technically responsive, but without intimating to the petitioners the date on which price bids would be opened, the price bids were opened behind the

back of the petitioners and the respondent nos.3 and 4 had arbitrarily settled the tender with the respondent no.6, whose bid was the lowest amongst

four bidders. It is also submitted that although the respondent no.6 was not technically qualified, his bid was accepted, which is in aberration of Rule 12

of the Assam Fishery Rules, 1953.

6) Per contra, the learned departmental standing counsel has submitted that the cited judgment was not applicable in the present case in hand and that

the rejection of the bid of both the petitioners is justified as the bids were exorbitant and there was every likelihood that if the fishery was settled with

the petitioners in both the writ petitions, they would commit default, which would cause losses to the respondent no.3. Moreover, it is submitted that

viability range is prescribed in Article 5.1 of the Articles of Association of respondent no.3, as such, the rejection of the bids submitted by the

petitioners was justified. It is submitted that the respondent no.3 is not a profit making company, and that one of its objects is to ensure that the actual

fishermen actually earn their livelihood. Supporting the said stand, the learned counsel for the respondent no.6 has argued to justify the impugned order

and it is submitted that as per rules of pleading, as the writ petition does not contain any specific pleading in respect of the impugned order, the Court

may not like to find fault with the impugned order, which ought not to be interfered with. It is submitted that in the present case in hand, the Assam

Fishery Development Corporation Ltd. being an expert body on fishery has settled the fishery in favour of the respondent no.6 after examining the all

aspects of the bids and, as such, this Court ought not to substitute its opinion against the well considered decision of an expert body as this Court was

not the appellate authority in the matter of settlement of tenders and that this Court may exercise power of judicial review to examine lawfulness of

the decision but not its soundness. In support of his submissions, the learned counsel has relied upon the following cases, viz., (1) Central Coalfields

Ltd. Vs. SLL-SML JV., (2016) 8 SCC 622; (2) Municipal Corporation, Ujjan Vs. BVG India Ltd., (2018) 5 SCC 46 2(;3) JSW Infrastructure Ltd. Vs.

Kakinada Sea Ports Ltd., (2017) 4 SCC 170.

7) Upon hearing the learned counsel for the parties, perused the pleadings and records contained in two departmental files produced by the learned

standing counsel for the respondent nos. 1 to 4.

8) It is seen that the impugned order speaks about the past yield of the fishery, but the record as produced does not reveal any document showing

yield of the concerned fishery in any previous years. The records also do not contain any document regarding the value on which the same fishery

was settled in any of the previous years. Therefore, from the records produced, there can be no other conclusion save and except that while rejecting

the bids submitted by the three highest bidders and while settling the fishery with the respondent no.6, the respondent nos. 3 and 4 have relied on some

material which is neither available in the record produced nor the gist of such document is found to have been recorded in any of the note sheets

contained in two office files produced. In the note sheet, the authorities of respondent nos. 3 and 4 have stated that the respondent no.6 had quoted

2302.75 kg. per hectare and that other bidders had quoted 3736.0 kg. per hectare, 3431.16 kg. per hectare, and 2762.70 kg. per hectare. However,

such figures are not found written in the bid documents submitted by any of the bidders, nor such specific particulars have been entered in the

comparative statement prepared by the authorities. Moreover, one intriguing fact is that as per the minutes of discussion on selection of tenderers for

settlement of beels for 2020-21, as contained in pages 2 to 7 of the note-sheet of file no. AFDC.486/2020, settlement was considered for as many as

19 fisheries, but the weight and area wise (i.e. kg. and hectare) breakup was calculated only in respect of the “Teliadunga Krishnachigakurâ€

fishery. However, there is no explanation in the note sheet why such an departure was made in the present case in hand.

9) One of the argument made by the learned counsel for the respondents was to the effect that the respondent nos. 1 to 4 had calculated the viable

range and found that the bid submitted by the respondent no.6 was reasonable and that the bids submitted by the other bidders was exorbitant and as

respondent no.3 is not a profit making company and that one of its objects is to ensure that the actual fishermen actually earn their livelihood, there

was no illegality in settling the tender for the fishery in question with respondent no.6, which was in consonance with Article 5.1 of the Articles of

Association and such settlement would secure livelihood of fishermen and would secure the revenue of the respondent nos. 4 and 5. The said

argument appears to be appealing, but yet it is not found acceptable because the object of the respondent no.1 at sl. no. 1 is “to undertake

development of fisheries in the State and ensure increased productionâ€. However, in the meeting minutes dated 22.05.2020, there is no discussion to

the effect that in the past the respondent nos. 4 and 5 did not ensure increased production of fish and therefore, there is no possibility for the three

highest bidders to get an increased production. It would be relevant to mention herein that although the tender in question was under two bid system,

i.e., technical bid and financial bid, the respondent nos. 4 and 5 have only produced the file relating to financial bid, which contains no supporting

documents. However, for the reasons best known to the respondent nos. 4 and 5, the file relating to technical bids of the fishery in question has been

withheld.

“As per the minutes dated 22.05.2020, the officers of the respondent nos. 4 and 5 have recorded as follows:- “Further, the technical bid

projected by all the four bidders shows that the technical bid submitted by Shri Babul Das is more reasonable among all which is in support the

surroundings of the Beel as well as productive area. He quoted 2302.75 Kg/Ha which is proper and acceptable as per the past record of the Beels but

the other bidders have quote 3736.0 Kg/Ha, 3431.16 Kg/Ha and 2762.70 Kg/Ha cannot be acceptable and seems to be imaginary having no

knowledge over Beel. It will not be appropriate to allow persons who has no knowledge over because the Corporation has to secure the livelihood of

the Fisherman as well as to secure earning of revenue.

Because not only being the previous Lessee but having sufficient knowledge of fishing and management of the Beel Corporation may go for

management of Teliadanga Beel in faour of Shri Babul Biswas. The rate quoted by him will be benefited for both Corporation and Shri Babul

Biswas.â€​

10) As indicated above, as the file relating to technical bid has been withheld, thus, in the absence of any supporting documents, there is no material

before this Court to accept the correctness of the logic based on which the herein before quoted observations has been made.

11) In light of the cases cited by the learned counsel for the parties, the plea of rejection of bids submitted by three highest bidders on ground of being

outside viability range has been examined. In this regard, although in the affidavit- in- opposition, the respondent nos. 3 and 4 has stated that quotation

of respondent no.6 was feasible, but the notice inviting tender does not provide that bids must conform to the viable range determined by the

respondent nos. 3 and 4. In the records produced, no noting is found to have been made prior to opening of technical and financial bids to the effect

that the respondent nos. 3 and 4 had laid down the viable range. Therefore, it is apparent that in the present case in hand, the rules of the game were

changed to after the game was over, which only benefitted the respondent no.6. In this regard, the observations made by the Supreme Court of India

in para-43 of the case of Central Coalfields Ltd. (supra), cited by the learned counsel for the respondent no.6 is found to operate against the

respondent nos. 3 and 4 because they had failed to maintain a level playing field. The decision to have a viable bidding range did not precede opening

of tenders, but such a decision was taken after both the two bids were opened. For the same reasons, the Court has no hesitation to hold that the

decision to have a viability range for evaluating financial bid is arbitrary, not in consonance with level playing field concept and the decision making

process was made after financial bid was opened in such a manner that only the respondent no.6 out of the four bidders had profited by such a

decision, as such, the said decision is found to hit by the principle of bias. Moreover, had the respondent nos. 3 and 4 given notice about fresh

conditions for submitting tenders, it is equally possible that more bidders would have participated in the bidding system based on viability range. As per

the ratio laid down in the case of Jagadish Mandal Vs. State of Orissa & Ors., (2007) 14 SCC 51,7 two questions which is required to be posed by

Courts before interfering in tender matters are (i) whether the process adopted or decision made by the authority is mala fide or intended to favour

someone; and (ii) whether public interest is affected. On the distinguishable facts of the present case in hand, the answers to both the questions are

found in the affirmative. In respect of first question, as already held herein before, the impugned decision is found to favour the respondent no.6. In

respect of the second question, as the fishery was settled with lowest bidder by rejecting three valid highest bid, in no stretch of imagination would aid

any public interest, as it would result in collecting lesser revenue by respondent no.3, which is an instrumentality of the State and it is preposterous to

even think that higher income made by respondent no.3 would not benefit the public exchequer. Moreover, the respondent nos. 3 and 4 had rejected

two highest bids by imposing a condition and/or criteria, which was not envisaged in the notice inviting tender. The officers of the respondent nos. 3

and 4 did not record in the minutes dated 22.05.2020 that the decision to accept bids within their pre-conceived viable range was based on Article 5.1

of the Articles of Association of respondent no.3 and that no material has been disclosed before this Court to show that all along the respondent nos. 3

and 4 have uniformly followed the procedure of accepting bids within viable range for settling all their fisheries. Therefore, in light of the discussions

above, the inevitable conclusion of the Court is that the impugned order dated 27.05.2020, by the respondent nos. 3 and 4, settling the fishery in

question with the respondent no.6 has failed in the test of arbitrariness, fairness, unreasonableness and bias, and resultantly, the said decision cannot be

held to be lawful. Had the respondent nos. 3 and 4 taken such a decision by giving prior notice to all concerned, the decision could have been saved as

being sound, but it is not so in the present case in hand.

12) This was definitely not a case of aberration of some tender conditions or procedural aberration on part of the respondent nos. 3 and 4 in settling

the fishery, but it is a case where by virtue of a hitherto hidden criteria, the fishery in question was settled with the respondent no.6 and, as such, the

ratio as propounded in the case of Central Coalfields Ltd. (supra) and Jagadish Mandal (supra), does not come to the aid of the petitioner in any

manner whatsoever.

13) The Court is conscious of the ratio laid down by the Supreme Court of India case ofT ata Cellular Vs. Union of India, (1994) 6 SCC 651 to the

effect that (i) there should be judicial restraint in review of administrative actions; (ii) the Courts should not act like a Court of appeal; it cannot review

the decision but can only review the decision making process; (iii) the Court does not usually have the necessary expertise to correct such technical

decisions; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries. In the

present case in hand, all these four factors are found to operate against the decision making process for the reasons already assigned herein before,

which are not reiterated again for the purpose of brevity. In this regard, no technical aspect is required to be considered so arrive at a finding that the

decision taken by the respondent nos. 3 and 4 went outside the boundaries mentioned in the tender documents and moreover, this is not a case where

any attempt has been made by the Court to interpret any document or tender condition. Therefore, the case of JSW Infrastructure Ltd. Vs. Kakinada

Seaports Ltd., cited by the learned counsel for the respondent no.6 would not help to espouse the cause of the said respondent in any manner.

14) We may refer the case of Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd., (1996) 0 Supreme(SC) 192.1 In the said case, the tender

submitted by the appellant therein was accepted by the authorities by considering the viability range. In the said case, the Supreme Court of India had

held the acceptance of the tender by considering the viability range to be illegal and observed that fairness demanded that the authority should have

notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender and it was further held that the entire

procedure followed by the authorities in accepting the tender of appellant therein was unfair and opposed to norms which the government should

follow in such matters, viz., openness, transparency and fair dealing. Therefore, the ratio that can be culled out from the said judgment is that if the

authorities propose to accept a tender on the basis of viability range, it should have been made a part of the tender condition and thereby put all

prospective bidders to notice. The coordinate Bench of this Court in the case of Jewti N.G.O. (supra), under similar circumstances had held the

rejection of tender on the ground of quoting exorbitantly high bids as bad because of absence of condition in the NIT that abnormally high price bids

would be rejected and laid down the ratio that rejection of bids for reasons not disclosed in the NIT to be totally impermissible. Moreover, it was

observed that permitting such recourse would, in the opinion of this Court, not only afford potential ground for favouritism leading to pre-settlement

litigation amongst the bidders but would also stand to frustrate the every purpose of inviting tenders. It may be mentioned that in para-18 of the said

case of Jewti N.G.O. (supra), this Court had observed that if the authorities are of the view that predatory price offers should be discouraged and

such bids should be eliminated at the threshold, there is nothing preventing them from incorporating suitable clauses in the NIT providing for the same.

It was also observed that the authorities may even impose stringent default conditions in the NIT so as to act as a deterrent for such bidders quoting

unrealistic price and that apart, the option of insisting on additional security from the successful bidder if the price is found to be abnormally high, is

also available with the authorities.

15) One more issue raised by the learned counsel for the respondent no.6 was that there was no pleading in respect of the impugned order and that

the impugned order was not annexed to the writ petition. This argument is found to devoid of any merit because the respondent no.6 is not found to

have suffered any prejudice by non- annexing of the document in the writ petition because the said document was very much available with the

respondent nos. 1 to 4 and 6 and the respondent no.6 had also referred to it in Caveat no. 333 of 2020 filed on 29.05.2020. Moreover, there is a

specific pleading in the writ petition that the said document was not served and/or communicated to the petitioners, which is not specifically denied by

the respondent nos. 1 to 4 in their affidavit- in- opposition. Therefore, the respondent nos.1 to 4 and 6 cannot be permitted to take advantage of non-

supply of the impugned order dated 27.05.2020 to the petitioners by the respondent nos.1 to 4.

16) Therefore, coming to the present case in hand, the impugned order passed by the Managing Director, AFDC Ltd. (respondent no.4), under Memo

No. AFDC-486/2020 dated 123-A dated 27.05.2020 by which the respondent nos. 3 and 4 had accepted the lowest bid submitted by the respondent

no.6 by rejecting the three higher bids including the highest and second highest bids submitted by the petitioners in the two writ petitions, is held to be

arbitrary, suffering from the vice of being unfair, opposed to norms which the government should follow in such matters, viz., openness, transparency

and fair dealing and that the decision making process by the respondent nos. 3 and 4 is held to be vitiated by unfairness and bias. The decision of

rejection of the bids submitted by the three highest tenderers, whose tenders were otherwise technically valid by ignoring the higher price offered is

not sustainable on facts and in law. Resultantly, the Court has no hesitation in setting aside and quashing the said impugned order under memo no.

AFDC-486/2020 dated 123-A dated 27.05.2020 passed by the respondent no.4. As a sequel to the same, the respondent nos. 3 and 4 are hereby

commanded to pass appropriate orders to set aside, recall and/or rescind any consequential order that might have been passed by them to settle

Teliadunga Krishnachigakur Fishery in the District of Sivasagar in favour of respondent no.6, namely, Babul Das. The respondent nos. 3 and 4 are

further commanded to pass appropriate orders to settle the said Teliadunga Krishnachigakur Fishery in the District of Sivasagar in favour of the

highest valid bidder. The said to directions should be complied with by the respondent nos. 3 and 4 within a outer period of 3 weeks from the date of

receipt of the certified copy of this order. It is needless to observe that the respondent no.6 shall be entitled to claim refund of that part of their kist

money for the cancelled settlement period.

17) Both the writ petitions stand allowed to the extent as indicated above, however, without cost.

18) Departmental records consisting of two files be returned back.