Md Intaz Ali v. State of Assam — 1999 DIGILAW 95 (GAU)

In this application under Article 226 of the Constitution the petitioner has prayed for quashing the order dated 21.9.1998 issued by the Secretary and Executive Officer, Mandia Anchalik Panchayat settling the Kadong Hat under Mandia Anchalik Panchayat for the year 1998-99 in favour of the respondent No. 6. 2. The facts briefly are that tender was called for settlement of Kadong Hat for the year 1998-99 and the petitioner amongst others submitted their tenders on 16.6.1998. Petitioner's case is that one Sri Mohendra Robidas submitted the highest bid amounting to Rs. 1,54,551 but his tender was rejected due to defects in his tender. Petitioner's bid was the second highest at Rs. 1,54,501.00. The tender of the respondent No. 6 was the 7th highest at Rs. 1,21,437. Yet by the impugned order dated 21.9.1998 of the Secretary and Executive Officer, Mandia Anchalik Panchayat, the settlement was made in favour of the respondent No. 6. A counter affidavit has been filed by the State-respondents 1, 2 and 3 stating therein that the tender of the highest bidder was rejected because his guarantor has withdrawn his guarantee by submitting application and that although the petitioner had offered a bid value of Rs. 1,54,501.00, the said bid is too high in comparison to the minimum bid value fixed by the Govt. It is further stated in the affidavit-in-opposition of respondent Nos 1,2 and 3 that in the past it was seen that at the time of submission of tender, the tenderers offered very high rates to get the settlement of the market but after getting the settlement, the settlement holders did not pay the last kist money on the pretext that they had suffered loss, a It is further stated in the said affidavit-in-opposition of respondent Nos 1,2 and 3 that the tendency of the settlement holders was to make collections at higher rates from rural poor people who earn their livelihood by selling their agricultural products in the market. With a view to prevent harassment to the rural people and to protect their interest, the Govt had to consider a reasonable rate for settlement of the market although the sale of market is a source of earning of b Govt revenue. With a view to prevent harassment to the rural people and to protect their interest, the Govt had to consider a reasonable rate for settlement of the market although the sale of market is a source of earning of b Govt revenue. In the said affidavit-in-opposition it has been further averred that since the rate offered by the petitioner was found very high and the rate offered by the respondent No. 6 was reasonable, in the interest of the poor rural people, the Govt had approved the tender value of the respondent No. 6 and the settlement was made in his favour accordingly. 3. At the hearing, Mr. MU Mahmud, learned counsel for the petitioner, submitted that since petitioner's bid was the highest valid bid, the authorities acted arbitrarily and in an unfair manner in settling the market in favour of the respondent No. 6. He further submitted that the reasons given by respondent Nos 1, 2 and 3 in the affidavit-in-opposition that the settlement was made in favour of the respondent No.6 as the bid of the petitioner was exorbitantly high and that of the respondent No. 6 was reasonable and that the settlement of the market at reasonable rate was necessary in the interest of the poor rural people who sell their agricultural products at the market should not be accepted by the Court because besides the petitioner there were 8 other tenderers who had submitted tenders three of which were lower than that of the respondent No. 6 and four of which were higher than that of the respondent No.6 but lower than e that of the petitioner. Yet the authorities by picking and choosing the rate offered by the respondent No.6 settled the market in his favour. He cited the decision of the Supreme Court in Dutta Associates Pvt Ltd vs. Indo Merchantiles Pvt Ltd & others, 1997 (H) GLT (SC) 1 in which the Supreme Court has held that the tender process should be fair and transparent and where the authorities intend to settle a tender for a price within a viability range and not at the lowest rate, the / authorities should state the viability range within which the tenders shall be considered by the authorities. But in the instant case the tender notice did not mention that the bids which are high and are not reasonable will not be considered and did not specify the range within which the rates would be considered reasonable. 4. Mr. B. Goswami, learned Junior Govt Advocate, State of Assam, on the other hand, relied on the averments made in the affidavit-in-opposition filed by the respondent Nos 1,2 and 3 and submitted that the settlement has been made in favour of the respondent No.6 as the rate submitted by respondent No.6 was found reasonable. He further contended that since the bid value submitted by the petitioner was exorbitantly high compared to the minimum bid value fixed by the Govt, settlement was not made in favour of the petitioner. Mr. J. Ahmed, learned counsel for the respondent No.6, contended that the petitioner has not filed a copy of the impugned order of settlement dated 21.9.1998 and that the Court should not quash the impugned order of settlement without the same being filed by the petitioner. He further contended that the Standing Committee of the Mandia Anchalik Panchayat had considered all tenders and recommended for settlement of the market in favour of the respondent No.6 and the Govt accorded approval to the said decision of the Standing Committee for settlement of the market in favour of the respondent No. 6. 5. It has not been disputed in the affidavit-in-opposition filed by the respondent Nos 1, 2 and 3 that the bid value of the petitioner was Rs. 1,54,501.00 whereas ^ the bid value of respondent No. 6 was Rs. 1,21,437.00. Since the bid value of the petitioner was higher than that of respondent No. 6 the authorities could not have settled the market in favour of the respondent No.6 except for good and valid reasons. The reasons given in the affidavit-in-opposition filed by the respondent Nos 1, 2 and 3 for settlement of the market in favour of the respondent No.6 at the lower bid of Rs.1,21,437 is that the rate ofoffered by the respondent No.6 is a reasonable rate. If this reason is accepted by the Court then the authorities will start accepting tenders of parties submitting tenders at loWer rates than the tenders of parties submitting the highest rate on the ground that the rate quoted by the highest tenderer is not reasonable. If this reason is accepted by the Court then the authorities will start accepting tenders of parties submitting tenders at loWer rates than the tenders of parties submitting the highest rate on the ground that the rate quoted by the highest tenderer is not reasonable. It is, however, true that the authorities with a view to ensure that poor people are not exploited may settle a market at a reasonable rate instead of settling the same at the highest rate, but they will have to specify in the notice inviting tenders that the market shall be settled at a reasonable rate and not at exorbitant rates quoted by the parties and will have to indicate the range of reasonable rates within which the parties may submit their bids and settle the market in favour of the highest bidder within the range of reasonable rates. Such approach by the authorities would be fair and transparent I and beyond any doubt. Moreover, unless a range of reasonable rates is specified in the tender notice the authorities may arbitrarily pick and choose a rate to be reasonable depending upon the person to whom they intend to settle the market and settle the market in his favour. In the instant case, there is no indication in the affidavit-in-opposition of the respondent Nos 1, 2 and 3 that the tender notice stipulated the condition that the market will be settled in favour of a party quoting reasonable rate and that the tender of parties quoting high rates will not be considered nor did the tender notice appear to have specified the range of reasonable rate. Further, although 10 tenderers submitted 10 different rates no reason whatsoever has been given in the affidavit-in-opposition of the respondent Nos 1,2 and 3 as to why the rate quoted by the respondent No. 6 at Rs. 1,21,437 was found to be reasonable rate. 6. The settlement of the market in favour of the respondent No. 6 by the impugned order dated 21.9.1998 was, therefore, arbitrary, unfair and unreasonable and violative of Article 14 of the Constitution and the said settlement is liable to be quashed. The Court will not refuse to quash the settlement which is arbitrary and illegal on a technical ground that the impugned order of settlement has not been annexed to the writ petition. The Court will not refuse to quash the settlement which is arbitrary and illegal on a technical ground that the impugned order of settlement has not been annexed to the writ petition. The impugned order of settlement in favour of the respondent No. 6 is quashed and the Mandia Anchalik Panchayat is directed to pass fresh order of settlement of the market for the remaining part of the year 1998-99 within a period of one month from the date of receipt of the certified copy of this order from the petitioner keeping in mind the observations in this judgment. The writ petition stands disposed of accordingly, Considering the facts and circumstances of the case the parties shall bear their own costs.