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2004 DIGILAW 311 (GAU)

Khalilur Rahman v. State of Assam

2004-05-05

BIPLAB KUMAR SHARMA

body2004
JUDGMENT Biplab Kumar Sharma, J. 1. The writ Petitioner with material suppression of fact has initiated this writ proceeding. Being not content with the same, he also misrepresented and thereby misled the court regarding service of notice on the private Respondent and thereby obtained an interim order. Pursuant thereto, he could even obtain an order in his favour towards running of the Ferry Service (the Ghat) in question to the deprivation of the private Respondent who was settled with the same pursuant to a tender process. This is inspite of the fact that the tender submitted by the Petitioner was rejected being not accompanied with the required documents. 2. The South Salmara Anchalik Panchayat (in short, "the Anchalik Panchayat"), by a notification dated 7.4.2003 invited tenders for settlement of Hats/Ghats under its jurisdiction for the year 2003-2004 which included the "South Salmara-Dhubri Lunch Ghat". According to the Petitioner he submitted his tender with all necessary documents on 22.5.2003. The private Respondent (Respondent No. 5) and many other also submitted tenders. The tender value of the Petitioner at Rs. 1,52,000/- was the highest and that of Rs. 1.21,000/- offered by the Respondent No. 5 was the 2nd highest. It is the Respondent No. 5 who was settled with the Ghat for the period from 1.7.2003 to 30.6.2004 by letter dated 30.6.2003 issued by the Anchalik Panchayat. It is the case of the Petitioner that he being the highest bidder, the Ghat ought to have been settled with him. He made representations before the Government, which however, yielded no result. 3. In support of the claim of the Petitioner that he responded to the NIT by submitting his tender along with all necessary documents, the Petitioner has made specific averments in the writ petition, in the additional affidavit and in the counter affidavit, which is belied by his own letter dated 22.5.2003 which he had addressed to the President of the Anchalik Panchayat, without, however, making any mention of the same in the writ proceedings. As against the specific averments made that he had submitted his tender along with all necessary documents, the Petitioner by his said letter dated 22.5.2003 which was the last date of submission and opening of tender made a request to the Anchalik Panchayat to permit him to submit his documents at a later date. As against the specific averments made that he had submitted his tender along with all necessary documents, the Petitioner by his said letter dated 22.5.2003 which was the last date of submission and opening of tender made a request to the Anchalik Panchayat to permit him to submit his documents at a later date. The records of the tender proceeding which the court could obtain after repeated persuasions and even by passing order for procurement of the same by way of personal appearance of the officer concerned and requesting the Government Advocate for the same have revealed this factual aspect of the matter which the Petitioner deliberately withheld from the court. The said letter dated 22.5.2003 (English version) is quoted below: To The Respected President South Salmara Anchalik Panchayat, Bhalukmari, Date:22.5.2003 Sub: Submission of tender today for "South Salmara-Dhubri Lunch Ghat" without necessary documents for loss of the same. Sir, Most respectfully, I beg to state that today (22.5.2003) the authorities have received the tenders for "South Salmara-Dhubri Lunch Ghat". I have submitted my tender for the same, but I regret to inform that I could not enclose the necessary documents along with the tender. I have lost the documents on my way. Therefore, I earnestly request you to permit me to submit the documents whenever is sought for, if my tender is acceptable as per rule. This is my humble prayer. Yours faithfully Khalilur Rahman Father: Sahjamal Vill: Manirchar Date-.22.5.2003 4. According to Clause 13 of the NIT, all necessary documents relating to the Lunch should be submitted with the tender. Clause 10 of the NIT requires certificate of financial soundness from the Secretary of the concerned Gaon Panchayat countersigned by the Block Development Officer in case of bid value exceeding Rs. 60,000/-. On the body of the above quoted representation there is an endorsement permitting the Petitioner to submit the documents within three days from 22.5.2003 to 25.5.2003. The Petitioner did not do so and this is precisely the reason as to why in the comparative statement prepared by the Anchalik Panchayat, the following endorsement was made. President, The highest bid at SI. No. 2 is cancelled as the tenderer has not submit Tax Clearance Certificate and also was not submitted the paper of Lunch in time given to him by you. So, the valid highest bid of Ziadur Rahman at SI. No. 1 for Rs. President, The highest bid at SI. No. 2 is cancelled as the tenderer has not submit Tax Clearance Certificate and also was not submitted the paper of Lunch in time given to him by you. So, the valid highest bid of Ziadur Rahman at SI. No. 1 for Rs. 1,21,000/- may be forwarded to Z.P. Dhubri for acceptance and to give settlement for the year 2003-2004. Sd/- Ineligible 5. Thereafter with the preparation of the aforesaid comparative statement and acceptance of the valid tender of the Respondent No. 5 at Rs. 1,21,000/-, the tender papers were forwarded to the Zila Parishad for settlement as per the proposal made. The Zila Parishad by its communication dated 30.6.2003 conveyed its approval to the settlement made in favour of the Respondent No. 5. 6. I have gone through the records of the case including the tenders submitted by the Petitioner and the Respondent No. 5. As against the submission of all necessary documents along with the tender by the Respondent No. 5, the tender of the Petitioner admittedly did not accompany the required documents for which he was given time. However, the records revealed that the Petitioner did not submit any document, more particularly, the documents relating to the Lunch and Tax Clearance Certificate, although he was given time as noticed above. The tender of the Petitioner being not accompanied with any documents which is an admitted position, although has been suppressed in the writ petition, he could not have been granted further time for submission of the same after the last date fixed for submission and opening of tender. His tender ought to have been rejected. However, even after granting of time, he failed to do so and it was on that ground his tender was rejected, although he offered the highest bid of Rs. 1,50,001/-. In the writ petition, the Petitioner has stated his bid value to be of Rs. 1,52,000/ -,which is also misleading. 7. In the above backdrop, the settlement was made in favour of the Respondent No. 5 by the impugned order dated 30.6.2003. Pursuant to such settlement, the Respondent No. 5 observed all necessary formalities towards running of the Lunch Ghat and started operating the same. Thereafter the writ petition was filed by the Petitioner on 2.8.2003 and was moved on 5.8.2003. While issuing notice of motion, the interim prayer was made returnable on 14.8.2003. Pursuant to such settlement, the Respondent No. 5 observed all necessary formalities towards running of the Lunch Ghat and started operating the same. Thereafter the writ petition was filed by the Petitioner on 2.8.2003 and was moved on 5.8.2003. While issuing notice of motion, the interim prayer was made returnable on 14.8.2003. Steps for serving of notice on the Respondents No. 3, 4 and 5 were ordered to be taken within 3 days. Dasti service was also permitted. On 14.8.2003 the matter was adjourned to 22.8.2003 on prayer of the Petitioner. On 22.8.2003 the matter was again adjourned to 26.8.2003, on which date it was not listed. On 28.8.2003 on the request of the Petitioner the case was ordered to be listed on 2.9.2003. On 2.9.2003, the court on the basis of an affidavit dated 1.9.2003 sworn by the learned Counsel for the Petitioner Mr. D.A. Kayum recorded its prima facie satisfaction towards service of notice on the Respondents No. 3, 4 and 5 and on the basis of the averments made in the writ petition and also due to non-appearance of the said Respondents inspite of alleged service of notice passed the interim order suspending the impugned order dated 30.6.2003. It was also provided that the Anchalik Panchayat would be at liberty to run the Ferry Service by alternative arrangement. 8. The court drew a presumption towards service of notice on the Respondent Nos. 3, 4 and 5, more particularly the Respondent No. 5 on the basis of the affidavit dated 1.9.2003 sworn by the learned Counsel Mr. D.A. Kayum. As regards the service of notice, the following statements were made in the affidavit. 3. That, the matter is most urgent, hence this Hon'ble Court was pleased to allowed Dasti service to serve the copies to the Respondent Nos. 3, 4 and 5. I have personally served the copies to the Respondents on 7.8.2003. 4. That, the Respondents are already received the copy along with it's all annexure thereto of the W.P.(C) No. 5965/2003. Hence, this affidavit before this Hon'ble Court to accept the service of notice to the Respondent Nos. 3, 4 and 5. 9. After the aforesaid interim order, the Respondent No. 5 entered appearance by filing Misc. Case No. 79/2004 for vacation of the same. Hence, this affidavit before this Hon'ble Court to accept the service of notice to the Respondent Nos. 3, 4 and 5. 9. After the aforesaid interim order, the Respondent No. 5 entered appearance by filing Misc. Case No. 79/2004 for vacation of the same. In the said application, a specific stand was taken that none of the Respondents, more particularly the Respondent No. 5 received any notice. This Court without expressing any opinion regarding proper service of notice, dismissed the Misc. Application by order dated 31.1.2004 on some other grounds and recording the submission made by the learned Govt. Advocate that inspite of communications made with the Zila Parishad and Anchalik Panchayat, no instructions had been received. Thereafter the Respondent No. 5 filed a review application No. 15/2004 urging interalia the ground that pursuant to the notice issued in the writ petition, the official Respondents had in fact furnished the required instructions including the para wise comments to the learned Govt. Advocate on 12.8.2003, however, the same were not placed before the court, rather a submission was made that neither the records nor any instructions had been received. The review application was disposed by order dated 2.3.2004 ordering listing of the main writ petition for hearing. 10. After the aforesaid interim order dated 2.9.2003 the learned Govt. Advocate addressed a letter dated 4.9.2003 to the Zila Parishad and the Anchalik Panchayat stating that while making alternative arrangement towards operating the Ghat, the case of the writ Petitioner should also be considered, he being the highest bidder. Be it stated here that this Court while passing the interim order on 2.9.2003 by way of suspending the settlement made in favour of the Respondent No. 5 provided that the same would not come in the way of the authorities to make alternative arrangement to operate the ferry service. 11. After the aforesaid development it is the writ Petitioner who has been favoured with the task of running the ferry service in the name of alternative arrangement by an order dated 21.2.2004. Thus, here is a case, the writ Petitioner by initiating the present proceeding has not only been successful in stopping the Respondent No. 5 from operating the validly settled ferry service, but has also been able to run the service by himself inspite of the fact that his tender was incomplete and was rejected. Thus, here is a case, the writ Petitioner by initiating the present proceeding has not only been successful in stopping the Respondent No. 5 from operating the validly settled ferry service, but has also been able to run the service by himself inspite of the fact that his tender was incomplete and was rejected. It has already been noticed above that the Petitioner not only 6 suppressed the most vital and material fact of non-submission of required documents along with the tender, but made emphatic statement in the pleadings that he submitted all required documents along with the tender. On this score alone the writ petition is liable to be dismissed. However, there is another respect of the matter which requires attention an action of this Court. 12. The interim order dated 2.9.2003 was passed on presumption of service of notice on the Respondent Nos. 3, 4 and 5, more particularly on the Respondent No. 5 and their non-appearance inspite of such service of notice. Taking the plea of permission of this Court for service of notice by Dasti service as well, the learned Advocate for the Petitioner Mr. D.A. Kayum personally went to Dhubri for such service of notice and allegedly upon service of such notice by himself sworn an affidavit with the statements as quoted above. The Respondent No. 5 in his affidavit has taken a specific ground in paragraph 23 that no notice of the writ proceeding was served on him. Reacting to the endorsement made by one Ahadadli Rohman (Duku) on the notice addressed to the Respondent No. 5, he has stated that said Sri Rohman is not known to him and that the notice was served on a stranger with the malafide intention to get an interim order. 13. Reacting to the averments made in paragraph 23, the writ Petitioner has filed a counter affidavit taking altogether a different stand than the one taken in the affidavit filed by the learned Counsel himself as a proof of service of notice. 13. Reacting to the averments made in paragraph 23, the writ Petitioner has filed a counter affidavit taking altogether a different stand than the one taken in the affidavit filed by the learned Counsel himself as a proof of service of notice. In this affidavit sworn by the Petitioner unlike the earlier one sworn by the learned Counsel himself, the Petitioner in response to paragraph 23 has stated that the Respondent No. 5 refused to accept the copy of the writ petition and thus there being no alternative, a copy of the same was served on said Ahadadli Rohman (Duku) who is presently residing in Meghalaya and allegedly cousin brother of the Respondent No. 5. Thus as per this affidavit no notice was served on the Respondent No. 5, but yet in the affidavit sworn and filed on 1.9.2003 by the learned Counsel for the Petitioner Mr. D.A. Kayum, the above quoted statements were made showing service of notice on the Respondent No. 5. In the said affidavit, the stand in the counter affidavit that there was alleged refusal on the part of the Respondent No. 5 to accept the notice etc. are not to be found. Specific and emphatic statement as noticed above was that the learned Counsel himself personally served the notice on the Respondent No. 5. 14. Thus there was not only material suppression of fact in filing and moving the writ petition but there was a deliberate effort to misled the court regarding service of notice on the Respondent No. 5 by filing affidavit sworn by the learned Counsel himself, which position has been sought to be diluted by making further statements by way of explaining the circumstances in the counter affidavit filed by the Petitioner. Another aspect of the matter is and as has been urged by the Respondent No. 5 is that whether even in case of permission of the court for Dasti service, the notice of the same and the copies of the writ petition should bear the endorsement and seal of the Registry. In the instant case, the admitted position is that the learned Counsel for the Petitioner himself went to Dhubri and took the task of service of notice unto himself as per his own procedure without there being any endorsement of the registry either in the notice or in the copy of the writ petition. In the instant case, the admitted position is that the learned Counsel for the Petitioner himself went to Dhubri and took the task of service of notice unto himself as per his own procedure without there being any endorsement of the registry either in the notice or in the copy of the writ petition. Order 5 of the Code of Civil Procedure deals on the subject of issue and service of summons. Order 5, Rule 9 deals with the procedure for delivery of summons by the court. Rule 9A provides for service of summons in addition to the procedure laid down in Rule 9. In terms of Rule 9A, the Plaintiff may be permitted to effect service of summons on the Defendant on the basis of application to be made by the Plaintiff before the court. However, such a procedure also requires proper endorsement and signature of the learned Judge or any authorized officer of the court. Rule 10 provides for service of summons by delivering or tendering of copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. Thus the necessary requirement even for service of notice by the Plaintiff himself would definitely required endorsement byway of putting the seal and signature of the court in the summons or notice and also on the plaint. In the instant case not to speak of adopting such a procedure of obtaining proper endorsement of the Registry in the notice and the copies of the writ petition towards service of notices on the Respondents by hand as was permitted by this Court, the learned Counsel for the Petitioner not even served the copy of the writ petition on the Respondent No. 5, but served the same on someone else and yet filed his personal affidavit with the above quoted statement depicting personal service on the Respondent No. 5. 15. Learned senior counsel Mr. H.N. Sarma assisted by Mr. D.A. Kayum, Advocate appearing for the Petitioner submitted as follows: (i) The Petitioner being the highest bidder, his tender ought to have been accepted. (ii) The Respondent No. 5 failed to submit all necessary documents along with his tender as required under Clause 13 of the NIT. (iii)The Zila Parishad has not accorded necessary approval towards settlement of the ferry Gnat in favour of the Respondent No. 5. (ii) The Respondent No. 5 failed to submit all necessary documents along with his tender as required under Clause 13 of the NIT. (iii)The Zila Parishad has not accorded necessary approval towards settlement of the ferry Gnat in favour of the Respondent No. 5. (iv) As per requirements of Assam Panchayat (Financial) Rules, 2002, acceptance of the tender other than the highest bid required approval of the State Government which is missing in the instant case. (v) The bid value being above Rs. 100,000/-, the Anchalik Panchayat has got no authority to settle the Ghat in question. 16. As against the aforesaid submission, Mr. A.S. Choudhury, learned Senior counsel appearing for the Respondent No. 5 submitted that there being suppression of material fact on the part of the writ Petitioner and he having misled the court, the writ Petitioner is not entitled to any relief. He further submitted that the tender submitted by the Petitioner being incomplete, it was rightly rejected by the authorities. As regards the tender value, Mr. Choudhury submitted that the jurisdiction either to Anchalik Panchayat or to Zila Parishad is not conferred on the basis of the bid value offered, but on the basis of the bid value which in the instant case was admittedly Rs. 31,000/. As regards the plea of approval of the State Government, Mr. Choudhury submitted that there is no question of any such approval when the tender submitted by the Petitioner itself was invalid and cancelled. 17. Mr.P. Roy, learned State counsel who appeared during the course of hearing produced the para wise comments furnished to him by the Anchalik Panchayat by its letter dated 12.8.2003. Upon insistence of records although he had expressed his helplessness, but eventually could procure the same pursuant to order passed on 22.3.2004 for production of the records through the Executive Officer of the Anchalik Panchayat. The revelations made from the records have already been reflected above which clearly depict suppression of material fact on the part of the Petitioner, coupled with the role played towards misleading the court in respect of service of notice, but for which perhaps interim order dated 2.9.2003 would not have been passed. 18. As regards the submission No. (i) and (ii) of Mr. 18. As regards the submission No. (i) and (ii) of Mr. H.N. Sarma, learned Senior Counsel appearing for the Petitioner, it has already been noticed that it is the writ Petitioner who failed to furnish the necessary documents along with his tender which position although he had admitted by submitting the above quoted letter to the Anchalik Panchayat but yet withheld from this Court. Records revealed that the Respondent No. 5 submitted all necessary documents along with his tender including the documents relating to the "Lunch". A specific argument was made that the Respondent No. 5 did not submit documents relating to the "lunch". I have gone through the records including the tender submitted by the Respondent No. 5 clearly mentioning the particulars of the "Lunch" - "S.B. Mamtaj" and its Engine Numbers. On the other hand the Petitioner could not submit anything inspite of time granted to him. Even in his tender against column No. 8 (ka) "Name of the Lunch and Engine Number", the Petitioner although indicated the name of the Lunch, but did not indicate its Number. The Petitioner also did not submit the Tax Clearance Certificate, which the Respondent No. 5 did. The perusal of the records left no manner of doubt that as against submission of a valid tender by the Respondent No. 5, the Petitioner submitted an invalid tender which position has also been admitted by the Petitioner himself in his above quoted letter. In this connection I may refer to the Division Bench judgment of this Court as reported in 2003 (2) GLT 485 : (2004) 1 GLR 332(Bikash Bora v. State of Assam and Ors.) in which the Division Bench of this Court held that the requirement of furnishing of Loan Clearance Certificate and Sales Tax Clearance Certificate is an essential condition for valid tender and in absence of such certificates, the tender of the Appellant could not have been accepted. 19. As regards the submission No. 3 that the Zila Parishad has not given its approval I find from the records that such approval was given by the Zila Parishad by its letter No. ZPD 19/03-04/8 dated 30.6.2003. Thus the argument is without any basis. 20. As regards the approval of the State Government as was urged by the learned Counsel for the Petitioner in his submission No. (iv), such a plea is wholly untenable. Thus the argument is without any basis. 20. As regards the approval of the State Government as was urged by the learned Counsel for the Petitioner in his submission No. (iv), such a plea is wholly untenable. The requirement of the aforesaid Rules cannot be said to be attracted even in case of an invalid highest bid. The Rule may have an application in case of preferring a valid lower bid over a valid higher bid, but certainly not in case of an invalid higher bid. This position was fairly accepted by the learned Counsel for the Petitioner during the course of hearing. This leads us to the final submission made on behalf of the Petitioner that the bid value being above Rs. 1,00,000/-, the Anchalik Panchayat did not have jurisdiction. In this connection learned Counsel for the Petitioner referred to the Division Bench decision of this Court in W.A. No. 325/2003 wherein on an interpretation of the provisions of the Assam Panchayat Act, 1994, it has been held that the jurisdiction in respect ofHats whose yearly sale value is more than Rs. 1,00,000/- vests with the Zila Parishad. In the instant case the sale value was Rs. 31,000/-. Although the bid amount at which the settlement made was above Rs. 1,00,000/-, same will not be the decisive factor. The decisive factor will be the bid value of Rs.31,000/-. Otherwise the question of jurisdiction between Zila Parishad and Anchalik Parishad will always remain indecisive till submission and opening of tender. On being pointed out this aspect of the matter, the learned Counsel for the Petitioner fairly admitted the position. 21. In view of the above there is no infirmity in making the settlement in favour of the Respondent No. 5. Although the writ petition merited dismissal on ground of suppression of material fact and misleading the court, I have considered the matter on its own merit and find no infirmity neither in the decision making process nor in the decision itself. Accordingly the writ petition stands dismissed. The interim order passed on 2.9.2003 automatically stands vacated and consequently all action which were taken pursuant thereto including the settlement made in favour of the Petitioner by office order dated 21.2.2004 issued by the Chief Executive Officer, Zila Parishad, Dhubri also stand set aside and quashed. Accordingly the writ petition stands dismissed. The interim order passed on 2.9.2003 automatically stands vacated and consequently all action which were taken pursuant thereto including the settlement made in favour of the Petitioner by office order dated 21.2.2004 issued by the Chief Executive Officer, Zila Parishad, Dhubri also stand set aside and quashed. The settlement made in favour of the Respondent No. 5 by the impugned order dated 30.6.2003 automatically gets restored and the Respondent No. 5 shall be put back to possession of the Lunch Ghat i.e. "South Salmara-Dhubri Lunch Ghat" forthwith. 22. Since, the Respondent No. 5 has been deprived of the settlement during the intervening period at the behest of the writ Petitioner who did not come to the writ court with clean hands and the Respondent No. 5 has been made to suffer for no fault of his own and was unnecessarily dragged to this writ proceeding, while dismissing the writ petition, I award a cost of Rs. 10,000/- against the writ Petitioner to be deposited forthwith. The official Respondents shall also consider to make good the period of loss suffered by the Respondent No. 5 in operating the ferry service by granting suitable extension in accordance with law. 23. Should the matter be left like this? The writ jurisdiction of this Court was invoked with impunity. Not only there was suppression of material fact, but there was also endeavour to mislead this Court to believe service of notice on the Respondents, more particularly the Respondent No. 5. This is an abuse of the process of law. The writ court and for that matter no court can be taken so lightly with the oblique motive of obtaining some favourable order. Had there been no suppression of material fact and swearing of an affidavit by the learned Counsel Mr. D.A. Kayum, perhaps the entire proceeding could have been avoided. 24. Another aspect of the matter is that the learned State counsel was furnished with the parawise comments in respect of the writ proceeding by letter No. SSAP/G-28/2002-3/1884 dated 12.8.2003 issued by Sri R. Hoque, Secretary, South Salmara Anchalik Panchayat, but yet there was no appearance and/or submission on behalf of the official Respondents on the date when the interim order was passed i.e. 2.9.2003. When the Miscellaneous case being Misc. When the Miscellaneous case being Misc. Case No. 77/2004 was disposed of by order dated 31.1.2004, the learned State Counsel made a submission that inspite of necessary communications made with the authorities of the concerned Zila Parishad and Anchalik Panchayat, neither the records had been forwarded nor instructions had been sent in reply to the contentions raised in the writ petition. Altogether three different learned State Counsel were involved in the entire proceeding out of which two made appearance in the proceeding and one had addressed the letter dated 4.9.2003 apprising the out come of the interim order dated 2.9.2003 and making an advise that the alternative arrangement would even include the writ Petitioner without, however, mentioning anything as to whether the same would include the Respondent No. 5 as well who was already operating the ferry service in question. 25. In view of the above I am constrained to issue notice to the Petitioner and the learned Counsel appearing for the Petitioner Mr. D.A. Kayum to answer as to why contempt of court proceeding shall not be drawn up against each one of them for misleading the court by way of suppression of material fact and by way of swearing a false affidavit towards alleged served of notice on the Respondent No. 5. The Registry is directed to register a Contempt of Court case on the basis of this direction and to issue notice to the said two alleged contemners. The notice is made returnable within two weeks from today by which time they should file their individual affidavits byway of show cause reply. The suo moto contempt case to be registered and initiated by this order shall be listed for further order after two weeks. 26. Let a copy of this judgment be furnished to the learned Advocate General, Assam for his information and assessment of the situation. 27. With the above direction and observation, the writ petition stands dismissed. Petition dismissed.