Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 527 (GAU)

Gopal Krishna Bora v. State of Assam

2005-07-22

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. Arbitrariness is anti-thesis of the rule of law, for, arbitrariness encourages the State and its rulers to act on their whims and fancies making thereby their actions unpredictable and non-transparent. The greatest advantage, therefore, of a civil society, which is governed by rule of law, is that it does not permit the persons, at the helm of its affairs, to indulge in arbitrariness or act on the basis of mere whims and fancies, the result being that the decision to be reached by the State may not be known, but the methods to be chosen or the steps to be adopted by such a State and its instrumentalities to arrive at their decision remain known and are predictable. Such a decision-making process does not suffer from any element of unpredictability and/or arbitrariness. Such a society is, therefore, regarded as transparent, fair and non-arbitrary. 2. Ours is a society based on a Constitution, which makes all possible provisions to save its citizens from becoming victims of arbitrariness of the acts of the State and its instrumentalities. Article 14, which forms the bedrock of our Constitution, rests on the principle of ensuring non-arbitrariness by the State and its instrumentalities, while dealing with any person. 3. Even while awarding a commercial contract, the State or its instrumentalities cannot be permitted to act arbitrarily with its citizens. Since it is well-known that the power of judicial review cannot be exercised against the decision, but against the decision making process, the question, which logically arises is as to how it can be ensured that the State does not indulge in arbitrariness, while awarding contracts or while granting State largess. The easiest way to ensure all possibilities of exclusion of the State or its instrumentalities from acting arbitrarily on their whims and fancies or from favouring anyone is that the State and its instrumentalities must make it known beforehand to the persons, who are to participate in the selection-making process as to what method the authorities concerned would adopt or what procedure they would follow or what factors, they would choose and what considerations, they would allow to prevail to arrive at the decision to award the contract or the State largess. To put it differently, if in any selection process for awarding of a contract, lease or settlement by the State, the State chooses a method or selects a factor or allows a particular consideration to prevail upon it for arriving at a decision to award the contract without having made the same known from before to the persons, who are invited to participate in the selection process, such a selection, for lack of transparency and for giving room to arbitrariness in making the selection, cannot but be interfered with. 4. The moot question, which, as I shall show, the present set of writ petitions raises, is this: whether a Municipal Board can decide to settle its markets, parking places or rickshaw and public stands by choosing a procedure, which had not been made known to the tenderers, while the notice inviting tender was issued? The answer to this question is not very far to seek. 5. It is in the above backdrop of what has already been pointed above that the question posed, in the present set of writ petitions, has to be answered. 6. By this common judgment and order, I propose to dispose of the writ petitions enlisted above, for, all the writ petitions are closely inter-linked and have been heard together on the request of the learned Counsel for the parties for the purpose of final disposal. 7. The Jorhat Municipal Board (in short, 'the Board') published a notice, on 11.02.2005, inviting tenders (in short, 'the NIT'), for settlement of markets, parking places, cycle and cycle-rickshaw stands under the jurisdiction of the Board for the current financial year 2005-2006. The Petitioner in WP(C) 2535/2005, namely, Shri Gopal Krishna Bora, submitted his tender for the settlement of Jorhat Chowk Bazar as did many Ors. for not only the said bazar, but also for other markets, parking places, cycle stand and rickshaw stands aforementioned. All the tenders were opened, on 18.03.2005, in the presence of the tenderers as well as their authorized representatives and comparative statements were prepared by the Tender Evaluation Committee. A Committee consisting of the President, Vice-President and 8 ward-members of the Board, which the Board had constituted, held a meeting, on 30.03.2005, presided over by the Chairperson of the Board for the purpose of taking a decision as regard the granting of settlements in pursuance of the NIT, dated 11.02.2005, aforementioned. A Committee consisting of the President, Vice-President and 8 ward-members of the Board, which the Board had constituted, held a meeting, on 30.03.2005, presided over by the Chairperson of the Board for the purpose of taking a decision as regard the granting of settlements in pursuance of the NIT, dated 11.02.2005, aforementioned. The Committee, after discussion, suggested that an enhancement at the rate of 8% over the last year's lease amount for the markets, parking places, cycle and rickshaw stands 8% over the Government value, whichever is higher, would be proper and suitable rate for settlement. The Committee also suggested that if any market, parking places, cycle stand and/or rickshaw stand remains unsettled at the said rate for any reason, such market, parking place, cycle stand and/or rickshaw stand should be settled at the "next above rate" i.e., the rate, quoted by the tenderer, which is next above the rate of 8%. For suggesting such rates, the consideration, which prevailed upon the Committee, was that if a higher rate was suggested for settlement, the lessee would be likely to apply force in order to collect higher rates of tolls or parking fees, which would result in harassment of the traders and also of the general public. For suggesting such rates, the consideration, which prevailed upon the Committee, was that if a higher rate was suggested for settlement, the lessee would be likely to apply force in order to collect higher rates of tolls or parking fees, which would result in harassment of the traders and also of the general public. When the decision to make settlement, as mentioned hereinbefore, was taken by the Committee, the same was challenged in WP(C) 2535/2005 aforementioned by the Petitioner, namely Shri Gopal Krishna Bora on the ground, inter alia, (i) that he, being the highest valid bidder, ought to have been granted settlement in respect of Jorhat Chowk Bazar, for, not granting of settlement at the highest bid was against the public policy and public interest; (ii) that the consideration, which had purportedly prevailed upon the Committee in making settlement of the lease at a fixed rate, was claimed to be the viability or reasonable rate, but the NIT having never notified the tenderers that the tenders would be settled after determining the reasonable and/or viability range, such consideration of a factor, which had not been notified to the tenderers before the tenderers were invited to go for competitive bidding, was against the very concept of competitive bidding, the same was arbitrary, unreasonable, non-transparent and unfair, (iii) since sufficient provisions had been made under the terms and conditions of the NIT to ensure that the rates of toll and/or less to be collected by the lessees do not exceed the rates, which the Board fixes, the question of any of the lessees applying force on traders and/or on the general public for collection of tolls or fees leading to harassment of traders and/or of general public did not arise at all; (iv) and that after having opened the tender papers and having known the bid values offered by the tenderers, fixing of a reasonable or viable rate at which the settlement was to be offered was wholly arbitrary, particularly, when no reason has been assigned by the Committee for suggesting 8% as the viable rate for granting the settlement of the market. Alleging that acting in terms of the suggestions offered by the Committee, the Board was preparing to illegally favour their chosen persons ignoring the legitimate claim of the highest bidders, such as, the writ Petitioner, the Petitioner, namely, Shri Gopal Krishna Bora, approached this Court with the help of WP(C) 2535/2005 aforementioned. When the writ petition was moved, on 30.03.2005, an interim direction was passed by the Court that no final settlement order shall be passed in respect of Jorhat Chowk Bazar pursuant to the NIT, dated 11.02.2005, aforementioned. Subsequent to the filing of the WP(C) No. 2535/2005 aforementioned, a number of writ petitions, namely, WP(C) Nos. 3029/2005, 3030/2005, 2708/2005, 2684/2005, 2707/2005 and 2775/2005, which are enlisted above, were filed in this Court by various bidders on the ground that they had been illegally denied settlement by choosing arbitrarily a method of settlement and/or a rate for grant of lease without letting the bidders know the same beforehand. All these writ petitions have been, as already indicated hereinabove, heard along with WP(C) No. 2535/2005 aforementioned. 8. I have heard Mr. BD Konwar, learned Counsel for the Petitioner in WP(C) No. 2535/ 2005, Mrs. G. Sinha, learned Govt. Advocate, for Respondent Nos. 1 and 2, and Mr. Y. Doley, learned Counsel for the Respondent Nos. 3 and 4, namely, Jorhat Municipality Board and Chairperson, Jorhat Municipality Board respectively. I have also heard Mr. BD Konwar, learned Counsel, appearing on behalf of the remaining writ Petitioners, Mrs. G. Sinha, learned Govt. Advocate, for the Respondent Nos. 1 to 4, Mr. Y. Doley, learned Counsel for the Respondent Nos. 5 and 6, namely, Jorhat Municipality Board and Chairperson, Jorhat Municipality Board respectively, and Mr. H. Roy, learned Senior Counsel, appearing on behalf of the private Respondents, namely, Respondent No. 7 in all the writ petitions except WP(C) 2535/2005 aforementioned. 9. Before proceeding any further, it is pertinent to note that the learned Counsel for the parties candidly concede that if WP(C) 2535/2005 aforementioned is allowed, the settlement made in respect of the private Respondents, namely, Respondent Nos. 7 in WP(C) 3029/2005, 3030/2005, 2708/2005, 2684/2005, 2707/2005 and 2775/2005, would automatically fail and have to be set aside and quashed. 10. In view of the above, let me determine the merit of the WP(C)No. 2535/2005. 11. Presenting the case on behalf of the Petitioner in WP(C) 2535/2005, Mr. 7 in WP(C) 3029/2005, 3030/2005, 2708/2005, 2684/2005, 2707/2005 and 2775/2005, would automatically fail and have to be set aside and quashed. 10. In view of the above, let me determine the merit of the WP(C)No. 2535/2005. 11. Presenting the case on behalf of the Petitioner in WP(C) 2535/2005, Mr. BD Konwar, learned Counsel, has submitted that the NTT, in question, did not specify any viable rate nor it did make the tenderers aware beforehand of the fact that only those tenders, which fall within a given viable range or reasonable rate, would be considered eligible for granting of the lease. The principle of viability range of 8% and/or reasonable rate of 8%, adopted by the Board, without the same having been made known to the tenderers before the tenderers had participated in the selection process, is, according to Mr. Konwar, illegal inasmuch as such an approach is outside the ambit of the NIT. If the authorities concerned were to decide the question of settlement, points out Mr. Konwar, on the basis of a reasonable rate or viability rate, the tenderers ought to have been informed about the same and, then, the tenderers would not have gone in for competitive bidding. This apart, the Board ought to have, submits Mr. Konwar, determined viability or reasonable rate before the publication of the NIT or, at least, before the tenders were opened; whereas, in the case at hand, viability or reasonable rate has been fixed by the Board after having come to know the bid value of each of the tenderers. Such method of selection is nothing, but a farce; so contends Mr. Konwar. The process for selection of the lessee is, thus, contends Mr. Konwar, not transparent, fair and reasonable and the same is, therefore, according to Mr. Konwar, violative of Articles, 14, 19(g) and 300A of the Constitution of India. The choosing of the rate of 8% contends Mr. Konwar, is arbitrary and in collusion with those tenderers, whom the Board desired to favour, for, the Board has assigned no reason as to why it chose 8% as the rate for awarding of the lease and not 7% or 9%. As a result of fixing of such a rate, submits Mr. Konwar, the State will suffer huge financial loss, for, the settlements have been offered at the rate, which is much lower than the rate, which is realizable from the lessees. As a result of fixing of such a rate, submits Mr. Konwar, the State will suffer huge financial loss, for, the settlements have been offered at the rate, which is much lower than the rate, which is realizable from the lessees. Mr. Konwar also submits that the terms and conditions, incorporated in the NIT, clearly make provisions for cancellation of settlement if the lessee violates any of the terms and conditions of the NIT. The NIT also makes it clear, points out Mr. Konwar, that no remission would be granted to the tenderers during the period of settlement. This apart, under the NIT, further points out Mr. Konwar, the entire tender amount is required to be furnished by way of 9 separate cheques payable on the 7th day of each month and the settlement-holder is also required to deposit 1/4th earnest money as his security with the Board. Thus, the terms and conditions incorporated in the NIT take, contends Mr. Konwar, sufficient care of, and secure, the offers made by the tenderers and the tenderers would be liable to collect tolls without violating the terms and conditions of the tender, for, violation of any of the terms and conditions of the NIT would, reiterates Mr. Konwar, entail cancellation of the lease. The financial security for the offers made by the lessee is, thus, according to Mr. Konwar, sufficiently protected by the terms and conditions of the NIT. In such a situation, pleads Mr. Konwar, a tenderer, who having studied the market, makes an offer, the same cannot be arbitrarily rejected by taking recourse to viability and/or reasonable rate, for, such a method of selection for settlement of lease is outside the scope of the NIT and cannot, therefore, be allowed to stand good on record. The exercise of powers by the Board in fixing the rate in the present case, is, according to Mr. Konwar, colourable in nature. 12. Controverting the above submissions made on behalf of the Petitioner, Mr. Doley, learned Counsel for the Respondent Nos. The exercise of powers by the Board in fixing the rate in the present case, is, according to Mr. Konwar, colourable in nature. 12. Controverting the above submissions made on behalf of the Petitioner, Mr. Doley, learned Counsel for the Respondent Nos. 3 and 4 in WP(C) 2535/2005, has submitted that the size of the Chowk Bazar was reduced by taking out some portions thereof and by forming a new market and that it was on the basis of the experience of harassment caused to the traders and the general public by the lessees in the past that the Board decided to settle the market on a rate, which the Board had chosen as the reasonable rate. Hence, in such a situation, the rate chosen by the Board and/or settlement made by it may not be interfered with. It is also submitted by Mr. Doloi that the Petitioner's tender was defective inasmuch as the certified copy of the jamabandi had not been submitted by the Petitioner along with his tender papers, which was in violation of Clause 3(5) of the NIT, and, further, the land revenue receipt submitted by the Petitioner did not tally with the description of the land given by him in the tender papers. 13. Presenting the case on behalf of the private Respondents, Mr. H. Roy, learned Senior Counsel, has submitted that the tenders submitted by the Petitioners suffer from various defects and since their own tenders were defective, they are not entitled to challenge the acceptance of the bid of the successful bidders. In support of this submission, reliance is placed by Mr. Roy on Rounaq International Ltd. v. IVR Constructions Ltd. and Ors. reported in (1999)1 SCC 492 . 14. Repelling the above submissions made on behalf of the private Respondents, Mr. B.D. Konwar has submitted that since the tenders of the writ Petitioners had not been rejected as defective except in one case, the State or private Respondents cannot now, allege that the tenders submitted by the writ Petitioners suffered from defect, for, the defects, if any, were not vital or material. Mr. Konwar also submits that the tenders submitted by the Petitioners were valid and as a matter of fact, the tenders submitted by the private Respondents were full of defects and, therefore, invalid. 15. Let me, now, consider the merit of the rival submissions made on behalf of the parties. Mr. Konwar also submits that the tenders submitted by the Petitioners were valid and as a matter of fact, the tenders submitted by the private Respondents were full of defects and, therefore, invalid. 15. Let me, now, consider the merit of the rival submissions made on behalf of the parties. While so considering the matter, it is imperative to note that the Petitioner's tender was, admittedly, not rejected on the ground that it was defective. Far from this, according to the materials placed on record, the Petitioner's tender was found valid meaning thereby that even if there was some infraction of the terms and conditions of the NIT, the same was not material and/or the same was not non-compliance of essential terms and conditions of the NIT and had been accordingly waived by the Board. This apart, the minutes of the proceedings of the sub-Committee held, on 30.03.2005, clearly indicate that the tenderers, whose tender papers were found defective, had been named in the minutes, but in this regard, it is noteworthy that the Petitioner's name does not figure in the said minutes as a person, whose tender paper was found defective. In fact, even in their affidavit filed by the State Respondents, it has not been asserted that the Petitioner's tender paper was rejected as defective. 16. In view of the above, I am not required to enter into the determination of the question as to whether the tenders of the Petitioners were defective or not nor am I required to determine if the tenders of the private Respondents suffered from any defect. 17. While considering WP(C) No. 2535/2005 aforementioned, it is of immense importance to note that the power of judicial review under Article 226 is available not against the decision, but against the decision-making process. A decision-making process, which is not found transparent, fair or reasonable, cannot be sustained, for, a selection process, which suffers from lack of transparency, fairness and/or reasonableness is nothing, but arbitrary and violative of Article 14. 18. A decision-making process, which is not found transparent, fair or reasonable, cannot be sustained, for, a selection process, which suffers from lack of transparency, fairness and/or reasonableness is nothing, but arbitrary and violative of Article 14. 18. Whether the choosing of viability range and/or reasonable rate for giving of settlement without making it known to the tenderers that such a process or method would be applied or such a consideration would prevail for awarding of the lease or for making of settlement by the Board can be sustained or not is, therefore, the preliminary question, which the present set of writ petitions pose. The question, so raised, is, if I may point out, fully covered by Dutta Associates Pvt. Ltd. v. Indo Mercantile Pvt. Ltd. and Ors reported in (1997) 1 SCC 53 : 1997 (2) GLT (SC) 1. 19. In Dutta Associates (Supra), the Government had invited tenders for supply of rectified spirit to the Government warehouse at Tinsukia. Altogether 17 tenders were received. Tenders of the tenderers placed at SL. Nos. 1 and 2 were found ineligible and were, therefore, rejected. On such rejection, the offer of the tenderer placed at S1. No. 3, namely, Dutta Associates Private Limited, which was the lowest tenderer amongst the eligible ones, was not accepted by the official-Respondents; rather, the officials determined what they called 'viability range'. This 'viability range' was said to have been determined keeping in view the prevailing prices outside the State inasmuch as most of the rectified spirit to be supplied under the contract had to be procured from outside the State. Though the offer of the tenderer placed at Sl. No. 11 was lowest within the viability range, the State/officials did not invite even this tenderer to allot the work. They called upon Dutta Associates Private Limited to revise its offer, which it did and its bid was accordingly accepted. This was challenged before the Gauhati High Court. The learned Single Judge dismissed the writ petition; but on appeal, the Division Bench directed issuance of fresh tenders. The Apex Court, while dealing with this case, laid down as follows: Firstly, the tender notice did not specify the 'viability range' nor did it say that only the tenders coming within the viability range will be considered. More singnificantly. The learned Single Judge dismissed the writ petition; but on appeal, the Division Bench directed issuance of fresh tenders. The Apex Court, while dealing with this case, laid down as follows: Firstly, the tender notice did not specify the 'viability range' nor did it say that only the tenders coming within the viability range will be considered. More singnificantly. the tender notice did not even say that after receiving the tenders, the Commissioner/Government would first determine the 'viability range' and would then call upon the lowest eligible tenderer to make counter-offer. The exercise of determining the viability range and calling upon Dutta Associates to make a counter-offer on the alleged ground that he was the lowest tenderer among the eligible tenderers is outside the tender notice. Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt which accepting the tender. They did nothing of that sort. Secondly, we have not been able to understand the very oncept of 'viability range'. The tenderers are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so. It is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. Thirdly, the Division Bench states repeatedly in its judgment that having determined the 'viability range', the government called upon only the Appellant-Dutta Associates (third Respondent in the writ petition/writ appeal) to make a counter offer to come within the 'viability range' and that his revised offer at the higher limit of 'viability range' (Rs. 15.71) was accepted. This Division Bench has stretched that no such opportunity to make a counter-offer was given to any other tendered including the first Respondent. As the Division Bench has been rightly pointed out, this equally a vitiating factor. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (Appellant herein) is unfair and opposed to the norms which the Government should follow in such matters viz. openness, transparency and fair dealing. The Grounds 1 and 2 which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal. (Emphasis is supplied) 20. openness, transparency and fair dealing. The Grounds 1 and 2 which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal. (Emphasis is supplied) 20. From a microscopic reading of what have been observed above by the Apex Court in Dutta Associates (Supra), it is clear that there were altogether three grounds, which, according to the Apex Court, made the reasons for acceptance of the tender by the authorities concerned not sustainable. Out of these three grounds, ground Nos. 1 and 2 aforementioned were held to be more fundamental than the third ground. This clearly shows that since ground Nos. 1 and 2 are fundamental in nature, the grounds laid down therein are imperative and must be followed in every tender process and omission to follow the law laid down in the ground Nos. 1 and 2 will vitiate the acceptance of tender. In other words, the law laid down in Dutta Associates (Supra) with regard to at least, ground Nos. 1 and 2 are general in nature and must be applied in every tender process. A close reading of ground Nos. 1 and 2 aforementioned clearly shows that the tender notice, according to the Apex Court, ought to have stated that after receiving the tenders, the Commissioner/Government would, first, determine the 'viability range' and would, then, call upon the lowest eligible tenderer to make a counter-offer and, secondly, the concept of viability range' was not appealing to reasons. 21. In the present case, since the question of viability range is not involved, one has no option, but to hold that if in a tender process, the tender notice does not state as to what considerations would prevail upon the authorities concerned in accepting or rejecting the tender, then, such a tender process is not sustainable. In other words, every NIT must disclose the procedure, which would be followed in the matter of acceptance of the tenders so that the entire tender process becomes transparent, fair and non-arbitrary. 22. I am guided to adopt the above view from the following further observations made in Dutta Associates (Supra) We reiterate that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. 22. I am guided to adopt the above view from the following further observations made in Dutta Associates (Supra) We reiterate that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. While a bona fide error or error of judgment would not certainly matter, any abuse of power for extraneous reasons, it is obvious, would expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the Courts, following the law laid down by the Court in Shiv Sagar Tiwari v. Union of India (1996) 6 SCC 558 (In Re, Capt. Satish Sharma and Sheila Kaul) (Emphasis is added) 23. In the case at hand, there is no dispute before me that the NIT did not speak of the fact that a reasonable rate would be determined by the authorities concerned and if any tenderer quotes a rate, which is higher than the reasonable rate to be determined by the Board, then, such a tender would be rejected. 24. In view of the fact that I have already held that the law laid down in Dutta Associates (Supra) is bound to be observed in every tender process and the primary requirement of a tender process to remain valid is that it must notify the intending tenderers of the procedure that the authorities concerned propose to follow in accepting the tender, it clearly follows that the omission to mention about the concept and working of the reasonable rate in the NIT, in question, which the Board, eventually, resorted to, is fatal in the present case. 25. In fact, following the decision in Dutta Associates (Supra), this Court in Intiaz Ali v. State of Assam reported in 2000 (1) GLT 573, disapproved of the action of an Anchalik Panchayat of settling a market in favour of a lower bidder by subsequently working out a range within which bids received were considered to be reasonable. I am tempted to quote the relevant observations made in Intiaz Ali (Supra), which run as follows: 5. It has not been disputed in the affidavit in opposition filed by the Respondent Nos. I am tempted to quote the relevant observations made in Intiaz Ali (Supra), which run as follows: 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. 1,54.501.11 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 of offered 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. 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 setting 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 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. 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 Respondent No. 6 at Rs. 1,12,437/- was found to be reasonable rate. 26. From the observations made and the law laid down in Intiaz Ali (Supra), what surfaces is that the authorities concerned may, with a view to ensure that poor people are not exploited, settle a market at a reasonable rate instead of settling the same at the highest rate; but in such a case, the authorities concerned shall have to specify in the notice inviting tenders that the market would be settled at a reasonable rate and not at exorbitant rates quoted by the parties and the notice inviting tenders, in such a case, must indicate the range of reasonable rates within which the parties may submit their bids. In other words, unless the range of reasonable rates is specified in the tender notice, the authorities may, as indicated in Intiaz Ali (Supra), arbitrarily pick and choose a rate to be reasonable depending upon the person with whom they intend to settle the market. 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 a rate of 8% and not a rate of 7% or below or the rate of 9% or above was not chosen as a reasonable rate or viable rate by the Board. 27. 1, 2 and 3 as to why a rate of 8% and not a rate of 7% or below or the rate of 9% or above was not chosen as a reasonable rate or viable rate by the Board. 27. What emerges from the above discussion is that if in a tender process, the NIT does not state as to what considerations would prevail upon the authorities concerned in accepting or rejecting the tenders, then, such a tender process is not sustainable. To put it differently, every NIT must disclose the procedure, which would be followed in the matter of selection of the tenderer so that the entire tender process becomes transparent, fair, open and non-arbitrary. For this purpose, the NIT must state that the authorities would determine the viability or reasonable rate and if any tenderer quotes a rate, which is higher or lower than the reasonable rate, then, such a tender would not be accepted. If such a restriction is not enforced on the authorities concerned, then, the authority would be free to accept the tenders of a tenderer, whose offer is far lower than those of other tenderers, on the ground that the rate quoted by the chosen tenderer is a reasonable one. If the object of the authorities concerned is to ensure that no settlement holder coerces the trader and/or general public to part with higher rates of tolls or parking-fees, it must make the tenderer know, in advance, that the settlement would be given at a reasonable rate and not at exorbitant rate quoted by the parties. Unless the range of reasonable rate is specified in the tender notice itself, the authority concerned may arbitrarily pick and choose a rate, dub the same as reasonable rate and award thereby the settlement of the market and parking places to the persons whom the authority concerned intend to favour. 28. In the case at hand, there is no dispute before me that the NIT did not stipulate that the market and/or parking places would be settled in favour of a party quoting reasonable rate and/or that the tenders of the parties quoting high rates would not be considered nor did the tender notice specify the range of reasonable rate. The method adopted by the authorities concerned was, thus, contrary to the very concept of the competitive bidding and the same suffers from arbitrariness. The method adopted by the authorities concerned was, thus, contrary to the very concept of the competitive bidding and the same suffers from arbitrariness. Such a process for awarding of settlement cannot be said to be transparent, fair, reasonable and/ or non-arbitrary. (See also Sourav Das and Ors v. Gauhati Municipal Corporation and Ors. 2004 (1) GLT 36 and Sargous Tours and Travels v. Union of India, 2003 (3) GLT 202). 29. Coupled with the above, it is also curious to note that no reason has been offered, on behalf of the authorities concerned, as to why they opted to determine a reasonable rate after the tenders had been opened and the bid value of the each of the tenderer had become known. Determination of the reasonable rate, in the present case, after the bid values of the tenders had become known, is also a method, which is not conceived by the NIT, in question, and such a method cannot be sustained, for, such a method is arbitrary, wholly unreasonable and irrational. Further-more, the Board has already fixed the rates at which the toll or parking fees can be collected by the lessee and the NTT also specifies that if any objection or complaint is received against any settlement holder that he has collected tolls or fees either outside the specified area or in access of the rates fixed, then, the settlement would be cancelled. This apart, if there is any extortion by the lessee, the law can always be set in motion. The rate of the tolls/fees to be collected is already fixed under the NIT and having studied the same, when the tenderers, who were involved in such business, made their offers, the same cannot be arbitrarily rejected as has been done in the present case. That the offer made by the tenderers is financially secured is also not disputed before me inasmuch as every tenderer is required to keep a part of the bid value as fixed security and the tenderer is also required to give 9 cheques payable on the 7th day of each succeeding month. 30. In the above backdrop, the reference made by Mr. 30. In the above backdrop, the reference made by Mr. Konwar to the case of Jasper I Slong v. State of Meghalaya reported in AIR 2004 SC 3533 is not entirely misplaced, wherein the Apex Court dealt with the settlement of a weigh bridge, wherein charges to be paid by a person making weighment at the weigh-bridge had been fixed by the authorities concerned, yet the authorities concerned chose to award the contract in favour of a person, whose bid value was not the highest. Interfering with the selection process, the Apex Court held as follows: The Respondent-State owns a weigh bridge at Morkjniange. The income from this weigh bridge is received from the fees charged for weighment of trucks which pass through route in which this weigh bridge is situated. We are told that these trucks mostly carry coal from Jaintia Hills to Guwahati. As per the notification the person operating the weigh bridge can only charge a sum of Rs. 30/- for a loaded truck and Rs. 10/- for an unloaded truck. Therefore, the fee to be collected from the transporters for weighment of their vehicles is fixed and it does not vary with the amount of bid offered by the contractor. This is not a contract of supply where a contractor by manipulating the price may cause loss to public at large. This is not a contract which would have any effect on the price of coal, since weighment charges are fixed by the Government and the contractor has no right to increase the same. Payment of 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 not only be in public interest because State stands to gain more revenue. The 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. No third party's interest is involved in such contract. Therefore, in our opinion, application of principle of predatory pricing is wholly alien to this type of contract. Mere offer of a fancy or high bid by itself does not make the bid a predatory bid in this type of contract. No third party's interest is involved in such contract. Therefore, in our opinion, application of principle of predatory pricing is wholly alien to this type of contract. Mere offer of a fancy or high bid by itself does not make the bid a predatory bid in this type of contract. If the State decides to give its largesse to public it has an obligation to see that it fetches the best possible value for the same, provided otherwise it does not in any manner affects the rights of other citizens. No bidder has any right in law to demand the State to give away its largesse for an amount which he considers to be reasonable even when there are bidders willing to pay more for it. Principle of monopoly also does not come into play in these types of contracts. 31. From the case of Jasper I Slong (supra), it is clear that if the State decides to give its largesse to public, it has an obligation to see that it fetches the best possible value for the same, provided it does not, otherwise, in any manner, affect the rights of other citizens and no bidder has any right in law to demand the State to give away its largesse for an amount, which he considers to be reasonable, even when there are bidders willing to pay more for it. 32. What crystallizes from the above discussion is that in the present case, the NIT, having not specified that the settlement would be made within the reasonable rate to be fixed by the authorities concerned, the selection of the rate of 8% by the Board suffers from arbitrariness and cannot, therefore, be sustained. 33. Because of what have been pointed out above, it is clear that the rate, which has been fixed by the authorities concerned for awarding of the settlement of the market and the parking place/parking stands are not sustainable in law. In this view of the matter, this Court has no option, but to set aside the decision of the authorities concerned to give settlement of the market, etc. in favour of that tenderer, who comes within the concept of the reasonable rate, which the authorities concerned have fixed. 34. In this view of the matter, this Court has no option, but to set aside the decision of the authorities concerned to give settlement of the market, etc. in favour of that tenderer, who comes within the concept of the reasonable rate, which the authorities concerned have fixed. 34. In view of the conclusion reached above, it further logically follows that the settlement of the various markets, parking places as well as the rickshaw and cycle stands by the authorities concerned cannot be sustained and must, therefore, be interfered with. 35. In the result and for the foregoing reasons, these writ petitions succeed. The impugned decision of the Board, taken on 30.03.2005, is hereby set aside and quashed and in consequence thereof, all settlements made by the authorities concerned pursuant to the said NIT are hereby set aside and quashed. The Board is hereby directed to issue notice afresh, within 30 days from today, inviting tenders for settlement of the markets, parking places, cycle and rickshaw stands, in respect whereof the NIT, dated 11.02.2005, had been issued. Until the time the settlements are made pursuant to such an NIT, as has been directed hereinbefore to be issued, the Board shall be at liberty to make interim arrangement for running of the markets, parking places, cycle and rickshaw stands aforementioned without, however, involving any of the tenderers in such interim management. 36. No order as to costs. Petition allowed.