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2009 DIGILAW 373 (GAU)

Susil Malo Das v. State of Assam

2009-06-01

AMITAVA ROY, J.CHELAMESWAR

body2009
JUDGMENT Amitava Roy, J. 1. The appellant is aggrieved by the annulment of his settlement of the Barsola Weekly Market ('the market') by the impugned judgment and order passed in WP(C) 4843/2009 instituted by the respondent No. 7 herein. 2. We have heard Mr. N. Upadhaya, learned Counsel for the appellant, Ms. B. Goel, learned State counsel, for the official respondents and Mr. R.P. Sharma, senior Advocate for the respondent No. 7. 3. The admitted facts in brief need be narrated to introduce the background of the present lis. The Sonitpur Zila Parishad ('the Zila Parishad') vide the tender notice dated 8.8.2008 had invited tenders for settlement amongst others of the market for the period 1.10.2008 to 30.6.2009. As stipulated in the notice, the tender papers were received on 19.9.2008. In all, four tenderers contended for settlement of the market offering their bids recorded as follows. Sl. No. Name of Tenderer Bid officered 1. Shri Sushil Malo Das (writ appellant) 2,42,101 2. Shri Sriknnta Thakur (writ petitioner) 2,75,401 3. Him Bahadur Chetri 2,01,000 4. Ashok Thakur 2,21,501 4. Following a scrutiny of the tenders and the documents accompanying the same and a comparative assessment of the bids, the Zila Parishad settled the market with the writ appellant vide its Order No. AZP/4/2008/8 dated 25.9.2008 for the aforementioned period. Being aggrieved, the respondent No. 7 herein impugned the said settlement before this Court in WP(C) 4843/2008 impleading the writ appellant as respondent No. 7 therein. The writ petitioner alleged that he being the highest valid bidder, he ought to have been settled with the market and that his superior claim had been side tracked on irrelevant considerations and that the writ appellant had been favoured with the settlement due to his political clout. 5. The writ appellant resisted the challenge by filing his affidavit in which he inter alia asserted that though the bid of the writ petitioner was highest, the documents accompanying his tender were defective and not in conformity with the tender stipulations and, therefore, the settlement was validly awarded to him at his bid of Rs. 21,42,101. He categorically denied the allegation of political pressure impelling the settlement. In his reply affidavit, the writ petitioner reiterated his pleaded assertions in the writ petition. 6. 21,42,101. He categorically denied the allegation of political pressure impelling the settlement. In his reply affidavit, the writ petitioner reiterated his pleaded assertions in the writ petition. 6. The learned Single Judge noted that the writ petitioner's tender had been rejected on two grounds, namely, (1) want of similarity in the name and signature of the petitioner in the tender as well as the affidavit annexed thereto and (2) non-submission of "no dues certificate" by the concerned Anchalik Panchayat. On a perusal of the official records pertaining to the tender process, the learned Single Judge, however, negated both these grounds. It was held that there was no discrepancy in the name of the petitioner as disclosed in the tender notice and other accompanying documents and though his signatures appear in a short form the same did not invalidate his tender as thereby his identity was not rendered doubtful. It was further held that the requirement of furnishing "no dues certificate" from the Anchalik Panchayat was optional to that of the concerned Zila Parishad. It was noticed that in fact such "no dues certificate" issued in favour of the writ petitioner on 16.4.2008 by the Tezpur Zila Parishad had been submitted along with his tender. In these premise, having regard to Rule 47(10) of the Assam Panchayat (Financial) Rules, 2002, which obligates such settlement in favour of the highest bidder, the settlement in favour of the writ appellant was interfered with and a direction was made to the official respondents to award the market in favour of the writ petitioner for the remaining term. 7. Mr. Upadhayay has urged that the writ petitioner's tender being patently defective in absence of a "no dues certificate" by the jurisdictional Anchalik Panchayat, he is not entitled in law to the settlement, being ineligible therefore in terms of the tender stipulations. Further, as would appear from the comparative statement that the petitioner had not submitted the Income Tax clearance certificate as well as he ought to be disqualified on this count alone. Apart from contending that the writ petitioner's tender being defective was rightly rejected, Mr. Further, as would appear from the comparative statement that the petitioner had not submitted the Income Tax clearance certificate as well as he ought to be disqualified on this count alone. Apart from contending that the writ petitioner's tender being defective was rightly rejected, Mr. Upadhayay has further urged that in any view of the matter, as the term of settlement is going to lapse on 30.6.2009, repudiation of the settlement in the respondents favour at this stage would result in great prejudice to him as in the meantime, he has deposited all the instalment for the entire period. 8. Ms. Goel with reference to the records of the tender process has pleaded that the petitioner in fact had submitted a "no dues certificate" from the Sonitpur Zila Parishad, Tezpur, in compliance of the tender covenant to that regard. 9. Mr. Sharma has argued that the tender notice does not require submission of any income tax certificate along with the tender as a necessary pre-requisite for its validity; According to him, a settlement can be very well be made, if the tender is otherwise complete in all respects and that in terms of the tender notice, the same is liable to be cancelled, if subsequently the successful tenderer is found to be a defaulter qua any loan or tax. The writ petitioner being admittedly the highest bidder and his tender valid in all respects, the impugned judgment and order is liable to be interfered with, he urged. 10. We have lent our anxious consideration to the materials on record and the arguments based thereon. Admittedly the bid offered by the writ petitioner (respondent No. 7 herein) had been the highest amongst the tenderers in the fray. The minimum value of the market fixed by the Government for the term in question is Rs. 1,86,084. Abare perusal of the comparative statement drawn up by the concerned Committee on a scrutiny of the tenders demonstrate that the petitioner's bid was left out of consideration as his name in the tender as well as the affidavit appended thereto did not match with his signatures thereon and that "no dues certificate" from the Anchalik Panchayat had not been submitted with the tender. Though the comparative statement discloses an endorsement that the petitioner had not submitted the income tax clearance certificate, significantly this omission was not cited to be a ground to disqualify his tender. Though the comparative statement discloses an endorsement that the petitioner had not submitted the income tax clearance certificate, significantly this omission was not cited to be a ground to disqualify his tender. 11. We have carefully examined the petitioner's tender and the documents accompanying the same and find ourselves in agreement with the conclusion recorded by the learned Single Judge vis-a-vis the alleged discrepancy between his name and signature appearing on the tender form and the affidavit appended to it. Even assuming that the tender form and the affidavit had been filled up by someone else, the materials on record do not demonstrate any tangible foundation to doubt the signatures of the petitioner thereon. The writ petitioner having owned the tender and there being no semblance of any evidence to doubt, his identity vis-a-vis the same, we find no persuasive ground to differ from the deductions made in this regard in the impugned judgment and order. 12. The terms and conditions enumerated in the tender notice and more particularly the chart depicting the comparative assessment manifest that a "no dues certificate" either from the jurisdictional Anchalik Panchayat or the Zila Parishad may permissibly be submitted. In other words, such a certificate from either of these two authorities would be in compliance of the requirement to that effect as prescribed by the tender notice. On a scrutiny of the documents submitted by the petitioner along with his tender, it is apparent that a "no dues certificate" from the Sonitpur Zila Parishad, Tezpur, had in fact been filed by him therewith. The comparative statement prepared by the concerned Committee also endorses the above fact. In that view of the matter, the second ground of rejection of the petitioner's tender referred to hereinabove is also unsustainable. 13. A reading of Clause 1(KAA) of the terms and conditions of the tender notice on which reliance has been placed on behalf of the writ appellant, to underline the essentiality of submission of the income tax certificate, in our estimate, does not signify any mandate of that kind. It only empowers the settling committee to cancel any tender, if subsequent to the settlement made, any loan/tax is detected to be unpaid by the successful tenderer. It only empowers the settling committee to cancel any tender, if subsequent to the settlement made, any loan/tax is detected to be unpaid by the successful tenderer. This clause, by no means, predicates that an income tax clearance certificate has to be essentially submitted with the tender so much so that failure to do so would render it rejectable. The plea raised by the writ appellant on this count also does not commend for acceptance. On a cumulative consideration of all above, we are therefore of the unhesitant opinion that the impugned judgment and order does not warrant any interference in the instant appeal which is accordingly dismissed. No costs. Appeal dismissed.