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2010 DIGILAW 165 (GAU)

Phatik Gogoi v. State of Assam

2010-03-04

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. By tender notice, dated 6.7.2009, issued by the respondent No. 4, namely President, Sapekhati Anchalik Panchayat, Sivasagar, tenders were invited for settlement of Sapekhati Weekly Market, for the financial year 2009-2010. Amongst others, the petitioner and respondent No. 5, namely, Sri Mohan Baruah, submitted their tender papers. While the petitioner's bid value was Rs. 3,84,999/-, the bid value of the respondent No. 5 was Rs. 3,98,990/-. By order, dated 7.9.2009, the said market was settled by respondent Nos. 2 and 3, namely, Chief Executive Officer, Sibsagar Zilla Parishad, Sivasagar, and President, Sibsagar Zilla Parishad, respectively, with respondent No. 5 and it is the settlement, so granted in favour of the respondent No. 5, which stands impugned in this writ petition, made under Article 226 of the Constitution of India. 2. I have heard Mr. R.P. Kokoti, learned Counsel for the petitioner, and Ms. V.L. Sinha, learned Government Advocate, appearing on behalf of the respondent Nos. 1, 2 and 3.I have also heard Mr. H. Rahman, learned Counsel for respondent No. 4, and Mr. B. Chakravarty, learned Counsel for the respondent No. 5. 3. The settlement, granted in favour of respondent No. 5, stands impugned on four specific grounds. Broadly speaking the grounds are (i) that the bid value of respondent No. 5 was less than that of the petitioner, (ii) that the photograph of the guarantor, which was to be affixed to the tender papers, had not been affixed by respondent No. 5 on his tender papers, (iii) that in terms of the tender notice, successful tenderer was required to deposit 50% of the bid value within 24 hours, whereas respondent No. 5 deposited less than 50% of the tender value with the respondents/authorities concerned, on 8.9.2009, the date of settlement, granted in favour of respondent No. 5, being 7.9.2009, (iv) that the tenderer was required to be a person, who holds, in his own name, a patta of a periodic patta land and the land value was required to be, at least, as much as the tender value of the bidder concerned. 4. However, as regards the petitioner's plea that the bid of the respondent No. 5 was less than that of the petitioner, it may be noted that at the time of hearing, it, now, emerges, as already indicated above, that the petitioner's bid value was Rs. 4. However, as regards the petitioner's plea that the bid of the respondent No. 5 was less than that of the petitioner, it may be noted that at the time of hearing, it, now, emerges, as already indicated above, that the petitioner's bid value was Rs. 3,84,999/-, whereas the bid value of the respondent No. 5 was Rs. 3,98,990/-; hence, the respondent No. 5's offer was higher than that of the present petitioner. It is, therefore, not correct to contend, as has been contended by the petitioner, that the bid value of respondent No. 5 was lower than that of the present petitioner. 5. Though it has been contended, on behalf of respondent No. 5, that the records reveal that the guarantor's photograph stood affixed to the tender papers, what transpires from the materials placed on record is that on the objection being raised at the time of scrutiny of the tender papers that no photograph of the guarantor stood affixed thereto. It, therefore, clearly follows that the petitioner has rightly contended that the photograph of the guarantor did not stand affixed to the tender papers and that it was only on objection raised at the time of scrutiny that the photograph was affixed to the tender papers. Even if, for a moment, this aspect is ignored, what cannot be ignored is the fact that the non-encumbrance certificate, which the guarantor had offered, was in respect of dag Nos. 1336, 1422 and 909 of periodic patta No. 108 of Mouza Sapekhati, whereas except dag No. 1336, the land, covered by the remaining two other dag numbers, do not belong to the guarantor. This apart, and more importantly, the petitioner did not own any periodic patta land, which was, as already indicated above, one of the requirements of the tender notice. 6. Coupled with the above, there is no dispute that the bid of the respondent No. 5 was as high as Rs. 3,98,990/-; but the land value certificate submitted by the respondent No. 5, shows that the value of the land, which was offered as security, was Rs. 3,30,000/-. Thus, the offer of the respondent No. 5 was not appropriately secured. 7. Be that as it may, what, now, needs to be noted is that Clause 5 of the tender notice contained the terms and conditions of the settlement. 3,30,000/-. Thus, the offer of the respondent No. 5 was not appropriately secured. 7. Be that as it may, what, now, needs to be noted is that Clause 5 of the tender notice contained the terms and conditions of the settlement. The terms and conditions of the settlement clearly informed the tenderers that in the event of finalisation of the settlement in favour of a successful tenderer, 50% of the bid value has to be deposited within 24 hours and the remaining 50% of the second installment has to be paid within 31.12.2009, or else, the settlement shall be rejected and the Anchalik Panchayat would, then, be entitled to collect toll on its own. The condition, so imposed, also stipulated that if the deposit was not made within 24 hours, then, the eligible second highest renderer shall have to be given the settlement and that the highest bidder would not be entitled to raise any objection thereto. The conditions, so contained, further stipulated that if a successful tenderer does not abide by the condition, so prescribed, namely, that he does not deposit 50% of the tender value within the given time frame of twenty four hours, he would be debarred from participating, in any of the tender process for settlement of markets, for a period of five years. Thus, the stipulations, so embodied in the tender notice, made it clear that the deposit of 50% of the tender value by the successful tenderer was mandatory inasmuch as failure thereof had serious consequences to the extent of rendering the successful tenderer ineligible to participate in any tender process for as long as a period 5 years. 8. In the present case, the offer of the respondent No. 5 and the tender documents suffered from multiple defects as indicated above. This apart, he (respondent No. 5) failed to deposit, within 24 hours, of receiving the settlement, the required amount of 50% of tender value. In such circumstances, respondent Nos. 2 and 3, namely, Chief Executive Officer, Sivasagar Zilla Parishad, and President, Sivasagar Zilla Parishad, respectively, ought to have cancelled the settlement, which had been made in favour of the petitioner and ought to have proceeded to settle the market in accordance with law. 9. In such circumstances, respondent Nos. 2 and 3, namely, Chief Executive Officer, Sivasagar Zilla Parishad, and President, Sivasagar Zilla Parishad, respectively, ought to have cancelled the settlement, which had been made in favour of the petitioner and ought to have proceeded to settle the market in accordance with law. 9. Because of what have been discussed and pointed out above, it becomes clear that the settle made, in favour of the respondent No. 5, by the order, dated 8.7.2009, is wholly illegal and arbitrary and cannot be allowed to stand good on record. 10. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned settlement, made in favour of the respondent No. 5., is hereby set aside and quashed. 11. Considering, however, the fact that the period of lease was to end on 30.6.2010, respondent Nos. 2 and 3, namely, Chief Executive Officer, Sivasagar Zilla Parishad, and President, Sivasagar Zilla Parishad, respectively, are hereby directed to examine the present petitioner's claim for settlement of the market, in question, and if he is found to be eligible, necessary order granting settlement to him, for the period ending on 30.6.2010, shall follow on such terms and conditions as may be tenable in law. 12. With the above observations and directions, this writ petition shall stand disposed of. 13. No order as to costs.