Kumatia Fishery Cooperative Society Ltd. v. Assam Fisheries Development Corporation and Ors.
2013-04-30
A.K.GOEL, A.K.GOSWAMI
body2013
DigiLaw.ai
A.K. Goswami, J.- The respondent No.3 in WP(C) No.5107/2011 has preferred W.A.No.337/2011 being aggrieved by the order of the learned Single Judge dated 3.11.2011 setting aside the order dated 21.9.2011 settling the Kumutia Gr. fishery of Dhemaji District, for short, the fishery in question, passed by the respondent No.2 for a period of 7 years from 2011-2012 to 2017-2018 at an annual revenue of Rs.7,05,000/-and a total Rs. 49,35,000/- for a period of 7 years. 2. W.A.No.342/2011 is preferred by the writ petitioner challenging the finding recorded by the learned Single Judge in the order dated 3.11.2011, that non-submission of the original call deposit along with the tender paper is a curable defect and such defect in the tender of the respondent No.3 does not invalidate the tender. 3. For the sake of convenience, in this judgment, appellant in W.A. No.337/2011 will be referred to as the respondent No.3 and the appellant in W.A. No.342/2011 will be referred to as the writ petitioner. 4. The case projected in the writ petition is that pursuant to the tender notice No. 1/11 issued by the Managing Director, Assam Fisheries Development Corporation, for short, 'AFDC, respondent No.2, inviting sealed tenders for settlement of the fisheries mentioned therein including the fishery in question, 7(seven) tenderers including the petitioner and the respondent No.3 submitted tenders, which were opened on 25.5.2011 in the presence of the tenderers. The tender of the respondent No.3 was the highest and the rate quoted by the writ petitioner was second highest. A comparative statement was prepared by the Tender Committee which found the tender submitted by the respondent No.3 to be invalid as the respondent No.3 did not submit earnest money but had submitted a photocopy of the draft along with the tender, which did not fulfill Clause 5(1) of the terms and conditions of the tender notice and accordingly, the respondent No.2 recommended the case of the petitioner for settlement of the fishery in question. The petitioner was expecting the settlement of the fishery as he was the highest valid tenderer.
The petitioner was expecting the settlement of the fishery as he was the highest valid tenderer. But as even after4 months of opening of the tender, no settlement order was issued, he made enquiries and such enquiries revealed that the Minister, Fisheries, Government of Assam, as Chairman, Board of Directors of respondent No.l, namely, AFDC, had recommended/approved the name of the respondent No.3 for settlement of the fishery in question and also directed the respondent No.2, to issue a formal order settling the fishery. 5. Challenging the said decision, the writ petitioner had approached this Court by filing WP(C) No. 4980/2011 praying for cancellation of the recommendation of the Chairman of the Board of Directors and for a direction to settle the fishery with the petitioner. 6. On 23.9.11, an interim order was passed directing the respondent authorities not to settle the fishery. Having come to know that on 21.9.11, order of settlement of the fishery in favour of the respondent No.3 was already issued, the petitioner challenged the said order of settlement by filing a writ petition being W.P.(C) No.5107/2011. 7. We have heard Mr. A. Sarma, learned counsel for the writ petitioner (writ appellant in W.A.No. 342/2011) and Mr. N.C. Das, learned Senior Counsel, appearing for the respondent No.3 (writ appellant in W.A.No. 337/2011). Heard also Mr. S.R. Rajbangshi, learned Standing Counsel, appearing for the AFDC. We have also perused the materials on record relating to settlement of the fishery in question made available by Mr. Rajbangshi. 8. Mr. Sarma submits that the authority inviting atender is duty bound to consider whether the tender submitted by a tenderer is valid in all respects. Apparently, tender of the respondent No.3 was examined very superficially as the record produced by the AFDC before the learned Single Judge demonstrated. On examination of the records, infirmities as noted in the judgment of the learned Single Judge were found and accordingly, the learned Single Judge had recorded findings that the tender of the respondent No.3 is invalid on the grounds of (i) the call deposit being not in the name of the co-operative society but in the name of an individual (ii) the Bakijai certificate submitted being not in the name of the co-operative society but in the name of an individual and (iii) the respondent No.3 not submitting experience certificate.
Thus, he contends that even if there was no pleading with regard to the aforesaid shortcomings of the tender of the respondent No.3 requiring rejection of the said tender because of such defects, the writ Court is not powerless to examine the decision making process culminating in the award of the settlement. Mr. A. Sarma, learned counsel for the writ petitioner further submits that deposit of earnest money as required by Clause 5(1) of the terms and conditions is a mandatory requirement and admittedly, the respondent No.3 having only deposited the photocopy of the call deposit, the tender of the respondent No.3 is invalid and the same is liable to be rejected. He submits that the learned Single Judge was wholly wrong in holding that submission of photocopy of the call deposit instead of the original of the call deposit is a curable effect. In support of his submissions, the learned counsel has placed reliance on the following judgments: (i) 2002 (3) GLT 653 (D.S. Trading (M/s) vs. Padum Go got and Ors.) and (ii) 2003 (2) GLT 485 (Bikash Bora vs. State of Assam and Ors.) 9. Mr. Das submits that the only allegation made by the writ petitioner with regard to tender of the respondent No.3 being not valid was because of alleged violation of Clause 5(1) of the terms and conditions of the tender notice. It was alleged that the respondent No.3 had submitted only a photocopy of the draft along with the tender papers towards payment of 15% of the annual revenue as earnest money. It is submitted by him that at no point of time, the tender of the respondent No.3 was declared invalid. It had submitted a photocopy of the bank draft and the respondent No.3 had submitted the Call Deposit Receipt in original on 3.6.2011. It is submitted by him that in the terms and conditions of the tender, it was not clearly stated that call deposit in original should be submitted along with the tender and there was some confusion, which resulted in submission of photocopy of the Call Deposit Receipt of the respondent No.3. It is further submitted by him that the learned Single Judge was wholly correct in holding that non-submission of the original call deposit is a curable effect.
It is further submitted by him that the learned Single Judge was wholly correct in holding that non-submission of the original call deposit is a curable effect. It is contended by him that though no other infirmities were alleged by the petitioner in the writ petition, the learned Single Judge travelled beyond the pleadings in recording findings against the petitioner, resulting in quashing of the order of settlement made in its favour. It is submitted by him that requirement of submitting Bakijai Clearance Certificate is not a mandatory condition and even if there is some defect in the Bakijai Clearance Certificate submitted by the respondent No.3, the same is a curable effect. The learned Senior Counsel also submits that the respondent No.3 being a registered fishery Co-operative Society formed with 100% actual fishermen belonging to the Scheduled Caste community of Assam and it having submitted Certificate to that effect, as far as the registered societies like respondent No.3 are concerned, there is no requirement of submitting any experience certificate. It is an admitted position that Satya Das, the President of the society was authorized by a resolution to take steps towards settlement of the fishery and in that view of the matter, the finding recorded by the learned Single Judge that the call deposit is defective, the same being in the name of an individual and not being in the name of society, is wholly not tenable. He submits that if in the pleadings, the writ petitioner had questioned the validity of the tender submitted by the respondent No.3 on the aforesaid grounds, it would have met the allegations. However, without raising any such plea, such contentions were advanced at the time of hearing to the detriment and prejudice of the petitioner. He has placed reliance upon the following judgments : (i) AIR 1966 SC 837 (Municipal Corporation of the City ofJabalpur vs. State ofMadhya Pradesh and Ann), (ii) AIR 1964 SC 1680 (S.R.Tewari vs. District Board, Agra now the Antarim Zila Parishad, Agra and Ann), (iii) A Division Bench Judgment of this Court dated 29.9.11 in WA No. 294/2011 (Abu Talib vs. A.F.D.C Ltd and Ors.) 10. Mr. Rajbangshi, learned Standing counsel, AFDC supports the order of settlement issued in favour of the respondent No.3. 11.
Mr. Rajbangshi, learned Standing counsel, AFDC supports the order of settlement issued in favour of the respondent No.3. 11. The report of the tender committee indicates that it had opined that as the highest tenderer had given photostat copy of the demand draft towards earnest money, its tender was defective. The tender committee proposed that second highest tenderer may be offered the settlement at the highest bid or else it would be advisable to invite fresh tenders. The tender committee did not notice any other infirmities in the tender of the respondent No.3. The respondent No.2 had also reiterated the same in his note to the Chairman and suggested settlement in favour of the second highest tenderer. The Chairman of the AFDC approved the highest tenderer. His. note reads as under: "Approved SI. N0-1.(7.05.000.00) as society." 12. Thereafter, the settlement order was issued by the Managing Director of AFDC in favour of the respondent No.3. In the said settlement order, it is recited that on consideration of all aspects of the matter including revenue of the Corporation and taking into consideration that the highest tenderer is the only Co-operative society, settlement was offered to the said society. 13. Clause 4.1 of the terms and conditions of the tender mandates that the pro-forma of the tender form should be submitted by giving all the details of information indicated in Clause 4.1.1 to Clause 4.1.9 along with certificates. Clause 4.1.1 requires that if the tenderer is a Co-operative Society, then a photograph of an authorized person, authorized by Managing Committee of the Society, duly attested by a gazetted officer, is to be submitted. Clause 4.1.2 requires that in the event of the tenderer being a society, certified photocopy of a letter of authority giving the person authority to submit the tender by the Managing Committee of the Society should also be enclosed along with the tender. Clause 4.1.3 requires that 15% of the minimum value for the first year in respect of the fishery fixed by the Corporation shall be deposited as earnest money. Clause 5.1 provides that 15% of the minimum value for the first year in respect of the fishery fixed by the Corporation shall be deposited as earnest money along with the tender. 14. In the pro-forma of the tender form, there is a column for name of the tenderer and address.
Clause 5.1 provides that 15% of the minimum value for the first year in respect of the fishery fixed by the Corporation shall be deposited as earnest money along with the tender. 14. In the pro-forma of the tender form, there is a column for name of the tenderer and address. In the said column, it is also indicated that the name of the authorized person along with the detailed address and phone number should be given in respect of a tenderer, which is a co-operative Society. Record relating to the tender process shows that Satya Das, as the authorized person of the society, had submitted the tender for the respondent No.3. Photocopy of the call deposit receipt was dated 30.5.11 and the same shows that it was received from Sri Satya Das in favour of Managing Director, AFDC. There is also a resolution of the Managing Committee of the society authorizing the President and the Secretary to submit tender on behalf of the society. 15. In Municipal Corporation of the city ofJabalpur (supra), a Constitution Bench of the Apex Court has laid down that when a party in a writ petition does not allege a particular fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated at the stage of argument. It was further held that to confine a party to his pleading, particularly to his allegation as regard facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting therefrom and, therefore, save and except exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or ground, there is need to add to or to modify the allegation either in the petition or in the counter affidavit, the Court should insist on formal amendment being effected as this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know the case and meet the challenge with proper defences. 16.
16. In S.R. Tiwary (supra), in absence of pleading that the order of dismissal was as a measure of punishment, the Apex Court refused to consider the question whether the order of dismissal passed against the appellant from the service of the Board was as a measure of punishment for misconduct. 17. It is noticed that according to the own showing of the writ petitioner, he was present at the time of opening of the tender. The only plea raised by the petitioner with regard to the validity of the tender of respondent No.3 was founded on the basis that respondent No.3 had submitted photocopy of the earnest money deposit. Tender committee as well as respondent No.2 had also considered the tender to be defective on that count only. The writ petitioner did not take any plea in the writ petition that the Bakijai Clearance Certificate of the respondent No.3 was defective and that the same was overlooked by the authorities. It was also not pleaded that the authorities acted arbitrarily in holding the tender of the respondent No.3 not defective on account of not furnishing experience certificate. This Court in Abu Talib (supra) had taken a view that submission of Bakijai Clearance Certificate could not be taken as a rigid requirement. 18. In view of the above, we are of the opinion that in absence of any pleading on material facts, the learned Single Judge was not correct in recording finding against the respondent No.3 in respect of its tender as noted above. 19. D.S. Trading (supra), on which reliance has been placed by Mr. Sarma, is a case, wherein eligibility conditions were waived at the decision making stage to benefit ineligible tenderers. This is not the case here. 20. In Bikash Bora (supra), this Court had held that Loan Clearance Certificate and Sales Tax Clearance Certificate to be essential conditions for a valid tender in terms of the notice inviting tender in question. We are not confronted with such certificates and therefore, this case does not in anyway advance the case of the writ petitioner. 21. Earnest money represents a guarantee that the contract will be fulfilled and it evinces the earnestness to bind the tenderer in the bargaining process as the process of contract goes through.
We are not confronted with such certificates and therefore, this case does not in anyway advance the case of the writ petitioner. 21. Earnest money represents a guarantee that the contract will be fulfilled and it evinces the earnestness to bind the tenderer in the bargaining process as the process of contract goes through. According to the terms and conditions of tender, among others, earnest money can be forfeited if a tenderer withdraws his bid after the tenders are opened. The earnest money is otherwise to be returned to the unsuccessful tenderer on his application. If a highest bidder or for that matter, any other tenderer, who submits his bid with a photocopy of the demand draft towards deposit of earnest money, after the tenders are opened, decides to withdraw his bid, the authority may not be able to forfeit the earnest money of such a tenderer, as for such a purpose, original of the draft will be required. Submission of a photocopy of the demand draft or call deposit, may not, in all circumstances, represent earnestness and may encourage speculative bids. Submission of a photocopy of the demand draft or call deposit towards earnest money in place of the original cannot be equated with a technical violation or irregularity of little or no significance, such as deposit of earnest money by way of a demand draft drawn on a bank other than the bank notified in the notice inviting tender or made in favour of a person within the organization other than the person in favour of whom such demand draft, in terms of notice inviting tender, should have been made. Therefore, we are of the opinion that draft or call deposit in original has to be submitted along with the tender and the defect of not submitting the original of demand draft or call deposit towards earnest money is not a curable defect. 22. Even though, in view of the above discussion, the tender of the respondent No.3 suffers from infirmity as noted above, settlement was offered to the respondent No.3 and the respondent No.3 is continuing to run the fishery till date. The respondent No.3 is a fishery co-operative society. It had deposited the original demand draft on 03.06.2011 in the office of the corporation. The same was not refused to be accepted on submission.
The respondent No.3 is a fishery co-operative society. It had deposited the original demand draft on 03.06.2011 in the office of the corporation. The same was not refused to be accepted on submission. In such circumstances, in the facts of this case, we are not inclined to disturb the settlement made in favour of the respondent No.3 at this distance of time. 23. In the result, the writ appeals are disposed of upholding the order of settlement made with the respondent No.3. The order of the learned Single Judge dated 3.11.2011 is set aside. 24. No costs.