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2014 DIGILAW 457 (GAU)

MOTIN ALI v. STATE OF ASSAM

2014-04-25

A.M.SAPRE, UJJAL BHUYAN

body2014
JUDGMENT (A.M. Sapre, CJ) This is an intra-court appeal filed by the Respondent No.5 of WP(C) No.6393 of 2013 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 10.03.2014 passed by the Single Judge in abovementioned writ petition. By impugned order, the writ court allowed the writ petition filed by the writ petitioner (respondent no. 5) in part and accordingly directed the State and their concern authorities to re-consider the case of the writ petitioner in relation to his tender, which he had submitted along with appellant for undertaking ferry services in one river. So the short question which arises for consideration in this writ appeal is whether learned Single judge was justified in allowing the writ petition and further justified in issuing the impugned directions to reconsider his tender? Mere perusal of the order would go to show that the dispute between the parties relates to acceptance of appellant’s tender and rejection of respondent no. 5’s tender. The respondent no. 5 and the appellant had submitted their tenders pursuant to the advertisement issued by the State for providing ferry services from the place called – Maulana Bhasani ME Madrassa to Payesti Aironjongla Pargahat. The authorities however did not accept the respondent no. 5’s tender but accepted appellant’s tender and hence the respondent no. 5 feeling aggrieved filed the writ out petition of which this writ appeal arises questioning the decision taken by the authorities in accepting the appellant’s tender. The challenge in the writ petition was essentially on the ground that firstly the respondent no. 5’s bid amount was much higher than the appellant’s bid amount and yet the authorities ignoring this material issue accepted the appellant’s bid thereby putting the State to losses and secondly the so-called delay in submitting one boat fit ness certificate by the respondent no 5 in the tender process could not have been made the basis for rejecting his tender because his boat was surveyed and found in order by the authorities. The writ court found merit in both the aforementioned contentions urged by the respondent no. 5 in support of his writ petition and accordingly allowing the writ petition in part directed the authorities to reconsider the respondent no. 5’s tender dehores these two grounds. The writ court found merit in both the aforementioned contentions urged by the respondent no. 5 in support of his writ petition and accordingly allowing the writ petition in part directed the authorities to reconsider the respondent no. 5’s tender dehores these two grounds. It is against this order, the appellant (who was respondent in the writ petition) has felt aggrieved and filed this appeal. This what the learned Single Judge held: “In pursuance to the NIT dated 22.04.2013 (Annexure-1) of the Gauripur Anchalik Panchayat, the petitioner submitted his tender for the ferry service from the Maulana Bhasani ME Madrassa to Payesti Aironjongla Parghat. Amongst the eight bidders, the petitioner's bid, at Rs. 1,07,771/-, was the highest, whereas the bid of the respondent No. 5, namely, Motin Ali, was the 4th highest at Rs. 95,000/-. In the comparative statement (Annexure-2), the tender of the petitioner was found to be complete in all respect, whereas in the concerned column, the respondent No. 5 is shown to have not furnished the Court fee. Since a river worthiness certificate is required to be furnished for the boat as a pre-requisite to settlement and the certificate was not issued in time, the petitioner, as the highest bidder, was given temporary settlement for 45 days by order dated 05.07.2013 (Annexure-3). The temporary settlement was, however, challenged by the respondent No. 5 by means of a writ petition, being WP(C 4554/2013. This Court disposed of the writ petition on 30.08.2013 (Annxure-12) with direction to finalise the tender process within 30.09.2013. The petitioner's boat was surveyed on 26.06.2013 and 13.08.2013 (Annexure-5), but boat fitness certificate was belatedly issued to the petitioner only on 05.09.2013 (Annexure-10). On the other hand, the Boat fitness certificate of the respondent No. 5 was given a month later, i.e., on 03.10.2013 (Annexure-13). But, although the petitioner was the highest bidder and furnished the Boat worthiness certificate well before the respondent No. 5, the Chief Executive Officer issued the impugned settlement order on 10.10.2013 (Annexure-11), giving settlement to the ferry service to the lower and also the defective bidder. Accordingly, this writ petition has been filed by the petitioner challenging the settlement made with the lower and defective bidder. I have heard Mr. H. R. A. Choudhury, learned Senior counsel, representing the petitioner. I have also heard Mr. N. Upadhyaya, learned State counsel. Accordingly, this writ petition has been filed by the petitioner challenging the settlement made with the lower and defective bidder. I have heard Mr. H. R. A. Choudhury, learned Senior counsel, representing the petitioner. I have also heard Mr. N. Upadhyaya, learned State counsel. There is no appearance on behalf of respondent No. 5 in spite of service of notice. The fact stated above would reflect that the River Worthiness certificate was applied for by the petitioner and his boat was surveyed on 26.06.2013 and 13.08.2013 (Annexure-5). However, there was delay in issuing the fitness certificate, which, eventually, was issued on 05.09.2013, and the petitioner submitted the same before the settling authority on 06.09.2013. On the other hand, Boat Fitness Certificate in respect of the boat of the respondent No. 5 was issued a month later, i.e., on 03.10.2013. Apart from the above, the bid offered by the petitioner is also higher than that of the respondent No. 5. If there was delay in issuing fitness certificate in spite of the fact that the boat of the petitioner had been surveyed, the petitioner cannot be made to suffer. The core question as to whether the boat is fit for the purpose for which the settlement was sought to be made. If the boat of the petitioner is fit, the delay in issuing the relevant fitness certificate to the petitioner cannot stand on the way of the petitioner to get the settlement. In view of the above, the writ petition is disposed of directing the respondents to consider the case of the petitioner on the basis of the Boat Fitness Certificate issued to the petitioner. Let appropriate order in terms of the above observations and directions be passed as expeditiously as possible, but, at any rate, not later than 31.03.2014.” Heard Mr. A.M. Buzarbaruah, learned counsel for the appellant and Mr. B.J. Talukdar, learned Govt. Advocate, Assam. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to concur with the reasoning and the conclusion arrived at by the learned Single Judge as in our view, the same does not require any interference. In the first place, when the respondent no 5’s bid amount was admittedly much higher as against the appellant bid amount, in our view, the same should have been given precedence for its acceptance over the appellant’s tender. In the first place, when the respondent no 5’s bid amount was admittedly much higher as against the appellant bid amount, in our view, the same should have been given precedence for its acceptance over the appellant’s tender. In the second place, one technical issue in relation to the submission of boat fitness certificate by the respondent no.5 in the tender process which was made basis by the authorities for rejection of his tender was rightly held as improper by the learned Single judge by holding that it could not have been made the basis for rejection of his tender in the light of earlier survey already made by the authorities on this very issue. In our considered view, when, admittedly, acceptance of the respondent no. 5’s bid would have brought more revenue to the State, then the State could not have ignored this vital ground so as to put the State to losses in the tender process in question and secondly: the technical issue could not have been given more importance for rejection of respondent No.5’s tender because on facts it did not survive. Though learned counsel for the appellant laid great emphasis on the technical issue contending that the same should have been decided in appellant’s favour but in the light of finding recorded by the learned single judge coupled with what we have held supra, this submission is not acceptable to us. It is accordingly rejected. In the light of foregoing discussion, we find no merit in the appeal. It fails and is accordingly dismissed in limine.