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Gauhati High Court · body

2017 DIGILAW 45 (GAU)

Md. Sofiur Rahman v. State of Assam

2017-01-10

A.K.GOSWAMI

body2017
JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. On 25.11.2016, name of the respondent No. 7 was struck-off from the array of parties. 2. Pursuant to the notice inviting tender dated 25.3.2016, the petitioner submitted his tender in respect of Mandia Hat for Rs. 27,01,110/-. The respondent No. 8 also submitted tender with bid amount of Rs. 31,51,000/-. The comparative statement goes to show that the name of the petitioner appears at serial No. 4 and the name of the respondent No. 8 appears at serial No. 2. The bid of the highest tenderer, at serial No. 1, was rejected. 3. It appears that one Nazrul Islam, whose bid was above the petitioner at Rs. 27,51,115/- was at serial No. 3 and was the next valid highest bidder after the respondent No. 8. Averments are made in the writ petition that after the issuance of the order in favour of respondent No. 8, he had withdrawn his security deposit. 4. On 13.7.2016, pursuant to a decision taken by the General Standing Committee of Barpeta Zilla Parishad, a letter dated 13.7.2016 was issued by the Chief Executive Officer, Barpeta Zilla Parishad settling the market in favour of the respondent No. 8. The order reads as follows: “With reference to the subject cited above I am to inform you that the General Standing Committee of Barpeta Zilla Parishad has approved your tender for settlement of Mandia Hat for the year 2016-2017 at a bid value of Rs. 31,51,000.00. You are therefore requested to deposit following amount with the Accountant, Barpeta Zilla Parishad/ Madia Anchalik Panchayat within 3(three) days of issue of this letter and execute the Agreement in Non-Judicial Stamp Paper at your cost. (a) Security money @ 30% of Bid Value Rs. 9,45,300.00 (b) 1st Installment Kist Money @ 20% of Bid Value Rs. 6,30,200.00 Total Deposit Rs. 15,75,500.00 Formal settlement order will be issued only after deposit of above money and execution of Agreement. Please note that, failure to deposit the above amount and execution of Agreement within the stipulated time, will liable to cancellation of the settlement and the settlement will be offered to next highest bidder.” 5. A perusal of the said order goes to show that formal settlement order was to be issued only after deposit of the amount of Rs. 15,75,500/- within a period of 3 days from 13.7.2016. A perusal of the said order goes to show that formal settlement order was to be issued only after deposit of the amount of Rs. 15,75,500/- within a period of 3 days from 13.7.2016. The order also indicates that failure to deposit the above amount and execution of agreement within the stipulated time, the settlement would be liable for cancellation and the same would be offered to the next highest bidder. 6. The materials on record go to show that the respondent No. 8 deposited Rs. 12,00,000/- on 14.7.2016. As the person at serial No. 3 i.e. Nazrul Islam had withdrawn his security deposit, the petitioner approached the authorities for making settlement in his favour on the failure of the respondent No. 8 to comply with the terms of the order dated 13.7.2016. 7. During the course of hearing, Mr. Roshid has submitted that the second installment was also not deposited by the respondent No. 8. 8. On the basis of the affidavit filed, Mr. Hoque has submitted that the respondent No. 8 filed an application on 14.7.2016 for permitting him to deposit Rs. 12,00,000/- and to grant time of one month to deposit the balance amount of Rs. 3,75,500/- and such prayer was allowed by the Chief Executive Officer. Subsequently, respondent No. 8 filed another application on 11.8.2016 praying for time to deposit the amount of Rs. 3,75,500/- within the month of November, 2016 and such prayer was also allowed and therefore, there is no merit in the contention of the petitioner that the respondent No. 8 is a defaulter, he contends. Mr. Hoque has also drawn the attention of the Court to Rule 47(14) and (15) of the Assam Panchayat (Financial) Rules, 2002, for short, the Rules, to contend that the stipulations in the letter dated 13.7.2016 that in the event of failure of the settlement holder to comply with the requirements as indicated therein, settlement would be offered to the next valid highest bidder is not in conformity with Rule 47(14) and (15) of the Rules and that in such eventuality fresh notice inviting tender is only called for. 9. Ms Das Barman has submitted that apparently the respondent No. 8 had not paid the security money in terms of the order dated 31.7.2016. 10. I have considered the submissions of the learned counsel for the parties and perused the materials on record. 11. 9. Ms Das Barman has submitted that apparently the respondent No. 8 had not paid the security money in terms of the order dated 31.7.2016. 10. I have considered the submissions of the learned counsel for the parties and perused the materials on record. 11. Just as it is an indispensible sine qua non for a tender process to be open, transparent and fair, as a logical and necessary corollary, it is axiomatic that the authorities entrusted to carry out the ministerial work to effectuate and implement the terms of the notice inviting tender consequent upon award of contract/settlement is to act in a transparent manner and cannot act contrary to the stated terms of the notice inviting tender. 12. Clause 21 of the notice inviting tender dated 23.5.2016 prescribes the manner and method of depositing the security money and kist money. Therefore, a tenderer is aware and alive to the requirements of the notice inviting tender and the tenderer is expected to submit his tender bearing in mind the payment schedule. 13. The letter dated 13.7.2016 required the respondent No. 8 to deposit the amount of Rs. 15,75,500/- on account of security money and first installment of kist money within 15 days from the date of the letter i.e. 13.7.2016. 14. At this juncture, it must, however, be conceded that seven days time as stipulated under Clause 21 was not granted to the respondent No. 8 for deposit of security money and kist money. But in the attending facts and circumstances of the case, the same will not make much of a difference as the respondent No. 8 had prayed for one month’s time to deposit part of the aforesaid amount of Rs. 15,75,500/- and had eventually deposited only on 23.11.2016. Thus, it appears that the respondent No. 8 was operating the market without the formal order of settlement and the Chief Executive of Barpeta Zilla Parishad acted contrary to the stipulations indicated in the letter dated 13.7.2016. 15. The reliance placed by Mr. Hoque in Rule 47(14) and (15) is misplaced as the said provisions come into play only after the execution of the agreement and not any time before. In the instant case, the issue that is arising for consideration of the Court, is before execution of the agreement/lease and at the very threshold, even before final order of settlement was issued. 16. In the instant case, the issue that is arising for consideration of the Court, is before execution of the agreement/lease and at the very threshold, even before final order of settlement was issued. 16. Instead of offering the settlement to the next valid highest bidder, who may have submitted his bid on bona-fide and genuine estimation of his financial capacity, the Chief Executive Officer, giving a total go bye to the terms of the notice inviting tender and the letter dated 13.7.2016 went on giving time to the respondent No. 8 to make the requisite deposit. If the action taken by the Chief Executive Officer is approved, the same will give premium to submission of bids beyond actual financial capacity. This will result in enabling such a tenderer to get the order of settlement on the basis of such higher rate to steal a march over a bona-fide tenderer. Principles of distribution of State largesse do not visualize such a scenario and therefore, such modus operandi cannot be encouraged. 17. In that view of the matter, I am of the considered opinion that the Chief Executive Officer was wholly wrong in not cancelling the order of provisional settlement of the respondent No. 8 and not offering the same to the next valid highest tenderer. 18. Taking that view, the order of settlement made in favour of the respondent No. 8 is interfered with and the respondents are directed to proceed to settle the market in favour of the petitioner as the tenderer at serial No. 3 is not in the fray. The same shall be done within a period of 10 days from the date of receipt of the certified copy of this order. 19. The writ petition is allowed as indicated above. No cost.