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2017 DIGILAW 942 (GAU)

Nabajyoti Das v. State of Assam

2017-07-18

MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Sealed tenders were invited by the Office of the Executive Engineer, Inland Water Transport Division, Dibrugarh vide Notice Inviting Tender dated 19.01.2017 for settlement of Ferry Service under the said Division for the financial years 2017-2018 and 2018- 2019. The present case relates to one of the Ferry Service i.e. Dibrugarh-Majorbari Ferry Service. The terms and conditions of the Tender, relevant to the issue in hand, are Clause 7(a) and Clause 10 (b). As these two clauses have utmost relevance in adjudicating the present petition, the relevant provisions are extracted hereunder: "7 (a) The tenderer have to submit Certificate in support of periodic patta land in his own name within the District or the Subdivision of value not less than the bid/tender money from the Deputy Commissioner/Additional Deputy Commissioner/Sadar Sub divisional Officer of the District or Sub divisional Officer (Civil) of the Subdivision concerned. The tenderer must submit up to date Non Encumbrance certificate regarding the Land under periodic patta from the D.C./A.D.C./SDO Sadar/S.D.O. (Civil) of Sub-Division concerned. 10. (b) Certified copies of Income Tax return of last 3 years must be submitted along with the tender. However it is made clear herein that the tenderer whose bid is less than Rs. 6 lakh (six lakh) submission of Income Tax return will not be mandatory." As many as five persons submitted tender, including the petitioner and the respondent No. 5 herein. As per the Comparative Statement, the petitioner Nabajyoti Das offered a bid of Rs. 4,41,275/- and the respondent No. 5 Arup Chetia offered Rs. 3,35,000/-. In terms of monetary bid, the petitioner was placed in the second position and the respondent No. 5 in the fourth position. The Tender Committee in its meeting held on 27.02.2017 had scrutinised the tender papers of all the five tenderers and recorded that the first bidder Dhrubajyoti Gogoi failed to submit Land Valuation Certificate. In so far as the petitioner is concerned, he has submitted Land Valuation Certificate which was issued by Circle Officer and failed to submit Income Tax Return Certificate. The third bidder Sunanjoy Gogoi failed to submit Boat Affidavit and his Land Valuation Certificate was issued by a private valuer. The fourth bidder i.e. the respondent No. 5 herein submitted all the required documents as per the terms and conditions of the Notice Inviting Tender. The third bidder Sunanjoy Gogoi failed to submit Boat Affidavit and his Land Valuation Certificate was issued by a private valuer. The fourth bidder i.e. the respondent No. 5 herein submitted all the required documents as per the terms and conditions of the Notice Inviting Tender. On this evaluation, the Tender Committee recommended settlement in favour of the fourth bidder who is the respondent No. 5 herein. On 16.05.2017, the settlement order in favour of the respondent No. 5 was issued under the hand of the Joint Secretary to the Government of Assam, Transport Department, granting settlement of Dibrugarh-Majorbari Ferry Service for the period 2017-2019 at his tendered amount of Rs. 3,35,000/- on per year basis. This order of settlement dated 16.05.2017 is put to challenge in the present writ petition. 2. Mr. S.K. Medhi, learned senior counsel representing the petitioner submits that the impugned settlement order dated 16.05.2017 is illegal and arbitrary on three counts. Firstly, the petitioner was not informed of the rejection of his bid despite having tendered a higher bid than the respondent No. 5. Secondly, the Land Valuation Certificate submitted along with his tender papers was proper in all respects, inasmuch as, the Circle Officer who had issued the certificate is also a revenue authority and competent to issue Land Valuation Certificate. Thirdly, there was no requirement to submit Income Tax Return Certificate in view of the fact that his bid amount was Rs. 4,41,275/-, which is on per annum basis and, therefore, saved by Clause 10(b) which, inter alia, stipulates that submission of Income Tax Return Certificate is not mandatory in case of tenderers whose bid is less than Rs. 6 Lakhs. 3. Mr. S. Kataki, learned counsel for the respondent No. 5 submits that the writ petition is misconceived and requires to be summarily dismissed. He contends that the writ petitioner has not been able to demonstrate any lacuna in the tender submitted by the respondent No. 5. According to him, no dispute arises that the respondent No. 5 had in any manner failed to fulfil the terms and conditions of the Notice Inviting Tender. Referring to the Comparative Statement annexed to the writ petition, Mr. Kataki submits that a bare perusal of the same would go to show that the respondent No. 5 had complied with all the conditions and had submitted all relevant documents as required. Referring to the Comparative Statement annexed to the writ petition, Mr. Kataki submits that a bare perusal of the same would go to show that the respondent No. 5 had complied with all the conditions and had submitted all relevant documents as required. In so far as the petitioner is concerned, the Comparative Statement records that the petitioner had furnished Land Valuation Certificate issued under the hand of the Circle Officer and not by the prescribed authorities as stipulated in Clause 7(a) of the terms and conditions of the NIT. Also, the Comparative Statement records that the petitioner failed to submit up-to-date Income Tax Return Certificate. The furnishing of the Land Valuation Certificate under the signature of any of the prescribed authorities as well as furnishing of Income Tax Return Certificate being essential conditions of the contract, the failure on the part of the petitioner to comply with the same, according to Mr. Kataki, went to the root of the matter which entailed summary rejection of the petitioner's bid. Reliance is placed in Rule 16(1) read with Rule 16(1)(i) of the Control and Management of Ferries Rules, 1968 (as amended vide Notification dated 18.05.1976) (in short, the Rules) as well as in the case of Bhupen Borah v. State of Assam & Ors., reported in 2010 (5) GLT 498 in support of his contention. Reliance is also placed on the statements and averments made in the affidavit-in-opposition filed on behalf of respondent No. 5. 4. Mr. G. Pegu, learned State Counsel have produced the minutes of the Tender Committee meeting dated 27.02.2017 as well as the Comparative Statement so prepared in respect of Dibrugarh-Majorbari Ferry Service. Mr. Pegu makes reference to paragraph 5 of the affidavit-in-opposition filed on behalf of the respondent No. 4 to say that the petitioner having failed to submit Income Tax Return Certificate and Land Valuation Certificate from the appropriate authority, he was not adjudged as the valid highest bidder. 5. The contention of the petitioner that he was not informed of the rejection of his bid despite having offered a higher value than the respondent No. 5, does not hold any water, inasmuch as, in paragraph 5 of the writ petition it is stated that on opening of the tender papers and after preparation of the Comparative Statement, a copy of the said Comparative Statement was supplied to the petitioner at his own request. On his own admission, he found from the Comparative Statement that one Dhrubajyoti Gogoi had offered the highest bid at Rs. 5,99,000/-, however, without having submitted the Land Valuation Certificate which is mandatorily to be submitted in terms of Clause 7(a) of the terms and conditions of the NIT. As the contents of the Comparative Statement was well within the knowledge of the petitioner, it cannot be comprehended that the petitioner did not know of the remarks made in column 11 and 16 of the Comparative Statement in so far as the demerits in his bid is concerned. Column 11 records the remark on the Land Valuation Certificate issued by the Circle Officer and column No. 16 contains the remark indicating that he did not submit the up-to-date Income Tax Return Certificate. As such, contention advanced that the settlement order in favour of the respondent No. 5 stands vitiated on account of non-furnishing of information as regards rejection of his bid, which was of higher tender value than the respondent No. 5, is altogether misconceived. It sufficiently appears that right from the date when tenders were opened and Comparative Statement was prepared, the petitioner was full well aware of the reasons leading to the rejection of his bid. It is, therefore, a trivial ground taken by the petitioner to challenge the settlement made in favour of the respondent No. 5. 6. The furnishing of Land Valuation Certificate and the manner in which it is to be done is prescribed in Clause 7(a) of the terms and conditions of the NIT. As per the said clause, which has been reproduced above, a tenderer is required to furnish the same in respect of myadi patta land standing in his own name, located within the district of the ferry service, with value of the land not being less than the bid value. The said Land Valuation Certificate must be under the signature of the Deputy Commissioner/Additional Deputy Commissioner/Sadar Sub-Divisional Officer of the District or the Sub Divisional Officer of the concerned Sub Division. Over and above, a tenderer is also required to submit up-to-date Non Encumbrance Certificate in respect of the land in question from any of the aforesaid authorities. The said prescription under Clause 7(a) of the terms and conditions of the NIT flows out from the statutory requirement as engrafted in Rule 16(1)(i) of the Rules. Over and above, a tenderer is also required to submit up-to-date Non Encumbrance Certificate in respect of the land in question from any of the aforesaid authorities. The said prescription under Clause 7(a) of the terms and conditions of the NIT flows out from the statutory requirement as engrafted in Rule 16(1)(i) of the Rules. The consequence of failing to submit the Land Valuation Certificate is also provided under Rule 16(1) of the said Rules, which would lead to treating the bid/tender as invalid. For better appreciation Rule 16(1) as well as Rule 16 (1)(i) are reproduced hereunder: "16(1) A Bid/Tender must be accompanied by the following documents failing which it will be treated as invalid- .............................................. .......................................... (i) Certificate in support of periodic patta land of value not less than the bid/tender money, in his own name within the District or the Subdivision from the Deputy Commissioner/Additional Deputy Commissioner/Sadar Sub-divisional Officer of the District or Sub divisional Officer of the Subdivision concerned should be enclosed." It is thus seen that the requirement of furnishing Land Valuation Certificate under Clause 7(a) of the terms and conditions of the NIT is a mandatory and statutory requirement, failing which the consequence is also provided. 7. In BSN Joshi & Sons Limited v. Nair Coal Services Limited, reported in (2006) 11 SCC 548 , the Supreme Court held that the requirements in a tender notice generally fall into two categories, that is, essential and ancillary or subsidiary. It was held that whereas the essential conditions of eligibility are to be rigidly enforced, the latter requirement can be deviated from without insistence upon a strict literal compliance with the conditions in appropriate cases. This would take this Court to Clause 7(a) of the terms and conditions of the NIT, read with Rule 16(1)(i) of the Rules in order to ascertain whether the requirement so prescribed therein is an essential condition that cannot be permitted to be relaxed or whether it is an ancillary or subsidiary requirement where strict literal compliance cannot be insisted upon. An answer to this can be had from a plain reading of Rule 16(1)(i) as well as the consequence in failing to do so as prescribed under Rule 16(1) of the Rules. An answer to this can be had from a plain reading of Rule 16(1)(i) as well as the consequence in failing to do so as prescribed under Rule 16(1) of the Rules. There cannot be any manner of doubt that the requirements under Clause 7(a) is an essential condition of the tender notice that has to be rigidly enforced without permitting any deviations therefrom. In the case in hand, the Land Valuation Certificate submitted by the petitioner was issued by the Circle Officer. The said certificate is apparently not under the signature of any of the authorities prescribed under Clause 7(a) and or Rule 16(1)(i) of the Rules. The Circle Officer may be a revenue authority but to acknowledge a certificate issued by him as a valid certificate would go to make the aforesaid Clause 7(a) and Rule 16(1)(i) as otiose. If a certificate issued by the Circle Officer is held to be valid, this would lead to an anomalous situation permitting any revenue authority, either the Circle Officer or any subordinate officer, to issue certificate that has to be treated as valid. In the considered opinion of this Court, a Land Valuation Certificate issued by a Circle Officer or any revenue authority, not being any one of the authorities prescribed under Clause 7(a) and/or Rule 16(1)(i) of the Rules, cannot be termed as a valid certificate as the same would amount to permitting deviation from an essential condition of the contract. In this view of the matter, the Land Valuation Certificate furnished by the petitioner was not a valid certificate. In this regard, the stand taken by the respondent cannot be faulted. Reference can be had to the case in Bhupen Borah (supra) wherein this Court held that the condition of submission of valuation certificate cannot but be treated as a mandatory condition of a valid tender, more so, when the condition so imposed flow from the provisions of the Rules of 1968 and more so when there is no provision enabling the government to relax compliance with the condition. 8. Turning to the issue of non furnishing of up-to-date Income Tax Return Certificate by the petitioner, it is seen that although the period of settlement is for two consecutive years i.e. for the financial year 2017-2018 and 2018-2019, bids are to be offered on per annum basis. The petitioner having offered a bid of Rs. 8. Turning to the issue of non furnishing of up-to-date Income Tax Return Certificate by the petitioner, it is seen that although the period of settlement is for two consecutive years i.e. for the financial year 2017-2018 and 2018-2019, bids are to be offered on per annum basis. The petitioner having offered a bid of Rs. 4,41,275 on per annum basis, it was not incumbent on his part to submit the up-to-date Income Tax Return Certificate as his case is saved by the end prescription in Clause 10 (b) of the terms and conditions of the NIT, where submission of said certificate is held to be not mandatory in case the bid value is less than Rs. 6,00,000/-. Had there been a situation where the bid of the petitioner was rejected on the sole ground of not submitting the Income Tax Return Certificate, the action of the respondents would have warranted interference. It is not so in the present case. 9. The two-fold prayer made in the writ petition is for a writ in the nature of Certiorari for quashing the settlement order dated 16.05.2017 and for a writ in the nature of Mandamus directing the respondent authorities to grant settlement of Dibrugarh-Majorbari Ferry service in favour of the petitioner. In so far as the second prayer is concerned, for the findings above, the petitioner is not entitled to any relief. He may have tendered a higher value than that of the respondent No. 5, but, under no circumstances he could have been adjudged as the highest valid tenderer (emphasis supplied). In so far as the first prayer is concerned, the same also do not fall for consideration as the petitioner has failed to demonstrate in what manner and on which aspect the tender submitted by the respondent No. 5 was invalid and/or violative of any of the essential conditions of the NIT. 10. Mr. Medhi placed reliance in (i) Raunaq International Ltd. v. I. V.R. Construct ion Ltd. & Ors., reported in (1999) 1 SCC 492 : (ii) Central Coal Fields Limited & Anr. 10. Mr. Medhi placed reliance in (i) Raunaq International Ltd. v. I. V.R. Construct ion Ltd. & Ors., reported in (1999) 1 SCC 492 : (ii) Central Coal Fields Limited & Anr. v. SLL-SML (Joint Venture Consortium) & Ors., reported in (2016) 8 SCC 622 ; (iii) Tarun Bharali v. State of Assam & Ors., reported in 1991 (2) GLR 296; (iv) Jogeshwar Doley v. State of Assam & Ors., reported in 1992 (1) GLR 134; and (v) Kinaram Das v. State of Assam & Ors., reported AIR 1983 Gauhati 45. The same have been gone into and found not to improve the case of the petitioner in the present facts and circumstances. In view of the discussions and findings above, I find no merit in this writ petition and the same stands dismissed, however, without any order as to cost. Interim order passed earlier stands recalled/vacated. Petition Dismissed.