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2017 DIGILAW 992 (GAU)

Sujit Sarkar v. State of Assam

2017-07-27

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : 1. Heard Mr. H. K. Das, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Govt. Advocate, Assam, appearing for respondent Nos.1 to 6 as well as Mr. N. Baruah, learned counsel representing the respondent No.7. Mr. T.J. Mahanta, learned senior counsel assisted by Ms. P. Bhattacharya, learned counsel appears for respondent No.8. 2. The brief facts of the case is that the Forest Department had issued a notice dated 09.05.2016 inviting bids for settlement of the Dumnighat Mining Area, NKD-B-3, North Kamrup Division, Rangia for a period of seven years. As per the NIT dated 09.05.2016 the reserve price of the said mining area was fixed at Rs.54 lakhs (approx.). In response to the notice dated 09.05.2016, as many as 8 (eight) tenderers including the writ petitioner herein and the respondent No.7 had participated. On opening the bids it was found that the highest bidder, who had quoted a price of Rs.1,11,55,999/-, was a fictitious entity inasmuch, a subsequent enquiry revealed that no such bid was submitted by the person concerned. The writ petitioner herein had offered Rs.71,00,000/- but did not submit TIN particulars/ certificate as per the requirement of Clause 12(c) of the NIT dated 09.05.2016 as a result of which the bid submitted by the writ petitioner, though second highest in terms of the price offered, was rejected as technically invalid. The respondent No.7 was the third highest bidder who had quoted Rs.62,00,000/- and his tender was found to be technically valid. Notwithstanding the same, taking note of the revenue that is likely to be generated from the settlement of the market through a fresh process of settlement, the concerned Additional Chief Conservator of Forest had issued a communication dated 17.09.2016 addressed to the Principal Chief Conservator of Forest recommending that a fresh sale notice be issued for settlement of the mining area inviting bids from the genuine bidders. 3. Since the respondent No.7 was adjudged as the technically valid highest bidder, hence, the decision of the authorities to go for a retender was challenged by him before this Court by filing WP(C) No. 6019/2016 wherein, an interim order dated 04.10.2016 was passed by this Court suspending the process of resale. Eventually, the aforesaid writ petition was dismissed by order dated 09.11.2016 on being withdrawn by the petitioner. 4. Eventually, the aforesaid writ petition was dismissed by order dated 09.11.2016 on being withdrawn by the petitioner. 4. It may be noted herein that the writ petitioner was also impleaded as a party respondent in WP(C) No. 6019/2016 filed by the respondent No.7 but he did not challenge the communication dated 17.09.2016 till such time the aforementioned writ petition was pending. It was only after disposal of the WP(C) No. 6019/2016 by order dated 09.11.2016 that the petitioner has approached this Court by filing the present writ petition on 16.11.2016, inter alia, contending that the decision of the authorities to adjudge his tender as technically invalid was illegal. It is also the case of the petitioner that since the highest bidder was found to be fictitious, there was no justifiable for the respondents to go for retender by ignoring the price offered made by the writ petitioner. 5. The respondent No.2 has filed counter affidavit contesting the claim of the writ petitioner, inter alia, stating that the tender of the writ petitioner was defective due to non-submission of TIN and further that the department had valid reasons to recommend issuance of resale notice in the facts and circumstances of the case. 6. Mr. Das, learned counsel appearing for the writ petitioner, has strenuously argued that although the petitioner had not attached the TIN certificate along with his tender, yet, the said document was subsequently provided by his client. Since it is not the case of the respondents that the writ petitioner did not have a valid registration with the Sales Tax department or that he did not possess a TIN certificate, hence, the respondents were not correct in holding that his bid was technically defective. By placing reliance on a decision of the Supreme Court in the case of M/s. Poddar Steel Corporation vs. M/s. Ganesh Engineering Works and others, reported in (1991)3 SCC 273 , Mr. Das submits that the requirement of furnishing TAN/PAN/TIN was directory in nature and omission to enclose such documents could not have been the sole ground for rejection of the tender submitted by the petitioner. 7. Assailing the decision to issue a resale notice, Mr. Das has further submitted that since the highest bidder had turned out to be a fictitious tenderer, hence, the offer of Rs.1,11,55,999/- made by the said tenderer has to be held to be non-est. 7. Assailing the decision to issue a resale notice, Mr. Das has further submitted that since the highest bidder had turned out to be a fictitious tenderer, hence, the offer of Rs.1,11,55,999/- made by the said tenderer has to be held to be non-est. Under the circumstances, the expectation of the departmental authorities of securing higher revenue through a retender process was without a valid basis and hence calls for interference by this Court. 8. Mr. Nath, learned Additional Senior Govt. Advocate, Assam, appearing for the State, submits that the authorities had rejected the tender of the petitioner since the same was found to be non-responsive to the NIT conditions. Since the petitioner has not denied the fact that the TIN certificate was not produced by him along with the tender, the decision to reject his bid on such ground cannot be held to be arbitrary and illegal warranting interference by this Court. 9. Insofar as the challenge made to the decision of the departmental authorities to go for retender, Mr. Nath submits that merely because a tenderer has participated in the process does not give him the right to secure the settlement and it would be open for the authorities to go for a retender if valid and justifiable reasons exists for the same. According to Mr. Nath, the concern of the department to raise higher revenue is not only in the best interest of the department but in public interest as well and hence, no fault can be found with the impugned decision of the authorities to recommend issuance of resale notice as communicated by the letter dated 17.09.2016. 10. Mr. N. Baruah, learned counsel for the respondent No.7, has also supported the arguments advanced by Mr. Das to contend that the decision to go for the resale notice was arbitrary and illegal. 11. Mr. Mahanta, learned senior counsel appearing for the respondent No.8, submits that his client is an intending tenderer in the proposed retendering process and therefore, supports the stand of the Government that the writ petitioner does not have any enforceable right in the matter. 12. I have considered the submissions advanced by the learned counsel for the parties and have also gone through the materials available on record. 13. 12. I have considered the submissions advanced by the learned counsel for the parties and have also gone through the materials available on record. 13. At the outset, it is necessary to point out herein that as per Clause 12(c) of the NIT dated 09.05.2016 the tenderers are required to furnish the PAN, TIN, Bank A/C number, telephone number in the tender form and also enclose self attested copies of the PAN, TIN certificate, Bank Passbook. Clause 12 categorically mentions that the tender paper “must be accompanied with the following documents”. A reading of the Clause 12 as a whole makes it clear beyond any doubt that the tender paper must necessarily be accompanied by the documents mentioned therein. If that be so, it cannot be said that the same is a directory clause and non-adherence to the same would not have a fatal bearing in the tender process. The petitioner had admitted the fact that no TIN certificate was produced by him neither the particulars of the TIN certificate were mentioned in the tender document. It is on such count his tender was adjudged to be invalid. Under the circumstances, it cannot be said that the decision of the authorities to adjudge the petitioner’s tender as technically invalid is vitiated by arbitrariness. Rather, this Court is of the opinion that accepting the bid of the petitioner as a valid tender would have been contrary to the express terms and conditions of the NIT and therefore, illegal in the eye of law. Although Mr. Das has placed reliance on the decision of Poddar Steel (supra), yet, in the facts of the present case, I am of the view that the ratio of the said decision would not have any application. 14. Coming to the next objection raised by the petitioner pertaining to the decision to go for retender, since this Court has already held that the bid of the petitioner has been rightly held to be invalid, it would not be necessary for the Court to examine the said aspect of the matter, since the petitioner would not have any right to assail the decision of retender in such circumstances. 15. For the reasons stated herein before, I am of the view that there is no merit in the writ petition and the same is accordingly dismissed. 15. For the reasons stated herein before, I am of the view that there is no merit in the writ petition and the same is accordingly dismissed. It is, however, made clear that in the event of a retender, it will be open for the petitioner and the respondent No.7 to participate, if they meet the tender conditions. Considering the facts and circumstances of the case, there would be no order as to cost.