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Gauhati High Court · body

2018 DIGILAW 1670 (GAU)

Kaziranga Self Help Group v. Educated Unemployed SC Youth

2018-11-30

KALYAN RAI SURANA

body2018
JUDGMENT : 1. Heard Mr. S. Borthakur, learned counsel for the petitioner as well as Mr. S.R. Baruah, learned Government Advocate for the State respondents No.1, 2 and 3 and Mr. P. Mahanta, learned counsel for the newly impleaded respondent No.4. 2. By this writ petition the petitioner has projected that the Deputy Commissioner, Golaghat while NIT bearing No. G.R.F/3/2018 inviting bid for settlement of Barsala Fishery for a period of 7 years from 15.07.2018 to 14.07.2015. It is projected that NIT was undated and the petitioner had found it hanging in the notice board. In the tender process 4(four) tenderers had participated and the bid were open on 10.07.2018 in the presence of the tenderers. It is projected that out of bid by the 4(four) tenderers, the bid of the petitioner was the highest valid bid where the petitioner had quoted the bid amount of Rs.4,48,000/-. However, by issuing a notice No.GRF-03/2013/4 dated 09.07.2018, it was informed that due to unavoidable circumstances, the NIT dated 07.07.2018 was extended till 24.07.2018 and that the bid would be accepted from 10 a.m. to 2 p.m. on 24.07.2018 and would be opened on the same day at 3 p.m. in the presence of the bidders further directing that the bidder who have submitted their bid on earlier occasion can submit again the fresh tender. 3. Accordingly, it was prayed that the said notice dated 09.07.2018 be set aside and quashed and for a direction that the said respondent authorities should settle the fisheries as per the NIT dated 07.07.2018. 4. This Court at the motion stage, while issuing notice by order dated 23.07.2018 had stayed the impugned notice dated 09.07.2018 directing the respondents No.2 and 3 to proceed with the settlement of the fisheries falling open of tender on 10.07.2018. 5. Aggrieved by the said interim order the respondent No.4 had filed an application under Article 226(3) of the Constitution of India for vacating/ modification of the ex-parte interim order dated 23.07.2018. Amongst others, it was projected in the said IA(C) 3523/18 by the respondent No.4 that writ petition was filed malafide and by denying the contentions of the petitioner it was alleged that the petitioner has not approached this Court with clean hands. 6. In terms of order dated 12.11.2018 passed by this Court in IA(C) 3523/18, the learned Government Advocate has produced the record. 7. 6. In terms of order dated 12.11.2018 passed by this Court in IA(C) 3523/18, the learned Government Advocate has produced the record. 7. The learned counsel for the petitioner submits that the tenders were opened on 07.10.2018 and after the disclosure of the financial bids of the petitioner, by a back dated notice dated 09.07.2018, the same tender process was extended by permitting all including the existing tenderers to submit fresh bids. It is submitted that the case projected by the respondent No.4 is that the petitioner had not come to the Court with clean hands and in this connection it is submitted that the non-disclosure of the fact that the petitioner was the existing lessee in respect of the said fishery would not vitiate the writ petition in any manner because the fact that the petitioner was an existing lessee was immaterial/irrelevant for deciding the issue raised in the present writ petition which relates to the legality of the extension of the tender process after the financial bid of the participating tenderers were opened in the presence of other tenderers and after the writ petitioner was found to be an eligible and valid tenderer, save and except the non-availability of the Income Tax Clearance Certificate. 8. Per contra, Mr. P. Mahanta, learned counsel for the respondent No.4, who is also the applicant in IA(C) 3523/18 has submitted that the tender documents of the petitioner was incomplete and therefore, there was no fault on part of the Additional Deputy Commissioner (Revenue) to extend the said tender till 24.07.2018 and it is submitted that in the said process, the respondent No.4 was the highest eligible bidder and therefore, there was no error on part of the authorities to settle the fishery on the question to the respondent No.4. It is further submitted that this Court had passed an interim order without it being disclosed before this Court that the petitioner is an existing lessee and therefore, by virtue of the interim order obtained by suppression of material fact, the period of settlement of the said fishery of the petitioner has now been extended till the present tender process is culminated by this Court. It is also submitted that while the bid of the petitioner was of Rs.4,48,000/-, the respondent No.4 who was settled with the said fishery had quoted a bid of Rs.19,91,555/- which was almost 4 times more than the rate quoted by the petitioner. 9. It is submitted that there was no infirmity in the settlement of the fishery with the respondent No.4. Moreover, it is submitted that as the petitioner is the existing lessee for the said fishery, it was not believable that he was not aware of the floating of a tender in which he had participated. 10. It is also submitted that the petitioner was fully aware of the minutes of meeting held on 10.07.2018 at 3 p.m. in the chamber of the Additional Deputy Commissioner (Revenue), Golaghat regarding the opening of the tender of Barsala Fishery, in as much as the copies of the minutes was duly forwarded to Shri Pradip Das, Secretary of the writ petitioner’s society and in this context it is submitted that the petitioner had suppressed material fact about the communication of the minutes of the meeting dated 10.07.2018. 11. On a perusal of the record as produced by the learned Government Advocate, it is seen from the comparative statement prepared on 10.07.2018 that the following 12 documents were required to be submitted with the tenders, being: 1. Experience Certificate 2. Bakijai Certificate 3. Certificate of Fisherman belonging to Scheduled Caste community 4. Bank draft 5. Security Deposit 6. Certificate of registration of Co-operative Society 7. Court fees 8. Photo of the bidder 9. Annual balance sheet of the Co-operative Society 10. Affidavit to pay the revenue of time 11. Certificate of distance from the residence of the Fishery 12. Income Tax Clearance Certificate 12. Out of these documents, the bid of the petitioner was not accompanied with the Income Tax Clearance Certificate. However, on perusal of the comparative statement of the bid opened on 20.04.2018, it is seen that the bid of the respondent No.4 was also not accompanied with the Income Tax Clearance Certificate. Income Tax Clearance Certificate 12. Out of these documents, the bid of the petitioner was not accompanied with the Income Tax Clearance Certificate. However, on perusal of the comparative statement of the bid opened on 20.04.2018, it is seen that the bid of the respondent No.4 was also not accompanied with the Income Tax Clearance Certificate. In this context, this Court is of the view that when the respondent No.3 i.e. the Additional Deputy Commissioner (Revenue), Golaghat had taken a conscious decision on 09.07.2018 i.e. the notice and as per minutes dated 10.07.2018 to extend the tender as the document of the tenderers were incomplete, he was bound by his own decision and on 24.07.2018, the learned Additional Deputy Commissioner (Revenue), Golaghat could not have accepted the bids/tender submitted by the respondent No.4 which was also found to be deficient in respect of the Income Tax Clearance Certificate. 13. In this context, the learned counsel for the petitioner had submitted that at present the Income Tax authorities does not issue Income Tax Clearance Certificate and he has also submitted that at this moment he does not have any document to fortify his stand with regard to the non-issuance of the Income Tax Clearance Certificate by the authorities. 14. In the further opinion of this Court, the non-disclosure of the fact that the petitioner was aware of the extension of the bids by order dated 10.07.2018 or the nondisclosure of fact that the petitioner was the earlier lessee does not vitiate the present writ petition because the challenge of the petitioner is limited to the question of the legality of the extension of the tender from 10.07.2018 to 24.07.2018. 15. The record, as produced by the learned Government Advocate, disclose that the decision to extend the tender till 24.07.2018 was taken in the chamber of Additional Deputy Commissioner (Revenue), Golaghat on 10.07.2018 at 3 p.m. Under such circumstances, the said authority could not have issued a notice dated 09.07.2018 under memo No. GRF/03/2013-14 for extending the tender to 24.07.2018. 15. The record, as produced by the learned Government Advocate, disclose that the decision to extend the tender till 24.07.2018 was taken in the chamber of Additional Deputy Commissioner (Revenue), Golaghat on 10.07.2018 at 3 p.m. Under such circumstances, the said authority could not have issued a notice dated 09.07.2018 under memo No. GRF/03/2013-14 for extending the tender to 24.07.2018. Hence, in the considered opinion of this Court, that one of the two documents i.e. notice dated 09.07.2018 or the minutes dated 10.07.2018 is a manipulated one because if the authority conducting the tender i.e. respondent No.3 had taken a decision on 09.07.2018 to extend the tender there was no reason for the Additional Deputy Commissioner (Revenue) to first open the tender on 10.07.2018 in the presence of the tenderers and then to take a decision to extend the tender to 24.07.2018. 16. As a consequence, the prayer made by the respondent No.4 in the connected IA(C) No.3523/18 is refused and mandamus is issued to the respondents No.2 and 3 i.e. Deputy Commissioner, Golaghat and the Additional Deputy Commissioner (Revenue), Golaghat respectively to proceed with the settlement of Fishery on the basis of opening of the tender on 10.07.2018. 17. At this stage, the learned counsel for the respondent No.4 submits that he has taken a ground in the Interlocutory Application that there was no adequate publicity of the tender and therefore, the entire process is to be re-tendered again. In this connection this Court is of the opinion that the respondent No.4 had categorically denied allegation in the writ petition that the tenders were not merely hanged in the notice board without any date, and therefore, having participated in the extended tender process without challenging the fact of proper and adequate notice for tenders opened on 10.07.2018, it is not open to the respondent No.4 to assail the tender on the ground that no adequate publicity was given to the said tender. Moreover, the authorities had not extended the period of tender from 10.07.2018 to 24.07.2018 on the ground that there was no adequate publicity of tender but the extension was made on the grounds that the bid of the tenderers were insufficient in respect of the documents and the participation of the respondent No.4 in the tender process on 24.07.2018 itself indicates that apart from existing tenderers others were also aware of extension of the tender to 24.07.2018. Hence, the said contention made by the learned counsel for the respondent No.4 is not found acceptable by the Court. Moreover, in this context this Court has noticed that by representation dated 15.07.2018, the respondent No.4 had made a request for a straight settlement of the said Fishery and there are no grievances on record by the petitioner before the authorities concerned that the tender notices were not properly published. Hence, the contention made in the Interlocutory Application that initially the notice was not properly published appears to the Court as an afterthought as the same was not the initial stand of the respondent No.4 before the authorities. 18. In so far as the contention of the respondent No.4 is concerned that his bid was much higher than the bid submitted by the petitioner. This Court is of the view that after the bid was open on 10.07.2018, everyone became aware of the bids submitted by the petitioner and other tenderers and therefore, it is not surprising that when the tender was extended till 24.07.2018, the subsequent bidders would submit a rate higher than the one quoted in the previous tender which was opened on 10.07.2018. 19. This Court would like to further add that the acceptance of the tender of the respondent No.4 by the Additional Deputy Commissioner (Revenue), Golaghat on 24.07.2018 without being accompanied by the Income Tax Clearance Certificate is sufficient to show that the competent authorities has accepted that the Income Tax Clearance Certificate is not mandatory. Therefore, the bid of the petitioner which was opened on 10.07.2018 without Income Tax Clearance Certificate submitted shall not be an impediment of the respondents No.2 and 3 to proceed with the settlement of Fishery following obtaining of the tender on 10.07.2018. 20. Under the circumstances, this Court finds that notice dated 09.07.2018 to extend the tender to 24.07.2018 had preceded the decision dated 10.07.2018 to extend the tender on 24.07.2018. Hence, both the said notices No.GRF-03/2013/4 dated 09.07.2018, under the signature of Additional Deputy Commissioner (Revenue), Golaghat as well as the minutes dated 10.07.2018 purported to be a decision taken by the authorities on 10.07.2018 at 3 p.m. in the matter of settlement of Barchala Fishery under Memo No.GRF-03/2018/2-Ka dated 10.07.2018 is hereby set aside and quashed. 21. Hence, both the said notices No.GRF-03/2013/4 dated 09.07.2018, under the signature of Additional Deputy Commissioner (Revenue), Golaghat as well as the minutes dated 10.07.2018 purported to be a decision taken by the authorities on 10.07.2018 at 3 p.m. in the matter of settlement of Barchala Fishery under Memo No.GRF-03/2018/2-Ka dated 10.07.2018 is hereby set aside and quashed. 21. Hence, this writ petition stands allowed with a direction that the Additional Deputy Commissioner (Revenue) i.e. respondent No.3 shall do the needful in the terms of this order within a period of 6(six) weeks from the date of receipt of a certified copy of this order. 22. The records provided by the learned Government Advocate is returned. 23. A copy of this order may be provided to Mr. S.R. Baruah, learned Government Advocate.