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2019 DIGILAW 218 (GAU)

RAJIB BHARALI v. STATE OF ASSAM

2019-02-18

SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. 1. Heard Shri B. Bora, learned counsel for the petitioner as well as Shri M. Nath, learned Senior Standing Counsel for P&RD. 2. In view of the consensus arrived at in the Bar, this writ petition is taken up for disposal at the Admission stage. This Court has also taken note of the order dated 28.01.2019 whereby the private respondents have been deemed to be served. 3. The case projected by the petitioner is that pursuant to a Notice Inviting Tender dated 10.06.2018 issued by the Executive Officer, Ghilamara Anchalik Panchayat, Ghilamara the petitioner had submitted bid for settlement of the Subansiri Weekly Market, amongst others. The bid of the petitioner was found to be valid highest bid and vide an order dated 30.06.2018, the petitioner was settled with the same market w.e.f. 01.07.2018. Thereafter the petitioner had started functioning and started collecting taxes. 4. The grievance of the petitioner was that a communication dated 29.06.2018 was subsequently issued by the Joint Secretary to the Govt. of Assam, P&RD requesting of CEOs to accept the highest bid in all tender process irrespective of validity of such bid. Pursuant to the aforesaid communication, a letter dated 18.07.2018 was issued cancelling the settlement in question with the petitioner and granting the settlement to the Respondent No.8. It is the aforesaid action of the Respondent Authorities which is put to question by the petitioner in the present writ proceeding. 5. The learned counsel Shri Bora has submitted that amongst others, the impugned order dated 18.07.2018 which is based on the communication dated 29.06.2018 is unsustainable in law on the ground of violation of the basic principles of natural justice as the cancellation was done without affording any opportunity. Even on merits, the learned counsel has submitted that the financial bill cannot be the sole criterion for settlement as such bid has to fulfil all the other conditions to be termed as a valid bid . The learned counsel submits that the communication dated 29.06.2018 which is the foundation of the impugned order dated 18.07.2018 has been apparently issued in a mechanical manner without any application of mind where irrelevant facts had been taken into consideration and relevant facts had been ignored. 6. The learned counsel submits that the communication dated 29.06.2018 which is the foundation of the impugned order dated 18.07.2018 has been apparently issued in a mechanical manner without any application of mind where irrelevant facts had been taken into consideration and relevant facts had been ignored. 6. Shri M. Nath, the learned Senior Standing Counsel, P&RD however fairly submits that the communication dated 29.06.2018 based upon which the impugned order was issued has been the subject matter in a number of writ petitions instituted by persons who are aggrieved and this Court has interfered with the same. The learned Counsel has placed before this Court an order dated 29.08.2018 passed in WP(C) No. 5799 of 2018. 7. In view of the aforesaid facts and circumstances, this Court is of the opinion that the impugned letter dated 18.07.2018 is unsustainable in law both on the grounds for non-application of mind as well as gross violation of the principle of natural justice. A right which had accrued upon the petitioner in a valid tender process by recognising the bid of the petitioner to be the valid highest bid cannot be taken away without affording a reasonable opportunity to the petitioner. Further, this Court finds force in the submission of the learned counsel for the petitioner that though the quoted price of a bid is one of the important factors, the same cannot be the sole factor for determining in whose favour a settlement is made. A financial bid, apart from the fact that the same has to be viable, the conditions precedent have to be duly fulfilled by an intending tenderer. If the communication dated 29.06.2018 which is the foundation of the impugned order is given effect to, any unscrupulous bidder would quote an unreasonably higher amount for the purpose of being declared successful in the process and thereafter lead to an occasion where it would be wholly unviable to run the settlement in question. 8. In view of the above, and also taking into the account the earlier interference by this Court with the communication dated 21.08.2018, this writ petition was allowed. The letter dated 18.07.2018 issued by the respondent no. 6 and the subsequent letter dated 21.07.2018 by which the settlement was made for the Respondent No. 8 are hereby set aside. 8. In view of the above, and also taking into the account the earlier interference by this Court with the communication dated 21.08.2018, this writ petition was allowed. The letter dated 18.07.2018 issued by the respondent no. 6 and the subsequent letter dated 21.07.2018 by which the settlement was made for the Respondent No. 8 are hereby set aside. The parties should take immediate steps for handing over the market in question to the petitioner as was done by initial order dated 30.06.2018. The same process be completed as expeditiously as possible and in any event within a period of 15 days from today. 9. This dispose of the writ petition. 10. The petitioner is at liberty to obtain certified copy of this order and furnish the same to the appropriate authority to do the needful in terms of the order.