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Gauhati High Court · body

2019 DIGILAW 702 (GAU)

Md. Yasin v. State of Assam

2019-06-04

UJJAL BHUYAN

body2019
ORDER : 1. This order will dispose of WP(C) Nos. 7668/2018,7664/2018, 7665/2018, 7669/2018, 7675/2018, 7676/2018 & 8067/2018. 2. Heard Mr. T.J. Mahanta, learned senior counsel for the petitioner in WP(C) No. 8067/2018 and Mr. D. Das, learned senior counsel for the petitioners in the remaining cases. Also heard Mr. D. Mazumdar, learned senior counsel and Additional Advocate General, Assam for the respondents. 3. In all the writ petitions, challenge has been made to the letter dated 12.10.2018 issued by the Divisional Forest Officer, Assam State Zoo Division, Guwahati cancelling the tender process for supply of ration and materials for the zoo captives of Assam State Zoo for the year 2018-19 as well as subsequent e-tender notices for the said work dated 24.10.2018, 25.10.2018 and 28.10.2018. 4. Petitioners are contractors supplying food items, such as, vegetables, fruits, grocery items, meat, fish, etc., for zoo captives of Assam State Zoo following a tender process initiated by respondent No. 3 pursuant to NIT dated 12.6.2017 for supply of foodstuff for the zoo captives for the year 2017-18. Petitioners were awarded contracts for supply of foodstuff for different groups. However, it was alleged that since November 2017, quantity of foodstuff to be supplied by the contractors for consumption by zoo captives were drastically reduced. It was further alleged that decision for such rejection was taken unilaterally by respondent No. 3 without holding any discussion with the contractors. As a result, contractors, i.e., petitioners suffered substantial loss besides adversely affecting health of the zoo captives. 5. Petitioners had initially approached respondent No. 3 for restoration of supply quantity. Not getting any response, they approached respondent No. 2 by submitting representation dated 13.12.2017 which was followed by another representation dated 12.6.2018. Respondent No. 2 directed respondent No. 3 on 29.6.2018 to examine the issue and to report within a week with the clarification that such examination should be from the perspective of perceived loss by the contractors, etc. 6. While petitioners were waiting for a decision in the matter, respondent No. 3 issued a fresh NIT dated 27.7.2018. 7. This came to be challenged before this court in WP(C) No. 5723/2018 (Sanjib Roy v. State of Assam). This court by order dated 21.8.2018 disposed of the writ petition by declining to interfere with the NIT dated 27.7.2018. However, it was observed that grievance of the petitioners may be examined by respondent No. 3. 8. 7. This came to be challenged before this court in WP(C) No. 5723/2018 (Sanjib Roy v. State of Assam). This court by order dated 21.8.2018 disposed of the writ petition by declining to interfere with the NIT dated 27.7.2018. However, it was observed that grievance of the petitioners may be examined by respondent No. 3. 8. Respondents proceeded with the NIT dated 27.7.2018. Petitioners participated in the tender process by submitting tender. It was decided that till finalization of tender process, earlier settlement holders pursuant to NIT dated 12.6.2017 should continue the supply. 9. It is stated that bids submitted by tenderers were opened on 29.8.2018. 10. Insofar petitioner of WP(C) No. 7668/2018 is concerned, it is stated that bid offered by him was found to be lowest in respect of grocery items. Thus, he was LI. Petitioner had quoted Rs. 43,17,220.00 in respect of item numbers 59 to 63 of grocery category. 11. However, without any apparent reason, respondent No. 3 issued notice dated 12.10.2018 informing all concerned that due to technical reasons, tenders for supply of ration and materials for the zoo captives of Assam State Zoo for the year 2018-19 was cancelled mentioning that next date for re-tender would be informed shortly. This notice was thereafter followed by issuance of fresh e-tender notices for supply of ration and materials for the zoo captives of Assam State Zoo. The e-tender notices were issued on 24.10.2018, 25.10.2018 and 28.10.2018. 12. Aggrieved, present batch of writ petitions came to be filed. 13. On 9.11.2018, notice was issued in WP(C) No. 7668/2018 and an interim order was passed to the effect that present arrangement as on 9.11.2018 would continue. Identical orders were passed in respect of other writ petitions. 14. Respondents have filed a common affidavit on 26.2.2019. Stand taken in the affidavit is that petitioners were suppliers of foodstuff for zoo captives of Assam State Zoo for the year 2017-18 pertaining to different groups as per notice dated 26.5.2017 which was followed by signing of agreements on 22.8.2017 having validity up-to 31.8.2018. Since agreement period was about to expire on 31.8.2018, tender notice for supply of ration and materials to the zoo captives for the year 2018-19 was issued on 27.7.2018. It is stated that clause 28 of the tender notice clearly provided for a threshold price for the items to be supplied. Since agreement period was about to expire on 31.8.2018, tender notice for supply of ration and materials to the zoo captives for the year 2018-19 was issued on 27.7.2018. It is stated that clause 28 of the tender notice clearly provided for a threshold price for the items to be supplied. It was mentioned that rates offered by the tenderers above the threshold price would be rejected outrightly. Referring to petitioner in WP(C) No. 7668/2018, it is stated that he had offered rates for 5 numbers of grocery items which were found to be the lowest but above the fixed threshold price mentioned in tender notice dated 27.7.2018. Therefore, his offered rates were not accepted whereafter fresh e-tender notice dated 24.10.2018 was issued. 15. Regarding grievance pertaining to previous tender notice dated 26.5.2017, it is stated that supply quantity mentioned therein was to be made available according to the need of the animals. Regarding representation submitted by the petitioners, it is stated that detailed report has been submitted by respondent No. 3 to the Principal Chief Conservator of Forests, Wildlife, Assam on 28.12.2017. As per report, there was marginal reduction in the supply of mutton but the same was made up by increase in the supply of chicken which was as per feeding habit and requirement of concerned animals. This was followed by a further report by respondent No. 3 on 9.11.2018. 16. Referring to the NIT dated 27.7.2018, it is stated that it was a single envelop tender containing both technical and financial bids. Bids of the petitioners were opened in their presence but due to large number of items (more than 120), bid evaluation could not be completed on the same day and had to be continued till 30.8.2018 with the consent of the tenderers. Though rate of the petitioner for the five items was found to be the lowest amongst qualified tenderers, those were above the threshold price mentioned in the tender notice and, hence, offered rates could not be accepted. In this connection reliance has been placed on clause 28 of the tender notice. 17. Following such cancellation of tender process, it was but natural that fresh tender would be issued and accordingly impugned e-tender notices were issued. 18. Mr. In this connection reliance has been placed on clause 28 of the tender notice. 17. Following such cancellation of tender process, it was but natural that fresh tender would be issued and accordingly impugned e-tender notices were issued. 18. Mr. Mazumdar, learned Additional Advocate General for the respondents submitted that the stand taken by the respondents in the affidavit filed in WP(C) No. 7668/2018 would cover all the cases of the bunch. 19. Petitioners in WP(C) No. 7668/2018 has filed reply affidavit contesting the stand taken by respondent No. 3. It is contended that L1 rates of the petitioner was below the rates fixed by Assam State Agricultural Marketing Board and Gauhati Municipal Corporation. It is denied that there is any violation of clause 28 of the NIT dated 27.7.2018. 20. Short point for consideration is whether decision of respondent No. 3 to cancel the tender process pursuant to NIT dated 27.7.2018 is legal and valid. Validity of the consequential e-tender notice would be dependent upon the answer to this question. 21. As could be seen from the counter-affidavit of respondent No. 3, it is the stand of respondent No. 3 that though bids of the petitioners were LI, those rates were not above the threshold price mentioned in the tender notice and, therefore, having regard to clause 28 of the NIT dated 27.7.2018, tender process was cancelled. 22. Adverting to the impugned order dated 12.10.2018, it is seen that respondent No. 3 had cancelled the tender process “due to technical reasons”. 23. At this stage, it would be apposite to advert to clause 28 of the NIT. Clause 28 is extracted hereunder “28(a) If the rate quoted by the tenderer exceeds the rates given by Agriculture Marketing and GMC, whichever is lower, by a margin of 10% in case of perishable goods and by 5% in case of all other goods, will be outrightly rejected. (b) For items where the Agriculture and GMC rates are not available, the quoted rate should not exceed the market survey rate by a margin of 10% in case of perishable goods and by 5% in case of all other goods, else it will be outrightly rejected. (c) For items where the reference rate is not available, the rates should be reasonable and genuine. If the rates are too high it will not be considered for acceptance.” 24. (c) For items where the reference rate is not available, the rates should be reasonable and genuine. If the rates are too high it will not be considered for acceptance.” 24. As per sub-clause (a), if the rate quoted by the tenderer exceeds the rates given by Agricultural Marketing (Assam State Agricultural Marketing Board) and GMC whichever is lower by a margin of 10% in case of perishable goods and by 5% in case of other goods, such tender would be outrightly rejected. Finally, for items where reference rate is not available, rate should be reasonable and genuine. If the rates are high, it will not be considered for acceptance. 25. Admittedly, rates offered by petitioners are LI. Only thing respondent No. 3 has stated in the counter-affidavit is that LI rates were above the fixed threshold price mentioned in the tender notice dated 27.7.2018 without divulging any details. What were the threshold prices for each of the items and how LI rates were found to be in excess of the threshold prices have not been disclosed. In the instant case, tenders submitted by petitioners were all opened and evaluation continued till 30.8.2018. 26. There is sanctity attached to a tender process, more so, when it is conducted by the State or by instrumentalities of the State. While certain play in the joints has to be provided to the tendering authority, the State and its instrumentalities cannot act like a private citizen in matters of tenders and contracts. It is bound to act in a fair and judicious manner. Cancellation of a tender process is a serious and drastic measure which should be resorted to only as the last resort. After opening of the tenders and after evaluation of the tender papers that too after finalizing LI bids, it is not open to respondent No. 3 to cancel the tender process by simply citing ‘due to technical reasons’ which is vague and bald. 27. In the affidavit also, respondent No. 3 has not indicated how and in what manner LI bids are above the threshold price. 28. In the light of the above, impugned cancellation order dated 12.10.2018 and consequential e-tender notices cannot be sustained and are accordingly set aside and quashed. 29. Matter is remanded back to the higher authority of respondent No. 2 who shall now finalise the tenders in terms of the NIT dated 27.7.2018. 28. In the light of the above, impugned cancellation order dated 12.10.2018 and consequential e-tender notices cannot be sustained and are accordingly set aside and quashed. 29. Matter is remanded back to the higher authority of respondent No. 2 who shall now finalise the tenders in terms of the NIT dated 27.7.2018. This shall be done within a period of 30 days from the date of receipt of a certified copy of this order. 30. All the writ petitions are allowed but there shall be no order as to costs.