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2019 DIGILAW 800 (GAU)

Md Jalal Uddin v. State of Assam

2019-06-28

A.K.GOSWAMI, MANISH CHOUDHURY

body2019
JUDGMENT : Manish Choudhury, J. This intra-court appeal is directed against the common order dated 04.04.2019 passed by the learned Single Judge in the writ petition, W.P.(C) No. 6379/2018. By the common order dated 04.04.2019, the learned Single Judge had disposed of two writ petitions, W.P.(C) No. 6379/2018 & W.P.(C) No. 6416/2018. While dismissing the writ petition, W.P.(C) No. 6416/2018, the learned Single Judge had allowed the other writ petition, W.P.(C) No. 6379/2018, by setting aside the settlement order dated 27.07.2018 passed in favour of the appellant herein in respect of Baralimari Bi-Weekly Market under Morigaon district and the Chief Executive Officer, Morigaon Zilla Parishad was directed to settle the market in favour of the respondent No. 6 herein, who was the writ petitioner, by fixing the revenue proportionately in terms of the bid value offered by him i.e. Rs. 1,35,220.00. 2. Heard Mr. B.J. Ghosh, learned counsel for the appellant and Mr. A. Sarma, learned counsel appearing for the respondent No. 6. Also heard Mr. M. Nath, learned Standing Counsel, Panchayat & Rural Development Department, appearing for the respondent Nos. 1, 2, 4 & 5 and Mr. H.K. Hazarika, learned State Counsel, appearing for the respondent No. 3. 3. By a Tender Notice dated 02.06.2018, Laharighat Anchalik Panchayat invited sealed tenders, affixing court-fee stamp of Rs. 8.25 on the envelope, for settlement of 13 (thirteen) nos. of markets including Baralimari Bi-Weekly Market, for the year 2018-2019 as per the provisions of the Assam Panchayat Act, 1994, as amended. In respect of Baralimari Bi-Weekly Market (the Market, in short), the annual value was fixed at Rs. 42,094.00. Responding to the said Tender Notice, 10 (ten) nos. of bidders including the appellant and the respondent No. 6, submitted their sealed bids. After opening the bids, a comparative statement was prepared by a Settlement Committee constituted for the purpose. The respondent No. 6 was found to have offered a bid value of Rs. 1,35,220.00, but his bid was rejected on the ground that his sealed bid was not accompanied by affixation of the requisite court-fee stamp of Rs. 8.25. The envelope containing the bid of the respondent No. 6 was affixed only with court-fee stamp of Rs. 8.00, thereby, resulting in a deficit of Rs. 0.25. On the other hand, the appellant quoted a bid value of Rs. 1,22,790.00. 8.25. The envelope containing the bid of the respondent No. 6 was affixed only with court-fee stamp of Rs. 8.00, thereby, resulting in a deficit of Rs. 0.25. On the other hand, the appellant quoted a bid value of Rs. 1,22,790.00. Bid-value wise, the respondent No. 6 was 2nd highest bidder and the appellant was 4th highest bidder. Having found the bids of the first 3 bidders, value wise, defective, the market was settled with the appellant finding him to be the highest valid bidder, by an order dated 27.07.2018 of the Chief Executive Officer, Morigaon Zilla Parishad for the period from 01.08.2018 to 30.06.2019 at his bid value of Rs. 1,22,790.00. 4. Aggrieved thereby, the respondent No. 6 instituted the writ petition, W.P. (C) No. 6379/2018, assailing the impugned order of settlement dated 27.07.2018 primarily on two grounds, firstly, the condition of affixation of court-fee stamp of Rs. 8.25 was not an essential condition and the deficit court-fee of Rs. 0.25 was insignificant. The same being curable in nature, such deficit could not have entailed rejection of his bid, and secondly, the bid of the appellant was invalid as he had submitted Call Deposit instead of Fixed Deposit as security money in violation of condition No. 11 of the Tender Notice, which was an essential condition breach of which called for rejection of the tender. 5. The learned Single Judge had found that the requirement of affixing court-fee stamp of Rs. 8.25 was not an essential condition breach of which shall invite rejection of the bid. Though deficit of court-fee stamp of Rs. 0.25 was a defect but the same was rectifiable and prior to such rejection, an opportunity to the respondent No. 6 was called for since his bid was the highest. On that count, the learned Single Judge had allowed the writ petition with the direction to make consequential settlement in favour of the respondent No. 6 within a period of 7 (seven) days from the date of receipt of the certified copy of the order, apart from the directions indicated above. 6. Mr. B.J. Ghosh, learned counsel for the appellant has submitted that the failure to affix the requisite court-fee stamp of Rs. 8.25 was an essential condition which, by no means, can be termed as directory and a curable defect. 6. Mr. B.J. Ghosh, learned counsel for the appellant has submitted that the failure to affix the requisite court-fee stamp of Rs. 8.25 was an essential condition which, by no means, can be termed as directory and a curable defect. The tendering authority was obligated not to open a bid which was not accompanied by the requisite court-fee stamps, mentioned in the Tender Notice. Though affixation of court-fee stamp of the requisite amount was not mentioned in Part-I and Part-II of the Tender Notice containing Clauses 1 to 16 with Clause 17 indicating the consequence of rejection on non-fulfillment of any of those Clauses, the same, in essence, is also a pre-requisite for a bid to be a valid bid. 7. Per contra, Mr. A. Sarma, learned counsel appearing for the respondent No. 6 has supported the order of the learned Single Judge. He has further submitted that deficiency in court-fee stamp of the amount, as called for by the Tender Notice, cannot be termed as an essential condition in the tender process the same being curable in nature. The deficiency in court-fee stamp could have been made good by granting an opportunity to the respondent No. 6, more so, when the deficit was of a negligible amount and the same would not have caused any prejudice to any of the other bidders. By such rejection on a ground of trivial nature, a substantial loss in terms of revenue had been caused to the State Exchequer. By placing reliance in the decision of the Hon'ble Supreme Court in Tajender Singh Ghambhir and another vs. Gurpreet Singh and others, (2014) 10 SCC 702 , he has submitted that any deficiency in court-fee stamps can be paid at a subsequent stage also and only in the event of failure to meet the deficit after being put to notice, the same could have made the bid of the respondent No. 6 invalid. He has further placed reliance in the decision in May George vs. Special Tahsildar and others, (2010) 13 SCC 98 to put forth his submission as regards the directory nature of the condition in respect of deficit court fee stamp. 8. The submissions made by the learned counsels for the parties are duly considered. We have also considered the materials available on record. 9. The requirement of affixation of court-fee stamps of Rs. 8. The submissions made by the learned counsels for the parties are duly considered. We have also considered the materials available on record. 9. The requirement of affixation of court-fee stamps of Rs. 8.25 has its genesis in the provisions of the Court-fees Act, 1870, as amended (the Act, in short). The enactment of the Act is intended to provide revenue to the State. Chapter III of the Act has provided for fees in other courts and in public offices, other than the fees in the High Court and in the Courts of Small Causes at the presidency-towns. As per Section 6, no document of any of the kinds specified as chargeable in the First or Second Schedule to the Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document. Chapter V of the Act has laid down the mode of levying fees. Section 25 has, inter-alia, prescribed that all fees chargeable under the Act shall be collected by stamps. Court-fee stamps are one kind of adhesive non-postal stamps which are to be affixed on certain kinds of applications made before the Court and other public offices. Court-fee stamps are used by public and other departments as processing fees for transactions with Government departments. Court-fee stamps of various denominations are available. Second Schedule to the Act has provided for the fixed fees for various kinds of applications. As per Entry 3 of List II of the Seventh Schedule to the Constitution, the court-fee is a State subject and many States have, in the meantime, brought State amendments to the provisions of the Act. 10. The Government of Assam has also brought amendments to the First Schedule and the Second Schedule to the Act by the Court-fees (Assam Amendment) Act, 1972. The said Court-fees (Assam Amendment) Act, 1972 after receipt of assent of the Governor on 08.12.1972, was published by a Notification in the Assam Gazette Extra Ordinary on 13.12.1972. As per Article 1(f) of the Second Schedule, so amended, a fee of Rs. The said Court-fees (Assam Amendment) Act, 1972 after receipt of assent of the Governor on 08.12.1972, was published by a Notification in the Assam Gazette Extra Ordinary on 13.12.1972. As per Article 1(f) of the Second Schedule, so amended, a fee of Rs. 8.25 has been fixed for an application or petition when the same is presented to any officer containing prayer for settlement of fishery, ferry, forest produce, forest mahals, elephant mahals, or an officer giving terms for acceptance of Government for any construction or an application for a permit or license to deal in controlled commodities. It is in view of the aforesaid prescription of fixed fee to be paid by court-fees stamps under the Court-fees (Assam Amendment) Act, 1972, the Tender Notice dated 02.06.2018, in the instant case, had specified that the sealed bid was to be affixed with court-fee stamps of Rs. 8.25. 11. The issue for consideration is as to whether any deficiency in court-fee in a document specified as chargeable in the Second Schedule would entail rejection, like in the instant case. In this regard, a reference may be made to Section 28 of the Act. Section 28 states that no document which ought to bear a stamp under the Act shall be of any validity, unless and until it is properly stamped. The proviso to Section 28, inter-alia, mentions that if any such document is through mistake or inadvertence received, filed or used in any office without being properly stamped, the Head of the office may, if he thinks it, order that such instrument be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative hereto shall be as valid as if it had been properly stamped in the first instance. 12. The contention of respondent No. 6 that the defect of deficit court-fee stamps is curable in nature is to be considered in the aforesaid context. The sealed bids were opened on 17.07.2018 and it was observed by the Committee, in the comparative statement so prepared on that day, that the bid of respondent No. 6 was accompanied by deficit court-fee of Rs. 0.25. The sealed bids were opened on 17.07.2018 and it was observed by the Committee, in the comparative statement so prepared on that day, that the bid of respondent No. 6 was accompanied by deficit court-fee of Rs. 0.25. The impugned settlement order in favour of the appellant was issued after 10 (ten) days from 17.07.2018 i.e. on 27.07.2018, when the Morigaon Zilla Parishad issued the same in terms of Section 109 (6) of the Assam Panchayat Act, 1994, as amended. It is not discernible from the records that the respondent No. 6 was put to notice at any point of time during the period from 17.07.2018 to 27.07.2018 to remove the defect as regards the deficit court-fee stamps. Had it been a case that the respondent No. 6 did not remove the defect of deficit court-fee stamps of Rs. 0.25 despite being put to notice by the tendering authority, the same would have entailed rejection of his bid. 13. The decision in Tajender Singh Gambhir and another (supra), cited on behalf of the respondent No. 6, is with regard to deficiency in court-fee in respect of a plaint in a civil suit and consequence thereof, in terms of the provisions of the Act. The Supreme Court has held that if a question of deficiency in court-fee in respect of any claim is raised and the Court finds that the court-fee paid is insufficient, it shall ask the plaintiff to make good the deficiency within the time which may be granted and in case of default, the plaint shall be rejected. It has also observed that what is to be done by the trial Court in the proceeding of the suit, can always be done by the appellate court in the interest of justice. In the decision of May George (supra), it is held that whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provision in question. 14. The provision of Section 28, more particularly, the proviso to Section 28, along with Section 6 of the Act pertains to the specific documents specified as chargeable in the First or Second Schedule to the Act. The issue is to be examined having regard to the context, subject-matter and object of the statutory provision in question. 14. The provision of Section 28, more particularly, the proviso to Section 28, along with Section 6 of the Act pertains to the specific documents specified as chargeable in the First or Second Schedule to the Act. As per the Second Schedule to the Act, as amended by the Court-fees (Assam Amendment) Act, 1972, the bids submitted by the bidders in response to the Tender Notice dated 02.06.2018, in the instant case, are documents chargeable with fixed court-fee falling under the purview of Section 6 of the Act. In view of the language employed in Section 28, more particularly, the proviso to Section 28, and in view of the interpretation given to Section 6 in Tajender Singh Gambhir and another (supra), we are of the opinion that the defect of deficit court-fee in the bid of the respondent No. 6 was curable in nature and an opportunity should have been provided to the respondent No. 6 at the first instance. His bid, otherwise valid and higher than the bid of the appellant, could have been rejected by the tendering authority only in the event he had failed to deposit the court-fee within the stipulated time period, after being put to notice to make good the deficit within such stipulated time period. In such view of the matter, the rejection of the bid of the respondent No. 6 was arbitrary and unjust. 15. It transpires from the records that while issuing notice, by order dated 17.09.2018 in the writ petition, W.P.(C) No. 6379/2018, the learned Single Judge had observed that the settlement of the Market in favour of the appellant would be subject to the outcome of the writ petition. As by that time the appellant had already paid the kist money as well as security money and taken possession of the Market, he continued operating the Market in the meantime. The writ petition, W.P.(C) No. 6379/2018, was allowed on 04.04.2019 by setting aside the settlement order dated 27.07.2018 passed in favour of the appellant and a direction was made to settle the Market with the respondent No. 6-writ petitioner by fixing the revenue proportionately in terms of the bid value offered by him. The writ petition, W.P.(C) No. 6379/2018, was allowed on 04.04.2019 by setting aside the settlement order dated 27.07.2018 passed in favour of the appellant and a direction was made to settle the Market with the respondent No. 6-writ petitioner by fixing the revenue proportionately in terms of the bid value offered by him. This Court while issuing notice in the present intra-court appeal on 26.04.2019, had stayed the impugned order dated 04.04.2019 passed by the learned Single Judge. It is submitted on behalf of the respondent No. 6 that though he, pursuant to the order dated 04.04.2019, had deposited the requisite kist money, etc. he could not operate the Market in view of the order dated 26.04.2019. It is pertinent to note that the competitive bidding process initiated, through the Tender Notice dated 02.06.2018, was for settlement of the Market for a period of 1 (one) year only. As per the provisions of the Assam Panchayat Act, 1994, as amended, such market shall be settled for a period conciding with and not exceeding one Panchayat financial year by inviting tenders. By the settlement order dated 27.07.2018, the market was settled for the period from 01.08.2018 to 30.06.2019. As in the meantime, during the pendency of the writ petition and the present appeal, the period of settlement has almost come to an end, which is going to be over in two days' time on 30.06.2019, we are of the opinion that though we have held that the bid of the respondent No. 6 was unjustly rejected, it will not be prudent and proper to upset the present arrangement of running of the Market and, therefore, we allow the appellant to run the Market till 30.06.2019. Any kist money, security deposit, etc., if deposited by the respondent No. 6 after 04.04.2019, shall be refunded to him within a period of one month. 16. With the aforesaid observations, this writ appeal stands disposed of. No order as to cost.