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Gauhati High Court · body

2020 DIGILAW 222 (GAU)

Utsav Construction v. State Of Assam

2020-02-18

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. T.J. Mahanta, the learned senior counsel assisted by Mr. A. Baruah for the writ petitioner. Also heard Ms. R. B. Borah, the learned State Counsel appearing for respondent Nos. 3 and 4. Ms. R.B. Borah submits that initially she appeared for Food, Civil Supplies and Consumer Affairs Department as well but now, they have a separate Standing counsel of their own. She however submits that she has received the relevant records from the Department in terms of the Courts earlier Order dated 25.11.2019. 2. None appears for the respondent Nos. 6, 7 and 8. It is seen that notice was sent to respondent Nos. 6 to 8 by registered post with A/D due on 04.12.2019 but there is no return of A/D card till date despite lapse of more than thirty (30) days. Therefore, by invoking the provisions of b, notice is deemed to be served upon all the private respondents. 3. Having regard to the nature of the controversy projected by the petitioner and on perusal of the record produced by the learned State counsel, the writ petition is taken up for final disposal at this stage. 4. Brief facts of the case may be noticed at the outset. The petitioner responded to the NIT dated 29.05.2019 floated by Deputy Commissioner, Golaghat (respondent No. 3) inviting submission of tender from eligible persons for selection/appointment of handling and transportation of food grains under National Food Security Act, 2013 (NFSA - 2013) of Golaghat District in two Tier systems for the Financial Year 2019 - 2020. Tier No. 1 being transportation from FCI Godown to GPSS/WCCS and Tier No. 2 being transportation from GPSS/ WCCS Godown to FP Shop Dealer/ Agent. The tender was to be submitted on or before 19.09.2019 at 2.00 pm and that the technical bid was to be opened on 20.09.2019 at 2.00 pm. In so far as the financial bid was concerned, the same was to be notified later on. Besides the instructions to bidder for online submission of e-tender, the NIT also contained as many as 28 numbers of terms and conditions of bids. Although being informed, the petitioner was not present on the day of opening the tender and therefore, the bid submitted by the petitioner was not taken into consideration. Besides the instructions to bidder for online submission of e-tender, the NIT also contained as many as 28 numbers of terms and conditions of bids. Although being informed, the petitioner was not present on the day of opening the tender and therefore, the bid submitted by the petitioner was not taken into consideration. Aggrieved, the petitioner filed WP(C) No. 7718/2018 and this Court vide Order dated 25.10.2019 disposed of the writ petition by directing the petitioner to file a representation before the Deputy Commissioner, Golaghat. Operative portion of the order dated 25.10.2019 may be abstracted below for ready perusal:- 'After hearing the arguments of learned counsel for the parties and on perusal of the materials available on record, I am of the view that the explanation furnished by the petitioners counsel giving reasons for his failure to respond to the communication dated 23.09.2019 is a matter that needs to be considered by the competent authority. As such, without expressing any opinion on the merit of the claim of the petitioner, I dispose of this writ petition by granting him time till 29.10.2019 to submit a detail representation before the respondent No. 3, explaining his stand in the matter. If such a representation, enclosing a copy of this order, is submitted to the respondent No. 3 on or before 29.10.2019, then in that event, the same be looked into objectively and a decision be taken therein, in accordance with law so as to redress the grievance of the writ petitioner. Till such time, the aforesaid exercise is completed, the tender process shall not be finalized by the respondents. Writ petition stands disposed of.' 5. Pursuant to the direction as abstracted above, the petitioner filed his representation before the Deputy Commissioner, Golaghat on 29.10.2019 explaining why he could not be present on the day of opening of the tender while also highlighting the defects in the tender documents submitted by the respondent Nos. 6, 7 and 8. On filing such representation, the tender document of the petitioner was taken into consideration. At the same time, the tender document of the respondent Nos. 6, 7 and 8 which according to the petitioner was defective was also taken into consideration. Aggrieved, the petitioner is again before this Court through the present writ petition. 6, 7 and 8. On filing such representation, the tender document of the petitioner was taken into consideration. At the same time, the tender document of the respondent Nos. 6, 7 and 8 which according to the petitioner was defective was also taken into consideration. Aggrieved, the petitioner is again before this Court through the present writ petition. After filing of the writ petition, the respondent authorities awarded the contract in favour of the respondent No. 6 vide Order dated 21.11.2019 which the petitioner has incorporated in the additional affidavit filed on 18.12.2019. 6. The main grievance of the petitioner is that as per the NIT dated 29.05.2019, certain terms and conditions have been laid down to be fulfilled by intending bidders. Amongst such terms and conditions, the bidders are to submit experience certificate on transportation of rice under NFSA/ 2013 in Tier 1 and Tier 2 system duly issued by the concerned Deputy Commissioner or the Sub-Divisional Officer(Civil). While the petitioner fulfilled this condition, the respondent No. 6 who has finally been selected did not comply with this condition. Instead, the respondent No. 6 submitted experience certificate issued by the Area Manager of FCI, Jorhat and also of the Area Manager, FCI, Nagaon. 7. Mr. T.J. Mahanta, the learned senior counsel submits that the respondent authorities could not have accepted the tender document of the respondent Nos. 6 and 7 inasmuch as the same is against the terms and conditions No. 2 in the NIT. Referring to the terms and conditions No. 27, the learned senior counsel submits that tender should be strictly in conformity with the prescribed terms and conditions. The tender documents containing any other condition which are not prescribed in the original tender are to be rejected. Therefore, for non-compliance of the condition No. 2 the tender bid of the respondent Nos. 6 and 7 should have been rejected. However the respondents instead have not only accepted the tender document but have selected and appointed the respondent No. 6 to undertake the transportation work. He thus submits that under the facts and circumstances, the selection of the respondent No. 6 is liable to be interfered with by this Court. 8. Ms. R.B. Borah, the learned State counsel submits that the entire process was undertaken as per the laid down norms in the NIT and it was pursuant thereto that selection was made. He thus submits that under the facts and circumstances, the selection of the respondent No. 6 is liable to be interfered with by this Court. 8. Ms. R.B. Borah, the learned State counsel submits that the entire process was undertaken as per the laid down norms in the NIT and it was pursuant thereto that selection was made. She submits that the respondent No. 6 having submitted the lowest bid was selected. She further submits that the employer is the best judge to make selection for award of contract. The same ordinarily being within the employer domain, Courts interference should be minimal and judicial restraint has to be exercised. In support of her submission, she relies upon the case of B.S.N. Joshi & Sons Limited Vs. Nair Coal Services Limited and Others, (2006) 11 SCC 548 . 9. I have heard the submissions made by the learned counsel for the rival parties and I have perused the materials available on record including the record produced by Ms. R.B. Borah, learned State counsel. 10. A perusal of the NIT dated 29.05.2019 goes to show that there are instructions to bidder for online submission of e-tender and it also contains a number of terms and conditions of bids. The nature of work described is transportation of food grains under NFSA-2013 in two Tier systems. As already noticed, clause No. 2 of the terms and conditions specifically provides that the intending bidders are to possess experience certificate obtained from the concerned Deputy Commissioner or Sub- Divisional Officer (Civil) showing that they have the experience in the transportation of rice under NFSA-2013 in Tier 1 and 2 system. Further, Clause 27 stipulates that the tenders are to be strictly inconformity with prescribed terms and conditions. The experience certificate of the respondent No. 6 irrespective of the fact that it was issued by Area Manager FCI, D.O, Jorhat does not indicate that the respondent No. 6 has the experience in transporting food grains to NFSA-2013 in two tier system. Therefore, the respondent authority concerned ought to have considered this aspect particularly when the petitioner had specifically represented the defect in his representation dated 29.10.2019. Not meeting the requirements of the terms and conditions is an issue which cannot be ignored inasmuch as because of the condition prescribed, many intending bidders are bound to have been disqualified for not having the essential stipulation. Not meeting the requirements of the terms and conditions is an issue which cannot be ignored inasmuch as because of the condition prescribed, many intending bidders are bound to have been disqualified for not having the essential stipulation. Accepting the tender documents of the respondent No. 6 despite the deficiency in my considered view therefore amounts to condoning the deficiency which attracts infringement of Article 14 of the Constitution of India. 11. There is no argument with the decision cited by the learned State Counsel i.e. B.S.N. Joshi & Sons Limited(Supra), wherein it was held that a contract need not be given to lowest tender and the employer is the best judge. However, it was also held that the essential condition of the tender is to be adhered to and relaxation is permissible only if there is no specific clause provided in that regard. The same however is not available in the present case and therefore, this Court finds illegality and arbitrariness on the part of the respondents. As such, the decision does not come in the aid of the State Government to justify their action. 12. Thus, upon considering the facts and circumstances in its entirety, I find merit in the writ petition and accordingly, the appointment/ selection of the respondent No. 6 vide Order dated 21.11.2019 is hereby set aside. The respondent No. 3 is directed to initiate fresh selection within a period of six weeks from the date of receipt of a certified copy of this order. All intending bidders including the private respondents may participate subject to fulfilling the stipulated terms and conditions of the tender. 13. With the above observations and direction, the writ petition stands disposed of. No cost.