Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 43 (GAU)

Abdul Karim v. State of Assam

2020-01-09

PRASANTA KUMAR DEKA

body2020
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. P. Phukan, learned counsel for the petitioner. Also heard Mr. A Roy, learned standing counsel for the P&RD Department and Ms. D.D. Barman, learned Additional Senior Government Advocate for the respondents. The private respondent No. 11 is the caveator who was represented by the learned counsel Mr. A Sharma. As per office note dated 03.12.2019, the Registry did not receive either vakalatnama or any affidavit on behalf of the respondent No. 11. 2. The petitioner is aggrieved by the settlement order No. N.Z.P.B.S./135/2019-20/6051 dated 24.07.2019 issued by the respondent No. 5 thereby giving settlement of Leteri Beel Part-11 in favour of the private respondent No. 11 at the bid value of Rs. 3,45,000/- who was the second highest bidder. 3. The petitioner submitted his tender for settlement of the said beel of Lahkar Gaon Panchayat (serial No, 18 of the NIT dated 28.5.2019) under Moirabari Anchalik Panchayat The petitioner was the highest bidder with the bid value of Rs. 7,20,000/- amongst 9 (nine) tenderers. The respondent Nos. 6 and 7 opened tender on 21.06.2019 in presence of the tenderers/representative of the tenderers and the petitioner was the highest bidder. But, inspite of that vide impugned notification dated 31.07.2019, the Tender Committee of Nagaon Zila Parishad comprising of the respondent Nos. 4 and 5 alongwith 3 (three) other persons settled the said fishery in favour of the respondent No. 11. It is also pleaded that the respondent No. 11 was earlier declared as defaulter as a result he is debarred from participating in any future tender for 5 (five) years as per clause 23 of the NIT dated 28.05.2019. Accordingly, the said settlement of the fishery with the respondent No. 11 is illegal for which the petitioner sought for setting aside the impugned settlement order and also for a direction to the respondents to settle the said fishery in favour of the petitioner considering his highest bid value of Rs. 7,20,000/-. 4. The respondent No. 5 i.e. the Chief Executive Officer, Nagaon Zila Parishad filed affidavit-in-opposition wherein the reasons for non consideration of the bid of the petitioner are stated as follows: "7. That regarding the statements made in paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the petition, your deponent denies that the petitioner is the valid bidder. That regarding the statements made in paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the petition, your deponent denies that the petitioner is the valid bidder. The tender submitted by the petitioner was not considered due to the following defects/reasons:- (a) The petitioner submitted Demand Draft with validity of 3 months instead of Fixed Deposit with validity of 12 months as per Clause 10 of the Tender Notice. Further, the said Demand Draft has been purchased by another person namely, Shahidur Rahman instead of the petitioner. (b) The petitioner did not mention name and other details of his Jamindar in Clause 5 of the Tender Form inasmuch as no person put signature as Jamindar in the Tender Form. (c) The petitioner did not offer any Land of Bank Guarantee as security as per Clause 13 of the Tender Notice. (d) Petitioner did not submit any Bakijai Clearance Certificate as per Clause 4 (kha) of the Tender Form. Although, in the Comparative Statement prepared by the Moirabari Anchalik Panchayat the name of the petitioner has been reflected at Sl. No. 1, however, when the tender documents along with comparative statements were furnished to the Nagaon Zila Parishad, the General Committee on perusal of the said documents, found that the Tender submitted by the petitioner is found to be irregular. It was also found that the petitioner submitted Demand Draft with validity of 3 months purchased by one Shahidur Rahman instead of the petitioner. Accordingly, his bid was not considered by the General Standing Committee and the Leteri Beel Part-II has been settled with the respondent No. 11 vide Resolution No. 33 dated 24.07.2019." 5. The said stand of the respondent No. 5 was countered by the petitioner through his affidavit-in-reply as follows: "The answering deponent begs to state that except admitting the deficiency and mistake of depositing Demand draft with 3 months validity instead of fixed deposit with a validity of 12 months as stated in para 7 (a) of the affidavit-in-opposition non of the tender including the respondent No. 11 have fulfil the requirement as narrated in paragraphs 7(b)(c) & (d) of the affidavit-in-opposition filed by the respondent No. 5. That circumstances giving settlement of the fishery in question in favour of the respondent No. 11 with those deficiency while rejecting the tender of the answering deponent on deficiency of the same ground, in spite highest bid value, is a clear violation of Article 14 and 19 (g) of the Constitution of India. More so, the respondent No. 11 is a defaulter for withdrawal of his inflated tender for settling the some fishery for the year 2017-18 under Nagaon Zila Parishad as per provision Clause 23 of the respective NIT which is also one of the clause of the present NIT and as per the said clause the respondent No. 11 cannot participate any tender process for succeeding five years under Nagaon Zila Parishad and to that effect one defaulter list has been published by Nagaon Zila Parishad where respondent No. 11 is debarred in participating any tender process for 5 years commencing from 201 Still 2022 under Nagaon Zila Parishad and setting of fishery in question for the year 2019-20 is a remote one and inspite of the said deficiency settling of fishery in question in favour of the respondent revealed some fishy things and in support of this averment the answering deponent further reiterated its statement as made in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 12 & 13 of the writ petition. The defaulter list prepared by the Nagaon Zila Parishad is annexed herewith and marked as Annexure-2." 6. Mr. Roy, learned standing counsel for the P&RD produced the record and on perusal it is found that the petitioner is the highest bidder bidding Rs. 7,20,000/- but as stated in the affidavit-in-opposition of the respondent No. 5 the aforesaid deficiencies are noticed in the comparative statement, Similarly, the respondent No. 11 also failed to comply clause 5, 13 and 4 (kha). As against the statement made in the affidavit-in-reply of the petitioner in respect of the declaration of the respondent No. 11 as a defaulter it is neither denied nor disputed by the respondent No. 11 or the respondent No. 5 and any other respondents. On perusal of the defaulter list issued by the Nagaon Zila Parishad in the year 2017-18 in respect of Leteri Beel Part-12, the respondent No. 11 is found to be a defaulter. On perusal of the defaulter list issued by the Nagaon Zila Parishad in the year 2017-18 in respect of Leteri Beel Part-12, the respondent No. 11 is found to be a defaulter. If we consider clause 23 of the NIT it stipulates that if any bidder after bidding the highest value withdraw the same before the completion of the settlement process then he will forfeit his earnest money and shall be debarred from participating in any tender for the next 5 years. As herein stated it is held that there is no objection disputing the said defaulter ship and in my considered opinion, the respondents more specifically the respondent No. 5 being the Chief Executive Officer of Nagaon Zila Parishad ought to have considered the said bar and ought not considered the name of respondent No. 11 and settled the said fishery. 7. From the aforesaid discussions and observations, the petitioner failed to qualify in the technical bid and on the other hand the respondent No. 11 is also not entitled for consideration because of the said defaulter ship of Leteri Beel Part-12 under Nagaon Zila Parishad and as the period of 5 years has not been yet elapsed the impugned order dated 24.07.2019 giving the settlement of Leteri Beel Part-11 in favour of respondent No. 11 under Moirabari Anchalic Panchayat is set aside. Accordingly, the respondent No. 2 is directed to take necessary action for settlement of the fishery afresh at the earliest. Till such finalisation, appropriate steps may be directed so that there is no loss to the Govt. exchequer in the earnings of the revenue. 8. This writ petition accordingly disposed of. LCRs is to be returned back.