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2020 DIGILAW 503 (GAU)

Khan Brothers, v. State Of Assam

2020-05-19

PRASANTA KUMAR DEKA

body2020
JUDGMENT Prasanta Kumar Deka, J. - Heard Mr. KN Choudhury, learned Senior counsel assisted by Mr. J Patowary, learned counsel for the petitioner. Also heard Mr. D Saika, learned Senior counsel assisted by Mr. B Choudhury, learned standing counsel for the Agriculture Department, Government of Assam. 2. The Managing Director of Assam Seeds Corporation Limited (ASC) invited bids in electronic tendering system from eligible bidders for fixation of sale price for supply of Hybrid Seeds (Group-B) on 05.02.2019. The petitioner submitted its bid for the variety of BIO-799 also known as BIO-453 or IET-22919. The Bid Evaluation Committee meeting was held on 02.05.2019 and the bid submitted by the petitioner was found to be responsive. In another meeting of the Bid Evaluation Committee held on 29.05.2019 the bid quoted by the petitioner was evaluated as L-1 price in respect of variety BIO-799. The meeting recommended the bids of other technically qualified tenderers as L-1 in the respective varieties of seeds so quoted by them. The petitioner was supposed to be allotted supply of BIO-799 hybrid paddy variety to the extent of 3000 quintals. But, there was no positive action forthcoming from the respondents whereafter necessary enquiry were made in the office of the respondent No. 3. The petitioner came across copies of the impugned letters of indent dated 20.07.2019 whereby the respondent No. 2 requested the respondent No. 3 to make necessary arrangement for supply of hybrid paddy seeds in respect of varieties of hybrid paddy seeds which were offered by the respondent No. 4 to 9. The said act of allotment of supply order were purely on pick and choose basis inasmuch as no procedure is laid down in the IFB by the respondents as to what would be the criteria in the event of multiple L-1 bidders. Accordingly, the hidden criteria which is not permissible in law applied in the impugned action of the respondents in issuing the indents dated 20.07.2019 is challenged in this writ petition. 3. In the writ petition impugned letters of indent No. Agri/ BGREI/ 2016-17 (revalidation)/ Allot Indent/ 6/ Pt/ 2018-19/ 224 dated 20.7.2019, No. Agri/ BGREI/ 24/ 2017-18/ 369 dated 20.7.2019, No. Ari/ RKVY/ 463/ Paddy/ 2017-18/ 474 and No. Agri/ RKVY/ 457/ HPS/ 2016- 17/ 2017-18/ 301 dated 20.07.2019 are challenged. 3. In the writ petition impugned letters of indent No. Agri/ BGREI/ 2016-17 (revalidation)/ Allot Indent/ 6/ Pt/ 2018-19/ 224 dated 20.7.2019, No. Agri/ BGREI/ 24/ 2017-18/ 369 dated 20.7.2019, No. Ari/ RKVY/ 463/ Paddy/ 2017-18/ 474 and No. Agri/ RKVY/ 457/ HPS/ 2016- 17/ 2017-18/ 301 dated 20.07.2019 are challenged. Vide order dated 08.08.2019 this court issued notice of motion, however, it was not inclined to pass any interim order but made an observation that the respondents would ensure that while issuing the work order, a fair and transparent norm is to be followed in case of all bidders including the petitioner. IA (Civil) 3477/2019 was filed on 31.10.2019 by impugning indent dated 25.10.2019 and subsequent one, if any issued. 4. Mr. Choudhury, learned Senior counsel submits that the petitioner was the L-1 bidder alongwith other bidders i.e. respondent Nos.4 to 9. The variety of the petitioner was recommended after consideration of the result of MLT but while issuing the indent/ indents for supply of the seeds the variety of the petitioner was not considered. Rather the respondent No. 2 violated the recommendation made by the State Seeds Sub Committee dated 23.08.2018 and the schedule of requirement. The said ouster of the recommended variety of hybrid paddy of the petitioner is with an intent to deprive the petitioner inasmuch as in the multiple L-1 bidder no distributive process was mentioned in the tender documents for guidance. That cannot be accepted inasmuch as once the respondents accepted the variety of the petitioner they must follow the recommendation of the State Seeds Sub Committee. In support of his contention Mr. Choudhury referred to various discrepancies in the indents impugned which will be taken up later. 5. Mr. Saikia, learned Senior counsel submits that the schedule requirements are notified under Section 5 of the Seeds Act, 1966. Referring to the notification dated 24.01.2018 issued by the Ministry of Agricultural and Farmers Welfare U/s 5 of the Seeds Act, 1966 he submits that BIO 799, the variety of the petitioner is recommended for agriculture purposes in the State of Odisha, Bihar, Jharkhand, West Bengal and Uttar Pradesh but not in Assam. However, the said variety may be purchased for research purposes. The impugned indents were issued for supply of paddy seed varieties namely DRPH-3, ARIZE-644 (gold) etc. The said varieties are for agricultural purposes as mentioned in the various Gazette notifications. However, the said variety may be purchased for research purposes. The impugned indents were issued for supply of paddy seed varieties namely DRPH-3, ARIZE-644 (gold) etc. The said varieties are for agricultural purposes as mentioned in the various Gazette notifications. The variety BIO-799 is not notified for sale for agricultural purposes in the State of Assam. But, as the said variety was notified for whole of India for purposes other than agricultural as such the respondent No. 2 deem it appropriate to procure the Govt. of India notified varieties of hybrid paddy seeds recommended for the State of Assam. It is further submitted that Section 5 of the Seeds Act, 1966 empowers the Government of India to notify variety of seeds to be used in specific State or States for agricultural purposes. Accordingly, it is the contention that there is no illegality in issuing the indents. 6. I have given due consideration to the submissions of the learned Senior counsel. The respondent No. 3 published e-procurement notice dated 06.02.2019 for fixation of sale price for supply of hybrid seeds (Group B) for the year 2018-19, 2019-20 and the schedule of requirement was 10,000 quintals of hybrid paddy. The variety includes any one included in the package of practices (2015) published by the Directorate of Agriculture and Assam Agriculture University (AAU) or any other variety notified/ recommended for Assam, North Eastern States/ Zone III by the competent authority but should not be more than 10 years old standard as prescribed in the Indian Minimum Seed certification standard. 7. In the notice it was mentioned that the quantity of the seed requirement as indicated in the schedule of requirement was estimated quantity. Further it was mentioned that tendering authority may take all such action to ascertain the stock availability of the bidder and his supplying capacity against the quoted quantity. The bidders were accordingly required to quote the quantity available for supply. 8. The petitioner submitted the bid for the variety of BIO 799 also known as BIO-453 or IET-22919 along with all the required documents with a quoted bid of Rs. 31,500/- per quintal for 3000 quintals. The Departmental Bid Committee of Assam Seeds Corporation Ltd. was held on 02.05.2019 and the bid of the petitioner was found to be responsive. 8. The petitioner submitted the bid for the variety of BIO 799 also known as BIO-453 or IET-22919 along with all the required documents with a quoted bid of Rs. 31,500/- per quintal for 3000 quintals. The Departmental Bid Committee of Assam Seeds Corporation Ltd. was held on 02.05.2019 and the bid of the petitioner was found to be responsive. On 29.05.2019 after evaluation of the technical bids, the Departmental Bid Committee held its meeting and the bid quoted by the petitioner i.e. Rs. 31,500/- per quintal was evaluated as L1 price in respect of BIO-799 also known as BIO-453 or IET-22919. The respective bids of respondent Nos. 4 to 9 were also evaluated as L1 but in respect of other varieties of seeds. It would not be out of place to mention here that on 23.08.2018 a meeting of the State Seeds Sub Committee was held and there the result of the Multi Location Trial (MLT) of varieties of hybrid paddy conducted in 5 (five) agro-climatic zones during summer season 2017-18 were presented by DDA. After consideration of the results it was resolved and recommended for departmental procurement-(i) the hybrid paddy and maize varieties which are notified specifically for the State of Assam by Govt. of India, (ii) the hybrid paddy and maize varieties which are included in the latest package of practices (2015) and recommended for Govt. procurement, (iii) MLT conducted for hybrid varieties of paddy in all the 5 agro climatic zones where yield performance starts from 80.00 quintals/ Hectare and above. Accordingly following varieties were recommended wherein the variety of the petitioner BIO seeds 799 with yield of 95.98 quintals/ Hectare was also recommended: Rice hybrid varieties (summer paddy) Yield (Qlt/Ha) 1 NPH 8899 98.27 2 Bio seed 799 95.98 3 PNPH 24 95.85 4 NPH 924-1 95.59 5 US 305 88.90 6 INDAM 200-017 88.46 7 JKRH 3333 88.46 8 Sava 127 86.20 9 DRH 775 99.78 10 PAC 8744 95.86 11 US 312 91.6 12 PAC 837 90.84 13 PAC 835 86.38 9. The indents referred hereinabove issued by the respondent No. 2 to respondent No. 3 consists of the following varieties of hybrid paddy crops: Crops Sl No. Variety Hybrid paddy 1 DRRH-3 2 Arize-6444 Gold 3 US-312 4 PAC-835 5 NPH-924-1 6 DRH-775 7 NPH-8899 10. The indents referred hereinabove issued by the respondent No. 2 to respondent No. 3 consists of the following varieties of hybrid paddy crops: Crops Sl No. Variety Hybrid paddy 1 DRRH-3 2 Arize-6444 Gold 3 US-312 4 PAC-835 5 NPH-924-1 6 DRH-775 7 NPH-8899 10. The petitioner is aggrieved on the action of the respondent No. 2 in requesting the respondent No. 3 to make necessary arrangement for supply of hybrid paddy seeds of the respondent No. 4 to 9 excluding the variety of the petitioner inasmuch as the petitioner with his variety BIO-799 was evaluated as one of the L1 bidders. The respondent No. 2 has taken the stand that the Directorate placed indents in question for supply of only those varieties of paddy seeds fulfilling the criteria (i) seeds of not less 10 years old variety, (ii) the varieties which are notified to be sold in Assam and/ or whole of India for agricultural purposes notified by the Ministry of Agriculture, Govt. of India. The varieties in the indents namely DRRH-3, ARIZE-6444 Gold, US-312, PAC-835, NPH-924-1, DRH-775 and NPH-8899 are notified varieties for sale for agricultural purposes mainly for the States mentioned in column 4 of various notifications. 11. Referring to the submission of Mr. Choudhury on the discrepancies in the indents and the alleged contradictory stand in the affidavit in opposition of the respondent No. 2 vis- -vis the notifications dated 29.01.2010, 24.01.2015, 31.08.2010 issued by the Ministry of Agriculture and Co-operation, I have perused the same and found as follows: (i) DRRH3-Notified vide Notification dated 29.01.2010. (ii) US 312- Notified vide Notification dated 31.08.2010. (iii) PAC 835-Notified vide Notification dated 27.08.2009. (iv) DRH 775- Notified vide Notification dated 27.08.2009 All the notifications were issued by the Ministry of Agriculture (Department of Agriculture and Cooperation) Government of India after consultation with Central Seed Committee notifying the aforesaid varieties of seeds to be sold for agriculture purposes for the whole of India. (v) ARIZE 644 (Gold)- Notified vide Notification dated 28.01.2015. (vi) NPH 8899- Notified vide Notification dated 30.03.2017. (vii) NPH 924-1-Notified vide Notification dated 10.09.2012. (v) ARIZE 644 (Gold)- Notified vide Notification dated 28.01.2015. (vi) NPH 8899- Notified vide Notification dated 30.03.2017. (vii) NPH 924-1-Notified vide Notification dated 10.09.2012. All notifications were issued by the Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperation and Farmers Welfare) Government of India after consultation with the Central Seed Committee declaring the aforesaid varieties as the notified one to be sold for agriculture purposes for the States mentioned in column (4) of the notifications which include the State of Assam amongst other States and also notified for the whole of India for the purpose of the Seeds Act, 1966. 12. The variety of the petitioner BIO 799 was notified vide Notification dated 24.01.2018 declaring it to be sold for purposes of agriculture for the States of Odisha, Bihar, Jharkhand, West Bengal and Uttar Pradesh only but not for Assam and is the notified variety for the whole of India for the purposes of the Seeds Act, 1966. 13. From the aforesaid discussion and recommendation under the various notifications vis -vis the variety of seeds indented as per the impugned indents it is the conclusion drawn that some indented varieties are recommended for selling for agriculture purposes all over India and some of them specifically for agriculture purposes in the State of Assam. But the variety of the petitioner if taken into consideration on the basis of the notification dated 24.01.2018, the same is not declared and notified as fit for selling for agriculture purposes in the State of Assam but the same was notified for the purpose of the Seeds Act, 1966. 14. In the tender process the tender evaluation Committee selected multiple L1 bidders keeping in view the object of the tender notice to place indent under different schemes for distribution of seeds of various crops for agriculture purposes. In order to achieve the said object the bidders were asked to submit varietal characteristics in respect of proprietary hybrid seeds alongwith morphological characteristic details issued by concerned breeder for particular seed. "Variety" in relation to seeds under Section 2 (16) of Seeds Act, 1966 means a subdivision of a kind identifiable by growth, yield, plant, fruit, seed or other characteristic. "Variety" in relation to seeds under Section 2 (16) of Seeds Act, 1966 means a subdivision of a kind identifiable by growth, yield, plant, fruit, seed or other characteristic. The BIO 799 is also a variety of seeds having its yield of 95 quintals/ Hectare and for the said characteristic it was recommended by the DDA (seeds) which was one of the considerations in addition to the varieties declared under Section 5 of the Seeds Act 1966 vide various notifications of the Central Government. 15. The object of the tender mandates the tender evaluation committee to opt for multiple L1 bidders after identifying the variety of seeds keeping in view the wide ranging definition of the term "Variety". BIO Seeds 799 had undergone MLT in 5 (five) agro climatic zones during summer season 2017-18 within Assam resulting an yield of 95 quintals/ Hectare indicating that in the said 5 (five) agro climatic zones the yield of the said variety would be much above the cut off yield of 80 quintals/ Hectare. Considering the said yield arrived at after MLT the variety of the petitioner was entered in the recommended list of varieties for indenting which is one of the considerations leaving aside two others as hereinabove stated. Amongst the multiple L1 bidders so selected, the characteristic of the seed varieties of each of the L1 bidders are different. Under such circumstances the expectation of the petitioner for indenting his variety by the respondent No. 2 cannot be said to be without any basis. But as hereinabove stated the respondent No. 2 in his affidavit-in-opposition took the stand that for indenting, the varieties notified specifically for agriculture purposes under various notifications of the Central Government were considered. Whether the said classification is unreasonable and hit by Article 14 of the Constitution of India? 16. The Seeds Act, 1966 regulate the sale of seeds of notified kinds of varieties. For that purpose under Section 3(1)of the Seeds Act, 1966 a Central Seed Committee is constituted by the Central Government to advise both the Central and State Governments on matters arising out of the administration of the Seeds Act, 1966 and to carry out other functions assigned to it by or under the said Act. For that purpose under Section 3(1)of the Seeds Act, 1966 a Central Seed Committee is constituted by the Central Government to advise both the Central and State Governments on matters arising out of the administration of the Seeds Act, 1966 and to carry out other functions assigned to it by or under the said Act. Section 5 of the said Act, 1966 gives the power to the Central Government after consultation with the said Committee and if the Central Government is of opinion that it is necessary or expedient to regulate the quality of the seed of any kind or variety to be sold for agriculture purposes the same may be notified in the official Gazette declaring such kind of variety to be a notified kind of variety for the purpose of the Act and different kinds or varieties may be notified for different States or for different areas thereof. Thus the notification of a variety of seed under the Act 1966 is a process which must pass through the committee under a statute. 17. The indented varieties in the impugned indents are all notified specifically for agriculture purposes within the whole of India and some specifically for the State of Assam. But the variety of the petitioner is not notified for agriculture purposes within the State of Assam but in some other States nor it is notified for agriculture purposes all throughout India. The respondent No. 2 had justified the reason for not indenting the variety of the petitioner inasmuch as the notifications by the Central Government under Section 5 of the Seeds Act, 1966 are issued after consultation of the Central Seed Committee specifying the areas/ State for a particular variety and its suitability for the agriculture purposes. 18. The object of the e procurement notice wherein the petitioner participated is to distribute high variety seeds for agriculture purposes to be distributed to the farmers by the Government under various schemes. In order to achieve the object of good harvest by the farmers, the said variety requires proper scrutiny invoking scientific skill. Accordingly the recommendation of the Government by way of notifications can very well be considered while selecting the varieties of seeds inasmuch as the scientific skill is applied by the Central Seed Committee under the Seeds Act, 1966 and only after consultation with the said Committee the varieties of seeds are notified. Accordingly the recommendation of the Government by way of notifications can very well be considered while selecting the varieties of seeds inasmuch as the scientific skill is applied by the Central Seed Committee under the Seeds Act, 1966 and only after consultation with the said Committee the varieties of seeds are notified. While taking action in order to achieve the object of the tender notice, the classification which the respondent No. 2 had made amongst all the L1 bidders, in my considered opinion is reasonable. Equality before law does not mean that things which are different shall be treated as if same. Article 14 of the Constitution of India guarantees similarity of treatment and not identical treatment. Here it is a case wherein the classification resorted to by the respondent State is founded on intelligible differentia while distinguishing the petitioner''s variety of seed from the one of the group formed by the respondent Nos. 4 to 9. The differentia has its nexus between the basis of classification and the object to be achieved by the respondent No. 2. The said classification cannot be termed as "a hidden agenda being maintained by the respondents as there are no distributive process specified in the tender notification amongst the multiple L1 bidders". Accordingly, I do not find merit in this writ petition which is accordingly dismissed. No cost. Interim order passed if any, stands vacated.