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2020 DIGILAW 515 (GAU)

Dulu Miah v. State of Assam

2020-05-20

ACHINTYA MALLA BUJOR BARUA

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ORDER : Achintya Malla Bujor Barua, J. 1. Heard Ms. M Barman, learned counsel for the petitioner. Also heard Mr. A Roy, learned counsel for the authorities under the Panchayat and Rural Development, Government of Assam including the Darrang Zilla Parishad and Pub-Mangaldai Anchalik Panchayat and Mr. B. Rahman, learned counsel for respondent No. 8. 2. A notice inviting tender was issued by the Pub- Mangaldai Anchalik Panchayat, amongst others, inviting tendered bids for settlement of the Tangni Animal Weekly Market under Dhula Gaon Panchayat where the minimum bid amount was stated to be Rs. 5,69,403/- requiring the earnest money of Rs. 56,941. Before going into the rival claims, we take particular notice of some of the terms and conditions of the NTT which would be relevant for the purpose of this writ petition and which are extracted as below: "1. A person who is a defaulter in the matter of previous settlement and his family members cannot submit tender. 2. (Ka) each tender should be accompanied by a fixed deposit (of one year duration) equivalent to the sum @ 10% of the bid money (in case of the tender amount exceeding Rs. 1,00,000/-.) drawn on Assam Co-operative Apex Bank or any other nationalized bank pledging the same with the CEO, Zilla Parishad, bidders belonging to SC/ST categories shall be given a discount @ 50%. Certified copy of the caste certificate must be enclosed with the tender form. 3. Passport photos of the bidder and his guarantor, attested by a gazette officer, must accompany the tender form. 4. The bidders or his guarantors must pledge land on the basis of the value of the tendered bid. Such pledge should be accompanied by non-encumbrance/Sub-Divisional Officer (Civil)/Circle Officer (Revenue). Revenue clearance receipt, bakijai - free certificate, municipal tax clearance receipt (in case of urban dweller) also must be submitted along with. The tender form must be signed by the guarantor. In the lieu of land records, bank guarantee of equivalent value may also be submitted. One bidder is allowed to submit bid for only one market/ghat fishery. A person who is the bidder himself or a surety for a bidder cannot submit bid for another market/ghat/fishery and also cannot stand surety for another. Permission/consent of the co-pattadars of the land desired to be pledged is a must. All documents enclosed with the tender form must belong to the current year. 5. A person who is the bidder himself or a surety for a bidder cannot submit bid for another market/ghat/fishery and also cannot stand surety for another. Permission/consent of the co-pattadars of the land desired to be pledged is a must. All documents enclosed with the tender form must belong to the current year. 5. The bidder and his guarantor must swear affidavits, certifying the veracity of the documents submitted along with the tender form. 6. The tender shall be considered cancelled if the provisions of paras 1 to 15 of parts 1 and 2 are not fulfilled." 3. As the bid value was over rupees one lakh the matter as required under the Rules was sent before the Darrang Zilla Parishad for its decision. By the allotment order dated 03.10.2019 of the Darrang Zilla Parishad, the respondent No. 8 Zahuruddin was settled with the Tangi Open Weekly Market for an amount of Rs. 11,52,201. The said settlement with the respondent No. 8 is assailed in this writ petition wherein in paragraph 11 a specific stand has been taken that in the comparative statement against the column pertaining to non-defaulter certificate, in respect of respondent No. 8, it was provided that no non-defaulter certificate was produced. A further stand has been taken that the brother of the guarantor of respondent No. 8, namely, Meser Ali was a defaulter of the Darrang Zilla Parishad and against him a bakijai case being No. DNB 13/2014/CEO/ZP/435 dated 05.08.2014 dated 05.08.2014 is pending. In paragraph 11, a further stand has been taken that the guarantor of the respondent No. 8 Safiur Rahman, is one of the bidders in respect of Dhula Daily Market under the same advertisement and therefore it violates the provisions of Clause 13 that a person who is a bidder himself or a surety for a bidder cannot submit bid for another market/ghat etc. and also cannot stand surety for another. The said two grounds urged upon by the petitioner in the writ petition has been dealt upon by the respondents in the Darrang Zilla Parishad in their affidavit-in-opposition by taking the stand that the tender of the petitioner itself was defective in several respects, and therefore, although as per the bid value the petitioner's bid was the highest bid, but as because of the defects pointed out by the Zilla Parishad the settlement was refused to the petitioner. We are constrained to take note of that the Zilla Parishad has not made any statement as regards the defects in the tender of respondent No. 8. 4. Mr. A Roy, learned counsel for the P and RD Department seeks to rely upon the pronouncement of this Court in W.P.(C) No. 4616/2016 to substantiate that if the tendered bid of the petitioner itself was defective, such bidder would have no locus standi to assail the settlement in respect of the successful tenderer. We have also required Mr. B. Rahman, learned counsel for respondent No. 8 to satisfy the Court that the respondent No. 8 had submitted a non-defaulter certificate and if yes to produce the same and also that his guarantor under the terms and condition of the tender was eligible to be a guarantor. Both the queries resulted in a negative reply by the respondent No. 8, who could neither produce the non-defaulter certificate nor could satisfy that the guarantor of the respondent No. 8 namely Safiur Rahman was eligible to remain the guarantor. 5. We have perused the proposition laid down by this Court in its judgment passed in W.P.(C) No. 4616/2016 wherein in paragraph 16 it is provided as under: "16. Moreover, since the other three bidders quoting higher price than the writ petitioner are not before this Court, hence, it is not possible to ascertain the circumstances under which the said bidders were denied settlement. Be that as it may, once it is found that the petitioner's bid itself was defective, no mandamus can be issued in his favour." 6. The proposition laid down in W.P.(C) No. 4616/2016 is that if the bid of the petitioner itself was defective, no mandamus can be issued in his favour. In this case we are not concerned with issuing any mandamus in favour of the petitioner for settlement of the market, in question. 7. The proposition laid down in W.P.(C) No. 4616/2016 is that if the bid of the petitioner itself was defective, no mandamus can be issued in his favour. In this case we are not concerned with issuing any mandamus in favour of the petitioner for settlement of the market, in question. 7. What we are concerned is that although apparently the bid of the petitioner as per the affidavit of the Darrang Zilla Parishad was defective in some manner, but at the same time no reply has been given as regards the defects in the bid of the respondent No. 8 and on the other hand, the respondent No. 8 also could not produce before the Court the relevant materials to overcome the defects that has been pointed out in the comparative statement which says that no document has been produced as regards the non-defaulter certificate of the respondent No. 8 as well as to satisfy that the guarantor of the respondent No. 8 was an eligible guarantor. 8. From the said point of view what we are concerned is that the settling authority had not given an equal treatment to the bidders whose bids were defective. In respect of one defective bidder strict compliance of the terms and conditions of the tender notice were taken into account, whereas in respect of another defective bidder a more lenient approach was taken in making the settlement and the defects were not taken note of. This is where we find that there is a violation of Article 14 of the Constitution of India by the Darrang Zilla Parishad. The process adopted by the settling authority had not provided a level playing field to all the participating tenderers. In the circumstance, we are unable to accept the settlement made in favour of the respondent No. 8 and the order of settlement dated 03.10.2019 is accordingly set aside. 9. The process adopted by the settling authority had not provided a level playing field to all the participating tenderers. In the circumstance, we are unable to accept the settlement made in favour of the respondent No. 8 and the order of settlement dated 03.10.2019 is accordingly set aside. 9. Without expressing any view on the merit of the claim of the respondent authorities that the tendered bid of the petitioner was defective, what we take note of is that if the other bids were also defective, more particularly, the respondent No. 8 in whose favour the settlement was made, the petitioner even with a defective bid would have a right to question the settlement, as otherwise, from the point of view of all the bids being defective, one of the options available would be to go for a fresh tendering process. In any view of the matter, no mandamus is being sought for by the petitioner for a settlement in their favour in the circumstances of the case and, therefore, the question that the bid of the petitioner itself may have been defective may not be a relevant factor for the purpose. 10. The respondent authorities to take a fresh decision on the matter on the basis of the earlier tendered bid submitted by the various tenderers or in the alternative if they desire they may make any other alternative arrangement in respect of the settlement, or may invite fresh bids as may be advised. 11. Writ petition stands disposed of in the above terms.