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2025 DIGILAW 1183 (GAU)

Bijoy Krishna Gogoi v. State of Assam

2025-07-25

DEVASHIS BARUAH

body2025
JUDGMENT : DEVASHIS BARUAH, J. 1. Heard Mr J Deka, the learned counsel appearing on behalf of the petitioner. Mr R R Gogoi, the learned counsel appears on behalf of the respondent Nos. 1, 2, 3, 4, 5 and 12. Mr M Biswas, the learned counsel appears on behalf of the respondent No. 6 and Mr N Deka, the learned counsel appears on behalf of respondent Nos. 7 to 11. 2. The petitioner, herein, has challenged the acceptance of the technical bid of the respondent No. 6, and further, sought for a writ for setting aside the decision so taken to hold the technical e-bid of the petitioner, non-responsive. The petitioner has also sought for a direction that the respondent authorities be directed to accept the petitioner No. 1’s technical e-bid and open the financial bid. 3. It appears from the materials on record that the District Collector, Lakhimpur District, had issued a tender for IMFL off-licences at Narayanpur Town, at Lakhmpur District, bearing Tender Reference No. EXCI/679/2023-EXCISE-LKPR, dated 24.07.2024, whereby electronic bids were invited. 4. Before further dealing with the facts involved, it is relevant to take note of, some of the clauses of the Notice Inviting Tender. Clause-6 of the said Notice Inviting Tender (for short, ‘the NIT’), stipulates the documents which would comprise the Bid. In Clause-6, of the said NIT, there are references to the various documents, which are required to be submitted. Amongst them, taking into account the issues involved, for the purpose of the instant dispute, are Clauses - 6.2.5, 6.2.15, 6.2.19, 6.2.20 and 6.2.27. The said clauses are quoted hereinunder: 6.2.5. Copy of Income Tax Returns along with Balance Sheets for the years 2019-20, 2020-21, 2021-22 and 2022-23 (any three years in sequence) and statement of ‘Net worth’ as certified by a Chartered Accountant. 6.2.15 Bakijai Clearance certificate. 6.2.19 Medical Fitness certificate of proprietor/partner(s)/director(s). 6.2.20. Police Verification Report. 6.2.27 Bank particulars of partners. 5. Clause-7 stipulates the procedure to apply. In terms with Clause-7.6, all pages of the documents submitted by the bidder are required to be signed by the authorized signatory, and shall also be affixed with the bidder’s entity stamp. The said clause being relevant, is reproduced hereinunder:- “7.6. All pages of the documents submitted by the bidder shall be signed by the authorized signatory and shall also be affixed with the Bidder entity’s stamp.” 6. The said clause being relevant, is reproduced hereinunder:- “7.6. All pages of the documents submitted by the bidder shall be signed by the authorized signatory and shall also be affixed with the Bidder entity’s stamp.” 6. A further perusal of the said NIT would show that the bid would be of two separate parts, i.e., technical and financial bid, and the financial bid would be opened, if the bidder is technically qualified. 7. In the backdrop of the above, it is relevant to take note of that in pursuance to the said NIT, the petitioner No. 1, as well as the respondent No. 6, submitted their e-bids. The record reveals that on 02.09.2024, the bids of the petitioner No. 1, as well as the respondent No. 6, were opened and in spite of admitted shortfall of certain documents, the petitioner No. 1’s technical bid was held to responsive, as would be apparent from the minutes of the meeting of the technical committee dated 21.09.2024. 8. The respondent No. 6, having noticed that the bid so submitted by the petitioner No. 1 was not in terms with the NIT, immediately approached this Court by filing a writ petition, which was registered and numbered as WP(C) No. 4971/2024, challenging the acceptance of the technical bid of the petitioner No. 1. The learned Coordinate Bench of this Court passed an order on 24.09.2024, thereby permitting the respondent No. 6, to submit a representation before the District Commissioner, Lakhimpur, as regards the grievances for accepting the technical bid so submitted by the petitioner No. 1, and further, directed the District Commissioner, Lakhimpur, to take a decision on the said representation submitted by the respondent No. 6, within a further period of one week, and communicate the said decision to the respondent No. 6. It was further directed by the learned Coordinate Bench that till such decision is taken, the District Collector, Lakhimpur, was directed to maintain status quo with regard to the NIT dated 24.07.2024. Admittedly, on the date on which, the order was passed by the learned coordinate Bench, i.e., on 24.09.2024, the financial bid was not opened. It is very pertinent at this stage, to observe that the petitioners herein, did not question the minutes of the meeting dated 21.09.2024, wherein it was found that the respondent No. 6’s bid was also responsive. 9. It is very pertinent at this stage, to observe that the petitioners herein, did not question the minutes of the meeting dated 21.09.2024, wherein it was found that the respondent No. 6’s bid was also responsive. 9. The record reveals that pursuant to the said directions passed in the order dated 24.09.2024, the technical committee again re-evaluated the technical bid of the petitioner o. 1, and found that there were three deficiencies in the said bid. The findings of the said technical re-evaluation committee being relevant, the contents of the minutes of the technical evaluation are reproduced hereinunder:- “Minutes of technical re-evaluation of Bijoy Krishna Gogoi, as per order of Gauhati High Court Case No. WP(C) No. 4971/2024, against the e-bidding proposal at LKP8 (Narayanpur) Based on the objection raised by Gautam Baniya, the following observations are made: Dated 30/09/2024 S. No. Objections raised by petitioner Gautam Baniya Objection/findings during re-verification Whether objection found to be genuine or not 1. Land revenue clearance certificate not submitted Land revenue clearance not found but, land revenue payment receipt submitted. No, Land revenue payment receipt can be accepted instead of Clearance certificate 2. GST, return of previous year not submitted Only GST registration certificate submitted, return of last year not found. No, as per corrigendum of Corrigendum of Excise Assam vide No. III-271/2017-18/202 dated 19th December, 2023 Clause 6.2.17 and Sl. No. 6 GST return is non-mandatory. 3. All pages of documents not signed Signature of bidder not found on all the documents Yes 4. Annexure-E not submitted in letter head format Annexure-E not submitted in letter head format. Yes 5. Submitted notarized lease agreement for 1 year with a condition that the same shall be extended after completion of one year In the lease agreement, terms and conditions point 1 “That, the lease between both the parties will remain in execution for a period of 1 (one) year w.e.f. the date of starting business and it will be extended after completion of one year.” Yes, it is the violation of Section 17(1) (d) of the Registration Act, 1908. Based on the above findings, the bidding committee has decided to reject the technical bid of Bijoy Krishna Gogoi.” 10. Based on the above findings, the bidding committee has decided to reject the technical bid of Bijoy Krishna Gogoi.” 10. From a perusal of the above quoted findings arrived at by the technical evaluation committee, it would show that though the respondent No. 6 had alleged that there were five deficiencies in the technical bid of the petitioner No. 1, but the technical evaluation committee accepted the three objections, which are mentioned at Serial Nos. 3, 4 and 5, as would appear from the table quoted hereinabove. The petitioner No. 1, having been informed that his technical bid was non-responsive, on the basis of the evaluation done on 13.09.2024, the petitioner submitted a representation on 07.10.2024, to the respondent No. 2 and the respondent No. 12 of the present proceedings. Immediately on the next date, the present writ petition was filed, i.e., on 08.10.2024. 11. The record reveals that this Court, vide an order dated 08.10.2024, while issuing notice, directed in the interim, that the financial bid of the petitioner No. 1 be opened along with the bids of other bidders on the scheduled date of opening of the financial bid, and the tender in question shall not be finalized without the leave of the Court. The interim order, thereupon, has been extended from time to time. 12. The record reveals that the respondent No. 5 had filed an affidavit-in- opposition. The Minutes of Technical Evaluation, as quoted above is a part of the said affidavit-in-opposition. It is seen from the materials on record that this th affidavit-in-opposition was filed by the respondent No. 5 on 7 of March, 2025, but the petitioner has not assailed the said minutes of the meeting dated 30.09.2024, in spite of having notice of the same during the pendency of the present proceedings. 13. The respondent No. 6, as well as the respondent Nos. 7 to 11, have filed separate affidavit-in-opposition. However, taking into account the parameters within which, this Court is going to adjudicate the present dispute, a lengthy elaboration of their stand would not be relevant, save and except that the respondent No. 6 supported the rejection of the technical bid of the petitioner No. 1. In the backdrop of the above, let this Court now take note of the submissions so made by the learned counsel for the petitioner. CONTENTION OF THE LEARNED COUNSELS FOR THE PARTIES: 14. In the backdrop of the above, let this Court now take note of the submissions so made by the learned counsel for the petitioner. CONTENTION OF THE LEARNED COUNSELS FOR THE PARTIES: 14. Mr J Deka, the learned counsel appearing on behalf of the petitioners submitted that the order which was obtained from this Court dated 24.09.2024 in WP(C) No. 4971/2024, was obtained by misleading this Court, and as such, on the basis of the said order, the petitioner No. 1’s bid which was earlier held to be technically responsive, could not be later on declared to be technically non-responsive. The learned counsel further submitted that there was cartelization, amongst the respondent No. 6 and the respondent Nos. 7 to 11. On account of cartelization, which the respondent authorities failed to take notice, the bid of the respondent No. 6 ought to have been cancelled. 15. The learned counsel appearing on behalf of the petitioners, further referring to Clause 15.1 of the NIT, submitted that in terms with the said Clause, the bidders cannot contact the District Collector or the Tender Bid Committee on any matter relating to his/her e-bid, from the time of bid-opening to the time of issuance of letter of acceptance. It is the submission of the learned counsel that the respondent No. 6 could not have approached the District Collector, even if there was an order passed by this Court. The learned counsel further referred to Clause-29.1, and submitted that the respondent No. 6, if so aggrieved, could have only approached this Court, as this Court had the exclusive jurisdiction. 16. The learned counsel for the petitioner further referring to the order of this Court dated 24.09.2024 in WP(C) No. 4971/2024, submitted that a mistake was committed in the order dated 24.09.2024 in permitting the respondent No. 6 to submit a representation before the District Collector. The learned counsel for the petitioner further submitted that, once the petitioner No. 1 was held to be technically responsive, without giving a hearing to the petitioner, the respondent authorities could not have come to a finding that the petitioner No. 1’s technical bid was not responsive. 17. The learned counsel further submitted that the decision so taken on 30.09.2024, in the minutes of the technical evaluation committee meeting, more particularly, at Serial Nos. 4 and 5, has no relevance and is a decision based upon malice in law. 18. 17. The learned counsel further submitted that the decision so taken on 30.09.2024, in the minutes of the technical evaluation committee meeting, more particularly, at Serial Nos. 4 and 5, has no relevance and is a decision based upon malice in law. 18. Per contra, Mr R R Gogoi, the learned counsel appearing on behalf of the respondent authorities submitted that the Technical Committee upon opening the bids on 02.09.2024, found that the bid of the petitioner No. 1 was wanting on account of deficiency in the documents, and as such, on 18.09.2024, the petitioner No. 2 was informed about the said aspect of the matter. The petitioner No. 2, thereupon submitted an affidavit on 20.09.2024. Based on the said affidavit, in the minutes of the meeting dated 21.09.2024, the petitioner No. 1 as well as the respondent No. 6 were held to be technically responsive. He further submitted that the respondent No. 6, without submitting a representation to the concerned respondent authorities, directly approached this Court by filing a writ petition, being WP(C) No. 4971/2024, and this Court, vide an order dated 24.09.2024, directed the consideration of the representation. The learned Standing Counsel submitted that pursuant to the representation submitted, it was noticed that, there were five objections raised by the respondent No. 6 to the technical bid of the petitioner No. 1. Of the five objections, two objections were rejected. However, the three objections so raised were found to have merit. The learned Senior Counsel appearing on behalf of the respondent authorities, drawing the attention of this Court to the Clauses- 6.2.5, 6.2.15, 6.2.19, 6.2.20, and 6.2.27, submitted that these documents were required to be submitted and in terms with Clause-7.6, these documents ought to have the signature of the authorized signatory as well as the stamp of the petitioner No. 1. He submitted that admittedly, the bid which was submitted by the petitioner No.1, did not confirm to Clause-7.6 of the NIT. The learned Standing Counsel submitted that if the confirming documents did not contain the signature and stamp of the petitioner No. 1, the same could not have been taken into consideration. The bid so submitted by the petitioners was, therefore, rightly held to be technically non-responsive. 19. The learned Standing Counsel submitted that if the confirming documents did not contain the signature and stamp of the petitioner No. 1, the same could not have been taken into consideration. The bid so submitted by the petitioners was, therefore, rightly held to be technically non-responsive. 19. Mr M Biswas, the learned counsel appearing on behalf of the respondent No. 6, submitted that the allegations so made by petitioners in respect to the order dated 24.09.2024, is not only misconceived but also contemptuous. He submitted that if the petitioners were aggrieved with the said order dated 24.09.2024, passed by this Court, the petitioners ought to have challenged the said order in an appropriate forum, rather than making such frivolous allegations. He further submitted that the reference so made to Clause 15.1 and Clause 29.1 of the NIT, is further misconceived, inasmuch, as Clause 15.1 is in connection with, that the District Collector as well as the Tender Committee should not be contacted, pursuant to the bid documents being opened and till the letter of acceptance is being issued. The learned counsel submitted that the reference so made to Clause-29.1, is misconceived and untenable, for the very reason that, without demanding justice, a writ of mandamus cannot be issued and as the respondent No. 6 did not submit the representation, this Court in all fairness, directed submission of the representation and for consideration thereof. He further submitted that upon the order being passed by this Court, the technical evaluation committee had looked into the deficiencies of the petitioner No. 1’s bid and found that there were three deficiencies in the said technical bid so submitted by the petitioner No. 1. The learned counsel further submitted that the reasons as well as the document dated 30.09.2024, have not been put to challenge. 20. The learned counsel for the respondent No. 6 further submitted that filing of the representation on 07.10.2024, just one day before the filing of the writ petition, is nothing but an afterthought, after coming to learn that on 30.09.2024, the petitioner No. 1’s technical bid was held to be technically non- responsive, and as such, the writ petition so filed is an abuse of the process of the Court for which the writ petition deserves to be dismissed with exemplary costs. ANALYSIS AND DETERMINATION: 21. ANALYSIS AND DETERMINATION: 21. In the foregoing segments of the instant judgment, this Court had duly taken note of the various clauses, which stipulates the necessity of submission of certain documents. It is also seen from Clause 7.6 of the NIT that all these documents were required to be signed and stamped by the bidder. 22. It is an admitted case that the petitioner No. 1’s bid did not contain the signature in some of the documents, which were mandatorily required to be submitted in terms with the clauses referred to hereinabove. This Court further takes note of that, though the respondent authorities earlier have held that the petitioner No. 1’s bid was technically responsive in the minutes of the meeting dated 21.09.2024, but taking into account the order dated 24.09.2024, passed in WP(C) No. 4971/2024, and the representation so submitted by the respondent No. 6, the technical evaluation committee was bound to look into those objections so raised. The technical evaluation committee upon looking into the objections, found out that the petitioner No. 1’s bids were deficient on three parameters as set out in the minutes of the re-evaluation meeting dated 30.09.2024. 23. At this stage, this Court also finds it very pertinent to take note of that the submission so made during the course of the hearing by Mr J Deka, to the effect that the signature and stamp being not there in those documents, would have no material bearing, as well as the submission that the petitioners were not afforded an opportunity before arriving at the decision on 30.09.2024. It is the opinion of this Court that when the tender conditions specifically stipulate that the documents, which were required to be submitted, had to bear the signature of the authorized signatory and the stamp of the bidder, the said documents, which are not signed and/or did not bear the stamp of the bidder, could not have been taken into consideration as a valid submission of the said documents. 24. In respect to the submission pertaining to violation of the principles of natural justice, this Court further finds it pertinent to take note of that the doctrine of useless formality, which stipulates that the principles of natural justice would not apply in a circumstance, where even if an opportunity of hearing is given, the resultant action would not have changed. In respect to the submission pertaining to violation of the principles of natural justice, this Court further finds it pertinent to take note of that the doctrine of useless formality, which stipulates that the principles of natural justice would not apply in a circumstance, where even if an opportunity of hearing is given, the resultant action would not have changed. In the instant case, as admittedly, the documents in question did not bear the signature as well as the stamp of the bidder, an opportunity of hearing , even if granted, would not change the resultant action. Consequently, it is the opinion of this Court that the minutes of the meeting of the re-evaluation committee, held on 30.09.2024, cannot be faulted, and accordingly, the question of interference in exercise of power under Article 226 of the Constitution of India, does not arise. 25. Let this Court now take into consideration, as to whether there should be a direction issued upon the respondent authorities to consider the representation of the petitioners, in so far as the bid of the respondent No. 6 is concerned. It is relevant to take note of that on 21.09.2024, both the technical bids of the petitioner No. 1 as well as the respondent No. 6 was held to be technically responsive. The respondent No. 6, being aggrieved, preferred a writ petition before this Court, and, immediately, thereafter, on the basis of which, the order dated 24.09.2024 was passed. However, the petitioners did not do anything. The petitioners waited till the decision was arrived at, on 30.09.2024, and thereupon, on 07.10.2024, had submitted the representation, and that too, in the capacity of an unqualified bidder. 26. Considering the above, it appears that the representation so submitted by the petitioners was an afterthought. In that view of the matter, the question of issuance of a direction, on the basis of a representation submitted by the petitioner, who is an unqualified bidder, do not arise. 27. Considering the above, as this Court does not find any merit in the instant writ petition, this Court dismisses the instant writ petition. 28. The interim order passed earlier stands vacated.