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GAHC010186592022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : WP(C)/6001/2022
AZAD CHOUDHURY
S/O MOHAMMED ALI CHOUDHURY
R/O 451
RAJAMAIDAM ROAD
P.S.-JORHAT
DIST-JORHAT
ASSAM
PIN-785001
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
URBAN DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI-6
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
DISPUR
GUWAHATI-6
3:THE DEPUTY COMMISSIONER
JORHAT DISTRICT
JORHAT
4:JORHAT MUNICIPAL BOARD
REPRESENTED BY THE CHAIRPERSON
JORHAT
ASSAM
5:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DIST-JORHAT
ASSAM
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6:TARIK IKBAL ZAHID
S/O ABU SAYED
R/O BALIBAT
P.S. AND P.O.-JORHAT
PIN-785001
------------
Advocate for : MR. T J MAHANTA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 29-09-2022 Heard Mr. T.J. Mahanta, learned Sr. counsel assisted by Mr. D. Baruah, learned counsel for the writ petitioner. Also heard Mr. B.D. Das, learned Sr. counsel assisted by Ms. R. Deka, learned counsel for the Jorhat Municipal Board, i.e. respondent Nos. 4 and 5 and Ms. M. Barman, learned Govt. Advocate, Assam appearing for the respondent Nos. 1 to 3. Mr. P.P. Baruah, learned counsel has appeared for the private respondent No. 6.
The Jorhat Municipal Board, i.e. the respondent No. 4 had issued Notice Inviting Tender (NIT) dated 23-06-2022 inviting bids for settlement of as many as 13 numbers of markets/ stands for the financial year 2022-23, i.e. w.e.f. 01-08-2022 to 31-03-2023.
The petitioner herein had submitted his bid for settlement of "Sagoli Market" (Goat Market). On opening the bids it turned out that there were 11 bidders whose tenders were found to be technically responsive.
The petitioner had quoted a sum of Rs. 4,01,700/- and had emerged as the highest bidder whereas the private respondent No. 6, who had quoted a sum of Rs. 1,25,225/-, Page No.# 3/5 was the 2nd lowest bidder. Notwithstanding the same the Jorhat Municipal Board had awarded the settlement of the market by the order dated 02-09-2022 in favour of the respondent No. 6 at his offered rate. Aggrieved thereby, the instant writ petition has been filed.
Mr. B.D. Das, learned Sr. counsel appearing for the Board submits that representations had been received by the Board complaining about the high rates demanded by the settlement holders and during the last two years, remissions had also to be granted by the Board. As such, a decision has been taken not to award the settlement in favour of the higher bidders. Therefore, taking into consideration the experience of the bidders, the Board has taken a decision to award the settlement orders in favour of the bidders quoting lower price.
Responding to the above, Mr. Mahanta has argued that remissions were given due to the outbreak of pandemic Covid-19. Under the terms and conditions of settlement, no settlement holder can charge rates in excess of what has been fixed by the Board. Therefore, the stand of the Board is totally untenable in law. By relying upon a decision of this Court rendered in the case of Minku Hazarika Vs. State of Assam reported in (2017) 5 GLT 696, Mr. Mahanta further submits that in a exactly similar situation, pertaining to tenders invited by the Jorhat Municipal Board for settlement of the markets, this Court had set aside the orders of settlement issued in favour of the bidders quoting lower price by ignoring higher bids, by rejecting the same stand taken by the Jorhat Municipal Board. The decision rendered in the case of Minku Hazarika (Supra), according to Mr. Mahanta is squarely applicable in the facts and circumstances of the Page No.# 4/5 case. As such, the order of settlement is liable to be set aside.
Mr. P.P. Baruah, learned counsel appearing for the private respondent has argued that Clause 29 in the earlier NIT has been amended and now it is a matter of discretion for the Board not to settle the market with the highest bidder if public interest so demands. Under the circumstances, Mr. Das has submitted that the decision of the Minku Hazarika (Supra) would not have any application in the facts of the case.
I have considered the submissions of the learned counsel for both the sides and have also gone through the materials available on record. After a careful reading of the statements in the writ petition, I find that this is yet another instance where the Jorhat Municipal Board, after inviting bids for settlement of markets/ stand including the "Sagoli Market", based on financial quotes made by the bidders, has issued the order of settlement in favour of the bidder who has quoted much lower price. In the case of Minku Hazarika (Supra) this Court has clearly deprecated such practice of the Board and had set aside similar orders of settlement issued in favour of the private respondents by giving elaborate reasoning. Notwithstanding the same, the same mistake has again been committed by the Board in the present series as well. The action on the part of the Jorhat Municipal Board, apart from being illegal, also appears to be contemptuous on the face of the record. This matter would, therefore, call for further examination.
Issue notice of motion returnable on 07-11-2022.
Since the respondent Nos. 1 to 5 are already represented, no formal notice is required to be sent to those respondents.
Page No.# 5/5 Extra copies of the writ petition, requisite in numbers, be furnished to the learned departmental counsel within a week from today so as to enable them to obtain instruction.
Petitioner to take steps for service of notice upon respondent No. 6 by registered post with A/D.
Heard on the prayer of interim relief.
Due to the reasons stated hereinabove, I am of the view that the instant case is covered by the judgment rendered in the case of Minku Saikia (Supra). As such, as an ad-interim measure it is hereby provided that operation of the impugned order dated 02- 09-2022 shall remain suspended until further order(s). Consequently, it will be open for the Jorhat Municipal Board to run and manage the "Sagoli Market" by making an interim arrangement without, however, involving any of the bidders including the respondent No.
6. JUDGE GS Comparing Assistant