Gauhati High Court
Raja Borah vs The State Of Assam And 7 Ors on 22 December, 2022
Page No.# 1/21
GAHC010186592022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6002/2022
RAJA BORAH
S/O LT. SOMESHWAR BORAH R/O MACHARHAT P.O. AND P.S. JORHAT DIST.
JORHAT ASSAM PIN-785001
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
URBAN DEVELOPMENT DEPTT. DISPUR GUWAHATI, PIN-781006 KAMRUP
(M) ASSAM
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
ASSAM
DISPUR GUWAHATI PIN-781006 KAMRUP (M) ASSAM
3:THE DEPUTY COMMISSIONER
JORHAT
ASSAM PIN-785001
4:THE JORHAT MUNICIPAL BOARD
JORHAT
ASSAM
REP. BY ITS CHAIRMAN JORHAT DIST. JORHAT
ASSAM
PIN-785001
5:THE CHAIRMAN
JORHAT MUNICIPAL BOARD
DIST.JORHAT ASSAM
PIN-785001
Page No.# 2/21
6:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DIST.JORHAT ASSAM
PIN-785001
7:ACHURJYA MUKTIYAR
S/O LT INDESWAR MUKTIYAR
R/O MACHARHAT
WARD NO. 14
PO AND P.O. JORHAT DIST. JORHAT ASSAM
PIN-785001
8:NABAJYOTI BORUAH
S/O RAMCHANDRA BORUAH
R/O MACHARHAT
WARD NO. 14
PO AND P.O. JORHAT DIST. JORHAT ASSAM
PIN-78500
Advocate for the Petitioner : MR. D CHOUDHURY
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/6006/2022
NITUL DAS
S/O MACHARHAT
P.O. P.S. AND DIST. JORHAT
ASSAM
PIN-785001
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
URBAN DEVELOPMENT DEPTT. DISPUR GUWAHATI
PIN-781006 KAMRUP (M) ASSAM
2:THE DIRECTOR MUNICIPAL ADMINISTRATION
ASSAM
DISPUR GUWAHATI PIN-781006 KAMRUP (M) ASSAM
3:THE DEPUTY COMMISSIONER
Page No.# 3/21
JORHAT
ASSAM
PIN-785001
4:THE JORHAT MUNICIPAL BOARD
JORHAT
ASSAM
REP. BY ITS CHAIRMAN JORHAT DIST. JORHAT
ASSAM
PIN-785001
5:THE CHAIRMAN
JORHAT MUNICIPAL BOARD
DIST.JORHAT ASSAM
PIN-785001
6:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DIST.JORHAT ASSAM
PIN-785001
7:PRANJIT KR DAS
S/O LT. JOGESH KR. DAS R/O KOCHARIPORIA WARD NO. 2 JORHAT
PIN-785001
8:HEMANTA DAS
S/O LT. BOLIN DAS
R/O BORIGAON
WARD NO. 19 JORHAT
PIN-785001
------------
Advocate for : MR. D CHOUDHURY
Advocate for : SC
J M B appearing for THE STATE OF ASSAM AND 7 ORS.
Linked Case : WP(C)/5920/2022
MANASH PROTIM SAIKIA
S/O- SHRI PRADIP SAIKIA
RESIDENT OF VILLAGE CHARIGAON KATHANIARKURI
P.O.- CHANGALIGAON
DISTRICT- JORHAT
PIN- 785010.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
Page No.# 4/21
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
URBAN DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI- 781006.
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
GUWAHATI-6.
3:JORHAT MUNICIPAL BOARD
REPRESENTED BY ITS CHAIRPERSON
A.T. ROAD
JORHAT
DISTRICT- JORHAT
ASSAM- 785001.
4:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DISTRICT- JORHAT
ASSAM- 785001.
5:SHRI PRASANTA SARMAH
C/O- SHRI KRIAN SARMAH
R/O- D.C.B. ROAD
NEAR D.C.B. COLLEGE
DISTRICT- JORHAT
ASSAM- 785001.
6:THE DEPUTY COMMISSIONER
JORHAT
ASSAM
PIN-785001
------------
Advocate for : S N SARMA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.
Linked Case : WP(C)/6001/2022
AZAD CHOUDHURY
S/O MOHAMMED ALI CHOUDHURY
R/O 451
RAJAMAIDAM ROAD
Page No.# 5/21
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
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.
Linked Case : WP(C)/6947/2022
DIPEN DAS
S/O- JAN DAS
R/O- JORHAT TOWN
Page No.# 6/21
P.O. AND P.S. JORHAT
DIST.- JORHAT
ASSAM
PIN- 785001
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
URBAN DEVELOPMENT DEPTT.
DISPUR
GHY-06
KAMRUP (M)
ASSAM
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
GHY-06
KAMRUP (M)
ASSAM
3:THE DY. COMMISSIONER
JORHAT
ASSAM
PIN- 785001
4:THE JORHAT MUNICIPAL BOARD
JORHAT
ASSAM
REP. BY ITS CHAIRMAN
JORHAT
DIST.- JORHAT
ASSAM
PIN- 785001
5:THE CHAIRMAN
JORHAT MUNICIPAL BOARD
DIST.- JORHAT
ASSAM
PIN- 785001
6:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DIST.- JORHAT
ASSAM
PIN- 785001
7:AMARJIT DAS
S/O- DILIP DAS
R/O- KRISHNA NAGAR
Page No.# 7/21
P.O. JORHAT
DIST.- JORHAT
ASSAM
PIN- 785001
8:RAJA BORAH
S/O- LT. SOMESHWAR BORAH
R/O- SARBAIBANDHA
JORHAT
PIN- 785001
------------
Advocate for : MR. SAILENDRA DEKA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 7 ORS
Linked Case : WP(C)/5919/2022
UTPAL KHARGHARIA
S/O- LT. PRABIN KHARGHARIA
R/O- VILL- BORIGAON SAIDING
KHARGHARIA CHOWK
P.O. JORHAT
DIST.- JORHAT- 785001
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
URBAN DEVELOPMENT DEPTT.
DISPUR
GHY-06
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
GHY-6
3:JORHAT MUNICIPAL BOARD
REP. BY ITS CHAIRPERSON
A.T.ROAD
JORHAT
DIST.- JORHAT
ASSAM- 785001
4:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DIST.- JORHAT
Page No.# 8/21
ASSAM- 785001
5:SHRI MINTU HAZARIKA
S/O- SHRI BANSHI HAZARIKA
R/O- BHARIGAON
NIMATI ROAD
P.O. JORHAT
DIST.- JORHAT
ASSAM- 785001
6:THE DEPUTY COMMISSIONER
JORHAT
ASSAM
PIN-785001.
------------
Advocate for : MR S N SARMA SENIOR ADVOCATE
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.
Linked Case : WP(C)/6979/2022
GOUTAM BORA
SON OF LATE GUNADHAR BORA
RESIDENT OF GARAMUR KUMAR GAON
PO- JORHAT ENGG COLLEGE
DISTRICT- JORHAT
ASSAM
PIN- 785007.
VERSUS
THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
URBAN DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI
PIN- 781006
KAMRUP(M)
Page No.# 9/21
ASSAM.
2:THE DIRECTOR
MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
GUWAHATI
PIN- 781006
KAMRUP(M)
ASSAM.
3:THE DEPUTY COMMISSIONER
JORHAT
ASSAM. PIN- 785001.
4:THE JORHAT MUNICIPAL BOARD
JORHAT
REPRESENTED BY ITS CHAIRMAN
JORHAT
DISTRICT- JORHAT
ASSAM
PIN- 785001.
5:THE CHAIRMAN
JORHAT MUNICIPAL BOARD
DISTRICT- JORHAT
ASSAM
PIN- 785001.
6:THE EXECUTIVE OFFICER
JORHAT MUNICIPAL BOARD
DISTRICT- JORHAT
ASSAM
PIN- 785001.
7:PRASANTA SARMA
SON OF PRAFULLA SARMA
RESIDENT OF CHOLADHARA
JORHAT
PIN- 785001.
8:PRASANTA RAJKHOWA
SON OF SRI SADA RAJKHOWA
RESIDENT OF GORMUR
KUMAR KOIBORTO GAON
JORHAT
PIN- 785007.
9:PRITAM DAS
SON OF NITUL DAS
Page No.# 10/21
RESIDENT OF MACHARHAT
POST OFFICE AND POLICE STATION- JORHAT
DISTRICT- JORHAT
ASSAM
PIN- 785001.
------------
Advocate for : MR. SAILENDRA DEKA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 8 ORS
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocates for the petitioners : Shri T. Chakraborty
[in WP(C)/6002/2022 & 6006/2022]
Shri PJ Saika [in WP(C)/5919/2022]
Ms. M. Nirola
Shri D. Gogoi [in WP(C)/5920/2022]
Shri D. Baruah [in WP(C)/6001/2022]
Shri J. Das
[in WP(C)/6947/2022 & 6979/2022]
Advocates for the respondents : Shri BD Das, Sr. SC, JMB
Ms. R. Deka
Shri BK Das [R-5, WP(C)/5920/2022]
Shri PP Baruah
Shri N. Goswami, GA, Assam
Date of hearing : 29.11.2022
Date of Judgment : 22.12.2022
Judgment & Order
The subject matter of these seven petitions being similar which pertains to
Page No.# 11/21
settlements made by the Jorhat Municipal Board of various markets / parking space
under it and the issue being common, the same were heard together and disposed of
by this common judgment and order. The primary ground is that in spite of the bid
offered by the petitioners in their respective items being highest. However, ignoring
the same and based on certain irrelevant considerations, the settlement has been
sought to be given to the private respondents in their respective cases. In fact, in all
these writ petitions there are interim orders operating by which the impugned order of
settlement are stayed.
2. To address the issues, it is necessary to put on record the facts of the cases in
brief.
3. The Jorhat Municipal Board (hereinafter called the JMB) had floated a Notice
Inviting Tender (NIT) on 23.06.2022 inviting bids for settlement of as many as 13 nos.
of Markets / Stands for the period 01.08.2022 to 31.03.2023. The petitioners had
submitted their bids in respect of different markets / stands and their bids were found
to be technically responsive and accordingly the price bids were opened. On such
opening, it was found that the bid of the petitioners were higher than that of the
private respondent in spite of which the settlement has been offered to the private
respondent. To appreciate the factual aspects, the bids of the petitioners' vis-à-vis the
private respondents along with the other details are given hereinbelow in the form of
a chart.
Sl. Case No. Name of Bid Value
No. Market / Stand
1. WP(C)/5919/2022 Truck Stand Petitioner-
Rs.60,01,000/- (3rd)
Respondent-
Rs.24,30,000/- (22nd)
Total Bidder : 33
Page No.# 12/21
2. WP(C)/5920/2022 Chowk Bazar Petitioner-
Rs.68,41,000/- (3rd)
Respondent-
Rs.39,65,000/- (21st)
Total Bidder : 34
3. WP(C)/6002/2022 B.B. Hall Petitioner-
Market Rs.20,82,501/- (2nd)
Respondent-
Rs.11,12,824/- (8th)
Total Bidder : 28
4. WP(C)/6006/2022 Natun Bazar Petitioner-
Rs.13,17,000/- (2nd)
Respondent-
Rs.8,36,280/- (16th)
Total Bidder : 24
5. WP(C)/6001/2022 Sagoli Market Petitioner-
Rs.4,01,700/- (highest)
Respondent-
Rs.1,25,225/- (2nd)
Total Bidder : 11
6. WP(C)/6979/2022 Pujadubi Petitioner-
Market Rs.5,52,552/- (3rd)
Respondent No.7-
Rs.3,86,400/- (8th)
Total Bidder : 14
7. WP(C)/6947/2022 Auto Vikram Petitioner-
Parking Stand Rs.11,04,000/- (2nd)
Respondent No.7-
Rs.7,12,320/- (8th)
Total Bidder : 13
4. As indicated above, so far as WP(C)/5919/2022 (Truck Stand) is concerned, the
Page No.# 13/21
private respondent's bid was 22 whereas the bid of the petitioner was ranked 3 rd. In
WP(C)/5920/2022 (Chowk Bazar) the private respondent's bid was 21 st whereas the
petitioner was 3rd. However, it is submitted that the first and second bidder had
withdrawn their bids. In WP(C)/6002/2022 (BB Hall Market) the private respondent's
bid was 8th whereas the petitioner was 2 nd. In WP(C)/6006/2022 (Natun Bazar) the
private respondent's bid was 16th whereas the petitioner was 2 nd where the highest
bidder had withdrawn. In WP(C)/6001/2022 (Sagoli Bazar) the private respondent's
bid was 2nd whereas the petitioner was 1 st. In WP(C)/6979/2022 (Pujadubi Market)
the private respondent's bid was 8th whereas the petitioner was 3rd. In
WP(C)/6947/2022 (Vikram Auto Parking Stand) the private respondent's bid was 8 th
whereas the petitioner was 2nd.
5. It is the contention of the petitioners that the impugned orders of settlement in
favour of the private respondents are opposed to the principles of fairness and
transparency in matters of distribution of State largesse.
6. I have heard Shri T. Chakraborty, learned counsel for the petitioner in
WP(C)/6002/2022 & 6006/2022; Shri PJ Saikia, learned Senior Counsel for the
petitioner in WP(C)/5919/2022 assisted by Ms. M. Nirola, learned counsel; Shri D.
Gogoi, learned counsel for the petitioner in WP(C)/5920/2022; Shri D. Baruah, learned
counsel for the petitioner in WP(C)/6001/2022 and Shri J. Das, learned counsel for the
petitioner in WP(C)/6947/2022 & 6979/2022. I have also heard Shri BD Das, learned
Senior Standing Counsel, JMB assisted by Ms. R. Deka, learned counsel; Shri BK Das,
learned counsel appearing for the respondent no. 5 in WP(C)/5920/2022, Shri PP
Baruah, learned counsel appearing for the respondent no. 6 in WP(C)/6001/2022 and
Shri N. Goswami, learned State Counsel. The materials placed before this Court have
also been careful examined.
7. The learned counsel for the petitioners have submitted that the impugned
Page No.# 14/21
decision is not in consonance with the principles governing distribution of State
largesse. Transparency and fairness are the hallmarks in such a system which should
pass the test of reasonability. In other words, whether the decision taken is that of a
reasonable and prudent mind. It is further submitted that in a settlement by which the
authorities or the Government fetches revenue, the amount of revenue offered
becomes a matter of paramount importance. In the present cases, it is urged on
behalf of the petitioners that the settlements of the various markets / parking stand
are sought to be given to the private respondents whose bids are admittedly lower
than the petitioners and therefore, the said decision is liable to be interfered with.
8. With regard to the Clause No. 29 of the Tender Notice, it is submitted by the
learned counsel for the petitioners that the rule is to grant the settlement to the
highest valid bidder. Though an exception is carved out that the Board shall not bound
to issue the settlement in favour of the highest bidder, it can be done only when the
offer is exorbitantly high. In the instant case, it is submitted that the discretion vested
upon the authorities has not been exercised in a judicious manner whereby the
doctrine of reasonableness along with the element of public revenue have been totally
overlooked.
9. The learned counsel for the petitioners specifically contend that in absence of a
specific provision in the NIT the concept of viable rate cannot come in as recourse to
the same can defeat the rights of the petitioners. The learned counsel accordingly
submits that the impugned decisions are liable to be interfered with and the
settlement be made with the highest bidder in accordance with law.
10. On behalf of the petitioners, the following case laws have been relied upon:
i. (1997) 1 SCC 53 [Dutta Associates (P) Ltd. v. Indo Merchantiles (P)
Ltd.,]
ii. 2001 GLR 612 [Md. Intaz Ali Vs. State of Assam & Ors.]
Page No.# 15/21
iii. 2006 3 GLR 117 [Educomp Solutions Ltd. and Ors. Vs. State of
Assam and Ors.]
iv. 2017 3 GLT 696 [ Minku Hazarika Vs. State of Assam]
v. Order dated 01.09.2022 passed in WP(C)/4986/2022 [Sekura Boro
Vs. State of Assam & Ors.]
vi. Order dated 05.01.2021 passed in WP(C)/2060/2020 [Ranjit Das
Vs. State of Assam & Ors.]
11. In the case of Dutta Associate (supra), the Hon'ble Supreme Court has laid
down that in absence of any viability range specified in the tender notice, the same
cannot be taken as a factor to examine a bid.
12. In the case of Md. Intaz (supra), this High Court has laid down that a market
has to be settled with the highest bidder and any exceptions made therein has to be
backed by good and valid reasons.
13. In the case of Educomp Solutions (supra), a Division Bench of this Court
after discussing the facts and circumstances and the law governing the field has laid
down that the authorities are bound to act fairly and is a reasonable manner whereby
no prejudice is caused to the rights of the highest bidder.
14. In the case of Minku Hazarika (supra), this Court after discussing the case
of Dutta Associate (supra) had held that in an evaluation process, undisclosed and
irrational criteria cannot applied. Similar views have been expressed in the cases of
Ranjit Das (supra) and Sekura Boro (supra).
15. Per contra, Shri BD Das, learned Senior Counsel for the JMB submits that the
decision of the Board cannot be faulted with inasmuch as, such decisions are
supported by cogent reasons. The learned Senior Counsel has submitted that each of
the decisions taken in the seven cases have been adopted in a meeting wherein it has
been specifically discussed that the rate offered by the petitioners / highest bidder is
Page No.# 16/21
excessively high and therefore, the same would lead to difficulties for the tax payers,
general public and the business community as there is every possibility of sharp rise of
vegetables and other essential commodities. Another view has been taken that while
collecting revenue and settlement of market / parking stand, the Board should not act
as a commercial institution stressing only on collection of revenue rather than
protecting the interest of the general public. It has further been observed that in the
past experience huge amount of remission had to be given on the settlement amount
after settling at a higher rate.
16. The learned Senior Counsel for the Board further submits that a discretion has
been vested upon the Board not to accept the highest bid if the same appears to be
exorbitant.
17. Endorsing the submission of the Board, Shri BK Das, learned counsel appearing
for the respondent no. 5 in WP(C)/5920/2022 submits that the tender conditions
themselves stipulate that the employer is not bound to accept a bid only because it is
the lowest. It is submitted that if the decision appears to have been taken as per a
Clause of the tender, there is no requirement of any interference. He further submits
that a mere disagreement with the decision making process cannot be a reason for
interference and such interference can be made only when the decision is arbitrary or
irrational. The restraint to be exercised by a Writ Court while deciding contractual or
commercial matters has also been highlighted.
18. Shri BK Das, the learned counsel for the respondent no. 5 in support of his
submission, places reliance upon the following decisions-
i. (2006) 11 SCC 548 [BSN Joshi & Sons vs. Nair Coal Services
& Ors.]
ii. (2012) 8 SCC 216 [Michigan Rubber (Indian) Ltd. Vs. State
of Karnataka & Ors.]
Page No.# 17/21
iii. (2016) 16 SCC 818 [Afcons Infrastructure Ltd. Vs. Nagpur
Metro Rail Corporation Ltd. & Anr.]
iv. (2018) 5 SCC 462 [Municipal Corpn. Ujjain & Anr. Vs. BVG
India Ltd. & Ors.]
v. (2020) 16 SCC 489 [Silppi Construction Contractors Vs.
Union of India & Anr.]
vi. (2022) 6 SCC 127 [M/S NG Projects Ltd. Vs. M/S Vinod
Kumar Jain & Ors.]
19. In the case of BSN Joshi (supra), it had been laid down that the employer is
not bound to accept a bid only because it is the lowest by giving justifiable reasons.
20. In the case of Michingan Rubber (supra), it has been laid down that policy
decisions in matters of award of contract should not be normally interfered with.
21. In the case of Afcons Infrastructure Ltd. (supra), it has been held that
mere disagreement with a decision making process may not be a reason for
interference by a Writ Court.
22. In the case of Municipal Corpn. of Ujjain (supra), the Hon'ble Supreme
Court again reiterated the limited scope of interference by a Writ Court in exercise of
its power of judicial review. It has again been held that the High Court should not act
like an appellate court to review tender evaluation. The aforesaid guidelines have been
reiterated in the case of Silppi Construction Contractors (supra).
23. In the case of M/S NG Projects Ltd. (supra), the Hon'ble Supreme Court
has reiterated the earlier view that in contractual matters, the decision of the
employer / owner should not normally be substituted by the Court.
24. Shri PP Baruah, learned counsel for the respondent no. 6 in WP(C)/6001/2022
submits that the decision taken by the authorities are justified and reasonable. He
Page No.# 18/21
submits that public interest has been taken care of while making the allotments. He
contends that making the allotment to an exorbitantly higher price would ultimately
affect the consumer at the grass root level as the settlement holder would try to
extract as much as possible from the shop owners who would consequently pass the
burden upon the consumers.
25. Shri N. Goswami, learned State Counsel endorses the submission of the
learned counsel for the respondent Board and contends that there is no basis of the
challenge made in these petitions.
26. The rival submissions made by the learned counsel for the parties have been
duly considered and the materials placed before this Court careful examined.
27. There is no dispute to the fact that the owner which floats a Notice Inviting
Tender has the discretion to accept a bid which may not be highest / lowest
depending upon whether it is revenue fetching contract or a construction / supply
contract. The rules itself prescribes than the bid of the highest / lowest bidder is
generally to be accepted unless there are compelling reasons not to do so. In the
instant case, as per the records, the appropriate authority had come to a finding that
the bids of the petitioners were on the higher side and settlement made with
excessive high rate can cause undue harassment to the consumers. The aforesaid
reason however needs to be tested with the clauses of the tender itself.
28. Under Clause 13, the rates to be imposed for various items in the market are
specified. For example, for Fish, the rate is Rs.15/- per tray, Rice - Rs.10/- per quintal
etc. Similarly, for Day & Night Super Buses Rs.100/-, Private Bus and Traveller -
Rs.60/-, Auto - Rs.20/- etc. Even the registration fee of different kinds of carriage like
hand cart, mechanical cart, ice cream cart etc. are also fixed.
29. When the rates are pre-determined in a part of the tender document accepted
by the parties, the aforesaid factor that the rates are exorbitant becomes wholly
irrelevant and rather extraneous. By bringing the said factor into consideration, the
Page No.# 19/21
relevant factor of the revenue that would be earned by the Board have been totally
overlooked and ignored. The impugned decision therefore is apparently vitiated by
malice in law as well as in facts.
30. As regards the argument on viable rates, the law is well settled by a catena of
decisions of the Hon'ble Supreme Court. In the case of Dutta Associate (supra),
the following has been laid down:
"4. After hearing the parties, we are of the opinion that the entire process
leading to the acceptance of the appellant's tender is vitiated by more than one
illegality. Firstly, the tender notice did not specify the "viability range" nor did it
say that only the tenders coming within the viability range will be considered.
More significantly, the tender notice did not even say that after receiving the
tenders, the Commissioner/Government would first determine the "viability
range" and would then call upon the lowest eligible tenderer to make a counter-
offer. The exercise of determining the viability range and calling upon Dutta
Associates to make a counter-offer on the alleged ground that he was the
lowest tenderer among the eligible tenderers is outside the tender notice.
Fairness demanded that the authority should have notified in the tender notice
itself the procedure which they proposed to adopt while accepting the tender.
They did nothing of that sort..."
31. In the instant case, it is seen that the aforesaid consideration was not there in
the tender document but has been sought to be introduced only at the stage of filing
of affidavit in this proceedings.
32. The law in this field is well settled. The Hon'ble Supreme Court in the landmark
case of Commissioner of Police Vs. Gordhandas Bhanji reported in AIR 1952
SC 16 (paragraph 13) has clearly laid down as follows:
"13. An attempt was made by referring to the Commissioner's affidavit to show
Page No.# 20/21
that this was really an order of cancellation made by him and that the order
was his order and not that of Government. We are clear that public orders,
publicly made, in exercise of a statutory authority cannot be construed in the
light of explanations subsequently given by the officer making the order of what
he meant, or of what was in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public effect and are intended to
affect the actings and conduct of those to whom they are addressed and must
be construed objectively with reference to the language used in the order itself.
......."
33. The said decision is consistently followed and has reiterated in a number of
cases including the case of Mohinder Singh Gill & Anr. Vs. Chief Election
Commissioner, New Delhi & Ors., reported in (1978) 1 SCC 405, wherein the
following was laid down:
"8. The second equally relevant matter is that when a statutory functionary
makes an order based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise. Otherwise, an order bad in the beginning may,
by the time it comes to court on account of a challenge, get validated by
additional grounds later brought out. ...
...
Orders are not like old wine becoming better as they grow older."
34. In view of such authoritative pronouncement, the concept of viable rate which
was sought to be introduced on behalf of the respondents is only untenable and
therefore, does not deserve any consideration.
35. This Court has also noticed that the difference of price offered by the
petitioners and that of the private respondents is huge. It is a settled position of law
that a price is one of the paramount factors in determining a tender process. In this
Page No.# 21/21
connection, one may gainfully referred to the decision of this Court in the case of
Dhaniram Gogoi Vs. State of Assam reported in 1998 (4) GLT 37 wherein it has
been held that public interest is of paramount consideration for settlement. This Court
in the case of Tarun Bharali Vs. State of Assam reported in (1991) 2 GLR 296,
has categorically held that in matters of settlement which earns revenue for the
Government the paramount factor is public interest.
36. Under the aforesaid facts and circumstances, this Court would left with no other
option but to hold that the impugned orders of settlement dated 03.09.2022 by which
the bid of the petitioners have been ignored and that of the private respondents have
been accepted are not sustainable in law and accordingly the same are set aside and
quashed. Consequently, it is directed that the settlement of the various Bazars and
Parking Stands under the Jorhat Municipal Board be made with the valid highest
bidder at the price offered by him. The said settlement has to be for the period which
was mentioned in the NIT dated 23.06.2022 which was a period from 01.08.2022 to
31.03.2023. However, since the settlement would commence from a later date, the
same should be made for a period of eight months which was stipulated in the original
NIT. The aforesaid process be completed expeditiously and in any event, within a
period of 15 days from the date of receipt of a certified copy of the order.
37. Writ petitions accordingly stand allowed.
38. No order as to cost.
JUDGE
Comparing Assistant
