Gauhati High Court
WP(C)/4618/2021 on 10 May, 2022
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GAHC010143592021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
W.P.(C) 4618/2021
Sri Nayan Kalita,
S/o Late Soru Kalita,
R/o Village - Dharapur,
P.O. Dharapur, P.S. Azara,
Guwahati - 781017,
District - Kamrup [Metro], Assam.
Ph. No. - 98640-48314.
.................. Petitioner
-Versus-
1. The State of Assam,
Represented by the
Commissioner & Secretary to the
Government of Assam,
Panchayat & Rural Development Department, Dispur,
Guwahati - 781006.
2. The Commissioner,
Panchayat & Rural Development Department,
Assam, Juripar, Guwahati - 37.
3. The Kamrup Metro Zilla Parishad,
Panbazar, Guwahati - 1,
Represented by its President.
4. The Chief Executive Officer,
Kamrup Metro Zilla Parishad,
Panbazar, Guwahati - 1.
5. The Rani Anchalik Panchayat,
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Office of the Rani Block,
Kamrup-781131,
Represented by its President.
6. Smt. Kalpana Kalita,
W/o - Sri Bijoy Kaita
P.O.-Dharapur,
P.S. Azara, Guwahati,
District - Kamrup [Metro], Assam.
..................Respondents.
Advocates :
Petitioner : Mr. B.D. Konwar, Senior Advocate,
Mr. R. Kalita, Advocate.
Respondent nos. 1-5 : Mr. S. Dutta, Standing Counsel,
Panchayat & Rural Development Department
Date of Hearing and Judgment & Order : 10.05.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
The petitioner by instituting this writ petition under Article 226 of the
Constitution of India, has assailed an order of settlement dated 24.08.2021
passed by the respondent no. 4 i.e. the Chief Executive Officer, Kamrup Metro
Zilla Parishad whereby a market named Dharapur Daily Market, had been settled
in favour of the respondent no. 6 at her offered annual bid value of Rs.
6,52,505/. The petitioner while seeking setting aside of the consequential
agreement executed between the respondent Kamrup [M] Zilla Parishad/Rani
Anchalik Panchayat and the respondent no. 6 for the Dharapur Daily Market, has
also made prayer for a direction to the respondent authorities to grant the
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settlement of Dharapur Daily Market in his favour contending that the bid of the
petitioner was the highest valid bid.
2. The relevant facts for adjudication of the issues involved in this writ
petition can be exposited, in brief, as under :
2.1. By a Tender Notice dated 01.06.2021 published under the hand of the
President, Rani Anchalik Panchayat, sealed bids were invited from interested
bidders for settlement of two markets under the territorial jurisdiction of Rani
Anchalik Panchayat for the year : 2021-2022 i.e. for the period from 01.07.2021
to 30.06.2022 in terms of the provisions of the Assam Panchayat Act, 1994, an
amended. One of the two markets which were sought to be settled by the
Tender Notice, was Dharapur Daily Market ['the Market', for short]. In the
Tender Notice, the minimum annual value of the Market was fixed at Rs.
3,36,258/-. The last date for submission of bids in response to the Tender
Notice dated 01.06.2021 was up-to 3-00 p.m., 02.08.2021.
2.3. There is no dispute to the fact that in response to the Tender Notice
dated 01.06.2021, 4 [four] nos. of bidders including the petitioner and the
respondent no. 6, had submitted their bids with different bid values. The names
of the bidders and the bid values they had offered, in the descending order,
were as under :
Sl. No. Name Amount [Rs.]
1 Kalpana Kalita [Respondent Rs. 6,52,505/-
no.6]
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2 Nayan Kalita [Petitioner] Rs. 5,52,101/-
3 Barnali Barua Rs. 5,20,000/-
4 Jagdish Kalita Rs. 4,80,000/-
3. After evaluation of the bids submitted by the participating bidders, the
respondent no. 4 by the impugned order of settlement dated 24.08.2021
informed the respondent no. 6 that the Zilla Parishad had decided to accept her
bid for an amount of Rs. 6,52,505/- for one year for settlement of the Market
for the year : 2021-2022. It transpires that by the said order of settlement
dated 24.08.2021, the respondent no. 4 asked the respondent no. 6 to deposit
an amount of Rs. 3,26,252/- [Rs. 1,95,751/- towards 1 st installment + Rs.
1,30,501/- towards security deposit] within a period of one week from
24.08.2021. The respondent no. 6 was also asked to execute an agreement for
settlement of the Market on stamp papers by bearing the necessary cost.
4. After issuance of the order dated 24.08.2021, the petitioner stated to
have made enquiries and come to learn that the husband of the respondent no.
6 viz. Sri Bijay Kalita was a settlement holder of the Market during the year :
2015-2016 and as such settlement holder, the husband of the respondent no. 6
defaulted in paying installments against the fixed settlement amount and as a
result, he became a defaulter as per records of the Zilla Parishad. The petitioner
has averred that though he submitted an application under the Right to
Information [RTI] Act, 2005 on 31.08.2021 seeking information regarding the
defaulting status of Sri Bijay Kalita i.e. the husband of the respondent no. 6, the
respondent authorities in the Zilla Parishad did not furnish him the information
requested for under the RTI Act, 2005.
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5. It has been contended by the petitioner that there was deliberate
suppression/concealment of material fact on the part of the respondent no. 6 in
submitting the bid in response to the Tender Notice dated 01.06.2021 and the
tendering authority had issued the order of settlement dated 24.08.2021 by
accepting the bid of the respondent no. 6 which was ex-facie ineligible, thereby,
completely ignoring and disregarding the mandatory condition incorporated in
Clause 1 of Part-I of the Tender Notice. Thus, the order of settlement and all
consequential actions are vitiated since the respondent no. 6 had committed an
act of deception and fraud and, therefore, unsustainable in law. On the above
counts, the petitioner has preferred this writ petition seeking the reliefs,
mentioned above.
6. I have heard Mr. B.D. Konwar, learned Senior Counsel assisted by Mr. R.
Kalita, learned counsel for the petitioner and Mr. S. Dutta, learned Standing
Counsel, Panchayat & Rural Development [P&RD] Department for the
respondent nos. 1-5. The respondent no. 6 has not entered appearance in the
case despite service of notice.
7. Mr. Konwar, learned Senior Counsel for the petitioner has submitted that
the husband of the petitioner was a settlement holder of the Market during the
year : 2015-2016 and he defaulted in paying an amount of Rs. 74,774/- towards
fixed installments against the settlement amount. The said amount was
recorded as an arrear in the records of Zilla Parishad. The last date of
submission of bids in response to the Tender Notice dated 01.06.2021 was
02.08.2021. Till 02.08.2021, the husband of the respondent no. 6 did not pay
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the outstanding defaulted amount in terms of Clause 1 of the Tender Notice
dated 01.06.2021. The respondent no. 6 did not even disclose that her husband
was a settlement holder for the same Market during the year : 2015-2016 and
he committed default in paying installments against the settlement amount.
Thus, it is clear that the respondent no. 6 had suppressed/concealed material
facts deliberately and it is ex-facie apparent that the respondent no. 6 in order
to get settlement of the Market had adopted to fraudulent practice which cannot
be condoned by the respondent Zilla Parishad at a later point of time by asking
the defaulter to pay the outstanding amount. It is his submission that higher bid
value is only one of the factors in distribution of State largesses. The respondent
authorities have failed to adhere to the norms and standards they had
themselves professed in the Tender Notice.
8. Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development
Department has submitted that the settlement in favour of the respondent no. 6
was made after due deliberation on all aspects in a meeting of the General
Standing Committee of Kamrup Metro Zilla Parishad. As the respondent no. 6
had offered the highest bid value of Rs. 6,52,505/-, the Committee decided to
settle the Market in her favour. Though the respondent no. 6 did not disclose in
her bid that one of her family members, that is, her husband was a defaulter to
the Zilla Parishad/Anchalik Panchayat, the General Standing Committee came to
learn about the said fact and it was decided by the Committee to grant an
opportunity to Sri Bijay Kalita, who is the husband of the respondent no. 6 and
a previous settlement holder of the Market, to deposit the defaulted arrear
amount of Rs. 74,774/-. In terms of the said decision, Sri. Bijay Kalita deposited
the outstanding amount of Rs. 74,774/- at the office of the Zilla Parishad on
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20.08.2021 and it was only thereafter, the order of settlement dated 24.08.2021
was issued settling the Market in favour of the respondent no. 6. Mr. Dutta by
relying upon the decisions in Tarwn Bharali vs. State of Assam and others,
reported in [1991] 2 GLR 296; Jogeshwar Doley vs. State of Assam and others,
reported in [1992] 1 GLR 134; and Glodyne Technoserve Ltd. vs. State of M.P.
and others, reported in [2011] 5 SCC 103, has submitted that no fault can be
found in the decision of the tendering authority to settle the Market in favour of
a bidder who offered the highest bid value, by taking into consideration the
aspect of generating higher revenue for the Panchayati Raj Institutions and as
such, no interference is called for. It is his submission that at a later point of
time, it is found by the Zilla Parishad that a further amount of Rs. 2,82,240/-
was to be received from the petitioner during the year : 2020-2021 against the
settlement of Dharapur Daily Market and in order to recover the said amount,
the Zilla Parishad had issued two notices to the petitioner on 23.08.2021 and
14.09.2021 asking him to deposit the said amount of Rs. 2,82,240/-. It is also
his contention that the petitioner did not submit tax clearance certificates which
were required to be submitted as per the Tender Notice.
9. In so far as the validity of the bid of the petitioner is concerned, the
learned Senior Counsel for the petitioner has submitted that the petitioner was
informed by the respondent authorities by a letter dated 03.05.2021 that an
amount of Rs. 94,960/- had remained to be paid by the petitioner for the
settlement year : 2020-2021. On receipt of said letter, the petitioner had
deposited the amount of Rs. 94,960/- on 15.07.2021, which was prior to the last
date of submission of bids fixed by the Tender Notice dated 01.06.2021. By
submitting so, the learned Standing Counsel for the petitioner has submitted
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that the order of settlement passed in favour of the respondent no. 6 is vitiated
by fraud and the same is liable to be set aside and quashed and as the bid of
the petitioner was highest valid bid, the petitioner is entitled to be settled with
the Market for the remaining period up to 30.06.2022.
10. I have considered the submissions advanced by the learned counsel for
the parties and have also gone through the materials brought on record by the
parties through their pleadings. Mr. Dutta, learned Standing Counsel, P&RD
Department has also placed the minutes of the Meeting of the General Standing
Committee held on 18.08.2021. It is pertinent to note that despite direction to
produce the entire records of settlement, the entire records are not produced.
11. The relevant facts leading to the institution of this writ petition have
already been narrated briefly above. The case of the petitioner against the order
of settlement dated 24.08.2021 in favour of the respondent no. 6 is primarily
based on Clause 1 of Part-I of the Tender Notice dated 01.06.2021. Clause 1 of
Part-I of the Tender Notice reads as under :
"1. If in respect of settlement of market/ghat/fishery/pound there is any
arrear dues of a person and any person of his family then they cannot
submit a bid. The present settlement holders of
market/ghat/fishery/pound shall have to deposit the remaining
installments of the current year in order submit the bid."
12. Clause 1 of Part-I of the Tender Notice is in the nature of a restriction in
that if any person and any of his family members has/have any arrear dues
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against settlement of any market/ghat/fishery/pound then he/they shall not be
eligible to submit a bid in response to the Tender Notice. The present settlement
holder of a market/ghat/fishery/pound also has to deposit the remaining
installments for the current year in order to submit bid in response to the
Tender Notice.
13. The General Standing Committee of Kamrup Metro Zilla Parishad in its
meeting held on 18.08.2021 had considered the bids submitted by the bidders
for the Market i.e. Dharapur Daily Market. The Committee recorded that as per
the comparative statement, the papers submitted by the respondent no. 6
alongwith the bid were found in order. Having considered the bid value of Rs.
6,52,505/- offered by the respondent no. 6 against the Government value fixed
at Rs. 3,36,258/-, the Committee considered the respondent no. 6 as the 1 st
highest valid bidder to be eligible for settlement of the Market. The Committee
in its minutes had recorded that Sri Bijay Kalita is the husband of the
respondent no. 6. It was also recorded that the bid value offered by the
respondent no. 6 was more than Rs. 1,00,404/- of the bid value offered by the
2nd highest bidder. Considering the expenses required to be borne by the Zilla
Parishad under different heads and to maintain its office expenses, the
Committee decided that the Market would be settled in favour of the highest
bidder i.e. the respondent no. 6 for the year : 2021-2022.
14. In the affidavit-in-opposition, the respondent no. 4 has stated that during
the discussion held in the meeting of the General Standing Committee dated
18.08.2021, the General Standing Committee came to know from some reliable
sources that the husband of the respondent no. 6 viz. Sri Bijay Kalita was a
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defaulter as a settlement holder during the year : 2015-2016. After a detailed
discussion, the General Standing Committee came to the conclusion that the
highest bid value offered by the respondent no. 6 cannot be ignored from the
point of revenue. It was after such a decision, the General Standing Committee
unanimously approved the decision to settle the Market in favour of the
respondent no. 6 with a condition that Sri Bijay Kalita, the husband of the
respondent no. 6, would have to clear his outstanding dues amounting to Rs.
74,774/- for the year : 2015-2016 within 7 days, failing which the Market would
be settled with the next highest bidder. In terms of the said decision, Sri Bijay
Kalita, the husband of the respondent no. 6 paid the arrear dues of Rs. 74,774/-
at the office of the Zilla Parishad on 20.08.2021. It was only after deposit of the
defaulted amount by Sri Bijay Kalita on 20.08.2021, the order of settlement was
issued in favour of the respondent no. 6 on 24.08.2021. The respondent no. 6
on receipt of the order of settlement, deposited an amount of Rs. 3,26,252/- on
26.08.2021. It is the stand of the respondent no. 4 that the respondent no. 6
has been operating the Market since then.
15. An act or commission committed by a bidder by misrepresentation or by
submitting false documents and or by giving false information or by
suppressing/concealing material facts in order to influence the ultimate decision
in a competitive bidding process is to be termed as an act of fraudulent practice.
In a competitive bidding process, a bidder submitting his bid has to disclose all
the material facts required to be disclosed as per the terms and conditions of
the tender notice truly and correctly and should not suppress or conceal any
material facts which are likely to effect the bidding process materially. A bid to
be substantially responsive has to comply with all the essential terms and
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conditions of the tender notice published in this regard and if as a result of
suppression or concealment of any material fact on the part of a bidder, the
bidding process resulted in conferment of any undue and unjust benefit on such
a bidder who has not disclosed the true and correct facts, and who was not
otherwise entitled to such benefit, then such a bid entails rejection/cancellation
as a competitive bidding process cannot be allowed to get vitiated. If there is no
candid disclosure of any material fact then such a bidder is guilty of misleading
the tendering authority and such a bid is liable to be outrightly rejected. When a
bidder gets an order by suppression or concealment of material facts and the
tendering authority despite having knowledge of the fact that the bidder has
adopted a practice which can be termed as a fraudulent one because of practice
of deception on such bidder's part, then such an action does not go together
with the equality clause enshrined in Article 14 of the Constitution of India,
thereby, making in unsustainable in law and, therefore, the same is not
condonable. to be pardoned. An act of fraudulent practice results in deceit on
one hand and injury to the other bidders who have participated in the
competitive bidding process with the disclosure of all the material facts and
without suppression of concealment of any material fact.
16. Having considered the fact situation obtaining in the case in hand in the
context of suppression or concealment of material facts by a participating
bidder, this Court is of the considered view that the respondent no. 6 at the time
of submitting her bid, did adopt a practice, which can safely be inferred as an
act of fraudulent practice as the respondent no. 6 did not disclose in her bid the
name of her husband and also that the husband of the respondent no. 6 was a
defaulter to the respondent Zilla Parishad since the year : 2015-2016 having
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arrear dues. From the instruction bearing no. KMZP[G]15/HCDM/2021-22/78
dated 09.05.2022 placed by the learned Standing Counsel, it is noticed that the
respondent no. 6 nowhere had disclosed that the respondent no. 6 is the wife of
Sri Bijay Kalita, a defaulting settlement holder pertaining to the settlement
period of the same Market during the year : 2015-2016. The said instruction has
further revealed that it was during the midst of discussion in the meeting of the
General Standing Committee of the Zilla Parishad the Committee through some
grapevine sources came to learn that the respondent no. 6 is the wife of a
defaulting settlement holder, Sri Bijay Kalita. Clause 1 of Part-I of the Tender
Notice has incorporated a restriction. In the face of such clear restriction,
acceptance of a bid on the part of the General Standing Committee of the Zilla
Parishad from a bidder whose family member, in terms of the Tender Notice
under reference, is a defaulter to the Zilla Parishad is not acceptable as it would
amount to an act of condonation/relaxation of a term of the Tender Notice
which was not allowed any other interested bidders by the Tender Notice
published on 01.06.2021 and which was not modified till the last date fixed for
submission of bids. More so, when the materials disclosed such an act of
concealment on the part of the bidder is a deliberate one. Deposit of the
defaulted arrear dues after the last date of submission of bids i.e. 02.08.2021 by
the husband of the respondent no. 6, who was a previous settlement holder, is a
clear pointer towards admission of his status as defaulter thereby making the
bid of the respondent no. 6 ineligible at the time of submission. It is settled that
an administrative authority is bound by the norms, standards and procedures
laid down by them and disregard of the norms, standards and procedures
invalidates its action unless based on some valid principles which is neither
irrational or unreasonable or discriminatory. A higher bid value is one of the
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factors, but not the sole factor, in distribution of State largesses but the same
cannot be accepted in favour of a bidder who has practiced deception in the
form of concealment of material facts. In such view of the matter, this Court is
of the unhesitant view that the order of settlement passed in favour of the
respondent no. 6 is not sustainable in law and the same is liable to be set aside.
As a consequence, the order of settlement dated 24.08.2021 passed in favour of
the respondent no. 6 is, therefore, set aside.
17. On perusal of the decisions in Tarwn Bharali [supra] and Jogeshwar Doley
[supra], it is found that the facts and circumstances in those two cases were
different from the facts and circumstances obtaining in the case in hand and,
therefore, the said two decisions are not found applicable. The decision in
Glodyne Technoserve Ltd. [supra] was with regard to non-submission of a valid
and active ISO 9001:2000 certificate by a bidder at the time of submission of
the bid despite the bidder having it and non-acceptance of the explanation
given by the bidder for not producing by the tendering authority. The decision in
Glodyne Technoserve Ltd. [supra] is also not found of any assistance to the
cause of the respondent authorities.
18. In so far as the question of eligibility of the petitioner is concerned, it is
noticed that the petitioner was a settlement holder of the Market during the
year : 2019-2020 pursuant to a settlement order dated 02.07.2019 passed after
culmination of a competitive bidding process initiated by a tender notice.
Subsequently, the term of settlement was extended for a further period of one
year i.e. for the year : 2020-2021 as per the directive issued by the State
Government in the Panchayat & Rural Development Department vide a
notification bearing no. PDA.403/2018/30 dated 29.05.2020. The term of the
subsequent period of settlement ended on 30.06.2021. It is noticed that prior to
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30.06.2021, the Zilla Parishad on 03.05.2021 had issued a notice to the
petitioner stating that an amount of Rs. 94,960/- had remained as arrear to be
paid by the petitioner against the settlement period of the Market for the year :
2020-2021 and the petitioner was thereby asked to deposit the said amount
within a period of 7 days at the office of the Zilla Parishad. In response to the
letter dated 03.05.2021, the petitioner deposited the amount of Rs. 94,960/- at
the office of the Zilla Parishad on 15.07.2021 with due acknowledgment. It can
be recapped that the last date of submission of bids in terms of the Tender
Notice dated 01.06.2021 was 02.08.2021. It is the claim of the petitioner that
after deposit of Rs. 94,960/-, there was no outstanding dues to be payable by
the petitioner as a settlement holder of the Market for the year : 2020-2021.
The respondent no. 4 in its affidavit-in-opposition has, however, averred that it
was found that the petitioner was liable to pay another amount of Rs.
2,82,240/- as a settlement holder of the Market and two letters, dated
23.08.2021 and dated 14.09.2021, were issued to the petitioner asking him to
deposit the said amount. It is also contended that the petitioner did not submit
tax clearance certificates from the concerned Zilla Parishad/Anchalik Parishad
and Gaon Panchayat as well as a certificate to the effect that he was not a
defaulter in respect of his earlier settlement in terms of Clause 13 of the Tender
Notice dated 01.06.2021. With such assertion, the respondent no. 4 has
contended that the petitioner was not a valid bidder to be considered for
settlement of the Market in terms of the Tender Notice dated 01.06.2021. On
the other hand, the petitioner has contended that these letters dated
23.08.2021 and 14.09.2021, were issued subsequent to the decision of the
General Standing Committee taken in its meeting on 18.08.2021 to grant the
respondent no. 6 with the order of settlement and without any material basis. It
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is his contention that from the earlier notice dated 03.05.2021, it is clear that
the petitioner had only an amount of Rs. 94,960/- as an arrear which he had
already paid on 15.07.2021.
19. It was during the course of the proceeding, the petitioner on an earlier
date had also contended that there was a general decision on the part of the
respondent Zilla Parishad/Anchalik Parishad to grant remission in respect of the
settlement amounts of markets under the concerned Zilla Parishad. Mr. Dutta,
learned Standing Counsel, P&RD Department was asked, on 28.04.2022, to
obtain instructions as to whether there was a general decision of the concerned
Zilla Parishad/Anchalik Panchayat regarding remission of the amounts in respect
of the markets in its area of jurisdiction and to obtain the relevant records
containing the process leading to the issuance of the letters dated 23.08.2021
and dated 14.09.2021 asking the petitioner to deposit the sum of Rs. 2,82,240/-
towards default. Mr. Dutta, learned Standing Counsel, P&RD Department on the
subsequent date on 06.05.2022 had submitted that he had not received
instructions in deference to the order dated 28.04.2022 and had prayed for
further time till 10.05.2022. Today also, Mr. Dutta has submitted that the
records relating to issuance of the two letters dated 23.08.2021 and 14.09.2021
have not been made available to him by the respondent authorities and as such,
he is not in a position to advance his submission in this regard. Though the
respondent no. 4 has asserted that the petitioner has an outstanding arrear
liability of Rs. 2,82,240/-, the said aspect was not taken into purview in the
meeting held on 18.08.2021 of the General Standing Committee of the Zilla
Parishad, which is statutorily vested with the powers under Section 109[6] of
the Assam Panchayat Act, 1994 to examine and finally accept a bid by deciding
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upon its acceptability or otherwise.
20. It is noticed that the General Standing Committee of the Zilla Parishad in
its meeting, held on 18.08.2021, considered and decided only about the
eligibility of the highest bid of the respondent no. 6 and there was no discussion
with regard to eligibility or otherwise of the bids of the 3 [three] participating
bidders including that of the petitioner, except an observation to the effect that
the highest bid value offered by the respondent no. 6 was more than Rs.
1,01,404/- than the bid value offered by the 2 nd highest bidder, which was the
petitioner. As this Court has already set aside the order of settlement dated
24.08.2021 passed in favour of the respondent no. 6, the respondent Zilla
Parishad is required to revisit the matter of settlement for the Market for the
remaining period up to 30.06.2021 by considering the bids of the other
participating bidders. As no records related to evaluation of bids of the
participating bidders have been made available by the learned Standing
Counsel, P&RD, this Court is not in a position to look into the findings, if any,
made by the respondent Zilla Parishad as regards the eligibility or otherwise of
the bids of the other participating bidders, which is exclusively a matter within
the domain of the tender accepting authority. In such view of the matter, this
Court deems it appropriate to relegate the matter to the Zilla Parishad to
consider the eligibility or otherwise of the bids of the other participating bidders
including that of the petitioner herein and thereafter, to decide about the matter
of settlement for the remaining period of settlement up to 30.06.2022.
21. Mr. Dutta has submitted that a period of 2 [two] weeks from today will be
a reasonable period for the Zilla Parishad to undertake and complete such an
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exercise. Accepting such submission of Mr. Dutta, it is directed that the
respondent Zilla Parishad shall undertake and complete the entire exercise
within a period of 2 [two] weeks from today. During the interim period, the
respondent Zilla Parishad shall operate the Market itself.
22. With the observations made and the directions given above, the writ
petition stands allowed to the extent indicated above. There shall, however, be
no order as to cost.
23. A copy of the order be furnished to Mr. Dutta for doing the needful from
his end.
JUDGE
Comparing Assistant
