Gauhati High Court
WP(C)/27/2022 on 17 May, 2022
Page No.# 1/18
GAHC010217082021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
W.P.(C) No. 27/2022
Rafikul Islam
S/O. Lt. Abdul Haque
Vill. Paniakhat, P.O. Paniakhat
P.S. Dhula, Dist. Darrang,
Assam, Pin-784116.
.................. Petitioner
-Versus-
1:The State of Assam
Rep. by the Comm. and Secy. to the Govt. of Assam
Panchayat and Rural Development Deptt.
Dispur, Guwahati, Pin-781006, Assam.
2:The Darrang Zilla Parishad
Rep. by Chief Executive Officer
Darrang Zilla Parishad
P.O. and P.S. Mangaldoi
Dist. Darrang, Assam, Pin-784125.
3:The Chairman
Darrang Zilla Parishas
P.O. and P.S. Mangaldoi
Dist. Darrang, Assam.
4:The Chief Executive Officer
Darrang Zilla Parishad
P.O. and P.S. Mangoldoi
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Dist. Darrang, Assam, Pin-784115.
5:The Pub Mangaldoi Anchalik Panchayat
Rep. by the Executive Officer
P.O. and P.S. Dhula, Dist. Darrang, Assam.
6:The President
Pub Mangaldoi Anchalik Panchayat
P.O. and P.S. Dhula
Dist. Darrang, Assam, Pin-784115.
7:The Executive Officer
Pub Mangaldoi Anchalik Panchayat
P.O. and P.S. Dhula
Dist. Darrang, Assam, Pin-784115.
8:Siba Ram Deka
S/O. Lt. Sisu Ram Deka
R/O. No.1 Maas Gaon
P.O. and P.S. Dhula, Dist. Darrang, Assam.
9:Mustak Ahmed
S/O. Tauzi Seikh
Vill. Khatania Para
P.O. and P.S. Dhula
Dist. Darrang, Assam.
.................. Respondents
Advocates :
Petitioner : Mr. G.N. Sahewalla, Senior Advocate
Mr. P. Deka, Advocate
Respondent nos. 1 - 7 : Mr. N.K. Dev Nath, Standing Counsel,
Panchayat & Rural Development Department
Respondent no. 8 : Mr. F.K.R. Ahmed, Advocate
Date of Hearing & Judgment : 17.05.2022
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BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
By this writ petition under Article 226 of the Constitution of India, the petitioner has assailed an
order dated 18.12.2021 passed by the respondent no. 4 i.e. the Chief Executive Officer, Darrang Zilla
Parishad, whereby, the settling authority had settled a market viz. 'Tangni Weekly Animal Market' ['the
Market', for short] in favour of the respondent no. 8 for the period from 25.12.2021 to 30.06.2022.
While seeking setting aside of the impugned order dated 18.12.2021, the petitioner has also sought for
a direction to the respondent authorities to grant settlement of the Market in favour of the petitioner.
2. By a Tender Notice dated 21.06.2021 published by the Pub Mangaldoi Anchalik Panchayat,
Dhola, sealed bids were invited from interested bidders for settlement of a number of
markets/ghats/fisheries falling within its jurisdiction for the Panchayat Financial Year : 2021-2022 and
for the period from 01.07.2021 to 30.06.2022 as per the provisions of the Assam Panchayat Act, 1994,
as amended. It was mentioned that the period of settlement would be effective from the date of
finalization of the settlement of the bidding process. As per the Tender Notice, the last date of
submission of bids was originally fixed up to 02-00 p.m., 05.08.2021. After publication of the Tender
Notice on 21.06.2021, a litigation ensued before the Court of learned Munsiff no. II, Darrang and the
bidding process came to be stalled by virtue of an interim order dated 03.08.2021 passed by the learned
Court. Later on, the Court of learned Munsiff withdrew the interim order on 03.09.2021. Thereafter by
a subsequent Notice dated 04.09.2021, the respondent no. 4 had intimated that the bidding process
would recommence and the bids would be received up to 02-00 p.m., 20.09.2021 and the terms and
conditions of the bidding process would remain the same as had been incorporated in the Tender Notice
dated 21.06.2021. One of the markets which was sought to be settled by the Tender Notice dated
21.06.2021 and the Notice dated 04.09.2021 was Tangni Weekly Animal Market ['the Market'].
2.1. In the Tender Notice dated 21.06.2021, the annual Government value fixed for the Market was
Rs. 5,69,403/- and the earnest money required to be deposited was Rs. 56,941/-.
2.2. In response to the Tender Notice, 10 nos. of bidders including the petitioner and the respondent
no. 8, had submitted their bids quoting different bid values. The names of the bidders including their
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bid values, in descending order, were as under :-
Sl.No. Bidder number Bid value offered
1 Bidder no. 1 [the petitioner] Rs. 43,17,897/-
2 Bidder no. 2 Rs. 33,75,607/-
3 Bidder no. 3 Rs. 27,90,000/-
4 Bidder no. 4 Rs. 25,21,201/-
5 Bidder no. 5 Rs. 19,39,901/-
6 Bidder no. 6 Rs. 14,57,701/-
7 Bidder no. 7 Rs. 9,21,201/-
8 Bidder no. 8 [the respondent no. 8] Rs. 8,71,000/-
9 Bidder no. 9 Rs. 7,40,000/-
10 Bidder no. 10 Rs. 6,77,701/-
2.3. After receipt of the bids from the participating bidders, the General Standing Committee of the
Anchalik Panchayat opened the bids of all the bidders. Thereafter, the General Standing Committee of
the Anchalik Panchayat examined the tender papers and recorded their comments in respect of the bids
in a comparative statement prepared for the purpose. The office of the Anchalik Panchayat forwarded
the bid documents along with the comparative statement recording their comments at relevant places
therein to the office of the Darrang Zilla Parishad in terms of the provisions of Section 109[6] of the
Assam Panchayat Act, 1994, as amended. After receipt of the tender papers along with the comparative
statement, the General Standing Committee of the Zilla Parishad evaluated the bids and after such
evaluation, the General Standing Committee of the Zilla Parishad vide Resolution no. 9 taken in its
meeting held on 07.12.2021, decided to settle the Market in favour of the private respondent no. 8 at his
quoted bid value. Accordingly, the impugned order of settlement was issued on 18.12.2021 in favour of
the respondent no. 8 mentioning the proportionate amount of the settled bid value at Rs. 4,52,250/- for
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the settlement period from 25.12.2021 up to 30.06.2022.
3. Aggrieved by the order of settlement issued in favour of the respondent no. 8, the petitioner has
approached this Court by this writ petition challenging the same on the grounds inter alia that the
Market had been settled in favour of the respondent no. 8 despite the petitioner quoting a higher bid
value than the respondent no. 8 and in settling the Market, the respondent Zilla Parishad did not adhere
to the condition incorporated in Clause 10 of the Tender Notice.
4. I have heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel
for the petitioner; Mr. N.K. Dev Nath, learned Standing Counsel, Panchayat & Rural Development
[P&RD] Department for the respondent nos. 1 - 7; and Mr. F.K.R. Ahmed, learned counsel for the
respondent no. 8.
5. Having regard to the issues raised in this writ petition by the petitioner and the fact that the
relevant records of settlement have been produced by the learned Departmental counsel, the writ
petition is taken up for final consideration at the admission stage at the request of the learned counsel
for the parties.
6. Mr. Sahewalla, learned senior counsel for the petitioner has submitted that the bid
value offered by the petitioner at Rs. 43,17,897/- was the 1 st highest against the annual
Government value fixed for the Market at Rs. 5,69,403/-. The bid value offered by the
respondent no. 8 with whom the Market has been settled with, was Rs. 8,71,000/- and it was
only the 10th highest bid value. The difference between the two bid values was substantial
one and acceptance of the bid of the respondent no. 8 was detrimental from the point of
revenue.
6.1. By referring to Clause 10 of the Tender Notice, he has contended that the petitioner
being the 1st highest bidder was entitled to be given an opportunity to submit the requisite
documents in case the tendering authority had found the bid of the petitioner deficient of
some documents, within a period of 3 [three] days. As the Clause 10 has incorporated the
provision of forfeiture of the earnest money in the event of default to submit the documents
to be asked for within a period of 3 [three] days, the same was required to be followed by
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the tendering authority. But in the case in hand, the tendering authority did not adhere to the
said clause. It is his contention that the tendering authority has to abide by the terms and
conditions of the Tender Notice and it could not have deviated from the same.
6.2. He has further submitted that though the petitioner did not submit one or two requisite
documents along with the bid, such deficiencies are curable as per Clause 10 of the Tender
Notice.
7. Mr. Dev Nath, learned Standing Counsel, P&RD Department has submitted that in
respect of the bids having offered bid value more than 1,00,000/-, it is the General Standing
Committee of the Zilla Parishad who is the final authority to examine and accept a bid as per
the provisions of Section 81 read with Section 109[6] of the Assam Panchayat Act, 1994. In
the case in hand, the impugned order of settlement has been passed after a decision taken in
a meeting of the General Standing Committee of the Zilla Parishad. The General Standing
Committee of the Zilla Parishad in taking the decision for settlement in favour of the
respondent no. 8, had taken into consideration the terms and conditions of the Tender Notice.
Having found the bid of the petitioner deficient on that count and the bids of the other higher
bidders, mentioned in the minutes of the meeting, the Committee took the decision to settle
the Market in favour of the respondent no. 8 despite the petitioner offering a higher bid value
and also by the other higher bidders. With regard to Clause 10 of the Tender Notice, it is his
submission that the clause can be held not applicable only in the event the documents
required to be submitted by the bidder, were submitted by the bidder but those were found
deficient to the terms and conditions incorporated in Clause 10 to Clause 16 of the Tender
Notice. In the case in hand, in some of the documents submitted by the petitioner with his
bid, discrepancies were found and it was for that reason, the bid of the petitioner was not
accepted as a valid one. He has, thus, submitted that the petitioner only on the pretext that
his bid value was higher than the respondent no. 8, cannot take recourse to Clause 10 of the
Tender Notice. He has submitted that the markets/ghats/fisheries, etc., during the Panchayat
Financial Year : 2021-2022 were required to be settled in terms of the directives of the
Government contained in the letter no. PDA.403/2018/130 dated 23.04.2021.
8. Mr. Ahmed, learned counsel for the respondent no. 8 has submitted that any process of settlement
of a market under a Zilla Parishad/Anchalik Panchayat, like the one in hand where the bid value offered
more than 1,00,000/-, the Zilla Parishad/Anchalik Panchayat have to abide by the statutory provisions
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incorporated in Section 81 and Section 109[6] of the Assam Panchayat Act, 1994 and Rule 47[2] of the
Rules, 2002. He has, in similar lines with Mr. Dev Nath, submitted that Clause 10 to Clause 16 have
incorporated the terms and conditions which every participating bidder has to fulfill and Clause 17 has
in clear terms laid down that in the event of non-fulfillment of the terms and conditions incorporated in
Clause 10 to Clause 16 of the Tender Notice, the bid of such a bidder would entail outright rejection. In
so far as Clause 10 of the Tender Notice is concerned, the interpretation of such a clause is to be best
left to the tendering authority. He has submitted that if such a clause is to be made applicable in a
bidding process, the sanctity of the bidding process which requires fairness and transparency, is likely
to be prejudicially affected. If all the bidders who have offered higher bid values are to be given
opportunities of meeting the deficiencies one after the other, than there would be no requirement of
meeting the eligibility criteria by the bidders on the last date of submission of the bids.
8.1. By relying upon the decision of this court in Jalal Uddin & Ors. vs. State of Assam & Ors.
reported in 2015 [2] GLT 1097, wherein, reference of another decision of this Court in W.P.[C] no.
5992/2014 [Durga Charan Mandal Vs. The State of Assam & Ors.] is made, he has submitted that
'highest bidder' means highest valid bidder and not one who has offered the highest bid value. With
regard to the responsiveness of the bid of the petitioner vis-à-vis the respondent no. 8, Mr. Ahmed has
submitted that the General Standing Committee of the Zilla Parishad in its resolution had clearly found
that the bid of the petitioner was a non-compliant one whereas the bid of the respondent no. 8 was a
compliant one. It is his further contention that in a bidding process, the price cannot be the sole
criterion for settlement of a market but it is the responsiveness of a bid which has to be given
precedence.
9. In response, Mr. Sahewalla, learned senior counsel for the petitioner has submitted that the
exercise which the tendering authority was obligated to make under Clause 10 of the Tender Notice,
has to be done at first by taking into consideration the bid values offered starting from the highest and
the said Clause 10 has not been put to challenge by any of the bidders. Since it can be inferred from
the Tender Notice that the higher revenue is the prime consideration, non-adherence to the same by the
tendering authority is clearly indicative of arbitrariness. By referring to a Notification no.
PDA.102/2010/Vol-II/141 dated 29.06.2018, issued by the Government of Assam in the Panchayat &
Rural Development Department, he has submitted that the genesis of incorporation of Clause 10 in the
Tender Notice is the said Notification dated 29.06.2020.
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10. I have duly considered the submissions of the learned counsel for the parties and also perused the
materials brought on record by the parties through their pleadings. I have also gone through the
relevant records of settlement placed by the learned Departmental counsel.
11. It is apposite to mention, at first, that as per the provisions of the Assam Panchayat Act, 1994, all
tender notices, in respect of markets, ghats, fisheries, etc., irrespective of the yearly sale value of such
property, are required to be floated by the concerned Anchalik Panchayat. However, after submission of
all tender papers before the Anchalik Panchayat, if the bid value offered by the eligible highest bidder
is found to be more than Rs. 1,00,000/-, the General Standing Committee of Anchalik Panchayat,
constituted under Section 52 of the Assam Panchayat Act, 1994, is required to forward all such tender
papers submitted by the bidders together with a comparative statement prepared and processed, to the
jurisdiction Zilla Parishad, for doing the needful at their end. Section 109[6] of the Assam Panchayat
Act, 1994 has laid down that the powers of examination and final acceptance of such tender shall be
vested in the General Standing Committee of the jurisdiction Zilla Parishad constituted under Section
81 of the Assam Panchayat Act, 1994. The said position has also been clarified by the Full Bench
decision of this Court in Harej Ali and another vs. the State of Assam and others, reported in 2009 [2]
GLT 561. Admittedly, many of the bids submitted in respect of the Market had bid values more than Rs.
1,00,000/- for one year. Thus, it is the Zilla Parishad who is to examine and finally accept the tender
papers and pass the order of settlement in the case in hand.
12. Sub-Rule [10] of Rule 47 of the Assam Panchayat [Financial] Rules, 2002 ['the Rules, 2002' or
'the 2002 Rules', for short] reads as follows :-
Rules and Procedures for the Sale and Settlement of Markets, Ferries,
Fisheries and Ponds
Rule 47[10] - The tender of highest bidder shall be accepted. Acceptance of tender
other than the highest bid shall require the 'Government' prior and formal approval.
13. Rule 47[10] has been incorporated in the Rules, 2002 so that the settling authority cannot deviate
arbitrarily from the norm of settling ordinarily the market with the highest valid bidder without prior
approval of the higher authority, that is, the State Government. In a case where the highest bidder is
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sought to be not given the settlement and the settlement is sought to be offered to a next higher bidder,
prior and formal approval of the Government is required to be taken. In the event no prior and formal
approval is taken by the Zilla Parishad while issuing the settlement order in favour of a bidder who is
not the highest valid bidder, then the settlement given to such a bidder would not be sustainable, being
violative of Rule 47[10] of the Rules, 2002.
14. In the context of existence of afore-stated statutory provisions and before dilating on the
respective submissions advanced by the learned counsel for the parties, it is apt to mention that the
contentions of the learned counsel for the parties have centered around Clause 10 of the Tender Notice
on one hand and Clause 11 to Clause 17 of the Tender Notice, on the other hand, apart from the
notification dated 29.06.2018 and the notification dated 23.04.2021, issued by the Government of
Assam in the Panchayat & Rural Development Department. Thus, it appears necessary to have a look at
the Clause 10 to Clause 17 of the Tender Notice. For ready reference, the same are extracted as under :-
10. The quotation mentioning highest bid amount for any
Bazar/Hat/Ghat/Fishery/Pound will be accepted for consideration and if it is found
that the bidder of the highest bid amount has not submitted the necessary documents
[except Court Fee and Earnest Money], then the said bidder will be given three days
time for the submission of the same and if he/she fails to submit the necessary
documents within the said stipulated 3 days, his quotation will be rejected and his
earnest money will be forfeited and the quotation of the bidder of second highest
bidder will be considered for the settlement, subject to some terms and conditions.
Part-II
11. a) 10% of the earnest money in the form of Fixed Deposit for a minimum period of
one year either in Assam Co-operative Apex Bank or Assam Gramin Bikash Bank or
any of the nationalized bank, should be pledged to Chief Executive Officer of Zilla
Parishad by each bidder for a Bazar/Ghat/Minmahal whose bid amount is more than
Rs. 1,00,000/-. Bidders belonging to S.C. and S.T. will get 50% relaxation on the
earnest money and they must enclose attested copies of the caste certificates along
with their quotations.
b) 10% of the earnest money in the form of Fixed Deposit for a minimum period of one
year either in Assam Co-operative Apex Bank or Assam Gramin Bikash Bank or any of
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the nationalized bank, should be pledged to Ex-Officio Secretary and the Executive
Officer of Anchalik Panchayat as Fixed Deposit for a minimum period of one year by
each bidder for bazaar/hat/ghat/fishery whose bid amount is less than Rs. 1,00,000/-.
Bidders belonging to S.C. and S.T. will get 50% relaxation on the earnest money and
they must enclose attested copies of the caste certificates along with their quotations.
12. The bidder must enclose a passport sixe photograph duly attested by a gazette
officer, along with the quotation.
13. The bidder and his guarantor must enclose the Tax Clearance Certificates and No
Default Certificates issued by the concerned Zilla Parishad, Anchalik Panchayat and
Gaon Panchayat along with the quotation.
14. The bidder or his guarantor must place a plot of land as surety against the value of
the tender [a] Jamabandi copy and [b] Non-Encumbrance Certificate and valuation
certificate issued by the concerned Deputy Commissioner/Sub-Divisional
Officer/Circle Officer in respect of the land placed as surety must be enclosed along
with the quotation. The guarantor must also sign in the quotation. Bank Guarantee on
the value of the bid amount will also be accepted in lieu of the land documents as
surety. One guarantor/bidder of a Bazar/Hat/Ghat/Fishery/Pound cannot stand as
the guarantor for any other Bazar/Hat/Ghat/Fishery. If the land placed as the surety
has co-pattadars, then their consents will also be necessary.
15. The bidder and the guarantor must submit affidavit declaring the documents
submitted by them along with the quotations to be genuine ones.
16. The successful bidder must deposit the installment amount of the
Bazar/Hat/Ghat/Fishery/Pound in the office of Zilla Parishad if the tender value is
above Rs. 1,00,000/- and in the office of the Anchalik Panchayat if the tender value is
below Rs. 1,00,000/- as mentioned in the Paragraph 20 on time.
17. If conditions mentioned para No. 1 to 16 of the Part-I and Part-II are not fulfilled,
then the tender application will be rejected.
15. In the case in hand, the General Standing Committee of the Zilla Parishad in its meeting held on
07.12.2021 considered all the bid documents submitted by the participating bidders in respect of a
number of markets including the Market. After evaluation of the bids, the General Standing Committee
had recorded its observations and decision in respect of Tangni Weekly Animal vide resolution no. 9 in
the following manner :-
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"Proposal No. 09 : In today's meeting, after scrutinizing the comparative statement
of Tangni Weekly Cattle Market, it is seen that Bidder No. 01 - the tenderer and his
guarantor submitted tender paper appending thereto no encumbrance certificate of
the year 2019 instead of 2020-21. There is no N.O.C. [No Objection Certificate] of
the co-pattadars in respect of the land offered as security. Photograph affixed in the
tender form has not been attested. Bidder No. 02 [Mustaq Ahmed] - tender paper
submitted without appending thereto Bakija Certificate of the tenderer and his
guarantor, there is no objection certificate of the co-pattadars in respect of the land
offered as security and Photograph affixed in the tender form has not been attested.
Bidder No. 03 [Mussaraf Hussain] - the person who stood as guarantor to the
tenderer has withdrawn his guarantee/security. Bidder No. 04 [Babul Haque] -
there is no-encumbrance certificate of the tenderer and his guarantor. There is no
N.O.C. [No Objection Certificate] of the co-pattadars in respect of the land offered as
security. Bidder No. 05 [Zaman Ali Ahmed] - there is no-encumbrance certificate of
the tenderer and his guarantor. There is no N.O.C [No Objection Certificate] of the
co-pattadars in respect of the land offered as security. All documents submitted of
the co-pattadars are photocopies. Bidder No. 06 [Saddam Hussain] - there is no-
encumbrance certificate of the tenderer and his guarantor. There is no N.O.C [No
Objection Certificate] of the co-pattadars in respect of the land offered as security.
Bidder No. 07 [Abdul Hamid] - there is no-encumbrance certificate of the tenderer
and his guarantor. Bidder No. 08 [Shibaram Deka] - Found highest eligible bid in
all respect and accordingly his name has been recommended for settlement of the
market at his quoted bid of Rs. 8,71,000/-."
15.1. The General Standing Committee also examined and evaluated the tender papers of
the other participating bidders which had higher bid values than the respondent no. 8, and
found them defective on one count or the other. Finding deficiencies in those bids offering
higher bid values than the respondent no. 8, the then General Standing Committee of the
Zilla Parishad declared them as invalid bids and their cases were not considered like the bid of
the petitioner, for grant of settlement of the Market. Since none of the other bidders has
approached the Court challenging the rejection of their respective bids, there appears no
necessity to further deliberate on the said aspect.
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16. The relevant provisions of the Assam Panchayat Act, 1994 relating to settlement of
markets, ghats, fisheries, etc., and Rule 47[10] of the 2002 Rules came to be considered by
this Court in W.P.[C] no. 5992/2014 [Durga Charan Mandal vs. the State of Assam & others],
wherein the judgment and order was rendered on 18.03.2015. The Court has observed as
under :-
"22. 'Process', in the context of a notice inviting tender, encompasses within its ambit,
amongst others, preparation of a comparative statement, evaluation of the tenders and
rejection of tenders not conforming to the requirements of the Notice Inviting Tender.
Sections 105[3], 106[3] also provide for examination of tenders by the General
Standing Committee. The highest tender, after examination and evaluation, in a given
case, may be rejected. Once rejected, such a tender cannot come into consideration for
the purpose of acceptance or settlement. If the words, 'highest bidder' occurring in Rule
47[10] of the Rules is given literal meaning, examination or evaluation of tenders, as
contemplated in the Act, will be rendered meaningless and it will result in a situation of
acceptance of a tender, irrespective of the fact as to whether or not the tenderer fulfils
the eligibility criteria and other terms and conditions. Surely, this is not what the
legislature contemplated. The expression, 'the tender of the highest bidder shall be
accepted' would, by necessary implication, mean that the highest 'valid' tenderer will be
considered for acceptance or settlement and, therefore, Rule 47[10] of the Rules has to
be understood to mean that the tender of the highest 'valid' tender shall be accepted
and that acceptance of tender, other than the highest valid tenderer, shall require prior
and formal approval of the government."
16.1. The decision in Jalal Uddin [supra] has reaffirmed the view in Durga Charan Mandal [supra].
16.2. It is not the case of the petitioner that the bid of the respondent no. 8 with whom the Market has
been settled with by the respondent Zilla Parishad, was invalid on any count. It is also not the case of
the petitioner that the finding recorded by the General Standing Committee of the Zilla Parishad with
regard to non-conformity of the bid of the petitioner to the terms and conditions incorporated in Clause
11 to Clause 16 of the Tender Notice has suffered from any infirmity.
17. When the above factual position obtaining in the case is considered together with the provisions
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of the Assam Panchayat Act, 1994, Rule 47[10] of the 2002 Rules and the interpretation given in the
decisions in Durga Mandal [supra] and Jalal Uddin [supra], it has clearly emerged that the respondent
no. 8 was found out to be the highest valid bidder by the General Standing Committee of the Zilla
Parishad. As he was the highest 'valid' bidder in the competitive bidding process initiated by the Tender
Notice dated 21.06.2021, the consequential order of settlement settling the Market was issued by the
respondent no. 4 i.e. the Chief Executive Officer, Darrang Zilla Parishad. The bid which offered the
highest bid value if after examination and evaluation is rejected due to its non-compliant nature then
such a bid does not come into consideration for the purpose of acceptance or settlement, if one goes by
the decisions in Durga Mandal [supra] and Jalal Uddin [supra].
18. On perusal of the Notification no. PDA.102/2010/Vol-II/141 dated 29.06.2018 of the Panchayat
& Rural Development Department, Government of Assam, it is found that the same was issued to all
the Chief Executive Officers. It was stated therein that in order to ensure settlement of the
markets/ghats/fisheries, etc., to the highest bidder for enhancing the collection of own source of
revenue of the Panchayat, the Chief Executive Officers were requested not to cancel any bid of the
highest bidders on account of non-submission of required documents as per Tender Notice except Court
Fee and Earnest Money and to allow such higher bidders to furnish the documents before offering
settlement. On a close perusal, it is noticed that the said Notification dated 29.06.2018 pertained to the
settlement process of markets/ghats/fisheries, etc., at the levels of Zilla Parishad, Anchalik Panchayat
and Gaon Panchayat respectively for the Panchayat Financial Year : 2018-2019. The petitioner has not
brought on record any other/notification of the State Government whereby the said directive has also
been extended for the subsequent Panchayat financial years including the Panchayat Financial Year :
2021-2022 with which the present lis is concerned. On the other hand, the letter bearing no.
PDA.403/2018/130 dated 23.04.2021 of the Government in the Panchayat & Rural Development
Department was in respect of the process required to be followed for settlement of the
markets/ghats/fisheries, etc., under various PRI Institutions during the Panchayat Financial Year : 2021-
2022. The contents of the letter dated 23.04.2021 is found silent on the aspect of providing time period
to the highest bidder for non-submission of required documents and of granting opportunities to such
highest bidder to submit the documents which were not submitted with the bid. Though the said letter
dated 23.04.2021 had mentioned about a Model Notice Inviting Tender for the Panchayat Financial
Year : 2021-2022, a copy of the said Model Notice Inviting tender has not been placed before this
Court by any of the parties. Be that as it may.
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19. The bidders participating in a competitive bidding process have no other right except the right to
equality and fair treatment in the matter of evaluation of competitive bids offered by them in response
to the concerned notice inviting tender in a transparent and non-discriminatory manner and free from
hidden agenda. At the same time, the procedure to be adopted in a competitive bidding process by the
State or any of its agencies/instrumentalities which is for the distribution of State largesses in one form
or the other, must have to be fair, transparent and rational providing equal opportunities to all the
interested and eligible persons to participate in the process. The decision of the tendering authority in
the matter of evaluation of bids or in awarding a contract must not be arbitrary, irrational and
unreasonable. If the matter of evaluation of bids or in awarding a contract has to conform to any
statutory prescription, then the tendering authority must be alive to such statutory prescription while
evaluating the bids or while awarding a contract which is in the nature of distribution of State largesses.
The decision making process of the State or any agency/instrumentality of the State in evaluating the
bids or in awarding contracts is required to keep the possibility of discrimination, arbitrariness and
favouritism out of the purview and the same should be transparent, fair, bona fide and in public interest.
The power of judicial review in respect of the matter relating to award of tender is for the purpose of
checking arbitrariness, irrationality, unreasonableness and bias. It is intended to check whether choice
or decision is made lawfully and not to check whether choice or decision is sound. Though in the
matter of awarding contract by the State or any of its agencies/instrumentalities, price is one of the
relevant criteria but price is not the sole and decisive criterion. The maintenance of sanctity of a
competitive bidding process on the aspects of fairness, transparency, definitiveness and providing an
equal level playing field cannot be compromised with the acceptance of a bid which is otherwise not
valid being non-compliant to the terms and conditions of the tender notice and was deficient at the time
of submission.
20. In the light of the discussion made above, it has clearly emerged that Clause 10 is a
standalone provision and the procedure prescribed therein is incompatible to the other terms and
conditions incorporated in the Tender Notice. Clause 17 of the Tender Notice has inter alia set forth
that in the event a bidder does not meet the terms and conditions incorporated in Clause 11 to Clause
16, the bid would entail rejection. Clause 11 to Clause 16 of the Tender Notice required the bidder to
submit a number of documents, described therein, to accompany the bid. If the procedure indicated in
Clause 10 is required to be followed, as has been contended on behalf of the petitioner, one could also
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contend that the same would be abhorrent to a competitive bidding process as there would not be any
fairness, transparency, definitiveness and rationality. One way of interpretation of Clause 10 could be
that a bidder at the time of submission of his sealed bid in response to the Tender Notice need not
submit any other documents except the prescribed tender form, Court fee of Rs. 8.25 and earnest
money, as quoted in the Tender Notice. If his bid value emerges as the highest then he would be called
by the tendering authority to submit all the other requisite documents. If he manages to submit all the
requisite documents within the stipulated period of 3 [three] days then he becomes the highest valid
bidder which he otherwise, at the time of submission of bid, was not. In the event he fails, then his bid
would be rejected at the cost of forfeiture of the earnest money. One could also visualise a situation
where about 'n' number of bidders participated in response to the Tender Notice by submitting only the
Court fee stamps and earnest money and if after granting opportunities to these 'n' number of bidders
to submit the documents a period of 3 [three] days each all of them fail then by that time, a period of 'n
x 3' days will expire whereas the period of settlement is only for one-year. If all the bidders who have
offered higher bid values are to be given opportunities of meeting the deficiencies one after the other,
than there would be no requirement of meeting the eligibility criteria by the bidders on the last date of
submission of the bids. There could be many others like situations all of which cannot be envisaged
now.
21. From the above, it is certain that if Clause 10 of the Tender Notice is made applicable then
the same would for the benefit of the bidders whose bids were invalid at the time of their submission
and the same would be to the prejudice to those bidders whose bids were compliant to the terms and
conditions of the Tender Notice at the time of their submission. The issue of acceptance or rejection of
a bid of the bidder is to be examined not only from the points of view of both the tendering authority
and such a bidder but also from the point of view of all other participant bidders. The said situation is
clearly opposed to the principle of equality enshrined in Article 14 of the Constitution of India. The
same would clearly be discriminatory inasmuch as it would result in an anomalous situation where
unequals would be treated equally giving them an unjust benefit over a bidder who is otherwise the
highest 'valid' bidder in terms of the provisions of the Assam Panchayat Act, 1994 and Rule 47 [10] of
the 2002 Rules, merely because they had quoted higher bid values. Such a situation cannot be
envisaged in a competitive bidding process on the touchstone of Article 14 of the Constitution of India
and in view of Rule 47[10] of the Rules, 2002.
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22. It has been settled by a long line of decisions of the Hon'ble Supreme Court of India and this
Court that the authority that authors the tender document is the best person to understand and
appreciate its requirements and thus, its interpretation should not be second-guessed by Court in
judicial review proceedings. The Court in a proceeding under Article 226 must defer to this
understanding and appreciation of the tender documents, unless there is malafide or perversity in the
understanding or appreciation or in the application of the terms and conditions of the tender document.
It has been observed that it is possible in a given situation that the tendering authority may have given
its interpretation to the tender documents that is not acceptable to the Court but that by itself is not
reason for interfering with the interpretation given. If two interpretations are possible then the
interpretation of the author of the tender document must be respected and accepted. While exercising
the power of judicial review under Article 226 of the Constitution of India, the Court does not sit as a
Court of appeal over the decision of the tendering authority. A reference in this regard can be made
readily to the decisions in Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation, [2016] 16
SCC 818; Bharat Coking Coal Limited vs. AMR Dev Prabha, 2020 SCC OnLine SC 335; and M/s
Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. M/s New J.K.
Roadways, Fleet Owners and Transport Contractors & others, 2020 SCC OnLine SC 1090. In the case
in hand, the tendering authority in relation to Clause 10, has sought to give an interpretation that the
same cannot be made applicable in case of a bid where anomalies/deficiencies/irregularities were found
in the documents required to be submitted accompanying the bid. The interpretation sought to be given
by the petitioner has already been dealt with hereinabove wherein it is found that such interpretation
would result in violation of the principle of equality embraced by the Article 14 of the Constitution of
India and would not be consistent with a fair, transparent and non-discriminatory competitive bidding
process.
23. It is settled that submission of a tender in response to a notice inviting such tenders is
about making an offer which the State or its agencies/instrumentalities are under no obligation to
accept. It is not open for the bidders participating in the bidding process to insist that their tenders
should be accepted merely because a given tender is the highest or lowest depending upon the nature of
the bidding process, be it for sale of public property or for execution of works on behalf of the
tendering authority. The State or any of its agencies/instrumentalities can choose its own method to
arrive at a decision. But the State or its agency/instrumentality are bound to adhere to the norms,
standards and procedures laid down by them and cannot depart from them arbitrarily. If the decision
relating to award of contract is found to be in public interest, the Court does not exercise its
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discretionary power of judicial review under Article 226 of the Constitution to interfere even if a
procedural aberration or error in assessment or prejudice to a bidder is made out. The power of judicial
review is to be exercised with great caution and only in furtherance of public interest and not merely on
the making of a legal point. It has been observed in Air India Limited vs. Cochin International Airport
Limited and others, reported in [2000] 2 SCC 617, that the Court should always keep the larger public
interest in mind in order to decide whether its intervention is called for or not and it is only when it
comes to a conclusion that overwhelming public interest requires interference, the Court should
intervene. It has been observed in Jagdish Mandal vs. State of Orissa and others, reported in [2007] 14
SCC 517, that a Court before interfering in tender or contractual matters in exercise of power of judicial
review, should pose to itself two questions :- [i] whether the process adopted or decision made by the
authority is malafide or intended to favour someone; or whether the process adopted or decision made
is so arbitrary and irrational that the Court can say : "the decision is such that no reasonable authority
acting reasonably and in accordance with relevant law could have reached"; and [ii] whether public
interest is affected. If the answers to the two questions are in the negative, then there should be no
interference under Article 226 of the Constitution of India.
24. Having regard to the entire facts and circumstances obtaining the case in hand, when the aspect
of a higher bid value offered by the petitioner which bid was non-complaint to the terms and conditions
of the Tender Notice at the time of submission of bid is considered qua the decision of the General
Standing Committee of the Zilla Parishad to accept the bid of the respondent no. 8 whose bid was
compliant to the terms and conditions of the Tender Notice at the time of its submission, this Court is of
the considered view that it is the decision of the General Standing Committee of the Zilla Parishad
leading to the impugned order of settlement, which is to be respected for keeping the competitive
bidding process initiated by the Tender Notice a fair, transparent and non-discriminatory one in public
interest and as the said decision is found in conformity with the principles of equality engrafted in
Article 14 of the Constitution of India. The General Standing Committee of the Zilla Parishad, that is,
the competent authority under the Assam Panchayat Act, 1994 to settle the Market did not seek prior
and formal approval of the State Government under Rule 47 [10] of the Rules, 2002 to settle the
Market in favour of the petitioner also who was otherwise not the highest valid bidder and as such, no
semblance of right is found accrued in the petitioner in any manner to seek the direction to settle the
Market in his favour in the absence of any such recognition. As a consequence, the Court is of the
considered view that the writ petition seeking interference with the impugned order of settlement made
in favour of the respondent no. 8 and for settlement of the Market in favour of the petitioner lacks merit
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and the same is liable to be dismissed. It is accordingly dismissed. The interim order, if any, stands
recalled. It is open for the tendering authority to proceed with the process of settlement of the Market in
question in terms of the order of settlement. There shall, however, be no order as to cost.
JUDGE
Comparing Assistant
