WP(C)/6086/2022
2022 Latest Caselaw 4556 Gua

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GAHC010183072022




                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : WP(C)/6086/2022



                   Sri Sujit Boro,
               Aged about 29 years,
               S/o Tarun Boro,
               Village- Pakriguri,
               P.O. Salbari, P.S. Salbari,
               District-Baksa (BTAD), Assam,
               Pin- 781318                      ----- Petitioner
                         - VERSUS -
          1. The State of Assam,
          Represented by the Commissioner & Secretary to Government of Assam
          Panchayat & Rural Development, Dispur, Guwahati-06
          2. The Bodoland Territorial Council (BTC),
          Represented by its Principal Secretary Assam, Kokrajhar,P.O. & P.S.
          Kokrajhar (BTAD),
          Assam, Pin-783370
           3. The Joint Secretary Bodoland Territorial
          Council (BTC), P.O. & P.S. Kokrajhar,
          District- Kokrakhar (BTAD), Assam, Pin-783370
           4. The Block Development Officer,
          Baksa Development Block, Mushalpur,
          P.O. & P.S. Mushalpur, District- Baksa (BTAD),
          Assam, Pin-781373
          5. The MCLA-cum-Chairman,
          Market & Fair, Traditional, Relief & Rehabilitation
          Department, Bodoland Territorial Council (BTC),
          C/O Block Development Officer, Baksa Development Block, P.O. & P.S.
          Mushalpur,
          District- Baksa, (BTAD), Assam, Pin-781373.
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            6. Md. Sahidul Islam,
            S/O Azizur Rahman, Village & P.O. Ahopa,
            P.S. Mushalpur, District- Baksa (BTAD),
            Assam, Pin- 781373.
             7. The Market Settlement Committee, BTC
            Kokrajhar, represented by Block Development Officer, Baksa Development
            Officer, Baksa Development Block, Mushalpur, District-Kokrajhar (BTAD),
            Assam, Pin-781373.

                                                                   ----- Respondents

BEFORE Hon'ble Mr. Justice Michael Zothankhuma

Advocates for the Petitioner : Mr. MA Sheikh, Mr. M Hossain

Advocate for Respondent No. 1 : Ms. N Borah

Advocate for Respondent Nos. 2, 3, 4, 5 & 7 : Mr. P Nayak

Advocate for Respondent No. 6 : Mr. PK Roychoudhury

Date of hearing : 14.11.2022.

Date of delivery of judgment : 18.11.2022

JUDGMENT & ORDER (CAV)

Heard Mr. MA Sheikh, learned counsel for the petitioner. Also heard Ms. N Borah, learned counsel for the respondent No. 1, Mr. P Nayak, learned counsel for the respondent Nos. 2, 3, 4, 5 & 7 and Mr. PK Roychoudhury, learned counsel for the respondent No. 6.

2. The petitioner is aggrieved with the State respondents not selecting the petitioner as the successful bidder for running the Doomni Weekly Market, for the 2022-2023 period, from 01.07.2022 to 30.06.2023, in pursuant to the Notice dated 17.06.2022, though the petitioner was the highest bidder.

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3. The petitioner's case is that in terms of the Notice dated 17.06.2022, the highest bidder was to be selected for running the Doomni Weekly Market.

However, the 4th highest bidder namely, the respondent No. 6 has been selected. He accordingly submits that the impugned order dated 16.08.2022 issued by the respondent No. 4, authorizing the respondent No. 6 to run the Doomni Weekly Market for the year 2022-2023, should be set aside and a direction be issued to the State respondents, to settle the Doomni Weekly Market in favour of the petitioner, for the year 2022-2023. He submits that the selection of the private respondent as the successful tenderer is not in terms with Condition No.11 of the Notice dated 17.06.2022, which required the State respondents to record reasons in writing for not selecting the highest bidder. He also submits that the petitioner will not change rates/tolls from vendors, beyond the rate fixed by the State respondents. He also submits that by accepting the bid of the petitioner, the State respondents stand to earn more money.

4. The learned counsel for the respondent No. 6 submits that as per Clause- 11 and 13 of the Notice dated 17.06.2022, the State respondents are to see whether the rates given by the tenderers are reasonable. If they come to a decision that the rates provided by the petitioner are absurd and unjustified rates, the said tender can be rejected and a re-tender can also be issued by the State respondents. He also submits that the highest bidder is not automatically required to be selected for running the market, provided the State respondents record reasons for the same in writing. He also submits that as the State respondents had taken a decision to re-tender the settlement of the market place, this writ Court should not interfere with such a decision in a writ proceeding. In support of his submission, he has relied upon the decision of the Apex Court in the case of Manohar Lal Sharma vs. Narendra Damodardas Page No.# 4/14

Modi & Ors., reported in (2019) 3 SCC 25. He also submits that private interest cannot over-ride public interest and in this regard he has relied upon the decision of the Apex Court, in the case of Agmatel India Private Limited vs. Resoursys Telecom & Ors., reported in (2022) 5 SCC 362.

5. The learned counsel for the respondent Nos. 2 to 5 & 7 submits that the bid quoted by the petitioner was exorbitantly high, as a result of which the authorities were of the opinion that the same would entail additional burden upon the public. Accordingly, the authorities had issued a re-tender of the market place on 19.10.2022. However, no one submitted their bids in respect of the re-tender dated 19.10.2022. The learned counsel for the respondents submits that the writ court should not interfere in a tender process, where such interference could cause unnecessary loss to the Public Exchequer. He also submits that while rejecting the tender of any person, the authority is not required to give reasons. In this regard he has relied upon the judgment of the Apex Court in the case of The Silppi Constructions Contractors vs. Union of India & Anr. in Special Leave Petition (Civil) Nos. 1380213805/2019.

6. I have heard the learned counsels for the parties.

7. The comparative statement of the bids of the tenderers in respect of the Doomni Weekly Market shows that there were five bidders/tenderers for the said market. The Government Schedule rate for the Doomni Weekly Market was fixed at Rs. 1,30,110/-. The bids of the tenderers are reproduced below, as follows:-

             i.      Sri Sujit Boro (Petitioner)    - Rs. 2,60,200/-
             ii.    Sri Rakheb Daimary             - Rs. 1,39,103/-
             iii.   Sri Manoj Kumar Gayari         - Rs. 1,43,500/-
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             iv.      Md. Sahidul Islam (Res. No. 6)- Rs. 1,34,000/-
             v.       Sri Mekarsing Basumatary      - Rs. 2,60,119/-

8. While the tenderer Nos. 1 to 4 had produced all relevant documents, the tenderer No. 5 Sri Mekarsing Basumatary did not produce all relevant documents.

9. Condition Nos. 11, 12 and 13 of the Notice dated 17.06.2022 states as follows:-

"11. The competent authority shall make settlement with the highest bidder if all the necessary documents and Governments revenue are found at order. In case of settlement is not made with the highest bidder, the competent authority shall record reasons in writing for their decision. The competent authority before awarding the settlement shall make necessary enquiry as regard to ascertain the attending circumstances of the concerned Markets/Go- Hats/Parking/Par-Ghats/Ferries/Cattle Pounds etc. The competent authority shall also keep in mind the public interest as well as to the absurdity of the rates offered by the intending tenderers.

The tender document itself provides the rate which shall be charged from petty venders by the successful bidder and no one shall charge of the single penny more than the prescribed rate burden to the poor venders who came to sell their corps and other items in the market.

12. The tender value is to offer above the schedule rate approved for the year 2021-22 otherwise the tender will be rejected.

13. If the competent authority decides that the intending tenderers have offered the rates which are unjustified, the competent authority can cancel the whole process and call for re-tenders."

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10. In terms of condition No. 11 of the Notice dated 17.06.2022, the petitioner should have been selected to run the market as he was the highest bidder and as his bid was in order. However, the respondent No. 6, who was the

4th highest bidder has been authorised to run the Doomni Weekly Market for the year 2022-2023, vide the impugned order dated 16.08.2022. In terms of Clause-

11 of the Notice dated 17.06.2022, the respondent authorities were to record reasons in writing for not settling the market with the highest bidder. The respondent authorities were to also make necessary enquiry ascertaining the attending circumstances of the market and keep in mind public interest, as well as the absurdity of rates offered by attending tenderers.

11. The State respondents have at last produced the official records, after several orders had been issued by this Court for production of the same. The official records that have been produced before this Court are (1) File No.- BTC/Market-31/2022-23, (2) File No.- BTC/Market-32/2022-23, (3) File No.- BTC/Market-119/2022-23 and (4) File No. Nil.

12. In File No. Nil, there is no note sheet. File No. BTC/Market-31/2022-23 pertains to the Mushalpur Bi-Weekly Market, while File No. BTC/Market-32/2022- 23 pertains to the Doomni Weekly Market. File No.- BTC/Market-119/2022-23 pertains to various markets, including the Doomni Weekly Market.

13. The official record pertaining to File No.BTC/Market-119/2022-23 shows that there are only two back to back pages of Notes. The Note-sheets start from the date 12.08.2022 and ends with the date 24.08.2022. The Note dated 12.08.2022, which is a comparative chart of tendereres involving various markets, shows that in respect of Doomni Weekly Market, the bid of the respondent no.6 has been approved on the basis of the comparative chart and Page No.# 7/14

the minutes of the meeting of the "Market Settlement Committee, BTC for Settlement of Markets". However, the said minutes are nowhere to be found in the official records. Also, no reason has been given in the said Note, as to why the bids of the petitioner and the second and third bidders have not been

selected, over the respondent no.6, who is the 4th highest bidder.

14. As per the note sheet dated 24.09.2022 in File No. BTC/Market-32/2022- 23, the market settlement committee, BTC has approved the respondent No. 6

(4th highest bidder) to run the Doomni Weekly Market for the year 2022-2022. However, no reason has been given in the note sheet dated 24.09.2022, as to

why the market has not been settled with the petitioner or with the 2 nd and 3rd highest bidders. The File No.BTC/Market-31/2022-23 is with regard to Mushalpur Bi-Weekly Market. However, the Note dated 24.09.2022 has settled

the market with the 4th bidder against the Doomni Weekly Market, though there were only 3 (three) tenderers for the Mushalpur Bi-Weekly Market. The faux pass of the State respondents in settling the market with a non-existent bidder for the Mushalpur Bi-Weekly Market shows the total non-application of mind of the State respondents. The relevant portion of the Note dated 24.09.2022 is re- produced below:

"According to above view, the Market Settlement Committee, BTC has approved the 4th bidder against the above Doomni Weekly Market for settlement of the Market for the year 2022-23, as per Original C.S. copies reports."

On the other hand, the respondent No. 4 has issued order dated 16.08.2022, whereby the respondent No. 6 has been primarily reauthorized to run the Doomni Weekly Market for the

year 2022-2023. The order dated 16.08.2022 issued by the respondent No. 4 Page No.# 8/14

(Block Development Officer) is reproduced below as follows:-

"ORDER

As per instruction from the Joint Secretary Bodoland Territorial Council Kokrajhar Vide Letter No. BTC/Market-01/2020/68 Dated the

Kokrajhar the 15th July 2022, the earlier order No. BDB/Market- 76/2015-16/1279 Date 01/07/2022 is hereby cancelled and the undersigned has preliminary re-authorized Md. Sahidul Islam S/o Azizur Rahman Vill & P.O. Ahopa P.S. Mushalpur Dist. Baksa BTR Assam to collect the tolls against "Doomni Weekly Market" F/Y 2022-

23.

This order will come in to force with immediate effect and will stand until further order."

The above order dated 16.08.2022 is conspicuously silent with regard to the rate at which the Doomni Weekly Market had been settled with respondent No. 6.

15. The above facts needs to be recapitulated, as it appears that the State respondents have not been acting fairly in the settlement of the Doomni Weekly Market for the year 2022-2023. There are only seven pages of note sheets in

the File No. BTC/Market-32/2022-23 and the 1 st note made in the said file is dated 24.09.2022. The note dated 24.09.2022 has approved the respondent No.

6 (4th bidder) to run the Doomni Weekly Market for the year 2022-2023. However, in terms of the order issued by the respondent No. 4, the respondent No. 6 had been allowed to run the Doomni Weekly Market vide order dated 16.08.2022, i.e., before the note was made in the official records. Further no

reason has been given by the State respondents as to why the 1 st three highest

bidders have not been selected and the respondent No. 6, who was the 4 th Page No.# 9/14

highest bidder, was selected, which is in violation of Condition No. 11 of the Notice dated 17.06.2022.

16. In view of the reasons started above, the order dated 16.08.2022 issued by the respondent No. 4 is not sustainable in law. However, as the Block Development Officer, Baksa Development Block, Mushalpur has already issued a letter dated 10.10.2022 stating that an order was issued to stop the collection of revenue from the Doomni Weekly Market and Mushalpur Bi-Weekly Market, it appears that the settlement of the market with the private respondent has been cancelled. The letter 10.10.2022 issued by the Block Development Officer is made a part of the record and marked as Annexure-X. However, by way of abundant caution, this Court sets aside the order dated 16.08.2022 issued by the Block Development Officer, authorising the private respondent to run the market and collect the tolls.

17. The above being said, the office note dated 12.10.2022 states that as the rate quoted by the petitioner was exorbitantly high, the competent authorities should go for a re-tender against the market and that the whole exercise should be completed by 17.10.2022. It is surprising that the State respondents have called for a re-tender only because the petitioner's bid was alleged to be exorbitantly high. Though the State respondents have the power to call for a re- tender, the same has to be in conformity with Condition No. 13 of the Notice dated 17.06.2022. Condition No. 13 of the Notice dated 17.06.2022 states that the competent authorities can cancel the tender process and call for a re-tender if the intending tenderers have offered rates which are unjustified. In the present case, there is no finding or decision made by the respondent authorities to the effect that the rates of the petitioner and the other tenderers are unjustified. The only explanation given by the State respondents for calling for Page No.# 10/14

re-tender is due to the bid of the petitioner being exorbitantly high, without making clarification of the same. In any event, Condition No. 12 of the Notice dated 17.06.2022 states that unless the bids submitted are above the schedule rate approved for the year 2021-2022, the bid would be rejected. There is no limit imposed for submission of bids beyond the fixed schedule rate of 2021- 2022, thereby implying that high bids are acceptable, unless it is unjustifiable.

18. It is not understood as to how the highest bid given by the petitioner would not be in public interest, as the petitioner, if selected as the successful tenderer, cannot charge a single penny more than the prescribed rate fixed for the vendors, who come to sell their crops and other items in the market, in terms of the last portion of Condition No. 11 of the Notice dated 17.06.2022, where it is stated that the successful tenderer cannot charge beyond the prescribed rate fixed by the respondent authorities. Thus, it is not understood as to how the highest bid of the petitioner would cause prejudice to anybody, let alone to the State respondents. In the order dated 19.10.2022, passed by this Court, this Court had directed the respondent authorities to produce the records in original, which contain the reasons and materials, based upon which the respondent authorities had arrived at a conclusion that the petitioner's bid was exorbitantly high. On perusing the seven pages note sheets pertaining to File No. BTC/Market-32/2022-23, there is no material to show the basis or reason, for the respondent authorities to arrive at a conclusion that the petitioner's bid was exorbitantly high and against public interest. No doubt the Government scheduled rate for the Doomni Weekly Market was fixed at Rs. 1,30,110/-. However, if the petitioner is willing to pay Rs. 2,60,200/-, while adhering to the rates fixed by the State respondents for collection of toll from the vendors, in terms of Condition No. 11 of the Notice dated 17.06.2022, there is nothing to Page No.# 11/14

show that the petitioner will charge higher rates/tolls than that fixed by the State respondents. In any event, the same can always be kept in check by the State respondents and appropriate action can be taken, if the petitioner violates Condition No. 11 of the Notice.

19. Another aspect of the matter is with regard to the respondents re- tendering the Doomni Weekly Market, vide re-tender Notice dated 17.10.2022, while the matter was sub-judice before this Court. The only reason given for re- tendering the market was due to the high bid submitted by the petitioner, without taking into account whether the bids of the other tenderers were justified or not. Be that as it may, no bids were received in pursuant to the re- tender Notice dated 17.10.2022.

20. A perusal of the official records shows that no decision has been taken in any of the Note-sheets to award settlement of the market with the respondent no.6. However, the respondent no.4 had issued order dated 16.08.2022 allowing the respondent no.6 to run the Doomni Weekly Market, without any decision being recorded in the official records, as to why the bid of the petitioner was rejected.

21. This Court in it's order dated 03.11.2022 had restrained the State respondent from operating the market through any of the bidders in the tender process as a temporary measure, although the same could be done departmentally. Thereafter, another order dated 10.11.2022 was issued by this Court, directing the counsel for the BTC to produce the order showing that the respondent no.6 was not operating the market any further, in terms of the order dated 16.08.2022. In this regard, the State respondents have submitted a letter dated 10.11.2022 issued by the respondent no.4, addressed to the Joint Secretary, Market & Fairs, BTC, Kokrajhar informing him that an order was Page No.# 12/14

issued to stop the collection of revenue from the Doomni Weekly Market and Mushalpur Bi-Weekly Market. However, the said order for stoppage of collection of revenue from the above markets, in terms of the letter dated 10.11.2022 is not in the four official files/records brought before this Court.

22. The last Note dated 11.11.2022 in File No. BTC/Market-32/2022-23 is to the effect that the BTC authority has already issued a letter regarding a re- tender process to the respondent no.4, vide letter dated 11.11.2022. No reason is given in the records, as to why the said decision has been made.

23. It thus appears that the respondents have not been fair in their dealings while selecting the successful tender, in terms of the Notice dated 17.06.2022. The State respondents have completely given a go by to Condition No.11 & 13, while selecting the successful tenderer and in going for a fresh re-tender. As can be seen from the Condition No.13 of the Notice dated 17.06.2022, the authorities have the power to call for re-tender, only if the intending tenderers offer rates which are unjustified. In the present case, there is nothing in the official records showing that the rates offered by the petitioner and the other tenderers were unjustified. In fact, no such reason/s has been recorded in the Notes recorded in File No.BTC/Market-32/2022-23 in the other records. On considering the above facts, it appears that either the State respondents are playing a game of hide and seek with facts or there are no minutes of the meeting of the "Market Settlement Committee, BTC for Settlement of Markets".

24. In the case of Manohar Lal Sharma (supra), the Apex Court has held that the award of contract being essentially a commercial transaction, it has to be determined on the basis of consideration that are relevant to such commercial decisions and this implies that the terms subject to which tenders are invited are not open to judicial scrutiny, unless it is found that the same has Page No.# 13/14

been tailor-made to benefit any particular tenderer or class of tenderers.

25. In the case of Agmatel India Private Limited (supra), the Apex Court has held that in matters of contracts, the process of interpretation of the terms and conditions is essentially left to the author of the tender document and the occasion for interference by the Court would arise, only if the questioned decision fails the salutary tests of irrationality or unreasonableness or bias or procedural impropriety.

26. In the present case, there is no quarrel with the above decisions of the Hon'ble Supreme Court and the same has to be followed by this Court. In this case, the terms and conditions of the Notice are not being questioned. In fact, the issue is whether the State respondents have complied with the terms and conditions of the Notice. The facts show that the State respondents have not complied with Condition No.11 and 13 of the Notice, while selecting the private respondent as the successful tenderer and calling for a re-tender dated 19.10.2022, which no person participated in.

Condition No.11 of the Notice dated 17.06.2022 specifically provides that if the highest bidder is not to be awarded the settlement of the market, reasons in writing have to be provided for the same. However, no reasons have been recorded by the State respondents in their official records for not settling the market with the petitioner or with the second and third highest bidders. As such, this Court finds that the decision of the Apex Court in the Silppi Constructions Contractors (Supra) is not applicable to the facts of this case, as the fact situation in the above case and in this case is different. Secondly, in terms of Condition No.13 of the Notice dated 17.06.2022, there has to be a finding by the respondents that the rates of all the bidders were unjustified, before a re-tender can be called. The same is also conspicuously Page No.# 14/14

absent in the official records. In any event, as stated earlier, no one participated in the re-tender Notice dated 19.10.2022.

27. In view of the reasons stated above, this Court is of the view that the decision of the State respondents to have a re-tender of the settlement of the market, without following Condition No. 13 of the Notice dated 17.06.2022 is unjustified and accordingly the said decision is set aside. The above, however, will not preclude the State respondents from re-visiting the issue and taking a fresh decision as to whether a re-tender should be called for, provided that the State respondents can show that the rates of the petitioner and the other tenderers are unjustified, by strictly following Condition No.13 of the Notice dated 17.06.2022. Till a re-tender is published by the State respondents, the State respondents shall allow the petitioner to run the Doomni Weekly Market forthwith, as per the bid provided by the petitioner in his tender document. However, keeping in view of the fact that more than 4 months 2 weeks have gone by from the period of settlement of the market, i.e. 01.07.2022 to 30.06.2022, the proportionate bid amount should be taken from the petitioner, for the remaining period of the year 2022-2023.

28. The writ petition is disposed of accordingly.

JUDGE

Comparing Assistant