Gauhati High Court
WP(C)/5901/2022 on 18 November, 2022
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GAHC010183072022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5901/2022
Rakheb Daimary,
33 years,
S/o Bhadreswar Daimary
R/O Village- Motipur,
P.O. Naryanpur, P.S.- Mushalpur,
District-Baksa, BTR,
Assam, Pin- 781318
----- Petitioner
- VERSUS -
1. State of Assam,
Represented by the Principal Secretary,
Panchayat & Rural Development,
Dispur, Guwahati-781006
2. Principal Secretary
Bodoland Territorial Council,
Kokrajhar,BTR,
Assam, Pin-783370
3. Market Settlement Committee,
BTR, Represented by its Chairman
Kokrajhar, Assam-783370
4. Deputy Commissioner,
Baksa District, BTR,
Assam, Pin-781372
5. Circle Officer, Mushalpur,
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Revenue Circle, Baksa
District- Baksa, Assam-781327.
6. Block Development Officer,
Baksa Development Block,
Mushalpur, District- Baksa,
Assam-781327
7. Rabi Ram Boro,
S/O Adaram Boro, R/O Village-
Nir Jujuki, PO & PS- Barma,
District- Baksa, BTR, Assam.
----- Respondents
BEFORE
Hon'ble Mr. Justice Michael Zothankhuma
Advocates for the Petitioner : Mr. K Sarma and Mr. S Borua
Advocate for Respondent No. 1 : Ms. N Borah
Advocate for Respondent Nos. 2, 3, 5 & 6 : Mr. P Nayak
Advocate for Respondent No. 4 : Mr. M Chetia
Advocate for Respondent No. 7 : None
Date of hearing : 14.11.2022.
Date of delivery of judgment : 18.11.2022
JUDGMENT & ORDER (CAV)
Heard Mr. K Sarma, 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, 5 & 6 and Mr.
M Chetia, learned counsel for the respondent No. 4. No one
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appears for the respondent No. 7, the private respondent.
2. The petitioner is aggrieved with the State respondents not
selecting the petitioner as the successful bidder for running the
Mushalpur Bi-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.
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
Mushalpur Bi-weekly Market. However, the 2 nd highest bidder
namely, the respondent No. 7 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
Mushalpur Bi-weekly Market for the year 2022-2023, should be set
aside and a direction be issued to the State respondents, to settle
the Mushalpur Bi-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 Nos. 2 to 5 & 7
submits that the bid quoted by the petitioner was exorbitantly high,
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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 vs. Union of
India in Special Leave Petition (Civil) Nos. 1380213805/2019.
5. I have heard the learned counsels for the parties.
6. The comparative statement of the tenderers in respect of the
Mushalpur Bi-weekly Market shows that there were three
bidders/tenderers for the said market. The Government schedule
rate for the Mushalpur Bi-Weekly Market was fixed at Rs.1,11,100/-.
The bids of the tenderers are reproduced below as follows:-
i. Sri Indrajit Brahma - Rs. 1,44,441/-
ii. Sri Rabi Ram Boro - Rs. 1,70,002/-
iii. Petitioner - Rs. 2,22,198/-
7. 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
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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."
8. 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. 7, who was the 2nd highest bidder has been
authorised to run the Mushalpur Bi-Weekly Market for the year
2022-2023, vide the impugned order dated 17.08.2022. In terms of
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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.
9. 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.
10. 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 Mushalpur Bi-Weekly Market.
11. 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 Note dated 24.08.2022. The Note dated 12.08.2022, which
is a comparative chart of tenderers involving various markets,
shows that in respect of Mushalpur Bi-Weekly, the bid of the
respondent no.7 has been approved on the basis of the
comparative chart and the minutes of the meeting of the "Market
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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 bid
of the petitioner has not been accepted/selected, over the
respondent no.7, who is the 2nd highest bidder.
12. The File No. BTC/Market-31/2022-23 is with regard to
Mushalpur Bi-Weekly Market. However, as per the note dated
24.09.2022 in File No. BTC/Market-31/2022-23, the market
settlement committee, BTC has settled the market with the 4 th
bidder against the Doomni Weekly Market (it should be Mushalpur
Bi-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 Doomni Weekly Market shows total non-application of mind of
the State respondents. Further, 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. 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. 6 has issued order
dated 17.08.2022, whereby the respondent No. 7 has been
primarily reauthorized to run the Mushalpur Bi-Weekly Market for
the year 2022-2023. The order dated 17.08.2022 issued by the
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respondent No. 6 (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 15 th
July 2022, the earlier order No. BDB/Market-76/2015-
16/1283 Dated 17/08/2022 is hereby cancelled and the
undersigned has preliminary re-authorized Sri Rabi Ram
Bora, S/o Adoram Bora, Village-Niz-Juluki, P.O. barama,
P.s. Barama, District-Baksa, BTAD, Assam has been
preliminary authorized to collect the tolls against
"Mushalpur Bi-Weekly Market" for the year 2022-23.
This order will come in to force with immediate
effect and will stand until further order."
The above order dated 17.08.2022 is conspicuously silent
with regard to the rate at which the Mushalpur Bi-Weekly Market
had been settled with respondent No. 7.
13. The above facts needs to be recapitulated, as it appears that
the State respondents have not been acting fairly in the settlement
of the Mushalpur Bi-Weekly for the year 2022-2023. There are only
eight pages of note sheets in the File No. BTC/Market-31/2022-23
and the 1st note made in the said file is dated 24.09.2022, while
the last note is dated 28.10.2022. The note dated 24.09.2022 has
approved the respondent No. 7 to run the Mushalpur Bi-Weekly for
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the year 2022-2023. However, in terms of the order issued by the
respondent No. 6, the respondent No. 7 had been allowed to run
the Mushalpur Bi-Weekly vide order dated 17.08.2022, 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 petitioner has
not been selected, which is in violation of Condition No. 11 of the
Notice dated 17.06.2022.
14. In view of the reasons started above, the order dated
17.08.2022 issued by the respondent No. 6 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 17.08.2022 issued by
the Block Development Officer, authorising the private respondent
to run the market and collect the tolls.
15. 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 authority 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
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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 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 higher
limit imposed for submission of bids beyond the fixed schedule rate
of 2021-22, thereby implying that high bids are acceptable, unless
it is unjustifiable.
16. 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
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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 eight
page note sheets pertaining to File No. BTC/Market-31/2022-23,
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 Mushalpur Bi-Weekly was fixed
at Rs. 1,11,100/-. However, if the petitioner is willing to pay Rs.
2,22,198/-, 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 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.
17. Another aspect of the matter is with regard to the
respondents re-tendering the Mushalpur Bi-Weekly, 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
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not. Be that as it may, no bids were received in pursuant to the re-
tender Notice dated 17.10.2022.
18. 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.7. However, the respondent no.6
had issued order dated 17.08.2022 allowing the respondent no.7 to
run the Mushalpur Bi-Weekly, without any decision being recorded
in the official records, as to why the bid of the petitioner was
rejected.
19. 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.7
was not operating the market any further, in terms of the order
dated 17.08.2022 issued by the respondent no.6. In this regard, the
State respondents have submitted a letter dated 10.11.2022 issued
by the respondent no.6, addressed to the Joint Secretary, Market &
Fairs, BTC, Kokrajhar, informing him that an order was issued to
stop the collection of revenue from the Mushalpur Bi-Weekly
Market. However, the said order for stoppage of collection of
revenue from the above market, in terms of the letter dated
10.11.2022 is not in the four official files/records brought before
this Court.
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20. The last Note dated 28.10.2022 in File No. BTC/Market-
31/2022-23 is to the effect that the BTC authority has already
issued a letter regarding a re-tender process to the respondent
no.6, vide letter dated 17.10.2022. As stated earlier, no bids were
received in respect of the re-tender Notice dated 19.10.2022.
21. It thus appears that the State 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. 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".
22. 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 having a re-
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tender vide Notice 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
absent in the official records. In any event, as stated earlier, no one
participated in the re-tender Notice dated 17.10.2022.
23. 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
petititioner and other tenderers are unjustified, by strictly following
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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 Mushalpur Bi-Weekly 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.
24. The writ petition is disposed of accordingly.
JUDGE
Comparing Assistant
