Hasanuzzaman Sheikh vs The State Of Assam And 7 Ors
2024 Latest Caselaw 8190 Gua

Gauhati High Court

Hasanuzzaman Sheikh vs The State Of Assam And 7 Ors on 8 November, 2024

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                 Page No.# 1/7

GAHC010115082023




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

                           Case No. : WP(C)/3044/2023

         HASANUZZAMAN SHEIKH
         S/O- LATE KHADEMUL ISLAM SHEIKH, R/O- VILL.- BAGHDOKRA, P.O.
         KAMANDANGA, P.S. TAMARIHAT, DIST. KOKRAJHAR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, FOREST DEPARTMENT, DISPUR, GUWAHATI-
         781006.

         2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF
         FOREST FORCE
         ASSAM
          PANJABARI
          GUWAHATI-781037.

         3:THE CHIEF CONSERVATOR OF FOREST-CUM-COUNCIL
          HEAD OF DEPARTMENT
          BTC
          KOKRAJHAR
         ASSAM-783370.

         4:THE SECRETARY

          BODOLAND TERRITORIAL COUNCIL
          KOKRAJHAR
          DIST. KOKRAJHAR
          PIN- 783370.

         5:THE DEPUTY COMMISSIONER
          DIST. KOKRAJHAR
                                                                          Page No.# 2/7

             ASSAM-783370.

            6:THE DIVISIONAL FOREST OFFICER

             PARBATJHORA DIVISION
             SUPARIGHAT
             DIST. KOKRAJHAR
             ASSAM-783339.

            7:THE ASSISTANT LABOUR COMMISSIONER
             DHUBRI
             DIST. DHUBRI
            ASSAM
             PIN- 783301.

            8:PRADIP KR. BASUMATARY
             S/O- NAMAL CH. BASUMATARY
             R/O- VILL.- TULSHIBIL
             P.S. GOSSAIGAON
             P.O. TULSHIBIL
             DIST. KOKRAJHAR
             BTC
            ASSAM
             PIN- 783337

Advocate for the Petitioner   : MR. T J MAHANTA, MD. S ALOM,MR. M S ALAM,MR S J
SHAMIM

Advocate for the Respondent : GA, ASSAM, MR. J AHMED,MR R A AHMED (r-8),MRS R
BEGUM (r-8),MR M AHMED (r-8),SC, FOREST,SC, BTC




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

08.11.2024

1. Heard Mr. T.J. Mahanta, learned Senior Counsel for the petitioner. Also heard Mr. P. Nayak, learned Standing Counsel for the BTC, Mr. S.R. Baruah, learned counsel for the respondent nos.5 & 7 and Mr. J. Ahmed, learned counsel for the respondent nos.8.

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2. The petitioner's counsel submits that pursuant to a Sale Notice dated 29.11.2021 for grant of mining contract for collection of Sand/Gravel/Sand- Gravel/Boulder/Stone on tender sale basis for a period of 7 years, the petitioner and the respondent no.8 amongst others submitted their bids. The petitioner's case is that despite being the highest bidder, the respondents have selected the respondent no.8 as the successful bidder. The petitioner's bid was Rs.2,68,75,200/-, while the bid of the respondent no.8 was Rs.2,22,00,000/-.

3. The petitioner's counsel submits that the petitioner's bid has been disqualified, due to the admitted fact that at the time the tender notice was issued and till the last date for filing of the bids of the bidders, the petitioner did not have a valid labour licence. The petitioner's counsel submits that though the requirement of a bidder to have a labour licence was a mandatory condition in terms of the tender form, though not stipulated in Clause 13 of the Sale Notice, the respondents could not have selected the respondent no.8 as the successful tenderer, inasmuch as, the respondent no.8 did not submit the up-to-date Financial Soundness Certificate, which is an essential condition of the contract, in terms of the Clause 13(d) of the Sale Notice. The petitioner's counsel submits that as the respondent no.8 did not submit the Financial Soundness Certificate which was a mandatory condition of the Sale Notice, the selection of the respondent no.8 as the successful tenderer, should be set aside.

4. Mr. P. Nayak, learned Standing Counsel appearing for the BTC submits that the petitioner, besides not having a valid labour licence in terms of the tender form, he did not have any Registration Certificate as a Contractor or up-to-date Page No.# 4/7

Financial Soundness Certificate and Experience Certificate.

5. Mr. J. Ahmed, learned counsel for the respondent no.8 submits that in compliance with Clause 13(d) of the Sale Notice, the respondent no.8 had submitted Annual Turnover and Income Tax Return for the concerned 3 years.

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

7. It is an admitted fact that at the time the Sale Notice was issued on 29.11.2021 and till the last date of submission of the bids, i.e. 03.01.2022, the petitioner did not have a labour licence which is a mandatory condition, in terms of the tender form provided by the respondent authorities. It is also an admitted fact that the petitioner's labour licence had expired on 12.10.2015 and had been renewed only on 08.05.2023. The above fact clearly goes to show that there was no infirmity in the respondents disqualifying the petitioner from being considered for the said mining contract work.

8. The above being said, the petitioner has now sought to challenge the selection of the respondent no.8 as the successful tenderer, on the ground that the petitioner had not submitted the required documents in terms of Clause 13(d) of the Sale Notice, which is to the following effect :

"d. An up-to-date Financial Soundness Certificate from the concerned authority ascertaining the financial capacity to operate the mining contract and IT return of the last three years is also to be submitted."

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9. There is nothing stated by the State respondents with regard to the above allegation made by the petitioner and on the other hand, the respondent no.8 has stated that he had submitted Annual Turnover, which was in consonance with Clause 13(d) of the Sale Notice.

10. The petitioner having being disqualified, this Court will have to see, as to whether the petitioner can make a challenge to the selection of the respondent no.8 as a successful tenderer, on grounds other than the issue of not having a labour licence.

11. In the case of TATA Motors Limited Vs. the Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others in Civil Appeal No. 3897/2023, the Supreme Court affirmed the view of the High Court that once the bid of the TATA Motors had been declared as non responsive and having stood disqualified from the tender process, it could not have entered into the fray of investigating into the decision of BEST to declare the successful bidder.

12. The Supreme Court in Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and Others, reported in (1999) 1 SCC 492, held that any judicial relief at the instance of a party who does not fulfil the requisite criteria seems to be misplaced.

13. On considering the facts of this case, this Court is of the view that as the petitioner was disqualified on the admitted fact that he did not have the mandatory requirement of having a valid labour licence at the time of submission of his bid, the petitioner cannot make a challenge to the selection of Page No.# 6/7

the respondent no.8, as the successful tenderer. Further there is nothing stated by the State respondents, that the documents submitted by the respondent no.8 was not in consonance with the requirements of the Sale Notice.

14. In the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr., reported in (2016) 16 SCC 818, the Supreme Court has held as follows-

"The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents."

15. On considering the fact that the State respondents are the best interpreters of the terms and conditions of their tender and keeping in view the fact that the State respondents have not made any decision to the effect that the bid of the respondent no.8 was not in consonance with Clause 13(d) of the Sale Notice, this Court is of the view that the allegation made by the petitioner that the bid of the respondent no.8 is not in consonance with Clause 13(d) of the Sale Notice, cannot be accepted.

16. The above being said, the petitioner's Technical Bid having been disqualified, the petitioner cannot be allowed to challenge the selection of the respondent no.8 as the successful tenderer. It would have been a different case if the respondent no.8 had been declared a successful tenderer, despite not having a valid labour licence, as was the case of the petitioner. However, the facts of the case show that the respondent no.8 had submitted a valid labour licence. Accordingly, in terms of the judgments of the Supreme Court in Page No.# 7/7

Raunaq International Ltd. (supra) and Tata Motors (supra), the stand taken against the respondent no.8 in the writ petition is not sustainable and the same is accordingly dismissed.

17. The interim order passed earlier stands vacated.

JUDGE

Comparing Assistant