Page No.# 1/ vs The Bodoland Territorial Council And 4 ...
2025 Latest Caselaw 1043 Gua

Gauhati High Court

Page No.# 1/ vs The Bodoland Territorial Council And 4 ... on 15 July, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/11

GAHC010024462024




                                                           2025:GAU-AS:9150

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

                        Case No. : WP(C)/574/2024

         BIDINTHA KACHARI
         S/O BIREN KACHARY,
         R/O VILL- CHELEIMARI,
         P.O. KOIRABARI
         DIST. UDALGURI, BTC, ASSAM



         VERSUS

         THE BODOLAND TERRITORIAL COUNCIL AND 4 ORS
         REP. BY THE PRINCIPAL SECRETARY, BTC,
         KOKRAJHAR, ASSAM

         2:THE COUNCIL HEAD OF THE DEPARTMENT IRRIGATION
          BTC KOKRAJHAR
         ASSAM

         3:THE ADDITIONAL CHIEF ENGINEER

          IRRIGATION
          BTC KOKRAJHAR
          ASSAM

         4:THE EXECUTIVE ENGINEERS

          IRRIGATION
          UDALGURI
          BTC
          ASSAM

         5:SRI JITUPAL DEKA
          R/O VILL/TOWN - GORESWAR
                                                                             Page No.# 2/11

            P.O. GORESWAR
             DIST. BAKSA (BTC)
            ASSAM
             PIN-781366



                                       BEFORE
                  HON'BLE MR. JUSTICE DEVASHIS BARUAH

Advocate for the petitioner(s)    :    Mr R Dhar

Advocate for the respondent(s)   :     Mr S Bora, SC, BTC

Date of Hearing and Judgment      :    15.07.2025.

                         JUDGMENT AND ORDER (ORAL)

Heard Mr R Dhar, the learned counsel appearing on behalf of the petitioner. Mr S Bora, learned Standing Counsel, BTC, appears on behalf of the respondent Nos. 1, 2, 3 and 4. None has appeared on behalf of the respondent No. 5 on call.

2. The petitioner herein, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the minutes of the Financial Bid Evaluation Committee meeting held on 21.07.2023, as well as the notice to proceed with the work issued in favour of the respondent No. 5, dated 25.09.2023, on the ground that the respondent authorities have allotted the work in favour of the respondent No. 5 in gross violation to Clause-29 (VI) of the Instruction to Bidders, without any rhyme or reason.

3. Taking into account the instant writ petition hinges on compliance to Clause-29 (VI) of the Instruction to the Bidders, the said clause is reproduced hereinunder:

"VI. In case more than 1 (one) bidder stands L1 as per the Comparative Page No.# 3/11

Statement of Financial Bids, the bidder having higher annual turnover during 3 previous Financial years, higher value of single work order in similar nature of works and higher number of equipments proposed to be used for the work, shall get preference in award of the contract. The weightage for annual turnover shall be considered as 40%, for single work order 35% and that for equipments shall be considered as 25% for comparison of bids and selection for award."

4. From the above quoted clause, it would be seen that if there are more than one bidder, who stands as L1, as per the comparative statement of financial bids, the tendering authority shall give preference while awarding the contract by taking into consideration three aspects-

i) the bidder having higher annual turnover during the three previous financial years,

ii) higher value of the single work order in similar nature of works; and

iii) higher number of equipments proposed to be used for the work.

5. For deciding as to whether the respondent authorities have duly applied Clause-29 (VI) in proper perspective and in doing so, whether there was any illegality in allotting the work in favour of the respondent No. 5, this Court finds it relevant to take into consideration the facts which led to the filing of the present writ petition.

6. The record reveals that on 04.02.2023, the Council of Head of the Department, Irrigation, BTC, Kokrajhar, had issued an Invitation for Bids for different works of 100 new SIM Schemes (BTC), under PMKSY (HKKP) for the 2021-2022 (in 24 numbers of groups). The approximate value of the work was Rs. 56,87,33,012/- and the period of completion was 12 months.

7. It is relevant to take note of that the present writ petition relates only to construction of lined canal of Bainara FIS under PMKSY-HKKP, for the year 2021-2022 of the Paneri-Kalaigaon Division and the estimated value was Rs. 1,72,34,800/- and the Page No.# 4/11

period of completion was 12 months.

8. The record reveals that the petitioner along with the respondent No. 5 and others participated in the said tender process. Relevant herein to take note of that amongst the various documents to be submitted in terms with Clause 4 of the Instruction to the Bidders, Clause-4 (c) stipulates experience in works under the Irrigation Department during the last three years (if any) and Clause 4 (d) stipulates statement of total monetary value of construction work performed during the last three years under the Irrigation Department (if any). It is also very pertinent to take note of that Clause-4 (e) which stipulates experience in civil works in any other department under the Government of Assam during the last three years (if any).

9. This Court further finds it very pertinent, taking into account the dispute involved, to take note of Clause- 4 (n), which refers to furnishing of a copy of the single work order having a minimum value as per Clause-4.II.a(ii), which has been stipulated as mandatory.

10. Taking into consideration the reference made to Clause-4.II.a(ii), it is relevant to take note of the said clause, which stipulates that the bidder/contractor should have at least one single similar nature work order under the Government Department of value, not less than 30% of the package value of the tender, which is stipulated to be mandatory. It is further pertinent to mention that the manner in which the completion report has to be submitted is also mentioned in Clause- Clause-4.II.a(iii).

11. At this stage, it is relevant in the context of the three parameters as laid down in Clause -29 (VI), to take note of the details submitted by the petitioner, vis-à-vis, the respondent No. 5. In so far as annual turnover during the three previous financial years, the petitioner submitted a certificate issued, providing the financial turnover. The financial turnover so provided in the said certificate is reproduced hereinunder:-

Page No.# 5/11

Sl. Particulars 2019-20 2020-21 2021-22 No.

(i) Gross Annual Turnover Rs.9060425.00 Rs. 9858740.00 Rs. 9986750.00

(ii) Profit/Loss Rs. 498340.00 Rs. 868530.00 Rs. 875740.00

On the other hand, the respondent No. 5 have provided a certificate from a Chartered Accountant in respect to his financial turnover and the said being pertinent is reproduced hereinunder:

Sl.     Particulars              2019-20         2020-21          2021-22
No.

1.      Gross Annual Turnover    86,88,790       22,75,800        48,29,450

2.      Profit/Loss              6,38,460        4,59,612         4,93,286

12. In respect to second aspect, which is required to be taken into account, relates to the higher value of single work order in similar nature of work. The petitioner had submitted a work done certificate issued by the Executive Engineer, Paneri-Kalaigaon division, in terms with Clause-4.II.a(iii) of the Instruction to the Bidders. It is relevant to take note of that in terms with the said work done certificate issued on 22.09.2022, totaling to Rs. 1, 19, 24, 077.00, it is seen that the petitioner had completed various similar works under the Irrigation Department. In the said work done certificate, issued by the Executive Engineer, Paneri-Kalaigaon Division (Irrigation), Tangla, which is in terms with Clause-4.II.a(iii), the petitioner lays emphasis on the following work as the single work order of higher value. The same is reproduced hereinunder:

Page No.# 6/11

Sl. Name of Work Work Order No. Work Value Physical No. and Date Progress

7. Marangadal FIS (Const. of No. CHDI/18/CS- Rs. 74,54,000.00 100 % Spillweir, Guide Bund, 120/T/2009-

        Cofferdam.        Diversion 10/5173   Dt.
        channel, Canal System, 27.01.2011
        Brick lined canal approach
        road, Box type R.C.C.
        culvert, canal bed barrier
        outlet accommodation etc.)
        under AIBP (BTC) 2009-10

On the other hand, the respondent No. 5 have not produced any document pertaining to work done under the Irrigation Department, rather he produced certificate issued by the PWD Department, relating to the following work, the details of which is given hereinunder:-

Sl. Name of Work Formal Work Date of Date of Date of Work Value Remarks

Order No. & Commencemen Completion Actual No. Date. t as per T/A Completion

1. Construction of CC Block C/S- 25.02.2023 19.09.2023 27.02.2023 81,99,995.00 Work is completed Road from Jalukbari 15/ACE/BTC/UDL (Arjuntal) to Ambagaon /(R&B)/2022-

23/15, Village under AOP dtd.19.12.2022 (PWD) for the year 2022-

13. In respect to the third aspect, which pertains to equipments, the petitioner has

provided the following details by way of an affidavit filed on 24 th of February, 2023, which is reproduced hereinunder:-

Page No.# 7/11

ITEMS OF EQUIPMENTS AND MAN POWER

Sl. No. Type of Equipment Nos.

14. On the other hand, the respondent No. 5 has provided his equipments by way of an

affidavit filed on 27th of February, 2023, the details of which are hereinunder:-

Sl. Nature of Equipment Availability of Equipments No. Owned/Leased Nos./Capacity-

Rented

1. Excavator/JCB Lease 01 No.

2. Welding Machine OWN 01 No.

3. DG Set Lease 01 No.

4. Mixer Machine OWN 01 No.

5. WATER PUMP 10 HP OWN 01 No.

6. WATER PUMP 05 HP OWN 01 No. Page No.# 8/11

7. Tractor with Trolley LEASE 01 No.

8. Truck LEASE 01 No.

9. BELSA OWN 100 Nos.

10. TAGARI OWN 100 Nos.

11 KUDAL OWN 100 Nos.

15. From the above equipments so provided by the petitioner, vis-à-vis the respondent No. 5, it appears that the equipments of both the petitioner and the respondent No. 5 are relatively same, except the fact that the petitioner has a vibrator and the respondent No. 5 has 100 Kudal (Spades).

16. In the above backdrop, it would be seen that the petitioner along with the respondent No. 5 and another were held to be technically qualified and their financial bids were opened by the respondent authorities on 21.07.2023. It was found that the petitioner, the respondent No. 5, and one Sri Parimal Debnath, all have quoted the same amount, i.e., Rs. 1,55,113, 20/- each. Therefore, the petitioner, the respondent No. 5 as well as Sri Parimal Debnath were L1 bidders. However, without assigning any reason in the said minutes, the Chairman, Council Head of the Department, the respondent No. 2 allotted the work in favour of the respondent No. 5 and pursuant thereto, on 25.09.2023, the notice to proceed with the work was issued in favour of the respondent No. 5. It is under such circumstances, the present writ petition has been filed.

17. The record reveals that this Court vide an order dated 26.02.2024, passed an interim order, thereby staying the work order dated 25.09.2023, issued to the respondent No. 5. The interim order have been continued till date.

Page No.# 9/11

18. It is pertinent to mention that the respondent No. 3 had filed an affidavit-in- opposition. The reasons so assigned for giving the preference to the respondent No. 5, vis-à-vis the petitioner is on two counts, as would be seen at Paragraph No. 12 of the said affidavit-in-opposition. It is stated that the respondent No. 5 had a higher single order value of Rs. 81.99 lacs, compared to the petitioner of Rs. 74.54 lacs. The second ground so mentioned is that the writ petitioner had submitted two different lists of equipments, which was not in conformity with each other, and also not in the prescribed format. There is, however, no mention as to why the respondent No. 5 was preferred, vis-à-vis Sri Parimal Debnath, who was also the L1 bidder.

19. In the backdrop of the above, this Court has duly heard the learned counsel on behalf of the parties and have carefully perused the materials on record.

Decision, Analysis And Determination:

20. Before taking up the issue as to whether the respondent authorities, more particularly, the respondent No. 2 had applied the provision of Clause-29 (VI) in the proper perspective, this Court finds it relevant to take note of the stand which has been taken by the respondent No. 3 in his affidavit-in-opposition. The first stand so taken is that the petitioner's single higher value work was Rs. 74.54 lacs, compared to the respondent No. 5, who had completed a single higher value work of Rs. 81.99 lacs. In the opinion of this Court, the said reason so assigned does not appear to be sound on the basis of the Instruction to the Bidders, and more particularly, Clause-4.I and Clause

4.II.a (ii), inasmuch, as the single work is of work pertaining to similar nature and this aspect of the matter has not been considered by the respondent authorities.

21. It is pertinent to mention that in Clause-4.II.a(ii), read with Clause-29 (VI), the single high value work order is of similar nature and, therefore, the respondent authorities were required to consider, as to whether the work in question executed by the petitioner, vis-à-vis the respondent No. 5 were of similar nature.

Page No.# 10/11

22. The next ground so taken for preferring the respondent No. 5, as against the petitioner is that the petitioner has provided two different lists of equipments, which were not in conformity with each other. It is very pertinent to mention that the said ground appears to be an afterthought, inasmuch, as the petitioner's bid was not rejected on technical grounds.

23. Be that as it may, it appears from the lists of equipments, so quoted hereinabove, as submitted by the petitioner as well as the respondent No. 5 that the equipments so provided by the petitioner as well as the respondent No. 5 were almost similar, except the fact that the petitioner has a vibrator, and on the other hand, the respondent No. 5 has 100 spades.

24. This Court further finds it very pertinent to take note of that amongst the three parameters, as set out in Clause-29 (VI), one of the parameters is higher annual turnover and from what have been mentioned hereinabove, it would be seen that the petitioner's annual turnover far exceeds the respondent No. 5.

25. Therefore, it appears that the preference so given by the respondent authorities, more particularly, the respondent 2 in favour of the respondent No. 5, appears to be arbitrary, unreasonable, unfair as well as irrational.

26. The instant writ petition, therefore, stands disposed of, with the following observations and directions:-

i) The minutes of the Financial Bid Evaluation Committee held on 21.07.2023, is set aside and quashed.

ii) The notice to proceed with the work dated 25.09.2023, in favour of the respondent No. 5, is set aside and quashed.

iii) The respondent authorities herein, are directed to re-evaluate on the basis of the observations so made hereinabove and taking into account the materials so submitted by the petitioner, the respondent No. 5 as well as Sri Parimal Debnath, Page No.# 11/11

as to who would be entitled, in terms with Clause-29 (VI), to the preference for being awarded the contract in question. The said exercise be completed within a period of 15 days, from the date when the certified copy of the instant judgment is submitted to the respondent No. 2.

iv) This Court, further directs the respondent authorities to call for extending the validity of the bids, so submitted by the parties, i.e., the petitioner, the respondent No. 5 as well as Sri Parimal Debnath, for the purpose of consideration of their case in terms with Clause-29 (VI) of the Invitation for Bids of the Instruction to Bidders.

v) It is observed that if all Bidders do not agree to extend the validity of the Bids, the Respondent Authorities may take recourse to inviting fresh tender.

vi) It is clarified that the consideration for preference in terms with Clause-29 (VI) of the Instruction to the Bidders, would be made, if and only if, any of the Bidders, i.e., the petitioner, respondent No. 5 and Shri Parimal Debnath, submits undertaking that he or they are ready to extend the bid validity.

JUDGE

Comparing Assistant