Foodexx vs State Of Assam And 4 Ors

Heard Mr. G. Rahul, learned counsel appearing for the writ petitioner and Mr. S. Dutta, learned Standing Counsel, Forest Department, Assam, appearing for the respondent Nos.1 to 4. I have also heard Mr. M. K. Choudhury, learned senior counsel assisted by Mr. P. Bharadwaj, appearing for the respondent No.5.

The order dated 23.05.2019 issued by the respondent No.4 directing that the contract in question for operation of a restaurant complex within the Assam State Zoo at Guwahati for a period of five years to be awarded in favour of respondent No.5, has been put under challenge in the present writ petition.

The facts of the case, in a nutshell, as appearing on the face of the records, are that the respondent No.2 i.e. the Divisional Forest Officer, Assam State Zoo Division, Guwahati had floated an NIT dated 11.02.2019 inviting bids for operation of a restaurant within the Assam State Zoo for a period of five years. The NIT contained a clause in the form of Clause 26 whereunder the intending bidders were required to have at least two years experience in operating a "fine dining" restaurant. The writ petitioner and the respondent No.5 had both submitted their bids in response to the NIT dated 11.02.2019. Upon evaluation of the bids, it transpired that the petitioner had offered Rs.62,200/- as the monthly rent whereas the respondent No.5 had offered Rs.63,000/-. However, by the letter dated 05.04.2019, the tendering authority had recommended that the work order to operate the restaurant be issued in favour of the writ petitioner. The said recommendation made in favour of the petitioner for a lower amount was apparently on account of the fact that although the respondent No.5 had quoted a higher rate of Rs.63,000/- per month, yet, his bid was found to be non-responsive to Clause 26 of the NIT. The matter was then placed before the Deputy Conservator of Forest (Publicity), Office of the PCCF, WL & CWLW, Assam, for further scrutiny, who had issued the impugned order dated 23.05.2019 overruling the recommendation made by the respondent No.2, with a direction to the concerned authority to execute the agreement with the respondent No.5 in view of the higher revenue offer by him. It is the order dated 23.05.2019 that has been assailed by the petitioner in this writ petition.

The respondent Nos.1 to 4 have filed their affidavit inter alia stating that the writ petitioner had failed to submit as many as two essential documents along with his tender viz., experience certificate of fine dining restaurant and labour licence. Moreover, the GMC trade licence submitted by the petitioner had also expired. As such, the tender submitted by the writ petitioner was defective. Moreover, the offer of the writ petitioner was also lower than the respondent No.5.

The respondent No.5 has also contested the petitioner's case by filing counter- affidavit justifying the decision of the authorities to award the tender in his favour.

As noticed above, the controversy raised in this writ petition primarily revolves around the interpretation of Clause 26 of the NIT, which is reproduced herein below :-

"26. Minimum 2(two) years of experience in successfully running a Fine Dining Restaurant. The tenderer should produce documents to prove his/her claim (Ownership/Agreement Copy, Location of Restaurant, photographs etc.)."

There is no dispute about the fact that the respondent No.5 had quoted a higher amount than the writ petitioner. Therefore, unless the bid of the respondent No.5 is found to be defective on a technical ground, the authorities would be obliged to issue the work order in favour of the respondent No.5.

After going through the materials available on record it appears that there is no documentary evidence available so as to indicate as to whether, the respondent No.5 actually meets the requirement of NIT including that of Clause 26. As noted above, if the bid of the respondent No.5 turns out to be compliant with the clauses of the NIT, then, in view of the higher amount quoted by him, there would be hardly any ground for the authorities to deny him the work order. Since the ascertainment of the said fact would require factual verification, which would not be possible in this writ petition, hence, taking note of the grievances expressed by both the parties and keeping in view the urgency involved in the matter, I dispose of the writ petition by directing the Principal Chief Conservator of Forest, Wildlife and Chief Wildlife Warden, Assam, Aranya Bhawan, Punjabari, Guwahati, to examine the records of the tender evaluation committee and thereafter, pass a fresh order settling the contract in favour of the successful bidders. Whatever be the decision of the authorities, the same be communicated in writing within 10 (ten) days from the date of receipt of a certified copy of this order.

The writ petition is accordingly disposed of.

Records be returned back.