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Judgment
K. Lahiri, A.C.J.
Pursuant to a Tender Notice, the Petitioner and Respondent No. 4 submitted their tenders for settlement of Garubandha Weekly Bazar under the Tezpur Mohkuma Parishad. The period of settlement was for one year commencing from 1.7.1984. Respondent No. 4 offered Rs. 60,000/- whereas the offer of the Petitioner was Rs. 51,000/-. The offer tendered by Respondent No. 4 was the highest whereas that of the Petitioner was the second highest. The difference between the two offers is of Rs. 9,000/-. In the course of argument, the learned Counsel for the Petitioner his produced before us the tender notice, which inter alia, states that after the settlement is made the tenderer found suitable and duly selected by the Mohkuma Parishad shall have to deposit 25% of the tendered amount or more as security amount for taking the lease of the Bazar. The tenders came up for consideration before the Executive Committee of the Mohkuma Parishad. It appears from the Appellate order of the Government that Respondent No. 4 enclosed an Affidavit along with the tender intimating that he was ready and willing to deposit in cash the security amount provided his tender was accepted. In other words, Respondent No. 4 offered to pay the entire security amount in cash instead of executing any mortgage and/or promissory note in favour of the Mohkuma Parishad. It appears that the tender of the Petitioner was rejected by the Mohkuma Prishad on the following grounds:
On examination of the tender of the highest bidder Shri Sukumar Das Bhowmick offering Rs. 60,000/- was found to be defective as Shri Bhowmick had not mentioned in his affidavit in case he failed to deposit the entire amount at a time how the said amount would be recovered. As such the tender is rejected.
(Emphasis added).
It is thus seen that the tender of Respondent No. 4 was rejected on the ground that he did not mention in the affidavit how the security amount would be recovered if he failed to deposit the security money in cash. In other words, the ground for rejection was that Respondent No. 4''s Tender was defective as he had offered to deposit the entire amount in cash but he did not mention what would be the consequence of his failure to deposit the cash amount after the tender was made. Respondent No. 4 appealed against the order of the Mohkuma Parishad u/s 138 of the Assam Panchayati Raj Act, 1972. The Appellate authority, the State Government, allowed the appeal. It has been held by the appellate authority that the ground of rejection of the tender was untenable. It was further held that when Respondent No. 4 had expressed that he would deposit the entire amount of Rs. 60,000/- in cash there could be no reason for rejecting his tender. Accordingly, the appeal was allowed upon setting aside the order of settlement made by the Mohkuma Parishad in favour of the writ Petitioner.
This writ application is against the appellate order. The first contention of the learned Counsel for the Petitioner is that the offer made by Respondent No. 4 to deposit the entire security amount in cash was in breach of the terms of the Tender Notice. However, what we find from Clause I of the Tender Notice is that the tenderers were informed that they were required to deposit " 25% or more " as security. As such, we find that the offer to pledge cash security of the entire amount of Rs. 60,000/ offered by Respondent No. 4 was in consonance with Clause I of the Tender Notice. On perusal of the Clause I, we are of the opinion that the Tender Notice intimated the tenderers that they could deposit 25% of the tendered amount or more. In pursuance of the advertisement, Respondent No. 4 offered to deposit the entire tendered amount of Rs. 60,000/- in cash. It is, therefore, seen that the conclusion reached by the appellate authority that there was no defect in the tender and that the Mohkuma Parishad had committed error in rejecting his tender, is a correct finding.
The next contention of the Petitioner is that deposit of the entire amount in cash was in breach of Rule 28(2)(a)(vi) of the Assam Panchayati Raj (Administrative) Rules, 1973. According to the learned Counsel for the Petitioner, a tenderer could under the rule, offer to deposit 25 per centum on his quoted amount in the tender for one year. Under the provision of the Rules, a tenderer could not offer cash security more than 25 per centum of his tendered amount for one year, It has been contended that in respect of balance 75 per cent, the tenderer is to undertake to execute either a mortgage deed or a promissory note in favour of the Mohkuma Parishad.
In the instant once, we find that the Tender Notice issued by the Mohkuma Parishad intimated that the successful tenderer would be required to deposit with the Secretary of the Mohkuma Parishad cash security to the tune of not less than 25% or more on the quoted amount in the tender. Thus, the Mohkuma Parishad itself specified that the selected tenderer could deposit cash security to the extent of 25 per centum or more. As such, what Respondent No. 4 did by offering deposit of the entire amount of Rs. 60,000/- in cash towards security of the settlement was strictly in terms of the Tender Notice and the Mohkuma Parishad could not have penalised Respondent No. 4 for complying with Clause I of the Tender Notice, set out by them.
Learned Counsel for the Petitioner submits that such a deposit was in breach of Rule 28(2) (a)(vi) of "the Rules", which we extract hereinbelow:
28'' Procedure for sale and settlement of Hat-Notice for sale:
2(a). The public notice referred to in the proceeding shall be given by the Chief Executive Councilor of the Mohkuma Parishad concerned and shall state-
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(vi) the condition viz that the selected tenderer shall have to deposit with the Secretary of the Mahkuma Parishad, not less then twenty five per centum on his quoted amount in the tender for one year and to accept duly stamped lease jointly with one or more sureties to the satiation of the Secretary, Mohkuma Parishad within seven days from the date of issuing acceptance letter in respect of his tender, that the lease and mortgage bond (unless the Executive Committee of the Mohkuma Parishad has otherwise directed) and any other special conditions that the Executive Committee may impose for any Particular hat:
Provided that if the Executive Committee so directs the Secretary of the Mohkuma Parishad may in lieu of sureties accept as security of the quoted amount for immovable property or promissory notes not less in value than for one year, which shall be given in addition to the security deposit as mentioned above in that Sub-rule. The form of mortgage bond of immovable property shall be as provided in Schedule ''3'' annexed to these rules.
(Emphasis added).
It will be seen on perusal of Sub-rule 2(a)(vi) of Rule 28 that the notice of sale must specify the conditions relating to surety. However, if the Mohkuma Parishad itself lays down a condition which is more onerous than to be found in the sub-rule and on compliance thereto a tenderer submits a tender, we are afraid, the tenderer cannot be penalised for compliance with the terms of the notice.
Be that as it may, the tender of Respondent No. 4 was rejected because he did not specify as to how the amount would be recovered, if the cash security amount was not furnished. It is not disputed that generally the tenderers undertake to deposit 25% per centum of the quoted, amount of his tender for one year. In none of the tenders any indication is given by the tenderer as to the consequence of his failure to deposit the amount. Only upon deposit of the cash amount and on fulfilling the other conditions he may take the lease. He cannot accept the lease unless the cash. amount is paid. There is no provision in any of the Rules that the tenderer must indicate the consequences of his failure to deposit the said amount. The consequence of non-deposit of security is clear and eloquent the selected tenderer cannot accept the lease. The successful tenderer must deposit the security amount in cash within seven days from the date of issue of the acceptance letter. The Secretary, Executive ''Committee of the Mohkuma Parishad is to inform the selected tenderer by issuing an acceptance letter under Rule 28(5) of the Rules. Under Rule 28(5), the successful tenderer is to deposit "not less than 25 per centum of hit quoted amount in his tender for one year security and to accept a duly Stamped lease in the form as set out in the Schedule ''C'' annexed to these Rules".
(underscored by us).
After the tender is accepted, due intimation of the acceptance is given to the successful tenderer. Thereafter, he is to deposit, not later than seven days from the date of receipt of the letter of acceptance. "not less than 25% of the hundred amount for one year as security" As such, after a tender is accepted the successful tenderer is free to deposit 25% or more of the security amount in cash. As such, the offer made by Respondent No. 4 that he would pay the whole security amount in cash was never in breach of Rule 28(5). Rather, Rule 23(6) permits a successful tenderer to deposit not less than 25% of the tendered amount in cash. If he does so, he need not execute any mortgage or promissory note. We extract the relevant provisions contained in Rule 28(6) dealing with the consequences of default in making the required deposit:
28 Procedure for sale and Settlement of Hats- Notice for Sale.
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If the purchaser fails to make the required deposit or to accept the leases within the period mentioned above their the Executive Committee may either seller another tenderer if any, agree able to accept the lease at that (sic) or order for inviting fresh tender forthwith
As alluded, no tenderer is required to indicate the consequence of non deposit of the security amount in his tender. At least, we do not find such a stipulation either in the tender notice or in the Rules. The reason is obvious. If the purchaser i.e. the selected tenderer, falls to make the required deposit within the stipulated time, the Executive Committee shall be free either to select another tenderer agreeable to accept the lease at that offer or older for inviting fresh tender forthwith. We find that one of the conditions of sale is that the successful tenderer deposits "not less than 25 per centum on his quoted amount in the tender for one year ''''. We also find that the tenderers are not required to specify either the consequence of non-deposit and/or failure to deposit the security amount. We further, find that under Rule 28(6) of the Rules a tenderer is required to deposit not less than 25 per centum as security, and, thereafter, he can accept the lease. We find that the consequences of the non-deposit of the security amount have been set opt in Rule 28(6) of the Rules. No penalty for non-deposit of the security amount cart be imposed. The consequences are those specified in Rule 28(6), of the Rules, i.e. to offer the settlement to the other tenderer or to invite fresh tender forthwith. As the consequences of non-deposit set out in the Rule, and when there is no other penalty by way of recovery of the amount is envisaged under the Rules, no question of any tenderer specifying the consequences of non-deposit is required, to be made in any of the tender. After due deposit of the security money the lease can be taken. The security amount deposited by the lessee is for the due payment of the rent and other sums ''payable by the lessee under the terms of his lease, vide Rule 28(8) of "the Rules". For non-payment of rent or other sums, the Executive Committee of the Mahkuma, Parishad may appreciate the amount of deposit or realize the rent or other sums due from the security amount. As such, only after execution of a deed of lease recovery from the security amount is contemplated and not before the execution of the deed. Rule 28 (7) deals with the determination of a lease after due execution of the lease deed and not prior to the execution thereof. In the result, we hold that if a successful tenderer fails to deposit the security amount, no penalty by way of recovery of any amount from him can be imposed as the consequences of such failure are-(i) to offer the settlement to another tenderer or (ii) to invite fresh tender forthwith. We are of the opinion that a tenderer is not to specify the consequence of his non-deposit in the tender form. We are constrained to hold that Respondent No. 4, and as a matter of that no tenderer was obliged to mention how the security amount would be recovered, as the question of recovery does not arise for failure to deposit the security amount. As such, we hold that the ground for rejection of the tender of Respondent No. 4 was no ground for rejection of the same. We are, therefore, of the opinion that the appellate authority was correct in setting aside the order of rejection directing the Mahkuma Parishad to accept the offer of Respondent No. 4.
In the result, we find no merit in the application, and accordingly it is dismissed in limine.