AI Structured Summary
Not yet generated for this judgment
Judgment
In all these writ petitions, the order of settlement of the Bihara Cattle Market under Golaghat Paschim Anchalik Panchayat dated 28.06.2019 issued
in favour of the private respondent No.6 has been put under challenge. Since all these writ petitions are founded on common questions of law and
facts hence, with the consent of the learned counsel appearing for the parties, I am disposing of the same at the stage of admission hearing by this
common judgment and order.
Heard Mr. S. B. Rahman, learned counsel appearing for the writ petitioner in WP(C) No.5122/2019, Mr. M. R. Sodial, learned counsel for the writ
petitioner in WP(C) No.7469/2019 and Mr. P. K. Munir, learned counsel for the WP(C) No.8134/2019.I have also heard Mr. M. Nath, learned
Standing Counsel, P & RD Department, Assam and Ms. D. D. Barman, learned Govt. Advocate, Assam, appearing for the official respondents. Mr.
H. C. Sarma, learned counsel has appeared on behalf of the private respondent in all the three writ petitions.
The facts of the case, in a nutshell, are these. The West Golaghat Anchalik Panchayat had floated an NIT dated 29.05.2019 inviting bids for
settlement of various markets/ ghats/ beels including the Bihara Cow Market, for the year 2019-2020. In response to the NIT dated 29.05.2019, all the
three writ petitioners, besides four others including the respondent No 6, had submitted their bids. On opening the bids, it was found that the writ
petitioner in WP(C) No.5122/2019 had quoted an amount of Rs.52,10,500/- and was the 2ndhighest bidder; the respondent No. 6 had quoted
Rs.48,35,216/- and was the 3rd highest; the writ petitioner in WP(C) No.7469/2019 had quoted an amount of Rs.40,41,000/-and had emerged as the
4th highest bidder, whereas the writ petitioner in WP(C) No.8134/2019 had quoted an amount of Rs.17,49,039/- and was placed at the 6th position.
The highest bidder i.e. Sri Mahendra Pegu had quoted Rs.73,51,253/- but his tender was found to be defective and hence rejected. The bid of the 2nd
highest bidder i.e. the writ petitioner in WP(C) No.5122/2019 was also rejected on the ground that he had failed to furnish sufficient land documents
as surety covering the bid value. Consequently, the bid of the 3rd highest bidder i.e. the respondent No.6 was accepted and accordingly, the impugned
settlement order dated 28.06.2019 was issued in his favour.
The case of the writ petitioner in WP(C) No.5122/2019 (2nd highest bidder’s) is that besides the land documents of his guarantor valued at
Rs.30,86,500/-, the petitioner himself had submitted land documents in respect of a plot of land measuring 5 Bigha 2 Katha 10 Lechas covered by Dag
No.247 of Patta No.27 situated in Bokakhat Mouza which was valued at Rs.22,24,000/-. Therefore, the respondents have committed manifest
illegality in rejecting his bid by ignoring the total value of the land offered by him and his guarantor which was sufficient to cover the bid value.It is also
the case of the writ petitioner that co-pattadar’s consent was not furnished by the respondent No.6 in compliance with the requirement of Clause
14 of the NIT. As such, the bid of the respondent No.6 was also defective.
A perusal of the minutes of the Tender Committee indicates that the guarantor of the 2nd highest bidder i.e. Tokheswar Teli had submitted land
documents for a total value of Rs.30,86,500/- but since the rate quoted by the 2nd highest bidder was Rs.52,10,5000/-, the Tender Committee was of
the view that the 2nd highest bidder had failed to comply with Clause 14 of the NIT. Hence, his tender was not accepted.
Mr. S. B. Rahman, learned counsel for the writ petitioner in WP(C) No.5122/2019, has argued that Clause 14 of the NIT does not impose any
restriction preventing the bidder from offering the land of the bidder as well as the guarantor at the same time. Since the cumulative value of the land
covers the bid value hence, there has been substantive compliance of clause 14 of the NIT. Therefore, there was no scope for the respondents to
reject his bid. In support of his above arguments, Mr Rahman has placed reliance on two decisions of this Court rendered in the case of Global
Associates vs. State of Assam and others, reported in 2016(4) GLT 491 and Md. Jalal Uddin Vs. The State of Assam and Ors. reported in 2019(3)
GLT 829.
It is also the submission of Mr. Rahman that the bid submitted by the respondent No.6 is defective being in contravention of Clause 2 of the NIT
which prohibits any Government pensioner from acting as a guarantor. By referring to the materials available on record, Mr. Rahman submits that the
guarantor of the respondent No.6, viz., Altaf Hussain had produced land documents of his father, who is a government pensioner, without there being
any valid instrument of transfer of the land. Under the circumstances, the respondents could not have accepted the bid of the respondent No.6, the
same being in conflict with the letter and spirit of Clauses 2 and 14 of the NIT.
Mr. M. R. Sodial, learned counsel for the writ petitioner in WP(C) No.7469/2019 has argued that the Tender Evaluation Committee has found the
bid submitted by his client to be proper. Since the bid of the 1st, 2nd and 3rd highest bidders were defective, hence, a prayer has been made for setting
aside the order of settlement dated 28.06.2019 and for issuance of a writ of mandamus for settling the market in favour of his client.
Mr. P. K. Munir, learned counsel for the writ petitioner in WP(C) No.8134/2019, has argued that although his client is the 6th highest bidder having
quoted an amount of Rs.17,49,039/-, yet, considering the fact that the bids of all the other higher bidders are defective, a direction be issued for
awarding the settlement of the market in favour of his client. Contending that the findings of the Tender Evaluation Committee, in so far as the bid of
the 2nd highest bidder is concerned, is correct and in accordance with law Mr. Munir has also argued that the tender of the respondent No.6 was
defective due to contravention of Clauses 2 and 14 of the NIT. Mr. Munir has further argued that the same plot of land has been pledged by four
different guarantors in favour of the 4th highest bidder and therefore, the bid of the 4th highest bidder cannot also be considered to be valid in the eye
of law.
Mr. M. Nath, learned departmental counsel, has produced the records and has argued that the 2nd highest bidder has only mentioned about the
land of his guarantor, which amounts to Rs.30,86,500/- in total. Mr. Nath submits that the petitioner had never indicated that he is offering his own land
valued at Rs.22,24,000/- in the tender document. As such, the Tender Committee could not have taken cognizance of such additional plot of land
measuring 5 Bigha 2 Katha 16 Lechas belonging to the 2nd highest bidder. Mr. Nath further submits that under Clause 14 of the NIT, only one of the
parties i.e. either the bidder or his guarantor can furnish security in terms of land value. Viewed from that angle, submits Mr. Nath, the bid of the 2nd
highest bidder was defective and has been rightly rejected. Mr. Nath has also fairly submitted that Clause 2 of the NIT prohibits a pensioner from
being a guarantor and in this case Md. Altaf Hussain had furnished documents pertaining to the land belonging to his father who is a pensioner, based
on a deed of relinquishment which is not registered.
Mr. H. C. Sarma, learned counsel for the respondent No.6, has argued that the deed of relinquishment, though unregistered, was acceptable since
the same has been created for a specific purpose i.e. the NIT in question. Since there is no other defect in the tender of the respondent No.6, no case
in equity is made out for interference by this Court.
I have considered the arguments advanced by learned counsel for the parties and have gone through the records produced by the learned
departmental counsel.
At the very outset, it needs to be noted herein that the core controversy in these proceedings revolve around the interpretation of Clause 14 of the
NIT dated 29.05.2019 and therefore, the same is extracted herein below for ready reference :-
“14. The bidder or his guarantor must place a plot of land as surety against the value of the tender. (a) jamabandhi copy and (b) Non-
encumbrance certificate and valuation certificate issued by the concerned Deputy Commissioner/Sub-Divisional Officer/Circle Officer in
respect of the land placed as surety must be enclosed along with the quotation. The guarantor must also sign in the quotation. Bank
Guarantee on the value of the bid amount will also be accepted in lieu of the land documents as surety. One guarantor/bidder of a
bazaar/ghat/minmahal cannot stand as the guarantor for any other bazaar/ghat/minmahal. If the land placed as the surety has co-
pattadars, then their consents will also be necessary.â€
Clause 14 permits the bidder or his guarantor to offer a plot of land as surety against the value of the tender. However, there is nothing in the NIT
to indicate that only one of them can place the land as surety covering the value of the tender. From a plain reading of Clause- 14, it is not possible to
comprehend that it is either the bidder or his guarantor who can pledge the land to the exclusion of the other. If such a mutually exclusive provision
was envisaged by the authority, then there was nothing preventing the tendering authority from clearly mentioning the same in the NIT. Moreover, the
purpose of Clause 14 appears to be one to secure the bids by collateral deposit. Therefore, in the event of a default by the settlement holder, there is
no reason as to why the land pledged by either the bidder or his guarantor cannot be proceeded against by the authorities. That apart, there are
materials to show that the respondents have accepted land documents of multiple guarantors for the same bidder. This court is therefore, of the
considered opinion that clause 14 of the NIT did not per se prevent the tendering authority from accepting the cumulative value of the surety furnished
by both the bidder and his guarantor if the documents were otherwise valid in the eye of law.
Having held as above, this Court is also conscious of the fact that the tendering authority would be obliged to evaluate a bid based on information
furnished by the bidder in the tender form. The tender form used in this case clearly indicates that the bidder would be required to give particulars of
the land of the bidder/guarantor. Therefore, if the bidder wants to rely upon cumulative value of the land to be offered by himself and the guarantor as
security, the particulars of such land belonging to both ought to be clearly mentioned in the tender form. But from a perusal of the tender form
furnished by the 2nd highest bidder, I find that only the particulars of the land belonging to his guarantor, valued at Rs.30,86,5000/-, have been
mentioned therein. The petitioner has not indicated the particulars of his own land measuring 5 Bigha 2 Katha 10 Lechas valued at Rs.22,24,000/- in
the tender form. Therefore, it is clear that the land of the petitioner was not placed as a surety in the tender form.
Mr. Rahman has argued that although the particulars of the petitioner’s land measuring 5 Bigha 2 Katha 10 Lechas was not included in the
tender form, yet, the necessary documents including the non-encumbrance certificate were produced by the petitioner along with the tender
form.Therefore, the Tender Evaluation Committee ought to have taken note of the same. I am afraid, the above submission of Mr. Rahman cannot be
accepted by this Court. If the petitioner wanted to rely upon the cumulative value of the land offered by himself and his guarantor as surety, it was
incumbent upon him to disclose the particulars of such land in the tender form. But in this case, as noted above, the petitioner has not done so. What is
to be noted herein that the bidder is required to furnish land as surety and therefore, without specifically mentioning the particulars of the land in the
tender form, mere submission of land document cannot be held to be sufficient compliance of Clause 14 of the NIT. Such being the position, I am of
the view that the tender committee has rightly rejected the bid of the 2nd highest bidder.
In the case of Md. Jalal Uddin (supra) it was held that the requirement of affixing court fee was not an essential requirement of the tender and
hence, defect on such count was curable in nature. Likewise, in the case of Global Associates (supra),the work was awarded in favour of the L1
bidder by ignoring minor deviations and this court had upheld the decision of the Tender Committee by observing that some latitude should be shown in
favour of the private respondent, who was found to be capable and competent to execute the work. The aforesaid decisions had been rendered in the
peculiar facts of those cases. As such, I am of the view that the ratio laid down in those decisions relied upon by Mr. Rahman would not have any
bearing in the facts and circumstances of the present case.
In so far as the bid of the respondent No.6 is concerned, there is no dispute about the fact that the guarantor of the respondent No.6 has offered a
plot of land which belongs to his father, who is a pensioner. The plot of land has been offered based on an unregistered deed of relinquishment but in
view of Section 17(1)(b) of the Registration Act, 1908 an unregistered instrument pertaining to land valued at more than Rs.500/- cannot either create
or extinguish any right in respect of immoveable property. Therefore, the unregistered deed of relinquishment produced by the guarantor of the
respondent No 6 could not have been accepted by the Tender Committee since the land did not belong to him. Neither could his father, being a
pensioner, furnish such land documents, as a guarantor, due to the bar created by clause 2 of the NIT. In view of the above, it is apparent that the bid
of the respondent No.6 is also technically defective.
Coming to the claim of the petitioner in WP(C) No.7469/2019, it is seen from the record that four guarantors have separately issued valuation
certificate valued at Rs.6,93,000/- but admittedly, all those certificates are pertaining to the same plot of land. In other words, the same plot of land has
been furnished as surety by four persons in favour of one bidder. Therefore, these certificates issued by the four guarantors neither cover the total bid
value or Rs.40,41,000/- offered by the 4th highest bidder nor can these be held to be valid in the eye of law. As such, it is clear that the bid of the
respondent No.4 is also defective but has been wrongly found to be valid by the Tender Committee.
Coming to the claim of the petitioner in WP(C) No.8134/2019, as noted above, he is the 6th highest bidder but has approached this Court by filing
the writ petition challenging the order dated 28.06.2019 after a delay of nearly four months. There is no plausible explanation for the delay of four
months in filing the writ petition. In a tender matter of this nature, where the settlement period is only for a year, time would be of essence and
therefore, an aggrieved party would be reasonably expected to approach the Court at the earliest possible opportunity. Four months delay in
approaching this court, in the facts and circumstances of the case, in the opinion of this Court, would have a fatal consequence on the question of
maintainability of the writ petition. Since the petitioner has approached this Court after much delay and that too without offering any plausible
explanation, this writ petition would have to be held to be barred by laches and negligence and therefore, no relief can be granted to the petitioner in
the facts of the case.
For the reasons stated herein above, this Court is of the unhesitant opinion that the impugned order of settlement dated 28.06.2019 is vitiated by
complete arbitrariness and illegality. The same is accordingly set aside. However, the prayer for issuance of a mandamus in favour of any of the writ
petitioners is hereby declined.
Since the order dated 28-06-2019 has been set aside by this Court, it would now be open to the respondents to either consider the bids of the
remaining valid bidders and thereafter, issue the order of settlement for the remaining period or to float a fresh NIT for settlement of the market in
question. Whatever be the decision, the same be implemented within a period of two weeks from the date of receipt of a certified copy of this order.
The respondents would also at liberty to make an interim arrangement for running the market during the interregnum.
With the above observation, these writ petitions stand disposed of.
Return back the records.