Mahananda Gogoi Vs. State of Assam and ors. - Court Judgment

Excerpt:
- orderb.p. katakey, j.1. a notice inviting tender (nit) was issued by the chief executive officer, dibrugarh zilla parishad on 28-4-2008 calling for tenders in sealed cover for settlement of various markets including borboruah weekly market for the period from 1-7-2008 to 30-6-2009 fixing 12-6-2008 as the last date for submission of tender, at the government value at rs. 3,11,119.00. 8 (eight) bidders including the petitioner and the respondent no. 4 submitted their tenders. while the petitioner offered rs. 4,51,999.99, the respondent no. 4 offered rs. 4,51,090.00 and the other 6 (six) bids were less than the bids of the petitioner and the respondent no. 4. the general standing committee of the zilla parishad thereafter, decided to settle the market in question in favour of the respondent no. 4 by rejecting the tender submitted by the writ petitioner on two counts, namely, (i) he is a licensee for a government fair price shop and (ii) his tender is defective having not enclosed the tax clearance certificate of the gaon panchayat. the settlement order was accordingly issued in favour of the respondent no. 4 vide order dated 25-6-2008 settling the said market for the period from 1-7-2008 to 30-6-2009 at rs. 4,51,999.90. the mistake occurred in mentioning the amount at which, the settlement was made in favour of the respondent no. 4 however, was subsequently rectified by issuing the corrigendum dated 26-6-2008, whereby and whereunder the amount at which the market has been settled has been corrected as rs. 4,51,090.00 i.e. the bid offered by the respondent no. 4. the petitioner, therefore, has challenged the settlement of the said market in favour of the respondent no. 4 in the present writ petition.2. i have heard mr. s.s. dey, the learned counsel for the petitioner. mr. p.j. saikia, the learned counsel appearing for the respondent no. 4 and mrs. v.l. singh, the learned state counsel appearing for the respondent nos. 1 to 3. the relevant records of settlement of the market have also been perused as produced by the learned state counsel.3. mr. dey, the learned counsel for the petitioner challenging the order of settlement made in favour of the respondent no. 4 and referring to the tax clearance certificate issued by garudharia gaon panchayat on 8- 6-2008, which is annexed as annexure-2 to the writ petition, has submitted that the petitioner having obtained the said tax clearance certificate from the concerned gaon panchayat on 8-6-2008, i.e. much prior to the last date of submission of tender, there cannot be any justification for non-submission of such certificate along with the tender, which is one of the ground for rejection of the tender of the petitioner. referring to the records produced by the learned state counsel, it has further been submitted by mr. dey that it appears that there is discrepancy in the pagination of the records wherefrom it also appears that some papers were taken out from the records. mr. dey, therefore, submits that the petitioner has in fact submitted the tax clearance certificate issued by the gaon panchayat but for the purpose of depriving the petitioner from the settlement, the same has been taken out from the 'records. mr. dey further submits that in any case the conditions stipulated in the nit for submission of the tax clearance certificate of the gaon panchayat cannot be treated as the mandatory clause requiring rejection of the tender papers of a tenderer in case of non submission of such certificate, more so when the consequence of non submission of such a certificate has not been mentioned in the nit, though in certain other clauses the consequence of non-fulfillment of some other conditions have been stipulated. according to mr. dey, requirement of submission of the tax clearance certificate of the gaon panchayat, cannot at all be an essential clause and hence the rejection of the tender papers submitted by the petitioner though he offered the highest bid on that count is not legally valid. relating to the other grounds on which the tender papers of the petitioner has been rejected, mr. dey has submitted that since neither assam panchayat act nor the rules framed thereunder or the conditions in the nit has debarred a licensee of a fair price owner from submitting his tenders, the tender papers submitted by the petitioner cannot be rejected on the ground of he being a licensee in respect of a government fair price shop. mr. dey, therefore, submits that the order of settlement made in favour of the respondent no. 4 needs to be interfered with and the authority may be directed to settle the market in favour of the petitioner, he being the highest bidder. mr. dey in support of his contention has placed reliance on a decision of this court in muzzamel haque v. state of assam reported in 2004 (3)glt 187.4. mr. saikia, the learned counsel for the respondent no. 4, on the other hand, referring to the conditions in the nit has submitted that it is being the requirement under the conditions to submit the tax clearance certificate of the concerned gaon panchayat, such requirement has to be fulfilled, the object of which being not to settle any market in favour of a defaulter of any government dues. according to the learned counsel, keeping in view the object for which such a clause has been incorporated in the nit, such requirement is a mandatory and essential requirement and, therefore, has to be adhered to. mr. saikia further submits that to ensure that the tender process is fair and transparent, the authorities as well as the tenderers are required to adhere to the conditions in the nit. according to the learned counsel, it is evident from the records that no tax clearance certificate from the concerned gaon panchayat has been submitted by the petitioner. referring to the submissions that as the petitioner has obtained the tax clearance certificate on 8-6-2008 and there are some discrepancies in the pagination of the record, it has to be presumed that the petitioner has submitted such certificate, mr. saikia has submitted that no such presumption can be drawn, that too on the face of the note of the chief executive officer of the zilla parishad in the comparative statement prepared on 3-6-2008 and there can be no reason why the chief executive officer shall record incorrectly about non-submission of such certificate by the petitioner. it has further been submitted by mr. saikia that there is no allegation of mala fide against the chief executive officer by the petitioner in the writ petition. mr. saikia further submits that as because a tax clearance certificate of the gaon panchayat stated to be issued on 8-6-2008 has been produced by the petitioner before this court, that does not necessarily mean that the said certificate was issued on that date and it was submitted along with the tender papers. according to mr. saikia, the discrepancies in the pagination of the record do not even suggest that any document filed by the petitioner has been taken out from the record by the authority or by any official. relating to the other grounds on which the tender papers of the petitioner has been rejected, mr. saikia submits that since the petitioner did not submit the tax clearance certificate of the gaon panchayat, the other grounds on which his tender papers has been rejected, need not be gone into by this court. mr. saikia further submits that the decision of this court on which the learned counsel for the, petitioner has placed reliance supports' the ease of the respondent no. 4, as it has been held in the said case that the tender conditions are required to be strictly adhered to by the authorities as well as by the tenderers to ensure that the process is fair and transparent and when there is no inconsistence and incoherence in the nit cpnditions, submission of the tax clearance certificate is mandatory.5. mrs. v.l. singh, the learned state counsel referring to the records produced before this court has also submitted that no illegality has been committed by the authority in settling the market in favour of the respondent no. 4 by rejecting the tender of the petitioner, as the tax clearance certificate of the concerned gaon panchayat has not been submitted by the petitioner along with the tender papers, which is the essential requirement of the tender.6. i have considered the submission of the learned counsel for the parties and perused the pleadings as well as the records produced before this court.7. the chief executive officer, dibrugarh zilla parishad issued the nit dated 28-4- 2008 for settlement of the market in question for the period from 1-7-2008 to 30-6-2009. the relevant tender condition, being condition no. 4, is quoted below:no debt certificate from the gaon panchayat, anchalik panchayat and zila parishad shall have to be submitted with the tenders. in case of the previous settlement holders certificate relating to all previous dues shall also have to be submitted.8. the object of submission of the no debt certificate from the gaon panchayat, anchalik panchayat or zilla parishad being not to settle the market in favour of a defaulter in respect of any dues payable by them, in any stress of imagination can be regarded as non-essential clause in the nit. keeping in view the object for which such a condition has been attached to the nit, it is mandatorily required to be adhered to, it is being an essential conditions of the nit. simply because the consequence of non-submission of such documents with the tender has not been spelt out in the nit, though the consequence of non-fulfilment of certain other conditions have been laid down in such nit, it cannot be said that the conditions for submission of the no debt certificate is not mandatory and non-essential. from the language used in the nit, it is evident that the tenderers were informed about the mandatory requirement of submission of such certificate, pursuant to which the writ petitioner has in fact submitted such certificates issued by the anchalik panchayat and zilla parishad but not of the concerned gaon panchayat. such conditions in the nit, is not at all ambiguous or inconsistent or incoherence. the conditions in the nit have to be strictly adhered to by the tenderers as well as by the authorities to ensure that the tender process is fair and transparent.9. in muzzamel haque (supra), it has been held that if a tenderer is misled while submitting his tender by any omission, inconsistency or incoherence in the nit conditions, it would be distractive of the concept of fairness and reasonableness to reject his tender on account of any defect. in the instant case, as noticed above, the conditions in the nit relating to the submission of the no debt certificate is not at all ambiguous or inconsistent or incoherent. a single bench of this court in the said case has also observed that to ensure that the tender process is fair and transparent, the condition of the nit has to be strictly adhered to by the authorities as well as by the tenderers. hence the contention of the petitioner that the requirement of submission of the no debt certificate from the gaon panchayat is directory and non-essential condition, cannot be accepted and hence rejected.10. the further contention of the petitioner that keeping in view that he has obtained the certificate from the gaon panchayat on 8-6-2008 as well as the discrepancy in the pagination of the records, it has to be presumed that the petitioner has submitted such certificate along with the tender papers, there being no reason as to why such certificate shall not be submitted after obtaining it, he being a prudent businessman, also cannot be accepted in view of the fact that the authority has after opening of the tender papers noted that such a certificate has not been furnished by the petitioner along with the tender papers. even if the petitioner has obtained the certificate before the date of submission of the tender papers, unless such certificate is enclosed with the tender papers, no presumption can be drawn on submission of the same, only on the ground that such a certificate has been obtained before the last date of submission of the tender papers. the discrepancies in the pagination of the records, which according to the learned counsel for the petitioner, indicates that one document has been taken out from the record, i.e. the tax clearance certificate of the relevant gaon panchayat submitted by the petitioner, also cannot be accepted as it appears from the records that there is no discrepancy in the pagination of the records up to page 48 and the tender papers submitted by the petitioner starts from page 49 to page 53. from the pagination of the tender papers of the petitioner it, however, appears that initially two pages were paginated as page 49, which results in correction of one page, initially marked as 49, as page 50 and consequently the other paginations subsequent thereto were also corrected. such correction in pagination does not indicate removal of any paper from the bunch of papers filed by the petitioner with the tender, as in that case there would have been decrease in the number of page, which is not the case. moreover, there is no allegation of mala fide against any officer of the zilla parishad. in that view of the matter, the legality or otherwise of the other ground for rejection of petitioner's tender need not be gone into.11. in view of the aforesaid discussion, i do not find any illegality in settling the market in question in favour of the respondent no. 4. hence the petition is dismissed being devoid of any merit. no cost.

Judgment:
ORDER

B.P. Katakey, J.

1. A Notice Inviting Tender (NIT) was issued by the Chief Executive Officer, Dibrugarh Zilla Parishad on 28-4-2008 calling for tenders in sealed cover for settlement of various markets including Borboruah Weekly Market for the period from 1-7-2008 to 30-6-2009 fixing 12-6-2008 as the last date for submission of tender, at the Government value at Rs. 3,11,119.00. 8 (Eight) bidders including the petitioner and the respondent No. 4 submitted their tenders. While the petitioner offered Rs. 4,51,999.99, the respondent No. 4 offered Rs. 4,51,090.00 and the other 6 (six) bids were less than the bids of the petitioner and the respondent No. 4. The General Standing Committee of the Zilla Parishad thereafter, decided to settle the market in question in favour of the respondent No. 4 by rejecting the tender submitted by the writ petitioner on two counts, namely, (i) he is a licensee for a Government fair price shop and (ii) his tender is defective having not enclosed the Tax Clearance Certificate of the Gaon Panchayat. The settlement order was accordingly issued in favour of the respondent No. 4 vide order dated 25-6-2008 settling the said market for the period from 1-7-2008 to 30-6-2009 at Rs. 4,51,999.90. The mistake occurred in mentioning the amount at which, the settlement was made in favour of the respondent No. 4 however, was subsequently rectified by issuing the corrigendum dated 26-6-2008, whereby and whereunder the amount at which the market has been settled has been corrected as Rs. 4,51,090.00 i.e. the bid offered by the respondent No. 4. The petitioner, therefore, has challenged the settlement of the said market in favour of the respondent No. 4 in the present writ petition.

2. I have heard Mr. S.S. Dey, the learned Counsel for the petitioner. Mr. P.J. Saikia, the learned Counsel appearing for the respondent No. 4 and Mrs. V.L. Singh, the learned State Counsel appearing for the respondent Nos. 1 to 3. The relevant records of settlement of the market have also been perused as produced by the learned State Counsel.

3. Mr. Dey, the learned Counsel for the petitioner challenging the order of settlement made in favour of the respondent No. 4 and referring to the Tax Clearance Certificate issued by Garudharia Gaon Panchayat on 8- 6-2008, which is annexed as Annexure-2 to the writ petition, has submitted that the petitioner having obtained the said Tax Clearance Certificate from the concerned Gaon Panchayat on 8-6-2008, i.e. much prior to the last date of submission of tender, there cannot be any justification for non-submission of such certificate along with the tender, which is one of the ground for rejection of the tender of the petitioner. Referring to the records produced by the learned State Counsel, it has further been submitted by Mr. Dey that it appears that there is discrepancy in the pagination of the records wherefrom it also appears that some papers were taken out from the records. Mr. Dey, therefore, submits that the petitioner has in fact submitted the Tax Clearance Certificate issued by the Gaon Panchayat but for the purpose of depriving the petitioner from the settlement, the same has been taken out from the 'records. Mr. Dey further submits that in any case the conditions stipulated in the NIT for submission of the Tax Clearance Certificate of the Gaon Panchayat cannot be treated as the mandatory Clause requiring rejection of the tender papers of a tenderer in case of non submission of such certificate, more so when the consequence of non submission of such a certificate has not been mentioned in the NIT, though in certain other Clauses the consequence of non-fulfillment of some other conditions have been stipulated. According to Mr. Dey, requirement of submission of the Tax Clearance Certificate of the Gaon Panchayat, cannot at all be an essential Clause and hence the rejection of the tender papers submitted by the petitioner though he offered the highest bid on that count is not legally valid. Relating to the other grounds on which the tender papers of the petitioner has been rejected, Mr. Dey has submitted that since neither Assam Panchayat Act nor the Rules framed thereunder or the conditions in the NIT has debarred a licensee of a fair price owner from submitting his tenders, the tender papers submitted by the petitioner cannot be rejected on the ground of he being a licensee in respect of a Government fair price shop. Mr. Dey, therefore, submits that the order of settlement made in favour of the respondent No. 4 needs to be interfered with and the authority may be directed to settle the market in favour of the petitioner, he being the highest bidder. Mr. Dey in support of his contention has placed reliance on a decision of this Court in Muzzamel Haque v. State of Assam reported in 2004 (3)GLT 187.

4. Mr. Saikia, the learned Counsel for the respondent No. 4, on the other hand, referring to the conditions in the NIT has submitted that it is being the requirement under the conditions to submit the Tax Clearance Certificate of the concerned Gaon Panchayat, such requirement has to be fulfilled, the object of which being not to settle any market in favour of a defaulter of any Government dues. According to the learned Counsel, keeping in view the object for which such a Clause has been incorporated in the NIT, such requirement is a mandatory and essential requirement and, therefore, has to be adhered to. Mr. Saikia further submits that to ensure that the tender process is fair and transparent, the authorities as well as the tenderers are required to adhere to the conditions in the NIT. According to the learned Counsel, it is evident from the records that no Tax Clearance Certificate from the concerned Gaon Panchayat has been submitted by the petitioner. Referring to the submissions that as the petitioner has obtained the Tax Clearance Certificate on 8-6-2008 and there are some discrepancies in the pagination of the record, it has to be presumed that the petitioner has submitted such certificate, Mr. Saikia has submitted that no such presumption can be drawn, that too on the face of the note of the Chief Executive Officer of the Zilla Parishad in the comparative statement prepared on 3-6-2008 and there can be no reason why the Chief Executive Officer shall record incorrectly about non-submission of such certificate by the petitioner. It has further been submitted by Mr. Saikia that there is no allegation of mala fide against the Chief Executive Officer by the petitioner in the writ petition. Mr. Saikia further submits that as because a Tax Clearance Certificate of the Gaon Panchayat stated to be issued on 8-6-2008 has been produced by the petitioner before this Court, that does not necessarily mean that the said certificate was issued on that date and it was submitted along with the tender papers. According to Mr. Saikia, the discrepancies in the pagination of the record do not even suggest that any document filed by the petitioner has been taken out from the record by the authority or by any official. Relating to the other grounds on which the tender papers of the petitioner has been rejected, Mr. Saikia submits that since the petitioner did not submit the Tax Clearance Certificate of the Gaon Panchayat, the other grounds on which his tender papers has been rejected, need not be gone into by this Court. Mr. Saikia further submits that the decision of this Court on which the learned Counsel for the, petitioner has placed reliance supports' the ease of the respondent No. 4, as it has been held in the said case that the tender conditions are required to be strictly adhered to by the authorities as well as by the tenderers to ensure that the process is fair and transparent and when there is no inconsistence and incoherence in the NIT cpnditions, submission of the Tax Clearance Certificate is mandatory.

5. Mrs. V.L. Singh, the learned State Counsel referring to the records produced before this Court has also submitted that no illegality has been committed by the authority in settling the market in favour of the respondent No. 4 by rejecting the tender of the petitioner, as the Tax Clearance Certificate of the concerned Gaon Panchayat has not been submitted by the petitioner along with the tender papers, which is the essential requirement of the tender.

6. I have considered the submission of the learned Counsel for the parties and perused the pleadings as well as the records produced before this Court.

7. The Chief Executive Officer, Dibrugarh Zilla Parishad issued the NIT dated 28-4- 2008 for settlement of the market in question for the period from 1-7-2008 to 30-6-2009. The relevant tender condition, being condition No. 4, is quoted below:

No debt certificate from the Gaon Panchayat, Anchalik Panchayat and Zila Parishad shall have to be submitted with the tenders. In case of the previous settlement holders certificate relating to all previous dues shall also have to be submitted.

8. The object of submission of the no debt certificate from the Gaon Panchayat, Anchalik Panchayat or Zilla Parishad being not to settle the market in favour of a defaulter in respect of any dues payable by them, in any stress of imagination can be regarded as non-essential Clause in the NIT. Keeping in view the object for which such a condition has been attached to the NIT, it is mandatorily required to be adhered to, it is being an essential conditions of the NIT. Simply because the consequence of non-submission of such documents with the tender has not been spelt out in the NIT, though the consequence of non-fulfilment of certain other conditions have been laid down in such NIT, it cannot be said that the conditions for submission of the no debt certificate is not mandatory and non-essential. From the language used in the NIT, it is evident that the tenderers were informed about the mandatory requirement of submission of such certificate, pursuant to which the writ petitioner has in fact submitted such certificates issued by the Anchalik Panchayat and Zilla Parishad but not of the concerned Gaon Panchayat. Such conditions In the NIT, is not at all ambiguous or inconsistent or incoherence. The conditions in the NIT have to be strictly adhered to by the tenderers as well as by the authorities to ensure that the tender process is fair and transparent.

9. In Muzzamel Haque (supra), it has been held that if a tenderer is misled while submitting his tender by any omission, inconsistency or incoherence in the NIT conditions, it would be distractive of the concept of fairness and reasonableness to reject his tender on account of any defect. In the instant case, as noticed above, the conditions in the NIT relating to the submission of the no debt certificate is not at all ambiguous or inconsistent or incoherent. A single Bench of this Court in the said case has also observed that to ensure that the tender process is fair and transparent, the condition of the NIT has to be strictly adhered to by the authorities as well as by the tenderers. Hence the contention of the petitioner that the requirement of submission of the no debt certificate from the Gaon Panchayat is directory and non-essential condition, cannot be accepted and hence rejected.

10. The further contention of the petitioner that keeping in view that he has Obtained the certificate from the Gaon Panchayat on 8-6-2008 as well as the discrepancy in the pagination of the records, it has to be presumed that the petitioner has submitted such certificate along with the tender papers, there being no reason as to why such certificate shall not be submitted after obtaining it, he being a prudent businessman, also cannot be accepted in view of the fact that the authority has after opening of the tender papers noted that such a certificate has not been furnished by the petitioner along with the tender papers. Even if the petitioner has obtained the certificate before the date of submission of the tender papers, unless such certificate is enclosed with the tender papers, no presumption can be drawn on submission of the same, only on the ground that such a certificate has been obtained before the last date of submission of the tender papers. The discrepancies in the pagination of the records, which according to the learned Counsel for the petitioner, indicates that one document has been taken out from the record, i.e. the Tax Clearance Certificate of the relevant Gaon Panchayat submitted by the petitioner, also cannot be accepted as it appears from the records that there is no discrepancy in the pagination of the records up to page 48 and the tender papers submitted by the petitioner starts from page 49 to page 53. From the pagination of the tender papers of the petitioner it, however, appears that initially two pages were paginated as page 49, which results in correction of one page, initially marked as 49, as page 50 and consequently the other paginations subsequent thereto were also corrected. Such correction in pagination does not indicate removal of any paper from the bunch of papers filed by the petitioner with the tender, as in that case there would have been decrease in the number of page, which is not the case. Moreover, there is no allegation of mala fide against any officer of the Zilla Parishad. In that view of the matter, the legality or otherwise of the other ground for rejection of petitioner's tender need not be gone into.

11. In view of the aforesaid discussion, I do not find any illegality in settling the market in question in favour of the respondent No. 4. Hence the petition is dismissed being devoid of any merit. No cost.