Judgment · High Court · 2012

dvocate, Assam appearing for the State respondents in both the writ petitions. 3. In both the writ petitions challenge has been made against an order No. FISH.56/86/Pt. II/215 dated 31.3.2012 issued by the Secretary to the Government of Assam, Fishery Department settling the Sessa Nadi Fishery of Dibrugarh Distri ct with M/S. Dewanbari Doyang Beel Unnayan Samiti, respondent Nos. 4 and 5 respe ctively in W.P.(C) 1705/2012 and W.P.(C) 2378/2012. The fishery has been settled with the said respondent at their quoted bid value of Rs. 98,00,000/- for 7(sev en) years. The settlement order has been issued in the name of the Governor of A ssam in exercise of the power conferred under Rule 12 of Assam Fishery Rules, 20 05.

#4. The necessary admitted and uncontroverted facts of the two petitions can be summarized as under: The Writ Petitioners in both the cases as well as the aforesaid private respondents have submitted their bids in terms of a Notice Inviting Tender date d 8.12.2011 issued by the Deputy Commissioner, Dibrugarh District, inter alia, i nviting tenders from recognized Co-operative Societies, Self Help Groups and Non Government Organizations for settlement of the Sessa Nadi Fishery. While the wr it petitioners in both the cases as well as other tenderers had submitted one te nder each quoting their respective bids in terms of the NIT dated 08.12.2011, it is an admitted fact that the private respondent M/S Dewanbari Doyang Beel Unnay an Samiti had submitted two bids, one quoting Rs. 14,00,000/- and another Rs. 3, 51,221/- as annual price. The settling authorities took into consideration both the bids submitted by the private respondents and selected the tender quoting hi gher bid of Rs. 14,00,000/- thereby settling the fishery with the said Responden t for 7(seven) years at the rate of their quoted bid i.e., Rs.98,00,000/- (Rs.14 ,00,000 X 7).

#5. The short points for consideration of this Court raised by the writ peti tioners in both the writ petitions are as to whether a single tenderer can be al lowed to submit multiple bids by way of more than one tender in the same tender process for settlement of the particular fishery in question and as to whether s ubmission of such multiple bids would disentitle the said tenderer from being co nsidered in the settlement process.

#6. The respondent settling authority has filed an Affidavit in W.P.(C) 1705 of 2012 taking a stand that the Assam Fishery Rules 2005 (as amended) does not bar a society from offering two bids. Moreover, in the instant case the highest of the two bids submitted by the Private Respondent having been accepted, there was no illegality in the settlement process. The Additional Deputy Commissioner of Dibrugarh on behalf of respondent Nos. 3 and 4 has filed another affidavit co mmenting upon the non-submission of Annual Balance Sheet of the Private Responde nt, determination of effect whereof is not the subject matter within the periphe ry of points for consideration coined above.

#7. The Private Respondent has submitted its affidavit-in-opposition in W.P. (C) 1705/2012 through its Secretary Sri Chandra Nath Das inter alia stating that there is no bar against submission of two bids, as submitted by it as there is no stipulation, in any of the terms and conditions of the tender documents and i t is only when the authorities have put bar on submission of multiple tenders t hat as a consequence thereof a party will be debarred from submitting more than one tender. This pleaded stand of the respondent is contained in paragraph 6 of the affidavit-in-opposition filed by it. Apart from filing the affidavit-in-oppo sition, Mr. G.N. Sahewala, learned Senior Counsel appearing and arguing for the said private respondent had presented before the Court a written argument and on e sample tender documents pertaining to Border Roads Organization to impress the point that when the said organization wanted submission of one bid per bidder, such condition was specifically stipulated in the tender document itself (Clause 5 thereof).

#8. Mr. Sahewala has also pressed to service a judgment rendered by the Apex Court in the case of New Horizons Limited and Another Vs. Union of India and Ot hers as reported in (1995) 1 SCC 478 on the points of eligibility of a bidder on the issue of non-submission of Balance Sheet. However, the eligibility of the t enders being not subject matter of consideration of this Court, no opinion is ex pressed as regards the applicability of the ratio of the judgment in New Horizon (supra). Mr. Dey, learned counsel appearing for the writ petitioner in WP(C) No.1 9. 705/2012 has drawn the attention of this Court to the definition of the terms (cid:28)B id (cid:29) and that of (cid:28)Tender (cid:29), as appearing in the Black’s Law Dictionary, 7th Editio n as well as the definitions of (cid:28)Bidder (cid:29), (cid:28)Tender (cid:29) and (cid:28)Tender Offer (cid:29) as appeari ng in P.M. Bakshi’s The Law Lexicon. The definitions, as pressed are reproduced hereunder. Bid (as in Black’s Law Dictionary): A buyer’s offer to pay a specified price for something that may or may not be for sale <a bid at an auction> <a takeover bid >. Tender (as in Black’s Law Dictionary) : An unconditional offer of money or perfo rmance to satisfy a debt or obligation <a tender of delivery>. Bidder (as in Bakshi’s The Law Lexicon) : A person who makes an offer at an auct ion sale which, in the absence of any prohibition the contrary in the condition of such auction may be rescinded before acceptance. Tender (as in Bakshi’s The Law Lexicon) : (cid:28)To tender (de tender), or tendre, is a word common both to the English and French, in Latin offerree; and in that sen se, and with that Latin word it is always used in common law (cid:29). [Co. Litt 211(a)] . Tender Offer (as in Bakshi’s The Law Lexicon) : (cid:28)Tender Offer (cid:29) means an offer by a company to buy back its shares through a letter of offer from the holders of the shares of the company. See Securities and Exchange Board of India (Buy Back of Securities) Regulations, 1998, clause 2(O).

#10. Mr. Dey has strenuously argued that a Tender Offer means (cid:28)an offer (cid:29) by a bidder and a bid also connotes (cid:28)a (cid:29) single (cid:28)specified price (cid:29) contained in (cid:28)an un conditional offer (cid:29) by a single tenderer thereby endeavouring to bring home the p oint that in a tender process of instant nature, even if it is not stipulated in so many words in either the Notice Inviting Tender or the bid documents, a part icular tenderer can be allowed to file one single bid contained in one set of te nder documents only and not allowed to quote multiple bids and terms by means of filing multiple tenders. Mr. Dey submits that such filing of multiple bids woul d render a bidder disqualified on the ground of his not filing a firm specified bid. Mr. I. Choudhury, learned counsel appearing for writ petitioner in W.P.( 11. C) 2378/2012 while largely adopting the submission of Mr. Dey has added that if liberty is given to a tenderer to file multiple tenders quoting multiple bids, t he same will marginalize the case of the other tenderers filing single bid there by bringing in the concept of illegal monopoly in favour of a particular tendere r to the detriment of others and will also ensure chaos in the entire tender pro cess rendering the same a mere farce.

#12. Per contra, Mr. G.N. Sahewala, learned Senior Counsel appearing for the private respondent, the settlement holder, in both the writ petitions submits th at there in nothing in the law for the time being in force or even the tender no tice and bid documents preventing any tenderer from submitting multiple bids and this position is factually corroborated by the settling authorities through the ir pleadings. He further submits that when in a particular tender process the se ttling authority contemplates to proceed and decide the bids of the different bi dders on the basis of single bid by individual tenderer, the same is specificall y stipulated in the bid document itself, as is apparent in the bid documents pre pared by the Border Roads Organization. In the case at hand there being no such stipulation and the settling authorities having chosen the higher bid between th e two, submitted by the respondent, there was no loss to the public exchequer so as to warrant any judicial intervention under writ jurisdiction of this Court.

#13. Mrs. Goyal, learned State Counsel appearing for the Settling authority i .e. the Fishery Department to the Government of Assam, while pressing the affida vit filed on behalf of the Fishery Department has defended the settlement order dated 31.3.2012 made in favour of the private respondent arguing that there bein g no bar under any Statute against submission of multiple tenders by a tenderer, the private respondent could not have been disqualified on account of filing tw o tenders quoting two bids. The settling authority by selecting the highest bid has protected Government Revenue thereby committing no illegality warranting any interference by this Court.

#14. Having heard the learned Counsel for the parties and on consideration of the materials on record this court proceeds to decide the issues as under.

#15. The term (cid:28)Tender (cid:29) essentially means a particular offer to do or perform an act by the party making such offer on such term as contained in the said offe r to the party to whom the offer is made. In practice, a Tender may contain seve ral offers on several subjects and facets of a single component, selection of pe rformer or settlement whereof is the purpose of the tender process.

#16. The ever expanding horizon of trade and commerce includes State and its instrumentalities as major stake holder. Many of the core activities and duties of the state are now being outsourced to the private houses by means of contract under the realm of Article 229 of the constitution. The distribution of State l argesse is a domain of ever developing jurisprudence. While the parameters of ju dicial interference in the matters of distribution of State largesse have by now been well defined thereby subjecting the decision making process of the State a nd its instrumentalities to judicial review, guidelines have been set up by nume rous judicial decisions mandating strict adherence to the tenets of Art 14 and 1 9 of the Constitution of India. (cid:28)Tender (cid:29) is a recognized mode of selecting priva te players in the matter of distribution of public largesse. Although no definit e definition could be advanced at Bar on this term , by and large a tender proce ss is understood to be one where one or more tenderers willing to participate in any advertised intents of the State or the instrumentalities asking bid from in tending bidders to manage any State largesse submit their respective bids containing the proposal of such bidder (s) in definite terms thereby callin g upon the State or its instrumentality to decide the comparative merit of each of the bidders and their respective proposal contained in their respective bids ultimately culminating to a contract between the State or its instrumentality wi th the selected bidder for management of the advertised State largesse. The lega l foundation of this entire process is founded on the provisions of Indian Contr act Act, 1872, Sections 4 and 7 whereof can be beneficially quoted hereunder :- (cid:28)Section 4. Communication when complete: The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete- as against the proposer, when it is put in a course of transmission to h im, so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete- as against the person who makes it, when it is put into a course of tran smission to the person to whom it is made, so as to be out of the power of the p erson who makes it; as against the person to whom it is made, when it comes to his knowledge . (cid:29) (cid:28)Section 7. Acceptance must be absolute: In order to convert a proposal into a promise, the acceptance must- be absolute and unqualified; (1) (2) be expressed in some usual and reasonable manner unless the proposal pre scribes the manner in which it is to be accepted. If the proposal prescribes a m anner in which it is accepted, and the acceptance is not made in such manner, th e proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and n ot otherwise; but, if he fails to do so, he accepts the acceptance. (cid:29)

#17. A cumulative reading of the above provisions of Sections 4 and 7 shows that an offer of a bidder has to be by way of (cid:28)a proposal (cid:29) and the same has also to be in (cid:28)absolute and qualified (cid:28) terms so as to be accepted. A conditional or contingent proposal cannot be acted upon in the eyes of law. In the parlance of a tender process, the tenets of Indian Contract Act, 1872 presupposes a firm unc onditional single proposal of a particular bidder conforming to the terms of the bid documents and also the norms stipulated in the related advertisement. While a post selection negotiations between a short listed tenderers and the authorit y convening and presiding the tender process is permitted, non the less the duty cast on a particular tenderer to submit a firm unqualified offer in the form of proposal/quotation conforming to the requirements of a bid document remains sin e qua non for being adjudged as a valid tenderer .

#18. Even if there is no laid down guidelines by the State or its instrumenta lity in a given case, any permission to a particular single bidder to submit mul tiple bids in a tender process quoting different proposal of a bidder will negat e the legal mandate of quoting an absolute and unqualified proposal to be eligib le for an acceptance of the said terms. Further, in public law domain if a parti cular tenderer is allowed to submit multiple bids, it will give rise to chaos wh ereby the basic requirement of fair play and equal treatment of all tenderers by the agency or authority doling out the contract would stand severely frustrated . On one hand the authority presiding over the decision making process will be j eopardized to pinpoint which of the multiple offers of a tenderer should be take n into consideration and on the other hand a tenderer submitting a single form p roposal will stand jeopardized in the process of competition as against such ten derer submitting multiple bids if the authorities deciding on the tenders can ch oose one amongst such multiple offers of a single bidder. In a process convened for selection of the bid of a particular tenderer by inviting intending bidders to submit their bids in sealed cover, any liberty given to a tenderer allowing h im to submit multiple bids and thereafter also taking into consideration all suc h multiple bids and selecting one amongst them will be in violation of the tenet s of Indian Contract Act, 1872 and would also be in derogation of the mandates o f Article 14 and 19 of the Constitution of India.

#19. The inevitable conclusion of the forgoing discussion is that in the inst ant case even in the absence of any stipulation to the effect of debarring a ten derer from submitting multiple tenders, the inherent purpose of convening such a tender process being to select the best eligible tenderer amongst the participa ting bidders in terms of their firm, unequivocal and unambiguous offer, it is no t permissible for a tenderer to submit multiple tenders quoting multiple bids. A particular tenderer so as to qualify for due consideration in a tender process has to submit one single tender containing a single absolute and unqualified pro posal so as to be considered for acceptance in absolute and unqualified term. Co nsequently, the private respondent having admittedly submitted two tenders quoti ng two different rates should have been adjudged to be disqualified by the settl ing authority in the settlement process. The private respondent having disqualif ied itself on ground of submission of multiple tenders could not have been grant ed a settlement by selecting its terms/bid contained in one of its submitted ten ders so as to marginalize the prospect of other single bidders. Hence, the settl ement order No. FISH.56/86/Pt. II/215 dated 31.3.2012 is hereby set aside. The s ettling authority shall now reconvene the selection process by reconsidering the tenders submitted by the rest of the tenderers who have submitted single bids. It shall be open and incumbent upon the settling authority to consider the indiv idual bids of the remaining tenderers on their individual merits based on parame ters stipulated under the Fishery Rules as well as the terms and conditions stip ulated in the bid documents and Notice Inviting Tender. The settlement process s hall be completed expeditiously and in any case, within a period of 2(two) month s from today. Meanwhile, as an interim measure the status quo as regards the pos session of the fishery as per the arrangement already made by the Government sha ll continue.

#20. Both the writ petitions are allowed in terms of the aforesaid directions and observations. No costs.