High Court
Case Details
WP(C) 198/2013 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. H.R.A. Choudhury, learned senior counsel for the petitioner and Mr. J. Handique, learned State counsel appearing for the respondent Nos.1 to 4. Also heard Mr. M.K. Hussain, learned counsel appearing for the respondent No.5 and Mr . S.N. Sarma, learned senior counsel appearing for the respondent No.6. The petitioner, who was the second highest bidder in respect of Alikash Weekly C attle Market under Dalgaon Sialmari Anchalik Panchayat, Darrang, by the present petition has challenged the order of settlement dated 7th January, 2013 passed b y the Chief Executive Officer, Darrang Zilla Parishad, Mangaldoi, the respondent No.4, settling the said market in favour of the respondent No.6, who was the si xth highest bidder, for the panchayat year 2012-13, i.e. upto 30th June, 2013, a t his offered bid of Rs.17,77,701/-. The ground on which the said settlement has been put to challenge is that since the petitioner is the second highest bidder and the bid of the first highest bid der was found to be defective, the same has to be offered to the petitioner. Ac cording to the petitioner, the ground of rejection of the petitioner’s bid, i.e. that the same person was the guarantor in respect of the highest bidder, namely , Mukunda Brahma as well as the second highest bidder, is not tenable, in view o f the terms and conditions of the NIT issued, which does not debar a person from being a guarantor in respect of 2(two) bidders showing the same property. It i s also the case of the petitioner that the tender paper submitted by the respond ent No.6 was defective, as the land valuation certificate furnished by the respo ndent No.6 was not pertaining to the year 2011-12, as required under the terms a nd conditions of the NIT. On the contrary, the stand of the respondent No.6 is that since the tender paper s submitted by the first, second and the fourth bidders were found to be defecti ve and the third and the fifth highest bidders have withdrawn their bids, the au thority has rightly passed the order settling the market in favour of the respon dent No.6, he being the valid highest bidder, on rejection or withdrawal of the bids by the other bidders. It is also the case of the respondent No.6 that the tender paper submitted by him was found to be in order in all respect and the co ntention of the petitioner that the up-to-date land valuation certificate has no t been submitted would not, in any way, affect the land value. Mr. Choudhury, learned senior counsel appearing for the petitioner, referring to the materials made available as well as the terms and conditions of the NIT, mo re particularly, Clause-5 thereof, has submitted that there is no clause debarri ng one guarantor to become guarantor in respect of more than one bidders and as such, the ground on which the petitioner’s bid was found to be defective is not tenable in law. It has also been submitted that in any case, the settlement cou ld not have been offered in favour of the respondent No.6, the land valuation ce rtificate being pertaining to the year 2006-07 and not pertaining to the year 20 11-12. The learned senior counsel, therefore, submits that the order of settlem ent dated 7th January, 2013 settling the market in favour of the respondent No.6 needs interference and the matter may be remitted to the Zilla Parishad to pass a fresh order settling the market in favour of the petitioner, he being the hig
Legal Reasoning
hest valid tenderer. Mr. Handique, learned State counsel, referring to the records produced, has subm itted that Raju Islam was the guarantor in respect of the highest bidder, namely , Mukunda Brahma, as well as the second highest bidder, namely, Ratneswar Basuma tary (the petitioner), for which reason the bid of the highest bidder as well as the second highest bidder has been cancelled. It has also been submitted that for the same reason the bid of the fourth highest bidder has also been cancelled . Mr. Handique further submits that as the third and the fifth highest bidder h ave withdrawn their bids, the Zilla Parishad had no other alternative but to set tle the market in favour of the respondent No.6, he being the highest valid bidd er. According to Mr. Handique, the bid submitted by the respondent No.6 is in o rder in all respect and in any case, the land valuation certificate issued in th e year 2006-07 would not affect the bid as the value of the property has increas ed thereafter. Mr. Hussain, learned counsel also supports the arguments advanced by Mr. Handiqu e, learned State counsel. Mr. Sarma, learned senior counsel appearing for the respondent No.6 supporting t he arguments advanced by Mr. Handique, learned State counsel, has also submits t hat one guarantor cannot be the guarantor of 2(two) bidders showing the same lan d, as has been done in the instant case, in respect of the highest bidder as wel l as the second highest bidder (the writ petitioner) and hence, the bid of the h ighest and the second highest bidder has rightly been rejected by the Zilla Pari shad. It has also been submitted that since the value of the property has been appreciated, the submission of the valuation certificate in respect of the prope rty offered by the respondent No.6 with the valuation certificate issued in the year 2006-07 would not render the tender paper submitted by the respondent No.6 invalid, more so, when it is not the case of anyone that the said property does not belong to the respondent No.6 or the respondent No.6 has transferred the sai d land after 2006. I have considered the submissions advanced by the learned counsel appearing for the parties and also perused the pleadings, apart from the materials made availa ble on record of settlement, as produced by Mr. Handique, learned State counsel.
Decision
It appears from the records that the respondent No.6 earlier approached this Cou rt in WP(C) No.4129/2012 complaining about non disposal of the appeal preferred by the respondent No.6 against the order of settlement made in favour of one Abd ul Waheb, who was the 14th highest bidder. The said writ petition was disposed of vide order dated 31st August, 2012 directing disposal of the appeal preferred by the respondent No.6. The present petitioner has also filed a writ petition being WP(C) No.3332/2012 challenging the order of settlement made in favour of s aid Abdul Waheb with a further prayer that the settlement of the market may be m ade in his favour, which was disposed of vide order dated 3rd December, 2012 by setting aside the settlement made in favour of said Abdul Waheb and directing th e Zilla Parishad to take a fresh decision on the tender process initiated. The Zilla Parishad thereafter, passed the order dated 7th January, 2013 settling the market in favour of the respondent No.6, who was the sixth highest bidder. The offer of the first and the second highest bidder, namely, Mukunda Brahma and Ra tneswar Basumatary (the writ petitioner) have been rejected on the ground that R aju Islam was the guarantor in respect of both the bidders, who has shown the sa me property. According to the Zilla Parishad, Clause-5 of the terms and conditi ons of the NIT prohibits a guarantor to become a guarantor of more than one bidd er showing the same property. For better appreciation, the translated version of Clause-5 of the NIT dated 8th May, 2012 is reproduced below:- (cid:28)In each of the hat/bazaar the security deposit 5% shall be deposited through N. S.C. or draft from a National Bank on behalf of Chief Executive Officer of the A nchalik Panchayat attaches with the tender. The no. of the draft, date and amou nt shall be mentioned in the tender form. It is mentioned that the value of the property of the tender or guarantor shall not be less than a tender bid value. One tenderer cannot be guarantor of another tenderer for the same property and in the same way the guarantor of the tenderer cannot submit tender for the same property. (cid:29) Clause-5 of the said NIT provides that one tenderer cannot be the guarantor of a nother tenderer for the same property and in the same way the guarantor of the t enderer cannot submit the tender showing the same property. It does not say tha t the guarantor cannot be the guarantor of 2(two) bidders showing the same prope rty. What has been prohibited is that the guarantor, who has shown the property being the guarantor of a tenderer, cannot submit his own bids showing the same p roperty. In the instant case, as discussed above, the offer of the first and the second h ighest bidder was rejected as Raju Islam was the guarantor for both the bidders. Such rejection is, therefore, contrary to the terms and conditions stipulated in the aforesaid NIT. This leads to the determination of another question as to whether the tender sub mitted by the respondent No.6 was defective. The ground on which, according to the petitioner, the tender submitted by the respondent No.6 is defective is that the land valuation certificate, which the respondent No.6 has submitted pertain s to the year 2006-07. It is not the case of the petitioner or for that matter of the other respondents that the property, which was shown by the respondent No .6, does not belonged to hm. Non submission of the up-to-date land valuation ce rtificate would not make the tender paper submitted by the respondent No.6 inval id, as it is an admitted position of fact that the valuation of the land has app reciated. In view of the aforesaid discussion, the order of settlement dated 7th January, 2013 passed by the Chief Executive Officer, Darrang Zilla Parishad, Mangaldoi, t he respondent No.4, in favour of the respondent No.6 cannot be sustained and hen ce, the same is set aside. The matter is remitted to the Zilla Parishad for pas sing a fresh order of settlement in favour of the highest bidder. In case, the highest bidder refuses to accept the bid, it would naturally be offered to the next highest bidder and so on. In case, the highest bidder refuses to accept th e offer, it is open to the settling authority to invoke the provision of the NIT . The said order shall be passed within a period of 15(fifteen) days from today . The writ petition is accordingly allowed. No costs.