High Court
Case Details
WA 337/2011 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K.GOEL THE HON’BLE MR. JUSTICE A.K.GOSWAMI (Goswami, J) JUDGMENT AND ORDER (CAV)
Facts
The respondent No.3 in WP(C) No.5107/2011 has preferred W.A.No.337/2011 being aggrieved by the order of the learned Single Judge dated 3.11.2011 setting aside the order dated 21.9.2011 settling the KumutiaGr. fishery of Dhemaji Dist rict, for short, the fishery in question, passed by the respondent No.2 for a pe riod of 7 years from 2011-2012 to 2017-2018 at an annual revenue of Rs.7,05,000/ - and a total Rs. 49,35,000/- for a period of 7 years. 2. W.A.No.342/2011 is preferred by the writ petitioner challenging the find ing recorded by the learned Single Judge in the order dated 3.11.2011, that non- submission of the original call deposit along with the tender paper is a curable defect and such defect in the tender of the respondent No.3 does not invalidate the tender. 3. For the sake of convenience, in this judgment, appellant in W.A. No.337/ 2011 will be referred to as the respondent No.3 and the appellant in W.A. No.342 /2011 will be referred to as the writ petitioner. 4. The case projected in the writ petition is that pursuant to the tender n otice No.1/11 issued by the Managing Director, Assam Fisheries Development Corp oration, for short, ’AFDC’,respondent No.2, inviting sealed tenders for settleme nt of the fisheries mentioned therein including the fishery in question, 7(seven ) tenderers including the petitioner and the respondent No.3 submitted tenders, which were opened on 25.5.2011 in the presence of the tenderers. The tender of t he respondent No.3 was the highest and the rate quoted by the writ petitioner wa s second highest . A comparative statement was prepared by the Tender Committee which found the tender submitted by the respondent No.3 to be invalid as the res pondent No.3 did not submit earnest money but had submitted a photocopy of the d raft along with the tender, which did not fulfill Clause 5(1) of the terms and c onditions of the tender notice and accordingly, the respondent No.2 recommended the case of the petitioner for settlement of the fishery in question. The petiti oner was expecting the settlement of the fishery as he was the highest valid ten derer.But as even after 4 months of opening of the tender,no settlement order wa s issued, he made enquiries and such enquiries revealed that the Minister, Fishe ries, Government of Assam, as Chairman, Board of Directors of respondent No.1 , namely, AFDC, had recommended/approved the name of the respondent No.3 for set tlement of the fishery in question and also directed the respondent No.2, to iss ue a formal order settling the fishery. Challenging the said decision, the writ petitioner had approached this 5. Court by filing WP(C) No. 4980/2011 praying for cancellation of the recommendati on of the Chairman of the Board of Directors and for a direction to settle the f ishery with the petitioner. On 23.9.11, an interim order was passed directing the respondent authori 6. ties not to settle the fishery. Having come to know that on 21.9.11, order of se ttlement of the fishery in favour of the respondent No.3 was already issued, the petitioner challenged the said order of settlement by filing a writ petition be ing W.P.(C) No.5107/2011. 7.
Legal Reasoning
case and meet the challenge with proper defences. 16. In S.R.Tiwary (supra), in absence of pleading that the order of dismissa l was as a measure of punishment, the Apex Court refused to consider the questio n whether the order of dismissal passed against the appellant from the service o f the Board was as a measure of punishment for misconduct. 17. It is noticed that according to the own showing of the writ petitioner, he was present at the time of opening of the tender. The only plea raised by the petitioner with regard to the validity of the tender of respondent No.3 was fou nded on the basis that respondent No.3 had submitted photocopy of the earnest mo ney deposit. Tender committee as well as respondent No.2 had also considered the tender to be defective on that count only. The writ petitioner did not take any plea in the writ petition that the Bakijai Clearance Certificate of the respond ent No.3 was defective and that the same was overlooked by the authorities. It w as also not pleaded that the authorities acted arbitrarily in holding the tender of the respondent No.3 not defective on account of not furnishing experience ce rtificate. This Court inAbu Talib(supra) had taken a view that submission of Bak ijai Clearance Certificate could not be taken as a rigid requirement. 18. In view of the above, we are of the opinion that in absence of any plead ing on material facts, the learned Single Judge was not correct in recording fin ding against the respondent No.3 in respect of its tender as noted above. 19. D.S. Trading (supra), on which reliance has been placed by Mr. Sarma, is a case, wherein eligibility conditions were waived at the decision making stage to benefit ineligible tenderers. This is not the case here. 20. In Bikash Bora (supra), this Court had held that Loan Clearance Certific ate and Sales Tax Clearance Certificate to be essential conditions for a valid tender in terms of the notice inviting tender in question. We are not confronted with such certificates and therefore, this case does not in anyway advance the
Arguments
We have heard Mr. A.Sarma, learned counsel for the writ petitioner (writ appellant in W.A.No. 342/2011) and Mr.N.C.Das, learned Senior Counsel, appearin g for the respondent No.3 (writ appellant in W.A.No. 337/2011). Heard also Mr. S .R.Rajbangshi, learned Standing Counsel, appearing for the AFDC. We have also perused the materials on record relating to settlement of the fishery in questio n made available by Mr. Rajbangshi. 8. Mr. Sarma submits that the authority inviting atender is duty bound to c onsider whether the tender submitted by a tenderer is valid in all respects. App arently, tender of the respondent No.3 was examined very superficially as the re cord produced by the AFDC before the learned Single Judge demonstrated.On examin ation of the records, infirmities as noted in the judgment of the learned Single Judge were found and accordingly, the learned Single Judge had recorded finding s that the tender of the respondent No.3 is invalid on the grounds of (i) the ca ll deposit being not in the name of the co-operative society but in the name of an individual (ii) the Bakijai certificate submitted beingnot in the name of the co-operative society but in the name of an individual and (iii) the respondent No.3 not submitting experience certificate. Thus, he contends that even if there was no pleading with regard to the aforesaid shortcomings of the tender of the respondent No.3 requiring rejection of the said tender because of such defects, the writ Court is not powerless to examine the decision making process culminati ng in the award of the settlement.Mr. A.Sarma, learned counsel for the writ peti tioner further submits that deposit of earnest money as required by Clause 5(1) of the terms and conditions is a mandatory requirement and admittedly, the respo ndent No.3 having only deposited the photocopy of the call deposit, the tender o f the respondent No.3 is invalid and the same is liable to be rejected. He submi ts that the learned Single Judge was wholly wrong in holding that submission of photocopy of the call deposit instead of the original of the call deposit is a c urable effect. In support of his submissions, the learned counsel has placed rel iance on the following judgments: 2002(3)GLT 653(D.S. Trading (M/s) VsPadumGogoi and ors) and (i) 2003(2) GLT 485(Bikash Bora Vs State of Assam and Ors) (ii) 9. Mr. Das submits that the only allegation made by the writ petitioner wit h regard to tender of the respondent No.3 being not valid was because of alleged violation of Clause 5(1) of the terms and conditions of the tender notice. It w as alleged that the respondent No.3 had submitted only a photocopy of the draft along with the tender papers towards payment of 15% of the annual revenue as ear nest money. It is submitted by him that at no point of time, the tender of the r espondent No.3 was declared invalid. It had submitted a photocopy of the bank dr aft and the respondent No.3 had submitted the Call Deposit Receipt in original o n 3.6.2011. It is submitted by him that in the terms and conditions of the tend er, it was not clearly stated that call deposit in original should be submitted along with the tender and there was some confusion , which resulted in submissi on of photocopy of the Call Deposit Receipt of the respondent No.3.It is further submitted by him that the learned Single Judge was wholly correct in holding th at non-submission of the original call deposit is a curable effect. It is conten ded by him that though no other infirmities were alleged by the petitioner in th e writ petition, the learned Single Judge travelled beyond the pleadings in reco rding findings against the petitioner, resulting in quashing of the order of set tlement made in its favour.It is submitted by him that requirement of submitting Bakijai Clearance Certificate is not a mandatory condition and even if there is some defect in the Bakijai Clearance Certificate submitted by the respondent No .3, the same is a curable effect.The learned Senior Counsel also submits that th e respondent No.3 being a registered fishery Co-operative Society formed with 10 0% actual fishermen belonging to the Scheduled Caste community of Assam and it h aving submitted Certificate to that effect, as far as the registered societies l ike respondent No.3 are concerned, there is no requirement of submitting any exp erience certificate. It is an admitted position that Satya Das, the President of the society was authorized by a resolution to take steps towards settlement of the fishery and in that view of the matter, the finding recorded by the learned Single Judge that the call deposit is defective, the same being in the name of a n individual and not being in the name of society, is wholly not tenable. He sub mits that if in the pleadings, the writ petitioner had questioned the validity o f the tender submitted by the respondent No.3 on the aforesaid grounds, it would have met the allegations.However, without raising any such plea, such contentio ns were advanced at the time of hearing to the detriment and prejudice of the pe titioner. He has placed reliance upon the following judgments : Mr. Rajbangshi, learned Standing counsel, AFDC supports the order of set AIR 1966 SC 837 (Municipal Corporation of the City of Jabalpur Vs State AIR 1964 SC 1680 (S.R.TewariVs District Board, Agra now the AntarimZilaP A Division Bench Judgment of this Court dated 29.9.11 in WA No.294/2011 (i) of Madhya Pradesh and anr), (ii) arishad, Agra and anr), (iii) (Abu TalibVs A.F.D.C Ltd and ors. 10. tlement issued in favour of the respondent No.3. 11. The report of the tender committee indicates that it had opined that as the highest tenderer had given photostat copy of the demand draft towards earnes t money, its tender was defective. The tender committee proposed that second hig hest tenderer may be offered the settlement at the highest bid or else it would be advisable to invite fresh tenders. The tender committee did not notice any ot her infirmities in the tender of the respondent No.3. The respondent No.2 had al so reiterated the same in his note to the Chairman and suggested settlement in f avour of the second highest tenderer. The Chairman of the AFTC approved the high est tenderer. His note reads as under: (cid:28)Approved Sl.N0-1.(7.05.000.00) as society. (cid:29) 12. Thereafter, the settlement order was issued by the Managing Director of AFDC in favour of the respondent No.3. In the said settlement order, it is recit ed that on consideration of all aspects of the matter including revenue of the C orporation and taking into consideration that the highest tenderer is the only C o-operative society, settlement was offered to the said society. 13. Clause 4.1 of the terms and conditions of the tender mandates that the p ro-forma of the tender form should be submitted by giving all the details of inf ormation indicated in Clause 4.1.1 to Clause 4.1.9 along with certificates.Claus e 4.1.1 requires that if the tenderer is a Co-operative Society, then a photogra ph of an authorized person, authorized by Managing Committee of the Society, dul y attested by a gazetted officer, is to be submitted. Clause 4.1.2 requires that in the event of the tenderer being a society, certified photocopy of a letter o f authority giving the person authority to submit the tender by the Managing Co mmittee of the Society should also be enclosed along with the tender. Clause 4.1 .3 requires that 15% of the minimum value for the first year in respect of the f ishery fixed by the Corporation shall be deposited as earnest money. Clause 5.1 provides that 15% of the minimum value for the first year in respect of the fish ery fixed by the Corporation shall be deposited as earnest money along with the tender. 14. In the pro-forma of the tender form, there is a column for name of the t enderer and address. In the said column, it is also indicated that the name of t he authorized person along with the detailed address and phone number should be given in respect of a tenderer, which is a co-operative Society. Record relating to the tender process shows that Satya Das, as the authorized person of the soc iety, had submitted the tender for the respondent No.3. Photocopy of the call de posit receipt was dated 30.5.11 and the same shows that it was received from Sr i Satya Das in favour of Managing Director, AFDC.There is also a resolution of t he Managing Committee of the society authorizing the President and the Secretary to submit tender on behalf of the society. 15. In Municipal Corporation of the city of Jabalpur(supra), a Constitution Bench of the Apex Court has laid down that when a party in a writ petition does not allege a particular fact, it stands to reason that he ought not to be permit ted to travel beyond the facts stated at the stage of argument. It was further h eld that to confine a party to his pleading, particularly to his allegation as r egard facts is dictated not merely by the need for orderliness in these proce edings but for avoiding surprise to the other party and consequent injustice res ulting therefrom and, therefore, save and except exceptional cases, parties sho uld be held strictly to their pleadings and if owing to discovery of new matter or ground, there is need to add to or to modify the allegation either in the pet ition or in the counter affidavit, the Court should insist on formal amendment b eing effected as this would enable each party to state its case with precision a nd definiteness and the other side would have a proper opportunity to know the
Decision
case of the writ petitioner. 21. Earnest money represents a guarantee that the contract will be fulfilled and it evinces the earnestness to bind the tenderer in the bargaining process a s the process of contract goes through.According to the terms and conditions of tender, among others, earnest money can be forfeited if a tenderer withdraws his bid after the tenders are opened.The earnest money is otherwise to be returned to the unsuccessful tenderer on his application. If a highest bidder or for tha t matter, any other tenderer, who submits his bid with a photocopy of the demand draft towards deposit of earnest money, after the tenders are opened, decides t o withdraw his bid, the authority may not be able to forfeit the earnest money o f such a tenderer, as for such a purpose, original of the draft will be required . Submission of a photocopy of the demand draft or call deposit, may not, in all circumstances, represent earnestness and may encourage speculative bids. Submis sion of a photocopy of the demand draft or call deposit towards earnest money in place of the original cannot be equated with a technical violation or irregular ity of little or no significance, such as deposit of earnest money by way of a d emand draft drawn on a bank other than the bank notified in the notice inviting tender or made in favour of a person within the organization other than the pers on in favour of whom such demand draft, in terms of notice inviting tender, shou ld have been made. Therefore, we are of the opinion that draft or call deposit i n original has to be submitted along with the tender and the defect of not submi tting the original of demand draft or call deposit towards earnest money is not a curable defect. 22. Even though, in view of the above discussion, the tender of the responden t No.3 suffers from infirmity as noted above, settlement was offered to the resp ondent No.3 and the respondent No.3 is continuing to run the fishery till date. The respondent No.3 is a fishery co-operative society. It had deposited the orig inal demand draft on 03.06.2011 in the office of the corporation. The same was n ot refused to be accepted on submission. In such circumstances, in the facts of this case, we are not inclined to disturb the settlement made in favour of the r espondent No.3 at this distance of time. 23. In the result, the writ appeals are disposed of upholding the order of s ettlement made with the respondent No.3.The order of the learned Single Judge da ted 3.11.2011 is set aside. 24. No costs.