High Court
Case Details
WP(C) 1823/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (Oral) Heard Mr. PJ Saikia, learned counsel for the petitioner and Mr. H Rahman, learne d Govt. Advocate, Assam also appearing for Sonari Municipal Board. Also heard Mr . UJ Saikia, learned counsel appearing for respondent No. 5. By way of this petition, under Article 226 of the Constitution o 02. f India, petitioner seeks quashing of order dated 26.03.2013, issued by the Chai rman, Sonari Municipal Board, Sonari (Board), settling Public Bus Stand with the respondent No. 5 for the year 2013-2014. Notice Inviting Tender (NIT) was issued by the Board for settlem 03. ent of various markets, Public Bus Stand etc. within its jurisdiction for the ye ar 2013-14. Present petition is concerned with the settlement of Public Bus Stan d. As per the Notice inviting Tender (NIT) dated 27.02.2013, minimum bid value f or the Public Bus Stand was fixed at Rs.2,35,504.00.
Legal Reasoning
04. Petitioner as well as respondent No. 5 had submitted tender for settlement of Public Bus Stand pursuant to the said NIT. On opening of tenders, it was found that three tenderers had submitted tenders for settlement of the Pu blic Bus Stand, including petitioner and respondent No. 5. Petitioner had quoted Rs. 3,32,100.00, whereas respondent No. 5 had quoted Rs. 2,48,500.00. The other tenderer, Sri Rupjyoti Mohan had quoted Rs. 2,97,000.00. Thus, the rate quoted by the petitioner was the highest, whereas the rate quoted by respondent No. 5 w as the lowest. 05. As per the comparative statement dated 26.03.2013 (Annexure-B), the tender of the petitioner was rejected on the ground that his quoted rate was 41.01% above the last years bid, which was considered to be very high: there wi ll be heavy taxation on the general public and hence the Public Bus Stand could not be allotted to petitioner, the highest bidder. Similar ground has been given for rejecting the tender of Sri Rupjyoti Mohan. In respect of respondent No. 5, it was stated that his rate was 5.52% above the last years bid. Board in its me eting held on 21.03.2013, authorized the Chairman to negotiate with the bidder a nd, accordingly, negotiations were held with the lowest bidder i.e. respondent N o. 5. Pursuant to such negotiation, respondent No. 5 agreed to raise the bid amo unt upto 15% above last year’s bid value. Therefore, it was decided to allot the Public Bus Stand in favour of respondent No. 5 at enhanced rate of 15% above la st year’s value. Thereafter, settlement order was issued by the Chairman of the Board on the same day itself i.e. on 26.03.2013 settling the Public Bus Stand wi th respondent No. 5 at Rs.2,70.829.00. 06. Aggrieved, petitioner has filed the present writ petition. Contention of the petitioner is that rate quoted by him was the 07. highest. Ground given for not accepting the rate quoted by the petitioner is abs urd as parking fee etc., are fixed by the Board. Lessee on its own cannot fix or ask for any amount of parking fee from the public. Board had conducted post ten der negotiation with respondent No. 5 alone and not with other tenderers, which is not permissible. In the process, settlement has been made with the lowest ten derer causing loss of public revenue. 08. Respondent No. 4 i.e. Chairman, Sonari Municipal Board has filed affidavit. Stand taken in the affidavit is that respondents were not bound to a ccept the highest bid, which was mentioned in the NIT. Tolls to be collected are fixed after finalization of settlement based on the amount at which settlement is made. Rates quoted by petitioner and the second highest tenderer were very hi gh. Board in its meeting held on 21.03.2013 authorized the Chairman to negotiate with the bidder as his rate was just 5.52% above last year’s rate. Accordingly, respondent No. 4 negotiated with respondent No.5, and following negotiation, ra te of respondent No. 5 was enhanced to 15% above last year’s rate. Thereafter, s ettlement was made with respondent No.5. The aforesaid course of action was done considering the greater public interest. 09. Respondent No. 5 has also filed affidavit. In his affidavit, he has stated that he was invited for negotiation, whereafter he negotiated with th e Board for settlement of Public Bus Stand. 10. Petitioner in his reply-affidavit has stated that he was not cal led for negotiation. Only respondent No. 5 was called for negotiation. He has de nied the stand taken by the Board that settlement of the Public Bus Stand at suc h high rate may lead to heavy taxation on the general public. 11. Submissions made by learned counsel for the parties are on plead ed lines and, therefore, it is considered not necessary for a detailed narration of the submissions made. 12. vant record, which has been perused. However, Mr. Rahman, learned State Counsel has produced the rele 13. Thus from the pleadings and submissions, it is evident that the bid value of the petitioner was the highest and that of respondent No.5, the low est. While petitioner had quoted Rs.3,32,100.00, respondent No. 5 had quoted Rs. 2,48,500.00. As already noticed above, though the petitioner was the highest bi dder, his bid was rejected on the ground that he had quoted 41.01% over the sett led value of last year. His rate was considered to be very high, which will lead to heavy taxation on the general public. Hence, his bid was rejected. 14. In so far respondent No. 5 is concerned, his bid was accepted af ter holding negotiation with him not at his quoted rate, but at enhanced rate. T he remarks made in the comparative statement in respect of the tender of respond ent No. 5 are as under : - (cid:28)Sri Mrinal Borgohain is the Lowest bidder who has quoted the rate 5.52% above o f the last year. The rate of highest bidder is very high. On the contrary the ra te of lowest bidder is very marginal in comparison to the highest bidder. The ma tter has been discussed in the Board’s meeting held on 21.03.2013 specially conv eyed for the purpose wherein the board had empowered the undersigned to negotiat e with the lowest bidder and accordingly the undersigned called upon the lowest bidder to discuss about the rate and after thorough discussion the lowest bidder agreed to raise the bid amount upto 15% above of the last year and to that effe ct the lowest bidder has given a written assurance on 25.03.2013 which in my vie w is most reasonable and justified and hence the Public Bus Stand is allotted in favour of Sri Mrinal Borgohain at the rate of 15% above of the last year and is
Decision
sue order accordingly and ask him to execute lease agreement as per rules. Sd/illigible. (cid:29) 15. Thus, from the above, it is clear that negotiation was held only with respondent No. 5 and not with the other two tenderers. Strangely enough, i n the negotiation held, the objective was to enhance the rate offered by the res pondent No. 5. This, itself is called unusual. If the Board could hold negotiati on with respondent No. 5 for enhancement of his quoted rate, there was no reason why such negotiation could not be held with the petitioner being the highest bi dder for lowering the quoted rate. It goes without saying that if post tender ne gotiation is required to be held, it should be held with all the tenderers and n ot with a selective tenderer. It may also be noted that no defect was found with the tender of the petitioner. In so far the ground relating to rejection of the rate of the pe 16. titioner as being very high, which will lead to heavy taxation on the general pu blic is concerned, the same does not stand to reason at all. As a matter of fact , such contention was earlier gone into by this Court in Lila Borah Vs. State of Assam & Ors., reported in (2006) 1 GLR 445, wherein it was held that a lessee i s permitted and allowed to collect tolls, which are fixed by the Municipality it self. A lessee is not entitled to demand anything beyond such rate. Therefore, a pprehension of excessive taxation by lessee was held to be not based on any vali d reason and totally unfounded. It was held as under: - (cid:28)It is no longer res-integra by now that in the event of having such idea in the mind of the Municipal Board that the value of the property offered as scrutiny is lesser than the bid value, and the tender would be rejected in that count, it must be incorporated in the tender notice itself, otherwise the process of sett lement would not be transparent. The process of settlement must be clear and tra nsparent and a tenderer must know as to necessary requirement to be complied wit h and without incorporating such clause in the tender notice, I find it difficul t to accept that the rejection of the tender on that ground as is a valid one. M oreover petitioner was not given any opportunity to offer more security before t aking such a decision. In this connection we may gainfully refer to the ratio of the following decisions of the Apex Court and of this Court : - (1997) 1 SCC 53 ; (2) AIR 1986 SC 1527; (3) 1991 (3) SCC 273 and (4) 2000 (1) GLT 573 : Regardin g other ground that the petitioner offered higher bid than the last years bid wh ich would put more financial burden upon the trader is also clearly unacceptable inasmuch as a lessee is permitted and allowed to collect tolls which is fixed b y the Municipality itself and such fixation is made the Municipal Board in its m eeting, and approved by the authority. A trader or a lessee is not entitled to d emand anything beyond such rate as fixed by the Municipality. Hence apprehension of excessive taxation upon trader is not based on any valid reason and is total ly unfounded. (cid:29) 17. In Lila Borah (Supra), it was also held that settlements are mad e by the Municipalities to augment its revenue, which is one of the major source s of revenue. Normally, such settlement should be made at the best available pri ce. A prudent businessman would always put his bid considering all aspects of th e matter and if the Municipality gets more revenue, such bid should be accepted by the Municipality. 18. Having regard to the discussions made above, I am of the view th at the course of action adopted by the Board is not justified. Settlement of Pub lic Bus Stand with respondent No. 5 cannot be sustained and is, accordingly, qua shed. Respondent No. 4 shall now issue fresh settlement order in favour of the h ighest tenderer for the remaining period of settlement within fifteen (15) days from the date of receipt of a certified copy of this order. 19. Record produced by Mr. H Rahman, learned State Counsel, Assam is returned back. 20. Writ petition is allowed. No costs.