High Court · 2012

I have heard Mr. S.S. Dey, learned counsel for the petitioner as well as Mr. T.J. Mahanta, learned counsel for the respondent No. 3. I have also heard M r. S.R. Rajbongshi, learned Standing Counsel, Assam Fisheries Development Corpor ation Ltd.. I have also considered the entire materials on record including the file in which the impugned decision has been taken.

4. According to the petitioner, the tender documents, which he was to submi t on the date fixed (last date 15.5.2012) having been lost on his way to a parti cular place to come to Guwahati to submit the tender papers, he has lodged an FI R narrating the said fact. Resultantly, he could not submit the tender on the da te fixed i.e. 15.5.2012. However, he could submit his tender quoting his bid val ue of Rs. 2,05,700/- on 21.5.2012. Be it stated here that the last of submission of tender, which was earlier fixed as 15.5.2012 was extended upto 21.5.2012.

5. Stating the aforesaid fact, it is the case of the petitioner that since his earlier tender could not be submitted, his subsequent tender quoting the bid value of Rs. 2,05,700/- ought to have accepted by the authority.

6. As the records have revealed that in the earlier tender, which according to the petitioner was lost on the way to the particular place, the bid amount q uoted by the petitioner was Rs. 51,000/-, a fact that has been denied by the pet itioner. On the other hand, the amount offered by the respondent No. 3 is Rs. 61 ,000/-. The whole controversy is as to whether the earlier tender which was to b 7. e submitted by the petitioner in fact was lost and resultantly he could not be s ubmit and that the second tender quoting a much higher bid ought to have been ac cepted by the authority.

8. When the authority prepared the comparative statement of the tenderer an d decided to settle the fishery with the respondent No. 3, the petitioner approa ched this Court by filing the writ petition being WP(C) No. 3180/2012. The writ petition was disposed of by order dated 1.8.2012 recording the above controversy and directing the respondent corporation to consider the tenders on merit. It w as further provided that as there was dispute regarding submission of two tender s by the petitioner, the respondent corporation should also examine that aspect of the matter and pass necessary order.

9. Pursuant to the said earlier round of litigation, the Managing Director of the respondent corporation having passed the impugned Annexure-7 order dated 21.9.2012 rejecting the claim of the writ petitioner and upholding the settlemen t made in favour of the respondent No. 3, the petitioner has filed the instant w rit petition, in which the aforesaid interim order dated 1.10.2012 is now operat ing seeking vacation of which the respondent No. 3 has filed Misc. Case No. 2992 /2012. In paragraph 4 of the writ petition, the petitioner has stated that on 1 10. 4.5.2012 evening, he had started from his house by bicycle along with a bag cont aining the tender documents for onward submission at Guwahati and on his way he lost the said bag. Accordingly, on 15.5.2012, he lodged an FIR with Katakhal Out Post stating the said fact. A copy of the said FIR has been annexed to the Misc . Application No. 2992/2012, on perusal of which the said plea of the petitioner stands contradicted. As per the FIR, he lost the tender documents on 15.5.2012. While referring to the documents in the FIR, the petitioner only stated about t he call deposit and not the tender itself. It will be pertinent to mention here at this stage that in an application filed before the Managing Director of the r espondent Corporation also, the petitioner stated about the alleged incident of 14.5.2012 and FIR filed on 15.5.2012. It is in this connection, Mr. T.J. Mahanta , learned counsel representing the respondent No.3 has referred to the statement made in the earlier writ petition being WP(C) 3180/2012, a copy of which has be en annexed to the Misc. Application as Annexure-H.

11. In paragraph 3 of the earlier writ petition, the clear statement made is that it was on 15.5.2012, the petitioner had lost the documents while coming to Guwahati. Per contra, in the present writ petition as well as in the aforesaid documents, the stand of the petitioner is that he has lost the call deposit on 1 4.5.2012 and consequently lodged the Fir on 15.5.2012.

12. In the Misc. Application filed by the respondent No.3, it has been clear ly demonstrated that the aforesaid plea of the petitioner is not at all factuall y correct, inasmuch as, the petitioner was very much available in Guwahati on 15 .5.2012. In this connection, the specific statement made in paragraph 18 of the Misc. application, is quoted below :- (cid:28)18. That the applicant begs to state that the alleged loss of call deposits is absolutely false and concocted because: (i) That stand taken by the writ petition in para 4 of the present writ peti tion being WP(C) No. 4683/2012 that he had lost the said documents on evening of 14.5.2012 is self contradictory with the ejahar dated 15/5/2012, police report dated 18/5/2012 and para 3 of his earlier writ petition being WP(C) No. 3180/201 2. It is to be mentioned herein that in para 3 of the said writ petition being W P(C) No. 3180/2012, the writ petitioner took a different stand that he lost the said documents on 15/5/2012. (ii) The hotel register maintained by the Dispur Guest House at Guwahati conf orms that the writ petitioner had booked a room in his name there (Room NO. 10) on 14/5/2012 and he stayed up to 16/5/2012 in the said hotel. In this period, he was in Dispur Guest House along with two others namely Saidur Rahman and Jamiru ddin. (iii) On 14/5/2012 the writ petitioner himself deposited a sum of Rs. 3,500/- before the respondent No. 2 in respect of another fishery enjoyed by him namely Bansauti-16 through CDR No. 18441. The above facts clearly expose the fact that the writ petitioner was all along p resent in Guwahati from 14/5/2012 to 16/5/2012 and the story of loss of his earl ier tender papers along with call deposits is proved to be absolutely false, con cocted and same has been made out just to get illegal gain. (cid:29)

13. Although, the petitioner has filed an affidavit-in-opposition to the sai d Misc. Application, there is absolutely no response to the aforesaid averments made in paragraph 18 of the Misc. Application. Thus, the facts stated in paragra ph 18 go unrefuted. However, Mr. S.S. Dey, learned counsel for the petitioner re ferring to the statements made in paragraph 10 of the writ petition submits that the facts stated in paragraph 18 of the Misc. Application having already been d ealt with in the said paragraph, there was no further requirement to deal with t he said plea of the respondent No.3. In paragraph 10 of the writ petition, the statements made is in respect of the hearing that took place before the Managing Director of the respondent Corporation pursuant to the order passed by this Cou rt in the earlier round of litigation. The statement made in paragraph 10 relate s to what transpired during the course of hearing. According to the said stateme nt, the plea raised in aforesaid paragraph 18 of the Misc. Application was also raised during the course of hearing and that the said plea was resisted by the p etitioner. Be that as it may, when the specific averment has been made in the Mi sc. Application with documentary evidence to show that the petitioner was very m uch available in Guwahati on 14.5.2012 and 15.5.2012, it was the duty of the pet itioner to rebut the same instead of reverting back to the aforesaid paragraph i n the writ petition, which relates to only what transpired during the course of hearing in the office of the respondent Corporation.

14. The documents that has been annexed in support of the contentions raised in paragraph 18 of the Misc. Application are the Register of Dispur Guest House (Hotel), in which clear signature of the petitioner appears showing his date of arrival on 14.5.2012. The other documents annexed to the application relate to the particular deposit made by the petitioner on 15.5.2012 in respect of another fishery that has been settled with him. Thus, the said two documents clearly de monstrate that the petitioner was very much available at Guwahati on both the da tes i.e. 14.5.2012 and 15.5.2012. If that be so, the FIR dated 15.5.2012 is the product of forgery. Another important aspect of the matter is that the petitioner in his rep 15. resentation made to the Managing Director of the respondent Corporation while st ating about the purported loss of the tender documents on 15/5/2012, also stated that the said tender documents were put in the tender box by somebody else. How ever, in the said representation, there is no whisper that there was any manipul ation in the tender documents. On perusal of the first tender submitted by the p etitioner, it is found that his quoted rate was 51,000/-. However, the petitione r has now contended that such a rate was not the actual rate quoted by him but w as manipulated by some one else. However, on being asked as to what was the rate quoted by the petitioner in his first tender, the learned counsel for the petit ioner could not answer the same.

16. From the above factual aspect of the matter, it is abundantly clear that the plea of losing first tender on way to Katakhal is an after thought. It is i n this connection, Mr. T.J. Mahanta, learned counsel for respondent No.3 has sub mitted that the whole design was orchested by the petitioner when on the earlier last date of submission of tender i.e. 15.5.2012, the rates quoted by the tende rers had been discussed. According to him, when the petitioner could come to kno w about the rates quoted by the others including that of the respondent No.3, he made out the story of losing the earlier tender documents and submitted the sec ond tender quoting an exorbitant rate so as to frustrate the claim of others.

17. It will be pertinent to mention here that in the Misc. Application, the respondent No.3 demonstrated that the petitioner has been running the fishery fo r the last about 10(ten) years at the rate quoted in paragraph 21 of the said ap plication. If we go by the rates at which the petitioner earlier enjoyed the fis hery, the rates quoted by the respondent No.3 cannot be said to be in the lower side rather it is 30,000/- more than the rate quoted in the year 2010-2011 (Rs. 31,000/-). Another aspect of the matter which the respondent No.3 has brought on record is the recommendation made in favour of the petitioner by the Minister, PHE and the Minister, State (I) Corporation and Border Area. According to Mr. Ma hanta, learned counsel for respondent No.3, the respondent Corporation did not y ield to such extraneous pressure and pass the impugned order judiciously.

18. I have very carefully considered the impugned order in which all the rel evant facts have been stated. Having regard to the aforesaid facts and circumsta nces, the Managing Director of the respondent corporation rightly disbelieved th e story made out by the petitioner for an unlawful gain I find no infirmity in t he impugned order. The fact finding authority having gone into the relevant fact s, based on which the impugned order has been passed, this Court exercising writ jurisdiction is not inclined to interfere with the said order. Accordingly, the writ petition is dismissed, leaving the parties to bear their own costs.

19. Interim order passed on 1.10.2012 stands vacated.