PARTHA KUMAR NATH v. THE STATE OF ASSAM AND 4 ORS

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Date : 08.12.2022 ORDER Heard Mr. I. Choudhury, learned senior counsel, assisted by Mr. N.J. Khataniar, learned counsel for the petitioner and Mr. B. Gogoi, learned standing counsel for the respondents.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the rejection of his technical bid in respect of NIT for a work of construction of road, namely, “MRL06-NH Bye Pass near Jail to Nischintapur via Kanchanpur” of Hailakandi district under Package no. AS09092. Accordingly, the petitioner has prayed for: (a) quashing of action of the respondents in rejecting their technical bid, (b) direction to the respondent authorities to forbear from giving effect to the said rejection, (c) direction to the respondents to accept the technical bid and (d) direction to the respondents to evaluate his financial bid.

3. It is not in dispute that the petitioner got elected as a Ward Commissioner of Hailakandi Municipal Board in the result of election declared on

09.03.2022 and that he took oath on 12.04.2022. The last date of submission of Page No.# 3/8 tenders in respect of the aforesaid package was 09.05.2022. Therefore, in the comparative statement of opening of bids which was prepared in respect of the said package on 20.06.2022, in respect of second last quantum relating to the query “is the bidder qualified as per ITB cl. 4.7 against misleading information or poor performance? (Yes/ No)”, the comment made against the petitioner, namely, Partha Kumar Nath was “No”. Thus, it is indicated that the petitioner has not qualified because of misleading statement made in the bid submitted by the petitioner. In the said context, the learned Senior Counsel for the petitioner has submitted that although the comparative statement does not equivocally said that the petitioner has made a misleading statement in his bid, but the said intention, according to him, is gathered from the statement made in the affidavit-in-opposition filed by the respondent no.2.

4. The learned counsel for the petitioner has also submitted that if the relevant provisions of the Assam Municipal Act, 1956 and the Representation of People Act, 1951 are read conjointly, assuming that there was any disqualification, it would entail the loss of office of the Ward Commissioner, without affecting the right of the petitioner to remain as a qualified bidder. It is also submitted that there is nothing in the tender documents, which requires that the intending bidder should disclose his status as to whether he was an elected ward member. Therefore, it is submitted that assuming that petitioner is otherwise qualified but there was no requirement in the tender document to disclose his status as an elected ward member. Hence, it is submitted that the technical bid of the petitioner could not have been rejected on such assumed ground of having given fake/ misleading declaration. Page No.# 4/8

5. Opposing the prayer made in this writ petition, the learned standing counsel for the respondents, while heavily relying upon the provisions of Section 15(1) (ix) of the Assam Municipal Act, 1956 read with Section 7(b) and Section 9-A of the Representation of the People Act, 1951, has submitted that as the petitioner was elected as a ward member and had taken oath on

12.04.2022, which is prior to the date of submission of bid, he had become disqualified to participate in the bidding process for the work in question and therefore, the non-disclosure of the change status of the petitioner would entail disqualification on the ground that the petitioner had made misleading statement in the bid submitted by him. The learned standing counsel for the respondent has also referred to letter of acceptance No. CE/PMGSY/173/2022- 23/10 dated 06.08.2022 issued by the respondent no.2, it is submitted that on

06.08.2022, it was communicated to the successful bidder that the said authority had accepted his bid dated 09.05.2022. However, it is submitted that on the same date i.e. 06.08.2022 as this Court had passed an interim order not to finalize the tender pertaining to the aforesaid package. The said letter has been kept in abeyance for him.

6. At the outset, it would be relevant to quote the provisions of Sections 15(1) (ix) and 55 of the Assam Municipal Act and Section 7(b) and 9 A of the Representation of People Act, 1951. “15. Ineligibility for election. – (1) No person shall be eligible for election as Commissioner of a Municipal Board if such person- * * * (ix) “If he is so disqualified by or under any law for the time being in force for the purpose of elections to the State Legislature for this purpose. If he is so dissatisfied by or under any law made by the State Legislature for this purpose. Page No.# 5/8 Provided that no person shall be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years.

55. Disqualification of Commissioners having share or interest in contracts. - No Commissioner of a Board or a committee shall have without the written permission of the State, directly or indirectly, any share of interest in any contract, lease, sale or purchase of land or any agreement for the same of any kind whatsoever to which the Board is a party, or shall hold any office of profit under it, and if any Commissioner shall have such share or interest or shall hold such office he shall thereby become disqualified to continue in office as a Commissioner, and shall be liable to a fine not exceeding hundred rupees: Provided that a Commissioner shall not be so disqualified or liable by reason - (a) of his having a share or interest in- (i) a contract entered into between the Board and any incorporated or registered company or any registered Co-operative Society of which such Commissioner is a member or share-holder; or (ii) any agreement for the loan of money, or any security for the payment of money only; or (iii) any newspaper in which any advertisement relating to the affairs of the municipality is inserted; or (b) of his being professionally engaged on behalf of the Board as a legal or medical practitioner and receiving a fee for services rendered in his professional capacity. But no Commissioner shall act as a Commissioner of a Board or committee in any proceedings relating to any matter in which he is so interested or take any part therein. Provided that the State Government may by an order in that behalf remove any disqualification or liability mentioned in this Section. The Representation of the People Act, 1951 7(b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. 9A. Disqualification for government contracts, etc.— A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works, undertaken by that Government.” Page No.# 6/8

7. On a joint reading of the hereinbefore referred provisions of law, the Court is unable to accept that any of these provisions which are quoted above would entail the disqualification for a person to enter into a contract with the government. In the present case in hand, the tender in question is not issued by the Hailakandi Municipal Board, but the tender has been issued by the State PWD through the Chief Engineer, PWD (Border Roads), Assam. Therefore, by virtue of Section 55 of the Assam Municipal Act, 1956, as there is no legal disqualification in respect of the petitioner, who is a ward member of the Hailakandi Municipal Board, to participate in the tender issued by the PWD.

8. The learned standing counsel for the respondents has not been able to show from the bid/ tender document that there was any requirement for the petitioner to disclose that he was elected ward member of Hailakandi Municipal Board. There is no column for that. There was no requirement under the said tender/ bid document that the petitioner has to swear an affidavit to the effect that he is not an elected ward member of the Municipal Board in the Country. Therefore, the Court is unable to accept that in the bid submitted by the petitioner in respect of the hereinbefore referred works, he has made any misleading statement as there is no requirement for the bidder to disclose his status as an elected ward member. Under such circumstances, on a perusal of the statement made in para 4 and 8 of the affidavit-in-opposition filed by respondent no. 2, it can be gathered that the technical bid of the petitioner was rejected on the ground that he has become disqualified as a result of being elected as a ward member in Hailakandi Municipal Board. Page No.# 7/8

9. On a conjoint reading of the hereinbefore referred provisions of the Assam Municipal Act and the Representation of People Act, 1951, as already stated hereinbefore, if the petitioners found to have violated Section 55 of the Assam Municipal Act, he would be debarred from participating in the contracts to which the Hailakandi Municipal Board is a party. In the present case in hand, the respondents had not been able to demonstrate that in the concerned tender in question, the Hailakandi Municipal Board is a party. Therefore, the Court has no hesitation to hold that by virtue of provisions of Section 55 of the Assam Municipal Act, the petitioner being a ward member of the Hailakandi Municipal Board did not have a disqualification to participate in the tender process initiated by the respondent no.2.

10. Resultantly, the Court is inclined to hold that the petitioner has been able to make out the case that the rejection of his technical bid is not sustainable on facts and in law. Therefore, the action of the respondent nos. 2 to 4 in rejecting the technical bid of the petitioner in respect of the contract works of “MRL06-NH Bye Pass near Jail to Nischintapur via Kanchanpur” is hereby set aside and quashed. As a consequence of quashing of the rejection of the technical bid, the respondent no.2 is directed to rescind and forbear from giving effect to the impugned rejection of the technical bid of the petitioner in respect of the hereinbefore referred contact. Accordingly, the said authority is directed to open and consider the financial bid of the petitioner along with the bids other eligible bidders, whose financial bids were opened, and take a fresh decision for selection of the successful bidder in respect of the aforesaid work.

11. It is clarified that this order is restricted to the concerned package no. AS09092 and shall not affect any other packages covered by the said tender process. Page No.# 8/8

12. The petitioner shall produce a certified copy of the order before the respondent no.2 so as to enable the said authority to take appropriate measures.

13. This writ petition stands allowed to the extent as indicated above.

14. The parties are left to bear their own cost. JUDGE Comparing Assistant