High Court · 2009

A Notice Inviting Tender (NIT) was issued by the Chief Executive Officer, Dibrugarh Zilla Parisad on 28-04-2008 calling for tenders in sealed co ver for settlement of various markets including Borboruah Weekly Market for the period from 01-07-2008 to 30-06-2009 fixing 12-06-2008 as the last date for subm ission of tender, at the Government value at Rs.3,11,119.00. 8 (Eight) bidders including the petitioner and the respondent No.4 submitted their tenders. While the petitioner offered Rs.4,51,999.99, the respondent No.4 offered Rs.4, 51,090 .00 and the other 6 (six) bids were less then the bids of the petitioner and th e respondent No.4. The General Standing Committee of the Zilla Parishad thereaf ter, decided to settle the market in question in favour of the respondent No.4 b y rejecting the tender submitted by the writ petitioner on two counts, namely, ( i) he is a licensee for a Government fair price shop and (ii) his tender is defe ctive having not enclosed the Tax Clearance Certificate of the Gaon Panchayat. T he settlement order was accordingly issued in favour of the respondent No.4 vide order dated 25-06-2008 settling the said market for the period from 01-07-2008 to 30-06-2009 at Rs.4,51,999.90. The mistake occurred in mentioning the amount at which, the settlement was made in favour of the respondent No.4 however, was subsequently rectified by issuing the corrigendum dated 26-06-2008, whereby and whereunder the amount at which the market has been settled has been corrected as Rs.4,51,090.00, i.e. the bid offered by the respondent No.4. The petitioner, t herefore, has challenged the settlement of the said market in favour of the resp ondent No.4 in the present writ petition.

2. I have heard Mr. S.S. Dey, the learned counsel for the petitione r. Mr. P.J. Saikia, the learned counsel appearing for the respondent No.4 and M rs. V.L. Singh, the learned State Counsel appearing for the respondent Nos.1 to 3. The relevant records of settlement of the market have also been perused as p roduced by the learned State Counsel.

3. Mr. Dey, the learned counsel for the petitioner challenging the order of settlement made in favour of the respondent No.4 and referring to the T ax Clearance Certificate issued by Garudharia Gaon Panchayat on 08-06-2008, whic h is annexed as Annexure-2 to the writ petition, has submitted that the petition er having obtained the said Tax Clearance Certificate from the concerned Gaon Pa nchayat on 08-06-2008, i.e. much prior to the last date of submission of tender, there cannot be any justification for non submission of such certificate alongw ith the tender, which is one of the ground for rejection of the tender of the pe titioner. Referring to the records produced by the learned State Counsel, it ha s further been submitted by Mr. Dey that it appears that there is discrepancy in the pagination of the records wherefrom it also appears that some papers were t aken out from the records. Mr. Dey, therefore, submits that the petitioner has infact submitted the Tax Clearance Certificate issued by the Gaon Panchayat but for the purpose of depriving the petitioner from the settlement, the same has be en taken out from the records. Mr. Dey further submits that in any case the con ditions stipulated in the NIT for submission of the Tax Clearance Certificate of the Gaon Panchayat cannot be treated as the mandatory clause requiring rejectio n of the tender papers of a tenderer in case of non submission of such certifica te, more so when the consequence of non submission of such a certificate has not been mentioned in the NIT, though in certain other clauses the consequence of n on fulfillment of some other conditions have been stipulated. According to Mr. Dey, requirement of submission of the Tax Clearance Certificate of the Gaon Panc hayat, cannot at all be an essential clause and hence the rejection of the tende r papers submitted by the petitioner though he offered the highest bid on that c ount is not legally valid. Relating to the other grounds on which the tender pa pers of the petitioner has been rejected, Mr. Dey has submitted that since neith er Assam Panchayat Act nor the Rules framed thereunder or the conditions in the NIT has debarred a licensee of a fair price owner from submitting his tenders, t he tender papers submitted by the petitioner cannot be rejected on the ground of he being a licensee in respect of a Government fair price shop. Mr. Dey, there fore, submits that the order of settlement made in favour of the respondent No.4 needs to be interfered with and the authority may be directed to settle the mar ket in favour of the petitioner, he being the highest bidder. Mr. Dey in support of his contention has placed reliance on a decision of this Court in Muzzamel H aque Vs. State of Assam & Ors. Reported in 2004 (3) GLT 187. Mr. Saikia, the learned counsel for the respondent No.4, on the 4. other hand, referring to the conditions in the NIT has submitted that it is bein g the requirement under the conditions to submit the Tax Clearance Certificate o f the concerned Gaon Panchayat, such requirement has to be fulfilled, the object of which being not to settle any market in favour of a defaulter of any Governm ent dues. According to the learned counsel, keeping in view the object for whic h such a clause has been incorporated in the NIT, such requirement is a mandator y and essential requirement and, therefore, has to be adhered to. Mr. Saikia fu rther submits that to ensure that the tender process is fair and transparent, th e authorities as well as the tenderers are required to adhere to the conditions in the NIT. According to the learned counsel, it is evident from the records th at no Tax Clearance Certificate from the concerned Gaon Panchayat has been submi tted by the petitioner. Referring to the submissions that as the petitioner has obtained the Tax Clearance Certificate on 08-06-2008 and there are some discrepa ncies in the pagination of the record, it has to be presumed that the petitioner has submitted such certificate, Mr. Saikia has submitted that no such presumpti on can be drawn, that too on the face of the note of the Chief Executive Office r of the Zilla Parishad in the comparative statement prepared on 03-06-2008 and there can be no reason why the Chief Executive Officer shall record incorrectly about non submission of such certificate by the petitioner. It has further been submitted by Mr. Saikia that there is no allegation of malafide against the Chi ef Executive Officer by the petitioner in the writ petition. Mr. Saikia further submits that as because a Tax Clearance Certificate of the Gaon Panchayat state d to be issued on 08-06-2008 has been produced by the petitioner before this Cou rt, that does not necessarily mean that the said certificate was issued on that date and it was submitted alongwith the tender papers. According to Mr. Saikia, the discrepancies in the pagination of the record do not even suggest that any document filed by the petitioner has been taken out from the record by the autho rity or by any official. Relating to the other grounds on which the tender pape rs of the petitioner has been rejected, Mr. Saikia submits that since the petiti oner did not submit the Tax Clearance Certificate of the Gaon Panchayat, the oth er grounds on which his tender papers has been rejected, need not be gone into b y this Court. Mr. Saikia further submits that the decision of this Court on whi ch the learned counsel for the petitioner has placed reliance supports the case of the respondent No.4, as it has been held in the said case that the tender con ditions are required to be strictly adhered to by the authorities as well as by the tenderers to ensure that the process is fair and transparent and when there is no inconsistence and incoherence in the NIT conditions, submission of the Tax Clearance Certificate is mandatory.

5. Mrs. V.L. Singh, the learned State Counsel referring to the reco rds produced before this Court has also submitted that no illegality has been co mmitted by the authority in settling the market in favour of the respondent No.4 by rejecting the tender of the petitioner, as the Tax Clearance Certificate of the concerned Gaon Panchayat has not been submitted by the petitioner alongwith the tender papers, which is the essential requirement of the tender.

6. I have considered the submission of the learned counsel for the parties and perused the pleadings as well as the records produced before this Co urt.

7. The Chief Executive Officer, Dibrugarh Zilla Parishad issued the NIT dated 28-04-2008 for settlement of the market in question for the period fr om 01-07-2008 to 30-06-2009. The relevant tender condition, being condition No. 4, is quoted below:- (cid:28)No debt certificate from the Gaon Panchayat, Anchalik Panchayat and Zila Parish ad shall have to be submitted with the tenders. In case of the previous settlem ent holders certificate relating to all previous dues shall also have to be subm itted. (cid:29)

8. The object of submission of the no debt certificate from the Gao n Panchayat, Anchalik Panchayat or Zilla Parishad being not to settle the market in favour of a defaulter in respect of any dues payable by them, in any stress of imagination can be regarded as non essential clause in the NIT. Keeping in v iew the object for which such a condition has been attached to the NIT, it is ma ndatorily required to be adhered to, it is being an essential conditions of the NIT. Simply because the consequence of non submission of such documents with th e tender has not been spelt out in the NIT, though the consequence of non fulfil lment of certain other conditions have been laid down in such NIT, it cannot be said that the conditions for submission of the no debt certificate is not mandat ory and non essential. From the language used in the NIT, it is evident that th e tenderers were informed about the mandatory requirement of submission of such certificate, pursuant to which the writ petitioner has in fact submitted such ce rtificates issued by the Anchalik Panchayat and Zilla Parishad but not of the co ncerned Gaon Panchayat. Such conditions in the NIT, is not at all ambiguous or i nconsistent or incoherence. The conditions in the NIT have to be strictly adher ed to by the tenderers as well as by the authorities to ensure that the tender p rocess is fair and transparent.

9. In Muzzamel Haque (supra), it has been held that if a tenderer i s misled while submitting his tender by any omission, inconsistency or incoheren ce in the NIT conditions, it would be distractive of the concept of fairness and reasonableness to reject his tender on account of any defect. In the instant c ase, as noticed above, the conditions in the NIT relating to the submission of t he no debt certificate is not at all ambiguous or inconsistent or incoherent. A Single Bench of this Court in the said case has also observed that to ensure th at the tender process is fair and transparent, the condition of the NIT has to b e strictly adhered to by the authorities as well as by the tenderers. Hence the contention of the petitioner that the requirement of submission of the no debt certificate from the Gaon Panchayat is directory and non essential condition, ca nnot be accepted and hence rejected.

10. The further contention of the petitioner that keeping in view th at he has obtained the certificate from the Gaon Panchayat on 08-06-2008 as well as the discrepancy in the pagination of the records, it has to be presumed that the petitioner has submitted such certificate alongwith the tender papers, ther e being no reason as to why such certificate shall not be submitted after obtain ing it, he being a prudent businessman, also cannot be accepted in view of the f act that the authority has after opening of the tender papers noted that such a certificate has not been furnished by the petitioner alongwith the tender papers . Even if the petitioner has obtained the certificate before the date of submiss ion of the tender papers, unless such certificate is enclosed with the tender pa pers, no presumption can be drawn on submission of the same, only on the ground that such a certificate has been obtained before the last date of submission of the tender papers. The discrepancies in the pagination of the records, which ac cording to the learned counsel for the petitioner, indicates that one document h as been taken out from the record, i.e. the Tax Clearance Certificate of the rel evant Gaon Panchayat submitted by the petitioner, also cannot be accepted as it appears from the records that there is no discrepancy in the pagination of the r ecords upto page 48 and the tender papers submitted by the petitioner starts fro m page 49 to page 53. From the pagination of the tender papers of the petitione r it, however, appears that initially two pages were paginated as page 49, which results in correction of one page, initially marked as 49, as page 50 and conse quently the other paginations subsequent thereto were also corrected. Such corr ection in pagination does not indicate removal of any paper from the bunch of pa pers filed by the petitioner with the tender, as in that case there would have b een decrease in the number of page, which is not the case. Moreover, there is n o allegation of malafide against any officer of the Zilla Parishad. In that vie w of the matter, the legality or otherwise of the other ground for rejection of petitioner’s tender need not be gone into.

11. In view of the aforesaid discussion, I do not find any illegalit y in settling the market in question in favour of the respondent No.4. Hence th e petition is dismissed being devoid of any merit. No cost.