High Court
Case Details
WP(C) 5365/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. J. Deka, learned counsel for the petitioner. Also heard Mr. J. Handiqu e, learned State Counsel. I have also heard Mr. B.D. Das, learned Sr. Counsel, a ssisted by Mr. H.K. Sarma, learned counsel for the respondent No. 6. The matter pertains to settlement of a fishery called No. 13 Nonoi Min M 2. ahal situated in the district of Nagaon, for which tender notice was issued on 2 0.6.2012. Some of the conditions in the tender notice, on which, the learned cou nsel for the parties have argued are quoted below: (cid:28)(10) (ka) One original tender for each fishery along with photocopy of the said tender totaling 2 copies shall be submitted. Each original tender must accompan y a Treasury Challan showing deposit of Rs. 10.00 as tender fee without which no tender will be considered. (kha) Each tender should be accompanied with Income Tax, Sale Tax, Land Revenue payment receipts and Caste, Community certificates to be submitted. Permanent re sident certificate is also to be attached. (ga) The settlement of the tenderer shall be cancelled if it is proved that any tenderer provided wrong statement in the Tender Form or along with the Tender. (15). The Co-operative Fishery Society tenderers shall submit their Registration Number, date, present financial capacity and objective and number of Member and present number of members being actual fisherman belonging to Scheduled Caste a nd other information obtaining from the office of the Registrar or Deputy Regist rar of the said society shall be enclosed along with tender and also submit cert ificate of Bakijai clearance certificate in the name of President/Secretary of t he said society; certificate of actual fisherman along with the tender and Court fee of Rs. 8.50 to be affixed with the tender. (cid:29)
Decision
3. Altogether 19 tenderer responded to the said notice including the petiti oner and the respondent No. 6. However, after rejection of 13 tenders, only 6 te nderers remained in the fray including the petitioner and the respondent No. 6. The grounds on which the petitioner has assailed the order of settlement that ha s been made in favour of the respondent No. 6 vide order dated 12.10.2012 have b een enumerated in paragraph 13 of the writ petition, which is reproduced below: That, the Petitioner begs to state that the bid of the Responden (cid:28)13. t No.6 was invalid due to non-submission of required documents and particulars a longwith the Tender Form as stipulated in the Tender Notice itself and providing false information regarding Bakjai clearance. Therefore, the bid of the Respond ent No.6 ought to have been rejected at the threshold by the Respondent authorit ies. The bid of the Respondent No.6 is non-responsive due to following reasons: (a) As per clause 15 of the conditions of the Tender Notice, a Co-operative Fishery Society should furnish information from the office of the Registrar or Deputy Registrar of Cooperative Societies alongwith the tender rega rding its Registration number with date, present financial status and objective of the Society; number of Members and present number of members being actual fis herman belonging to Scheduled caste. Serial No.2 of the Tender Form requires att aching a certified copy of the registration certificate. Serial No.5 requires in formation regarding duly registration of Co-operative Fishery Society exclusivel y by actual fisherman of Schedule castes or Scheduled tribes and requires attach ing relevant certificates. However, the Respondent No.6 did not fulfill the said requirements of the condit ions of Tender Notice as well as the requirements of Tender Form. Nowhere in the Tender Form the Respondent No.6 mentioned its registration number with date. No copy of Registration certificate of the Respondent No.6 was attached with the T ender Form, which is a mandatory requirement. There is no mention of number of m embers and present number of members being actual fisherman belonging to Schedul ed caste. The Tender Form was submitted without obtaining information from the O ffice of the Co-operative Societies, Nagaon regarding present financial status a nd objective of the Society; number of members and present number of members bei ng actual fisherman belonging to Scheduled caste. The alleged Annual Audit Repor t and Balance Sheet of the Respondent No.6 submitted with the Tender Form is of the financial year 2010-11 and the Audit Note does not bear any official seal an d date. The Said Balance Sheet itself shows that cash in hand is Rs.5,130.50 and cash at Bank is Rs.1,497.00.71 and accumulated loss is Rs.1,68,902.19. The Audi t Note itself shows that Rs.7,080.00 is due to the Government. Further, a certificate issued by the Asstt. Registrar of Co-operative Societies, Nagaon was attached with the Tender Form, which does not bear any Official Seal and date with year. One individual caste certificate and another individual cer tificate in the name of Sri Subudh Biswas were only submitted with Tender Form. (b) The said Clause 15 of the conditions of the Tender Notice further requir es Bakijai clearance certificate in the name of present President/Secretary of t he Co-operative Society and certificates of actual fisherman to be submitted wit h the Tender Form. In Serial Nos.13 and 15 of the Tender Form the bidder is requ ired to submit certificate regarding Bakijai clearance. Serial No.5 of Tender Fo rm requires submission of certificates of forming the said registered Co-operati ve Society by the members of Schedule castes or Schedule tribes. The Respondent No.6 in its Tender Form furnished false information regarding Bak ijai clearance and outstanding dues to the Government. The Respondent No.6 suppr essed the fact that a Bakijai case being Case No.4761 is pending in the name of Sri Subudh Biswas of 14,15 Nisari Haria Min S.S. Ltd. Further, the Audit Note su bmitted with the Tender Form itself shows that Rs.7,080.00 is due to the Governm ent. Further, the Bakijai clearance certificate issued by the office of the Resp ondent No.3 submitted alongwith the Tender Form is in the name of an individual, Sri Subudh Biswas, and the same was not issued in the name of present President /Secretary of the said Co-operative Society as required. Moreover, undated certi ficate issued by the Respondent No.4 is also issued in the name of Sri Subudh Bi swas in his individual capacity and not in the name of present President/Secreta ry of the Co-operative Society as required. With reference to Serial No.5 of the Tender Form no requisite certificate was enclosed by the Respondent No.6. The R espondent No.6 alongwith the tender form submitted individual caste certificates of Sri Subudh Biswas only. The Respondent No.6 did not submit any certificates of the other members to show that all the members of the Respondent No.6 are bel ong to actual fisherman save and except submission of an undated and unseal vag ue certificate alleged to be issued by the Asstt. Registrar of Co-operative Soci eties, Nagaon. (c) As per Clause 10(kha) of the conditions of Tender Notice, alongwith each tender the bidder is required to submit certificates of Income Tax, Sale Tax, a nd Land revenue paying receipt and also required to submit permanent resident ce rtificate. Serial 12 of the Tender Form also requires such certificates. The Respondent No.6 did not submit any documents as per aforesaid requirements a nd only submitted land revenue payment receipt of Sri Subudh Biswas that to paid upto 1417 BS (2010-2011). (d) The Respondent No.6 did not fill up the Serial No.11 of the Tender Form and did not submit Treasury Challan of Rs.10.00 as required under Clause 10(ka) of the conditions of Tender Notice and Serial No.14 of the Tender Form. As per C lause 10(ka) of the conditions of Tender Notice, non-submission of Treasury Chal lan is a ground for rejection of tender form. (e) As per Clause 10(gha) if it is proved that wrong information is given in the tender form or alongwith tender documents, then the settlement would be can cel. In the instant case the Respondent No.6 furnished wrong information in the tender form regarding outstanding dues and submitted wrong documents regarding B akiji clearance, which is in the name on Sri Subudh Biswas in his individual cap acity and not in the name of present President/Secretary of the Respondent No.6. Further, the Respondent No.6 suppressed the fact that a Bakijai case being Case No.4761 is pending in the name of Sri Subudh Biswas of 14,15 Nisari Haria Min S .S. Ltd. The document submitted alongwith the tender form, i.e. the Audit Note, itself shows that Rs.7,080.00 is due to the Government. Hence, under the facts and circumstances, the bid of the Respondent No.6 ought t o have been rejected at the threshold by the Respondent authorities for not fulf illing mandatory requirements of tender conditions at the submission of tender f orm and for furnishing wrong information. Therefore, the decision making process of the Respondent authorities in settling the fishery in question in favour of the Respondent No.6 is illegal, arbitrary, malafide and not sustainable in law. (cid:29) 4. Another ground urged in the writ petition is that before the settlement order was issued, there was a deal between the respondent No. 6 and one Sri Chen aram Das and accordingly an agreement was executed by them to the effect that th e fishery would be enjoyed by both of them as per the terms and conditions enume rated in the agreement dated 9.8.2012. Referring to such a course of action betw een the respondent No. 6 and Sri Chenaram Das, it is the case of the petitioner that before the settlement order was issued, there was secret deal with the resp ondent No. 6 on the part of the official respondents and being emboldened with t he same he could even execute an agreement on 9.8.2012 with said Sri Chenaram Da s. 5. In the order dated 12.10.2012, by which, the settlement has been made in favour of the respondent No. 6 refers to 6 tenders. The only ground, on which t he petitioner has not been settled with the fishery is that although his bid amo unt namely Rs. 4,85,000/- is equal to bid amount of the respondent No. 6, but he being an individual, the respondent No. 6, a co-operative society should be pre ferred. Mr. J. Deka, learned counsel for the petitioner submits that in view of 6. the defects in the tender submitted by the respondent No. 6, about which, there is also mention in the order dated 30.11.2012 passed in this proceeding, the set tling authority in consideration of those defects ought to have been rejected th e tender submitted by the respondent No. 6 and consequently ought to have settle d the fishery with the petitioner, more particularly, when his bid amount is equ al to the said respondent No. 6. 7. nted out by Mr. Deka, learned counsel for the petitioner was noted as follows: When the matter was taken up on 30.11.2012, the purported defects as poi (cid:28)Although in column No. 2 there is requirement of mentioning of registration num ber and enclosing of the registration certificate, but the respondent No. 6 neit her enclosed the registration certificate nor mentioned the registration number and date. In column No. 3 there is requirement of enclosing the caste certifica te, but the respondent No. 6 submitted the caste certificate only in respect of the President/Secretary of the Samabai Samity. Similarly in column No. 4, the re spondent No. 6 has enclosed the certificate which does not bear any seal and dat e. In column No. 5 there is requirement of furnishing materials regarding actual fisherman and proof of status. However, no such documents were enclosed. Column No. 11 requiring to furnish information regarding the amount of additional secu rity, was kept blank. Column No. 12 also requiring of furnishing of certificates in question, the respondent No. 6 only furnished land revenue certificate and t hat too, upto 2010-2011 and not the relevant year for 2011-2012. As regards col umn No. 13, against the query as to whether there is outstanding dues requiring the tenderer to submit the revenue fees certificate, the respondent No. 6 submit ted the individual certificate of the Secretary of the Samabai Samity. In column No. 15 the tenderers are required to submit the documents relating to outstandi ng dues payable to the Government. The Secretary of the Samity submitted the ind ividual certificate declaring that there was no outstanding revenue payable to t he Government. However, audit note submitted alongwith the tender documents ref lects that there was outstanding dues payable to the Government. Mr. Deka, learned counsel for the petitioner referring to above, submits that th e bid offered by the respondent No. 6 being non-responsive, it ought not have be en settled with the fishery in question. 8. By the said order dated 30.11.2012, learned State Counsel was directed t o produce the records. Mr. J. Handique, learned State Counsel has produced the r ecords and I have gone through the same. 9. Mr. J. Deka, learned counsel for the petitioner has placed reliance on t he two decisions of the Division Bench of this Court as reported in 2003 (2) GLT 485 (Bikash Bora Vs. State of Assam & Ors.) and 2003 (3) GLT 503 (Bijulibari Mu ltipurpose Development Society Appellant Vs. State of Assam & Ors.). In both the decisions, the Division Bench of this Court has held that the tender lacking in the material particulars including non-submission of loan clearance certificate ; Sale Tax clearance certificate; Bakijai clearance certificate etc. would lead to rejection of tender of the tenderers, although he might be the highest tender er. Referring to the said two decisions, it is submitted by Mr. Deka, learned co unsel for the petitioner that the tender submitted by the respondent No. 6 being defective on various counts, the said tender ought not to have been accepted by the settling authority and instead should have been rejected towards making the settlement in favour of the petitioner, whose bid amount was equal to that of t he respondent No. 6. 10. Mr. Das, learned Sr. Counsel for the respondent No. 6, on the other hand , supporting the settlement made in favour of the respondent No. 6 has submitted that some minor defects cannot lead to rejection of tender submitted by the res pondent No. 6. He further submits that in the matter of settlement of fishery, t here is no requirement of submission of Sales Tax clearance certificate, Income Tax clearance certificate etc. As regards the allegation of non-production of r egistration certificate of the respondent No. 6 he has produced the photocopy of the certificate showing registration of the society way back in 1976. 11. Mr. Das, learned Sr. Counsel for the respondent No. 6 has also referred to the provision of Assam Value Added Tax Act, 2003 and Assam General Sales Tax Act, 1993 so as to submit that no tax is leviable on sale of forest coup and tha t being the position, there is no requirement of submission of Sales Tax clearan ce certificate. I have very carefully considered the submissions made by the learned cou 12. nsel for the parties and have also perused the materials on record including the file produced by Mr. J. Handique, learned State Counsel. Clause-2 of the tender notice requires the tenderer to indicate the regi 13. stration number of the society and also to furnish the registration certificate. While filling up the said column, the respondent No. 6 did not mention the regi stration number of the society. Further, a photocopy of the certificate was only submitted to show its registration. The Assistant Registrar of Co-operative Soc iety, Nagaon without specifying any date, signed the said certificate. It is on this count, Mr. Deka, learned counsel for the petitioner has questioned the vali dity of the tender in absence of any registration certificate issued in favour o f the respondent No. 6. Clause-11 of the tender notice requires indication of ad ditional security deposit, which column in the tender of the respondent No. 6 is found blank. Clause-12 of the tender also requires tenderers to submit Caste ce rtificate, Income Tax clearance certificate and Sales Tax clearance certificate coupled with Revenue Payment certificate. While filling up the said column, the respondent No. 6 only mentioned about Revenue Paying receipt without indicating anything as regards requirement of submission of true copy of Sales Tax clearanc e certificate and Income Tax clearance certificate and so also Caste certificate . Clause-15 of the tender requires the tenderer to submit document to show that there is no Bakijai proceeding pending against the tenderer. Against the said co lumn, the respondent No. 6 has stated that (cid:28)certificate has been enclosed (cid:29). 14. On perusal of the document annexed to the tender submitted by the respon dent No. 6, what is found is that the certificate issued by the Additional Deput y Commissioner, Nagaon certified that there is no revenue outstanding against Sr i Subodh Biswas, who is the President of the respondent No. 6 samabai society. A ccording to Mr. Deka, learned counsel for the petitioner, such a certificate eve n if considered valid, is applicable only to Sri Subodh Biswas and not to the so ciety in question. 15. As noted above, Clause-10 (kha) of the tender notice also requires that the tender should be accompanied with Income Tax clearance certificate, Sales Ta x clearance certificate and Land Revenue paying receipt. Clause-15 of the tender notice also requires that the tenderers should submit its registration number, date, present financial capacity and objective and numbers of member and present number of members being actual fisherman belonging to Scheduled Caste and other information obtaining from the Registrar or Deputy Registrar of the said societ y. 16. Clause 13 of the tender form requires the tenderers to submit loan clear ance certificate along with the tender. However, the document, which were submit ted along with the tender submitted by the respondent No. 6 disclose that there is Government loan due payable by the respondent No. 6. That apart as per the in formation furnished to the petitioner under RTI, there was a Bakijai proceeding pending against the respondent No. 6. In this connection, Mr. J. Deka, learned c ounsel for the petitioner has referred to the Annexure-6 letter dated 10.10.2012 issued by the Bakijai Officer to the petitioner stating therein that Bakijai Ca se bearing Case No. 4761 was found running in the name of the respondent No. 6. 17. Mr. Das, learned Sr. Counsel for the respondent No. 6 submits that pende ncy of the said Bakijai proceeding was not known even to the officer including t he respondent No. 6. In this connection he has referred to the order dated 29.12 .2012 passed by the appellate authority in respect of the said Bakijai proceedin g. Admittedly the said order dated 29.12.2012 has been passed on the basis of th e appeal filed by the respondent No. 6 on 7.12.2012, which is much after the ten der process and the settlement order. As per the finding recorded in the said or der dated 29.12.2012 a Bakijai Case bearing Case No. 4761 found recorded in the old Bakijai case registrar. However, the respondent No. 6 was given the benefit of doubt for want of supporting document in respect of the Bakijai case in quest ion. Be that as it may, the fact of the matter is that the appeal was preferred by the respondent No. 6 on 7.12.2012 which was disposed of on 29.12.2012. Both a re much after the settlement process was over and the impugned order of settleme nt dated 12.10.2012 was passed. 18. On perusal of the order of settlement dated 12.10.2012 nothing is discer nible that the settling authority took into account the aforesaid allegations of irregularities in the tender submitted by the respondent No. 6. The only ground , on which, the respondent No. 6 has been settled with the fishery is that it be ing a society, should get preference over an individual i.e. the petitioner. How ever, the settling authority was obliged to give reason in respect of the afores aid irregularities/deficiencies in the tender submitted by the respondent No. 6. So far as the allegation made by the petitioner in paragraph 17 of the w 19. rit petition that even before the settlement order was passed, there was a secre t deal between the settling authority and the respondent No. 6. As a consequence of which there was sharing of the fishery with said Sri Chenaram Das, the respo ndent No. 6 in its affidavit has not seriously disputed the same except a genera l denial. Be it state here that the official respondents have chosen not to file any counter affidavit and thus as submitted by Mr. J. Deka, learned counsel for the petitioner, the allegation made in the writ petition go unrefuted. Mr. Das, learned Sr. Counsel for the respondent No. 6 has also placed re 20. liance on the two decisions reported in (1983) 1 GLR 410 (Khoi Singnar Vs. State of Assam & Ors.) and (1983) 2 GLR 228 (Khoi Singnar Vs. State of Assam & Ors.). In Khoi Singnar (supra), it was held that Rule 13 of the Assam Settlemen 21. t of Forest Coupes and Mahals by Tender System Rules is optional and not mandato ry and that the authority is not precluded from making settlement with defaulter . In the other case also involved Khoi Singnar, it was held that the Government contract involving settlement are of the nature of conferment of rights and the settling authority cannot act arbitrarily, substantially or procedurally. In the instant case, we are concerned with the conditions enumerated in the tender not ice and also indicated in the tender papers. Admittedly, some of the requirement s have not been fulfilled by the respondent No. 6, but in the impugned order of settlement, there is no reference to those deficiencies in the tender submitted by the respondent No. 6. As has been held in Khoi Singnar (one) (supra), the set tling authority cannot act arbitrarily in the matter of settlement, but in the i nstant case, the settling authority did not discuss anything in respect of the a forementioned deficiencies/irregularities in the tender document submitted by th e respondent No. 6. In view of the above, the impugned order of settlement dated 12.10.2012 22. is hereby set aside and quashed and the matter stands remanded back to the settl ing authority, which had passed the impugned order for a fresh decision in the m atter on the basis of the available materials on record as expeditiously as poss ible, but at any rate, not later than 28.2.2013. 23. Writ petition is allowed, without, however, any order as to costs.