Dhireswar Nath v. The State of Assam and 4 Ors

ORDER

01.03.2024

¶1Heard Mr. H. Das, learned counsel for the petitioner and Mr. D. Gogoi, learned Standing Counsel for the Forest Department.

¶2Mr. H. Das, learned counsel for the petitioner, at the very outset submits that he does not wish to press his challenge to the NIT dated 28.12.2023. His only challenge is to the impugned NIT dated 09.12.2023.

¶3The petitioner's case in brief is that he had taken part in the short Notice Inviting Tender dated 09.12.2023, hereinafter referred to as "the NIT", pertaining to GLPSF-3, i.e. Erection of Boundary Fencing around 25 hector AR Plantation at Bandarmatha, Lakhipur, at an estimated cost of s.28,59,850/-.

¶4The petitioner participated in the NIT by submitting his bid and being unsuccessful in the tender process has put to challenge the NIT on three grounds. Firstly, on the ground that as the estimated cost was above Rs.20.00 lakhs, publication of the NIT should have been done through e-tender process Page No.# 3/5 in www.assamtender.gov.in and not in www.assamforestonline.in or by way of advertisement in a newspaper, in terms of the OM dated 10.06.2023 issued by the Commissioner & Secretary to the Government of Assam, Finance Department. The second ground of challenge to the NIT is that the requirement of submitting the Court Fee payable had not been mentioned in the Tender Form, though it was mentioned in the NIT. Thirdly, the NIT was signed by the Divisional Forest Officer and it was not countersigned by the Conservator of Forest.

¶5The petitioner's counsel submits that the petitioner's bid was rejected on the ground that he did not submit Court Fee. He submits that in view of the reasons stated above, the NIT dated 09.12.2023 should be set aside and a fresh NIT should be published through e-tender process.

¶6Mr. D. Gogoi, learned Standing Counsel, Forest Department, on the other hand submits that the petitioner's tender was considered by the respondents and it was not disqualified. As there were 5 valid tenderers out of 11 tenderers including the petitioner, who quoted the same rate, the selection of the successful tenderer was made on the basis of Clause 10.9 of Bidding Document, which provided that in case of two bidders having equal score, the bidder having a higher average in the Annual Turnover for the last 3 years would get preference. He submits that as one Ranjit Kumar Das (respondent no.5) had a higher Turnover for the last 3 years amounting to Rs.11,07,16,750/- as compared to the petitioner's Annual Turnover for the last 3 years amounting to Rs.1,86,10,576/-, the bid of Ranjit Kumar Das was accepted and he was awarded the work on 11.01.2024. Mr. D. Gogoi submits that 80% of the work Page No.# 4/5 has already been completed by the respondent no.5.

¶7On a query put to the petitioner's counsel as to the basis for which the petitioner has taken the stand that the NIT should be countersigned by the Conservator of Forest, the petitioner's counsel submits that he does not have the said basis or justification with him. As can be seen from the submission made by the counsel for the State respondents, the petitioner's bid document had not been disqualified or rejected by the authorities due to lack of Court Fee. The Comparative Statement of bids which Mr. D. Gogoi has produced, shows that out of 11 bidders, the bids of 5 persons have been rejected. The bid of the petitioner herein was not rejected or disqualified. However, he was among 5 bidders who quoted the same bid amount.

¶8The above being said, once the petitioner has participated in the bidding process in terms of the NIT dated 09.12.2023, no prejudice can be said to have been caused to the petitioner just because the NIT was not published by way of an e-tender process in www.assamtender.gov.in. The NIT had been published in www.assamforestonline.in and in the Sentinel newspaper.

¶9The above being said, the Division Bench of this Court in the case of Sibaram Deka vs. The State of Assam & 7 Others, WA No.395/2022, has held that when a person participates in the tender process and is subsequently found to be unsuccessful, a challenge to the process is precluded. Such a tender cannot turn around and challenge a clause in the tender notice. Further, the petitioner having participated in the tender process, the petitioner Page No.# 5/5 has not been able to show what prejudice has been caused to him.

¶10In view of the reasons stated above, this Court does not find any merit in the writ petition. The writ petition is accordingly dismissed.

¶11The Comparative Statement of the bidders and the other connected documents are made a part of the record and marked as Annexure-X collectively.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010035812024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1145/2024o DHIRESWARoNATHo S/O-oJITENDRAoNARAYANoNATH,o R/O-oVILLAGEoBUDHIPARA,o P.OoANDoP.S-oAGIA,oDIST-oGOALPARA,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo4oORSo REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOF ASSAM,oFORESToDEPARTMENTo oASSAMoSECRETARIAT,oDISPUR,oGUWAHATI-06. 2:CONSERVATORoOFoFOREST oLOWERoASSAMoSOCIALoFORESTRYoCIRCLE oBONGAIGAON oASSAM 3:DIVISIONALoFORESToOFFICER oGOALPARAoSOCIALoFORESTRYoDIVISION oGOALPARA oASSAM 4:TENDERoCOMMITTEE oDFOo(SF)oOFFICE oGOALPARAoSOCIALoFORESTRYoDIVISION oGOALPARA oASSAM 5:RANJIToKUMARoDAS oR/O-oVILLAGEoBAPUJIoNAGAR oP.O-oBALADMARI o Page No.# 2/5 P.S AND DISTRICT- GOALPARA ASSAM PIN-78312 Advocate for the Petitioner : MR H DAS Advocate for the Respondent : SC, FOREST BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA