Abdul Rahman v. The State of Assam and 8 Ors

ORDER

13.03.2024 Heard Mr. I. Hussain, learned counsel for the petitioner. Also heard Mr. U. Sarma, learned counsel appearing on behalf of Mr. S. Dutta, learned Standing Counsel, P&RD/respondent Nos. 1, 2, 5 & 8. Mr. S.R. Baruah, learned counsel appears for the respondent Nos. 3 and 4. No one appears for the respondent No. 9.

¶2The petitioner's case is that pursuant to a tender notice for settlement of the Niz Baghmara Daily Bazar (hereinafter referred to as the 'market'), the Baghmara Anchalik Panchayat invited bids for the same. Though the petitioner's offered bid value for settlement of the market was higher than the bid value submitted by the respondent No.9, the market was settled with the respondent No.9, vide the impugned order dated 18.07.2023.

¶3The petitioner's counsel submits that though the petitioner was aware that his bid has been disqualified by the authorities, he was not informed the reason why his bid has been disqualified. It was only after the petitioner had approached this Court that the petitioner was informed that his bid has been disqualified due to the earnest money having been wrongly addressed to the Executive Officer, Anchalik Panchayat, instead of being addressed to the Chief Page No.# 4/7 Executive Officer, Zilla Parishad in terms of Clause 12(1) of the tender notice.

¶4The petitioner's counsel submits that even though the petitioner's bid had been disqualified in view of his earnest money not being submitted in terms of Clause 12(1) of the tender notice, the State respondents could not have settled the market with the respondent No.9, as the bid of the respondent No.9 was also defective, inasmuch as, he failed to file requisite documents along with his tender papers, such as Non-Encumbrance Certificate, Income Tax Clearance Certificate etc.

¶5He further submits that the bid of the petitioner was much higher than the respondent Nos. 7 & 9 and the settlement of the market with the respondent No.9 has caused a great loss to the Public Exchequer. As such, in public interest, the market should be re-tendered as the respondent No.9 cannot be settled with the market. In this respect, the learned counsel for the petitioner has relied upon the judgment of a coordinate Bench of this Court in the case of Muktar Hussain Vs. The State of Assam and Others, in WP(C) No. 4757/2023, which was disposed of vide order dated 11.01.2024.

¶6On the other hand, Mr. U. Sarma, learned counsel appearing for the P&RD Department submits that the petitioner being ineligible for being selected as the successful bidder, he cannot make a challenge to the settlement of the market with the respondent No.9, in terms of the judgment of the Apex Court in the Case of TATA Motors Limited Vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others in Civil Appeal No. 3897/2023. Page No.# 5/7

¶7I have heard the learned counsels for the parties.

¶8As can be seen from the averments made by the counsels for the parties and on perusal of the pleadings, the petitioner's bid had been disqualified due to his earnest money not being submitted in consonance with Clause 12(1) of the tender notice. Without going into the question as to whether the bid of the respondent No.9 was in consonance with the terms and conditions of the tender notice, this Court is of the view that the issue that has to be first decided, is as to whether a disqualified tenderer can make a challenge to the selection of the successful tenderer. In this respect, the decision of the Supreme Court in the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and Others, reported in (1999) 1 SCC 492 is relevant, wherein it states that any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced.

¶9The law laid down by the Supreme Court in Raunaq International Ltd (Supra) has also been affirmed by a three Judges Bench of the Supreme Court in the case of TATA Motors Limited (supra), which has been decided on

19.05.2023, wherein it has held that once the High Court had declared the bid of TATA Motors as "non-responsive" and having stood disqualified from the tender process, the High Court should not have entered into the fray of investigating into the decision of Brihan Mumbai Electric Supply & Transport Undertaking (BEST) to declare EVEY as the eligible bidder, as the High Court was not exercising its writ jurisdiction in public interest.

¶10In the case of Jagdish Mandal Vs. State of Orissa and Others, reported in (2007) 14 SCC 517, the Supreme Court held that power of judicial Page No.# 6/7 review should not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.

¶11The coordinate Bench of this Court in Muktar Hussain (supra) was seized of a matter pertaining to settlement of a weekly market with the private respondent therein, who had submitted a lower bid than the writ petitioner. The bid of the writ petitioner was not considered, as his bid documents did not fulfil all the requirement of the tender notice. The coordinate Bench noticed the deficiency in documents in both the bids of the petitioner as well as the private respondent therein, besides the major difference in price offered by the petitioner and the private respondent. The coordinate Bench held that in matters of distribution of State largesse which are meant for fetching revenue, the price offered is of paramount importance and it accordingly ordered that the interest of justice would be served, by directing the State respondents to redo the exercise of settlement of the market, by issuing a fresh tender notice.

¶12On considering the judgment passed by a Co-ordinate Bench of this Court in Muktar Hussain (supra), it is noticed that the law laid down by the Supreme Court in Raunaq International Ltd. (supra) and TATA Motors Limited (supra) had not been brought to its notice and as such, it is the view of this Court that the Co-ordinate Bench was not in a position to consider the law laid down by the Supreme Court.

¶13As such, this Court is of the view that the law laid down by the Supreme Court will have to be followed by this Court and the decision passed by the Co-ordinate Bench cannot be applied to this case, especially when the issue of whether the bid of the respondent No.9 was in terms of the tender notice, has Page No.# 7/7 not been gone into. It has only decided the issue of whether the petitioner, whose bid was disqualified, could have made a challenge to the settlement of the market with the respondent No.9. As held by the Supreme Court, in the decisions referred to above, judicial relief at the instance of a party who does not fulfil the requirements of the tender notice cannot be given, inasmuch as, this is not a public interest litigation.

¶13In view of the reasons stated above, this Court does not find any ground to exercise its discretion in this case.

¶14The writ petition is accordingly dismissed.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010185362023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4885/2023o ABDULoRAHMANo S/O-oMONUHARoALI,o R/O-oVILLAGE-oISLAMPURo(NIZoBAGHMARI),o P.O.-oBURIGANG,oP.S.-oGINGIA,o DISTRICT-oBISWANATH,oASSAM,o PIN-o784176. VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo THROUGH-o THEoPRINCIPALoSECRETARY,o TOoTHEoGOVERNMENToOFoASSAM,o PANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT,oASSAM,o DISPUR,oGUWAHATI-o781006. 2:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oASSAM oJURIPAR oPANJABARI oGUWAHATI-o781037. 3:THEoDEPUTYoCOMMISSIONER oSONTIPUR oTEZPUR oDISTRICT-oSONITPUR o ASSAM. 4:THEoADDITIONALoDEPUTYoCOMMISSIONER oSONITPUR PageoNo.#o2/7 oAToBISWANATHoCHARIALI o DISTRICT-oSONITPUR oASSAM. 5:BISWANATHoZILLAoPARISHAD oREPRESENTEDoBYoITSoCHIEFoEXECUTIVEoOFFICER o P.O.-oBISWANATH o DISTRICT-oSONITPUR oASSAM o PINoCODE 6:THEoPRESIDENT oBAGHMARAoANCHALIKoPANCHAYAT oROWTA oDISTRICT-oSONITPUR o ASSAM oPINoCODE 7:THEoCHAIRPERSON oBAGHMARAoANCHALIKoPANCHAYAT oROWTA oDISTRICT-oSONITPUR o ASSAM oPINoCODE 8:THEoCHIEFoEXECUTIVEoOFFICER oBISWANATHoZILLAoPARISHAD oBISWANATHoCHARIALI oDISTRICT-oSONITPUR oASSAM. 9:LUPTOoDUNGRI oS/O-oLATEoBUTIoDUNGRI o R/O-oVILLAGE-oBAGHMARIoT.E. o PO-oBURIGANG oP.S.-oGINGIA o DIST.oBISWANATHo(SONITPUR) o PIN-o784176o Page No.# 3/7 Advocate for the Petitioner : MD. I HUSSAIN Advocate for the Respondent : SC, P AND R.D. BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA