MAHANANDA GOGOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) A Notice Inviting Tender (NIT) was issued by the Chief Executive Officer, Dibrugarh Zilla Parishad on 28-4-2008 calling for tenders in sealed cover for settlement of various markets including Borboruah Weekly Market for the period from 1-7-2008 to 30-6-2009 fixing 12-6-2008 as the last date for submission 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 than the bids of the petitioner and the respondent No. 4. The General Standing Committee of the Zilla Parishad thereafter, decided to settle the market in question in favour of the respondent No. 4 by 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 defective having not enclosed the Tax Clearance Certificate of the Gaon Panchayat. The settlement order was accordingly issued in favour of the respondent No. 4 vide order dated 25-6-2008 settling the said market for the period from 1-7-2008 to 30-6-2009 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 26-6- 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, therefore, has challenged the settlement of the said market in favour of the respondent No. 4 in the present writ petition.

(2.) I have heard Mr. S. S. Dey, the learned counsel for the petitioner. Mr. P. J. Saikia, the learned counsel appearing for the respondent No. 4 and Mrs. 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 produced 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 Tax Clearance Certificate issued by Garudharia Gaon Panchayat on 8-6-2008, which is annexed as Annexure-2 to the writ petition, has submitted that the petitioner having obtained the said Tax Clearance Certificate from the concerned Gaon Panchayat on 8-6-2008, i.e. much prior to the last date of submission of tender, there cannot be any justification for non-submission of such certificate along with the tender, which is one of the ground for rejection of the tender of the petitioner. Referring to the records produced by the learned State Counsel, it has 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 taken out from the records. Mr. Dey, therefore, submits that the petitioner has in fact submitted the Tax Clearance Certificate issued by the Gaon Panchayat but for the purpose of depriving the petitioner from the settlement, the same has been taken out from the records. Mr. Dey further submits that in any case the conditions stipulated in the NIT for submission of the Tax Clearance Certificate of the Gaon Panchayat cannot be treated as the mandatory clause requiring rejection of the tender papers of a tenderer in case of non submission of such certificate, 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 non-fulfillment of some other conditions have been stipulated. According to Mr. Dey, requirement of submission of the Tax Clearance Certificate of the Gaon Panchayat, cannot at all be an essential clause and hence the rejection of the tender papers submitted by the petitioner though he offered the highest bid on that count is not legally valid. Relating to the other grounds on which the tender papers of the petitioner has been rejected, Mr. Dey has submitted that since neither 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, the 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, therefore, 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 market 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 Haque v. State of Assam, reported in 2004 (3) GLT 187.