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2005 Supreme(Gau) 528
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Gopal Krishna Bora and Ors. - Appellants
Vs.
State of Assam and Ors. - Respondent
WP(C) Nos. 2535, 2684, 2707, 2708, 2775, 3029, 3030 of 2005
Decided On: 22.07.2005
For Appellant/Petitioner/Plaintiff: B.D. Konwar, M. Bhagabati, J.M. Konwar and H. Roy, Advs.
For Respondents/Defendant: G. Sinha, Y. Doloi, H. Roy, Advs.
The main legal point established is that the decision-making process for accepting tenders must be transparent, fair, and non-arbitrary, and the procedure must be disclosed in the NIT to ensure fairness and transparency in the settlement process.
Headnote:
Arbitrariness - Municipal Board Settlement - Article 14, 19(g), 300A - 14, 19(g), 300A
Fact of the Case:
The Jorhat Municipal Board invited tenders for settlement of markets, parking places, cycle and rickshaw stands. The Board decided to settle the markets based on a procedure not disclosed in the tender notice, leading to a challenge by the highest valid bidder, Shri Gopal Krishna Bora.
Finding of the Court:
The court found that the decision-making process must be transparent, fair, and non-arbitrary. The failure to disclose the procedure for accepting tenders rendered the settlement process unsustainable. The court set aside the decision of the Board and directed the issuance of a fresh notice inviting tenders.
Issues: The main issue was whether the Municipal Board's decision to settle the markets based on an undisclosed procedure was sustainable.
Ratio Decidendi: The court held that every Notice Inviting Tenders (NIT) must disclose the procedure for accepting tenders to ensure transparency and fairness. The failure to specify the procedure in the NIT rendered the settlement process non-transparent, unfair, and arbitrary.
Final Decision: The court allowed the petition, set aside the Board's decision, and directed the issuance of a fresh notice inviting tenders.
I.A. Ansari, J.
1. Arbitrariness is anti-thesis of the rule of law, for, arbitrariness encourages the State and its rulers to act on their whims and fancies making thereby their actions unpredictable and non-transparent. The greatest advantage, therefore, of a civil society, which is governed by rule of law, is that it does not permit the persons, at the helm of its affairs, to indulge in arbitrariness or act on the basis of mere whims and fancies, the result being that the decision to be reached by the State may not be known, but the methods to be chosen or the steps to be adopted by such a State and its instrumentalities to arrive at their decision remain known and are predictable. Such a decision-making process does not suffer from any element of unpredictability and/or arbitrariness. Such a society is, therefore, regarded as transparent, fair and non-arbitrary.
2. Ours is a society based on a Constitution, which makes all possible provisions to save its citizens from becoming victims of arbitrariness of the acts of the State and its instrumentalities. Article 14, which forms the bedrock of our Constitution, rests on the principle of ensuring non-arbitrariness by the State and its instrumentalities, while dealing with any person.
3. Even while awarding a commercial contract, the State or its instrumentalities cannot be permitted to act arbitrarily with its citizens. Since it is well-known that the power of judicial review cannot be exercised against the decision, but against the decision making process, the question, which logically arises is as to how it can be ensured that the State does not indulge in arbitrariness, while awarding contracts or while granting State largess. The easiest way to ensure all possibilities of exclusion of the State or its instrumentalities from acting arbitrarily on their whims and fancies or from favouring anyone is that the State and its instrumentalities must make it known beforehand to the persons, who are to participate in the selection-making process as to what method the authorities concerned would adopt or what procedure they would follow or what factors, they would choose and what considerations, they would allow to prevail to arrive at the decision to award the contract or the State largess. To put it differently, if in any selection process for awarding of a contract, lease or settlement by the State, the State chooses a method or selects a factor or allows a particular consideration to prevail upon it for arriving at a decision to award the contract without having made the same known from before to the persons, who are invited to participate in the selection process, such a selection, for lack of transparency and for giving room to arbitrariness in making the selection, cannot but be interfered with.
4. The moot question, which, as I shall show, the present set of writ petitions raises, is this: whether a Municipal Board can decide to settle its markets, parking places or rickshaw and public stands by choosing a procedure, which had not been made known to the tenderers, while the notice inviting tender was issued? The answer to this question is not very far to seek.
5. It is in the above backdrop of what has already been pointed above that the question posed, in the present set of writ petitions, has to be answered.
6. By this common judgment and order, I propose to dispose of the writ petitions enlisted above, for, all the writ petitions are closely inter-linked and have been heard together on the request of the learned Counsel for the parties for the purpose of final disposal.
7. The Jorhat Municipal Board (in short, 'the Board') published a notice, on 11.02.2005, inviting tenders (in short, 'the NIT'), for settlement of markets, parking places, cycle and cycle-rickshaw stands under the jurisdiction of the Board for the current financial year 2005-2006. The Petitioner in WP(C) 2535/2005, namely, Shri Gopal Krishna Bora, submitted his tender for the settlement of Jorhat Chowk Baza
