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1997 Supreme(Gau) 36
GAUHATI HIGH COURT
S.Barman Roy, A.K.Patnaik, JJ.
NECOM Trade and Suppliers -Appellant
Versus
State of Assam and Ors. -Respondent
Writ Appeal No. 125 of 1996
Decided On : 06-03-1997
G.N.Sahewalla, P.Pathak, P.Barman, A.K.Goswami
Settlement of a tender on the basis of viability range without specifying the same in the tender notice is illegal.
Headnote:
TENDER SETTLEMENT - VIABILITY RANGE - SETTLEMENT OF TENDER ON THE BASIS OF VIABILITY RANGE WITHOUT SPECIFYING THE SAME IN THE TENDER NOTICE IS ILLEGAL - FRESH TENDERS TO BE FLOATED.
Fact of the Case:
The appellant challenged the settlement of a tender for the supply of potable alcohol/rectified spirit to retail vendors by the Commissioner of Excise, Assam, in favor of respondent No. 5. The appellant argued that the rate quoted by respondent No. 5 was not the lowest and that the lowest rate quoted was Rs. 9.15 by one M/s Himangshu Enterprise, Dibrugarh. The appellant also relied on a Supreme Court judgment in the case of Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd. & others, which held that unless the tender notice specifically stipulated about the viability range and viability rate, the settling authority could not take into consideration the fact that the rate quoted by the lowest tenderer was not viable while settling the tender in favor of a party at a higher viable rate.
Finding of the Court:
The court found that the tender notice did not specify the viability range nor did it say that only the tenders coming within the viability range would be considered. The court also found that the rate quoted by respondent No. 5 was not the lowest among the tenderers found to be financially sound. The court held that the settlement of the tender in favor of respondent No. 5 on the ground that the rate quoted by it came within the viability range was liable to be quashed.
Issues: Whether the settlement of a tender on the basis of viability range without specifying the same in the tender notice is illegal.
Ratio Decidendi: The court relied on the Supreme Court judgment in the case of Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd. & others, which held that unless the tender notice specifically stipulated about the viability range and viability rate, the settling authority could not take into consideration the fact that the rate quoted by the lowest tenderer was not viable while settling the tender in favor of a party at a higher viable rate. The court held that the entire process of tender is vitiated and the settlement made in favor of respondent No.5 is liable to be quashed.
Final Decision: The court disposed of the appeal and directed the State Government or the Commissioner of Excise to consider the prayer of the respondent No. 5 to continue with the supply of potable alcohol/rectified spirit by way of a temporary arrangement till the fresh tender notice is issued and the tender is settled by the competent authority.
This is an appeal against the judgment and order passed by a learned Single Judge dated 29.1.96 dismissing Civil Rule No. 1703 of 1994 filed by the appellant.
2. The facts, briefly, are : That by a notice dated 25th August, 1993 the Commissioner of Excise, Assam invited sealed tenders for supply of potable alcohol rectified spirit (Grade I) to retail vendors from various parties for a period of 3 years in respect of, inter alia, Nazira Wareshouse. Pursuant to the said tender notice various parties including the appellant and respondent No.5 submitted their tenders. Rates quoted by various parties are as follows :
1. M/s Himangshu Enterprise, Dibrugarh Rs. 9.15
2. Shri Jatindra Nath Saikia, Dibrugarh Rs. 9.95
3. M/s Dutta Associates (India) Pvt. Ltd., Dibrugarh Rs. 11.00
4. Shri Pradip Kumar Dutta, Dibrugar Rs. 11.25
5. Shree Sales Corporation, Guwahati Rs. 11.85
6. Shri Sidhartha Sankar Borgohain, Dibrugarh Rs. 11.59
7. M/s Onus Enterprise, Guwahati Rs. 12.57
8. M/s Eshroh India, Guwahati Rs. 12.87
9. M/s ACE Traders, Guwahati Rs. 13.20
10. M/S Necom Trade and Suppliers, Guwahati Rs. 13.91
11. M/s North Eastern Trade Agency, Guwahati Rs. 14.05
12. Shri JP Borgohain, Sibsagar Rs.14.12
13. M/s Chevalier Enterprise, Guwahat Rs. 14.28
14. M/s Abhijit International, Dispur Rs. 14.55
15. Shri Bijoy Kumar Jasrasaria, Guwahati 9 Rs. 15.25
16. M/s SK Dutta and Sons (P) Ltd, Jorhat Rs. 15.35
17. M/s Indo Mercantiles Pvt. Ltd, Guwahati Rs. 15.75
18. M/s Noble Sales Agency, PO : Dispur Rs. 16.25
19. Shri Prodip Kumar Khetan, Jorhat Rs. 16.43
20. M/s New Asish Enterprise, Guwahati Rs. 16.75.
The Commissioner of Excise, Assam, however, in his letter dated 7th April, 1994 indicated that only eight of the aforesaid twenty tenderers were financially sound and amongst the aforesaid eight tenders, respondent No. 5 was included but the appellant was not included. Thereafter the Government settled the tender in favour of respondent No.5 at the rate of Rs. 15.25 per LPL quoted by the said respondent No.5.
3. At the hearing of the appeal Mrs. P. Barman, learned counsel for the appellant submitted that the judgment delivered by the learned Single Judge was a common judgment in respect of Civil Rule No. 1703 of 1994 and Civil Rule No. 1601 of 1994 in which similar settlement of tender for supply of potable alcohol/rectified spirit (Grade I) for the Jorhat Wareshouse was challenged. By the impugned common judgment and order (1996 (1) GLJ 469) the learned Single Judge had also dismissed the aforesaid Civil Rule No. 1601 of 1994 and Writ Appeal No.80 of 1996 was filed against the judgment of the learned Single Judge in Civil Rule No. 1601 of 1994 and a Division Bench of this Court allowed the said appeal (1997 (1) GLJ 316) with a direction that there was nothing on record to show that Rs. 15.25 quoted by the 5th respondent in the aforesaid appeal was viable rate. After setting aside the impugned judgment of the learned Single Judge in the said Civil Rule No. 1601 of 1994, the Division Bench directed that the matter be sent back to the setting authority to make fresh settlement after taking into consideration all aspects and pass a reasoned order. Mrs. Barman submitted that since the present appeal also arises out of the said common judgment and order of the learned Single Judge, the appeal should be allowed, the judgment of the learned Single Judge should be set aside and the matter should be remanded back to the settling authority with a direction to make fresh settlement after taking into account all aspects of the matter. Mrs. Barman further submitted that the rate that was quoted by respondent No.5 was not the
