Point of Law: Clause 7.4 of terms of tender categorically mandated for submission of up-to-date Bakijai Clearance Certificate.

ORDER :

Heard Mr.D.Das, the learned senior counsel assisted by Mr. S. Khound for the Petitioner. I have also heard Mr. S.K. Goswami, the learned counsel appearing on behalf of the Respondent No. 6 and Mr. P. Sarma, the learned counsel appearing on behalf of the Respondent Nos.1, 2 and 3.

2. An application seeking vacation/modification/alteration of the order dated 20/9/2022 passed in W.P.(C) No.6190/2022 has been filed by the Respondent No. 6 which has been registered as I.A.(C) No. 3128/2022. It is relevant to take note of that this Court vide an order dated 20/9/2022 had directed the Respondent (AFDC) would originally open the price bid of the petitioner which should be subject to further order that may be passed in the case. Further to that, there was a direction that the tender may be processed on such basis but no final order of settlement should be issued till the next date fixed. It is on account of this order, the Respondent No. 6 who claims to be qualified and the highest bidder has approached by filing the above application. It is noteworthy to mention that the said application came up for consideration before this Court. Taking into consideration that the decision in this application can only be taken by deciding the merits, the instant writ petition has been taken up for final disposal.

3. For the purpose of appreciating the dispute it is relevant to take note of that the respondent/AFDC Ltd. had on 22/8/2022 issued a two bids tender (technical and financial bids) inviting interested SC individuals and registered Societies for SC communities having 100% actual fishermen for settlement of 1 No. of Beel Fisheries under the administrative control of AFDC Ltd. The entire bid document however have not been filed along with the writ petition. Be that as it may, amongst the various documents required to be submitted along with the tender notice, it was mentioned that the up-to-date Bakijai Clearance Certificate has to be submitted. The petitioner admittedly did not submit the up-to-date Bakijai Clearance Certificate, instead had submitted a Bakijai Clearance Certificate which had already expired. Pursuant thereto, while evaluating the technical bid, the respondent Nos. 4, 5, 6 ,7 and 8 have been found to be technically viable which was brought to the attention of all concerned vide the notice dated 16/9/2022. Subsequent thereto the petitioner on coming to learn about the same submitted an application to the Managing Director of AFDC Ltd. requesting the latter to inform as to why his bid has been rejected. Although there was no reply by the Managing Director of the AFDC but the petitioner on enquiry came to learn that on account of non-submission of the updated Bakijai Clearance Certificate, the bid of the petitioner has been rejected. It is under such circumstances, that the petitioner has approached this Court under Article 226 of the Constitution.

4. The learned counsel for the petitioner submitted that the Bakijai Clearance certificate is not an essential term of the notice inviting tender and as such the rejection of the technical bid of the petitioner suffers from unreasonableness and irrationality. The learned counsel referring to the judgment of the Division Bench of this Court rendered in the case of Abu Tali Vs The Assam Fisheries Development Corporation Ltd. and Ors.(WA No. 294/2011 dated 29/9/2011) submitted that the Division Bench of this Court had held that submission of the Bakijai Clearance Certificate is not an essential term of the notice inviting tender. He therefore, submitted that as the rejection of the petitioner’s technical bid in the teeth of the judgment of the Division Bench of this Court dated 29/9/2011, the impugned Notice dated 16/9/2022 is required to be interfered with.

5. On the other hand, Mr. S.K. Goswami, the learned counsel for the applicant/respondent No. 6 had submitted that it is the requirement as per the NIT for submission of the up-to-date Bakijai Clearance Certificate and admittedly t