Point of Law: Section 2(b) of 2017 Act provides “bidder” means any person, company, firm, agency, institution, etc. participating in a procurement process of a procuring entity for procurement of any Goods, Works or Services.

JUDGMENT :

Heard Mr. S.B. Laskar, learned counsel for the petitioner in this series of three writ petitions. Also heard Mr. P.N. Goswami, learned Addl. Advocate General for the State, along with Mr. I. Kalita, standing counsel for the Forest Department, Mr. S.D. Purkayastha, learned counsel for the respondent no. 5 and Mr. B.K. Das, learned counsel for the respondent no. 6.

2. Case of the petitioner in W.P.(C) 6455/2021: During the pendency of W.P.(C) 6210/2021, the petitioner had come to know that his bid for Kalain Stone Minor Mineral Unit-I was not approved as per decision taken on 01.11.2021 in the office chamber of the Chief Conservator of Forests, Southern Assam Circle, Silchar, inter alia, on the ground that he had not uploaded digitally signed documents. The petitioner has alleged that the impugned minutes was prepared on extraneous considerations. In this writ petition, the successful bidders were arrayed as proforma respondent nos. 5 and 6. By order dated 06.12.2021, this Court had provided that the settlement of the Kalain Stone Minor Mineral Unit-I would be subject to outcome of the writ petition. However, notice of motion was issued by order dated 10.08.2022.

3. Case of the petitioner in W.P.(C) 6210/2021: The Divisional Forest Officer, Karimganj (“DFO, Karimganj” for short)had issued NIT for settlement of Kalain Stone Minor Mineral Unit-I. The petitioner had submitted his 1st Stage Bid (i.e. Technical Bid) on 05.09.2021 and was waiting to participate in the 2nd stage of bidding i.e. live auction, but the petitioner did not receive any information about the live bidding and therefore, he visited the office of the DFO, Karimganj on several occasions but he was not provided any information and he had learnt that the said authority was adopting a pick-and choose method to settle the bid to others by depriving the petitioner. By order dated 23.11.2021, this Court had directed the respondent authorities to place the copy of evaluation of the technical bid dated 01.11.2021 before the Court.

4. Case of the petitioner in W.P.(C) 577/2022: During the pendency of W.P.(C) 6210/2021 and W.P.(C) 6455/2021, the Kalain Stone Minor Mineral Unit-I was settled with the respondent no. 5. Therefore, the said settlement vide office order no. 73 dated 07.12.2021, has been challenged by filing the instant writ petition under Article 226 of the Constitution of India and the petitioner has also prayed for fresh e-auction of the mining contract in respect of the said NIT and for a direction upon the State respondents to take action against the private respondent nos. 5 and 6 as per Section 6(5)(iv), 11(1)(ii) and 25(1)(d) of the Assam Public Procurement Act, 2017 (hereinafter referred to as the “2017 Act”) and Assam Public Procurement Rules, 2020 (hereinafter referred to as the “2020 Rules”) framed thereunder.

Submissions of the learned counsel for the petitioner:

5. The learned counsel for the petitioner has meticulously referred to the various tender clauses and had submitted that along with the documents digitally uploaded, physical copies of documents accompanying the bid were also submitted. Thus, it was submitted that under sub-clause (ii) of clause (a) of heading ‘A’ - “First round of e-auction” appended to clause 8.1 of section “1. Important information” of the Bidding Document issued in connection with “e-auction sale notice dated 05.09.2021”, it was provided that “… In case of differences between documents submitted electronically and original document submitted physically, the original documents submitted physically shall prevail.” It was also submitted that the presence of the petitioner was mandatory before opening of the bids as per the provisions of Rule 9 of the 2020 Rules, which mandates that the bidders shall be enabled to witness the electronic bid opening and status of bid evaluation online and thus, it was submitted that as the petitioner was not present, the opening of the bids of the respondent nos. 5 and 6 was illegal and