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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, J.
Amran Hussain Laskar S/o Late Samar Ali – Petitioner
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 511 of 2024
Decided On : 13-02-2023
Tender Notice - Challenge to Clause 10 - Rule 47(10) of the 2002 Rules - The court discussed the validity of Clause 10 of the tender notice dated 29.04.2023, which required the highest bidder to submit relevant documents within three days if not enclosed with the tender. The petitioner challenged the clause, citing violation of Rule 47(10) of the 2002 Rules and Article 14 of the Constitution of India. The respondents argued that the petitioner participated in the tender process without challenging the clause and cited a previous judgment to support their position. The court held that the petitioner cannot challenge the clause in the middle of the selection proceedings as he did not challenge it earlier and dismissed the writ petition.
Fact of the Case:
The petitioner participated in a tender process for settlement of a market. The selection process was challenged, and a stay order was issued. The market was settled in favor of the petitioner, but subsequent challenges led to the order being set aside. The petitioner then filed a writ petition challenging Clause 10 of the tender notice.
Finding of the Court:
The court found that the petitioner cannot challenge the validity of Clause 10 in the middle of the selection proceedings as he did not challenge it earlier.
Issues: Validity of Clause 10 of the tender notice dated 29.04.2023 and the petitioner's right to challenge it during the selection process.
Ratio Decidendi: The petitioner's failure to challenge Clause 10 earlier precluded him from challenging it in the middle of the selection proceedings.
Final Decision: The writ petition was dismissed.
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. D.A. Kaiyum, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned counsel for the respondent nos.1 to 5 and Mr. A. Sarma, learned counsel for the respondent no. 6.
2. The petitioner has prayed for setting aside and not give effect to Clause 10 of the Tender Notice for 2023-2024 dated 29.04.2024, wherein it has been provided that the tender for all Bazaars/Ghats/Min Mahals/Pounds offering highest bid price will be considered for settlement. It further states that if the tenderer offering the highest bid price does not enclose the relevant papers and documents (except Court Fee and Earnest Money), he/she will be given a period of 3 (three) days for submission of such papers and documents. If he/she fails to submit the papers and documents within the specified period of three days, his/her tender will be cancelled and his/her Earnest money will be forfeited and the next highest bidder shall be considered for settlement within the said terms and conditions.
3. The petitioner took part in the selection process for settlement of the Balisatra Bi-weekly Market (fort short “Market”) issued by the Batadrava Ancdhalik Panchayat, in pursuance to the NIT dated 29.04.2023. The petitioner was the 4th highest bidder amongst 33 bidders. The petitioner was selected as the successful bidder for settlement of the Market, on account of the three highest bidders not having the requirement documents in their quotations.
4. Prior to the selection process for considering the successful tenderer, Clause 10 of the NIT dated 29.04.2023 had been stayed by this Court, vide order dated 09.06.2023 passed in W.P. (C) No. 3325/2023, which was with regard to the same Market, i.e. Balisatra Bi-weekly Market, as an intending tenderer Ashadud Zaman and two others had made a challenge to the validity of Clause 10 of the NIT dated 29.04.2023.
5. The respondent no. 5 then issued a Notice dated 19.06.2023 notifying all tenderers that Clause 10 of the NIT dated 29.04.2023 would not be applicable till further orders, in terms of the order dated 15.06.2023 passed in W.P. (C) No. 3325/2023
6. The selection process for settlement of the Market was made during the pendency of the stay order passed in W.P. (C) No. 3325/2023 and the said Market was settled in favour of the petitioner for 12 months w.e.f. 01.07.2023 to 30.06.2024 at an amount of Rs. 1,52,00,000/- vide letter dated 30.06.2023 issued by the Chief Executive Officer, Nagaon Zilla Parishad. The said letter dated 30.06.2023 also carried a rider that the settlement would be subject to/depend on the final order of this Court in W.P. (C) No. 3325/2023.
7. On coming to know of the challenge made to Clause 10 of the NIT dated 29.04.2023, the petitioner submitted an application for impleadment in W.P. (C) No. 3325/2023 on 02.08.2023, vide I.A. (Civil) No. 2221/2023. The same was allowed by this Court vide order dated 25.08.2023. Consequently, the petitioner was impleaded as respondent No. 7 in W.P. (C) No. 3325/2023.
8. The 3rd highest bidder Muktar Hussain filed W.P. (C) No. 4757/2023 against the petitioner, on the ground that the market could not have been settled with the petitioner, as Muktar Hussain had submitted a higher bid for the Market than the petitioner. One Rais Uddin Ahmed, who was the 5th highest bidder amongst the tenderers, also made a challenge to the settlement of the Market with the petitioner, vide W.P. (C) No. No. 7469/2023, on the ground that the petitioner’s tender documents did not fulfil the requirement of the tender conditions provided in the NIT dated 29.04.2023.
9. W.P. (C) No. 4757/2023 and W.P. (C) No. 7469/2023 were disposed of vide a common order dated 11.01.2024, with this Court holding that it had noticed deficiency in the documents of the bids of Muktar Hussain as well as the petitioner herein. This Court further held in the order dated 11.01.2024 that the difference in the price offered which was Rs. 18,00,000/- could not be termed
Failure to challenge a clause in the tender notice during the selection process precludes a party from challenging it later.
A party cannot challenge the validity of a clause in the middle of the selection proceedings if they did not challenge it earlier.
The highest valid bidder should be considered for settlement, and acceptance of a tender other than the highest valid tenderer requires prior and formal approval of the government. The competitive bi....
Point of Law : Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not and it is only when it comes to a conclusion that overwhelm....
The court ruled that no lowest rate for bids is mandated by applicable rules, allowing a tender to be settled below the three-year average.
The authority of the State respondents to insert additional grounds for forfeiture of earnest money in the NIT to ensure genuine bids in government contracts.
The authorities have the discretion to re-tender in case of a single bid and to condone minor defects in bids to protect public interest.
Fairness demanded that the tendering authority should have disclosed to all the tenderers beforehand that the bid value above a particular amount or above a particular percentage of the scheduled rat....
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