Md Imran Hussain vs. The State Of Assam And 7 Ors.
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The petitioner, Md Imran Hussain, challenged a tender committee's decision to recommend respondent No. 8, Md. Jamat Ali, for a ferry service contract. The tender notice was issued by the Executive Engineer, Inland Water Transport Division, Guwahati, for the Gerimari-Kachasila via Serang ferry service, with an estimated value of Rs. 1,51,800/-. The petitioner was the next highest valid bidder after several others, including respondent No. 8, were found to have defective bids. Respondent No. 8, the second highest bidder, had failed to submit an experience certificate at the time of tender submission. Despite this, the tender committee recommended respondent No. 8 for the settlement of the ferry service, subject to submission of the experience certificate later. The petitioner argued this decision was illegal and arbitrary as he was the valid highest bidder.
Held
The Court held that there was a specific violation of Rule 16 of the Control & Management of Ferry Rules, 1968, which was intentional. The experience certificate was a mandatory qualifying criterion as per the tender notice and Rule 16. The Court found that the decision of the tender committee to recommend respondent No. 8, who failed to submit the experience certificate at the time of bid opening, constituted a specific violation of the tender conditions and Rule 16. Citing a previous decision in WP(C) 2680/2021, which in turn relied on a Division Bench judgment in Abdul Mazid Vs. State of Assam, the Court emphasized that the 1968 Rules are mandatory and must be followed as long as they are in force. Consequently, the decision of the tender committee recommending respondent No. 8 for the Gerimari-Kachasila via Serang ferry service was set aside and quashed. The matter was remanded to the Director, IWT, Assam, to complete the tender process strictly in accordance with the tender conditions and Rule 16 of the Control and Management of Ferry Rules, 1968, without any deviations.
Key Issues
1. Whether the decision of the tender committee recommending respondent No. 8 for the settlement of the Gerimari-Kachasila via Serang ferry service, despite his failure to submit the mandatory experience certificate at the time of tender submission, is illegal and arbitrary, violating the tender conditions and Rule 16 of the Control & Management of Ferry Rules, 1968? Petitioner's arguments: The petitioner contended that he was the valid highest bidder and that the decision to award the ferry service to respondent No. 8 was illegal and arbitrary due to the latter's failure to comply with the tender conditions, specifically the submission of the experience certificate. He relied on a previous High Court decision in WP(C) 2680/2021 (Jitesh Chandra Bhakat and Anr. Vs The State of Assam and 2 Ors.) which dealt with a similar violation of tender conditions and Rule 16 of the Control & Management of Ferry Rules, 1968. Revenue/State's arguments: The respondents, including the State and the Transport Department, argued that respondent No. 8 was the second highest bidder and that although he initially failed to submit the experience certificate, he later submitted it. They stated that the recommendation was made to generate maximum revenue for the State. The private respondent No. 8 also filed an affidavit, relying on a letter directing him to submit the experience certificate.
Sections Cited
Rule 16 of the Control & Management of Ferry Rules, 1968
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Cause title — parties, addresses and appearances
order
2021
Heard Mr. N Borah, learned counsel for the petitioner. Also heard Ms. M D
Page No.# 3/6 Bora, learned standing counsel for the Transport Department respondent Nos. 1 to 5 and 7. Mr. K Gogoi, learned Additional Senior Government Advocate, Assam and Mr. B Rahman, learned counsel for the private respondent No. 8 are also present. The tender notice vide order No. 412 dated 17.08.2020 was issued by the Executive Engineer, Inland Water Transport Division, Ulubari, Guwahati in respect of various ferry services under various groups. In the present writ petition Gerimari-Kachasila via Serang ferry service is concerned wherein the estimated value was Rs. 1,51,800/-. The petitioner alongwith the respondent No. 8 participated in the tender process along with other four bidders. Out of the six tenderers, one Sri Achar Ali offered highest bid but instead of submission of GST registration certificate the said bidder submitted the GST application. His tender was accordingly defective. The respondent No. 8, Md. Jamat Ali was the next highest bidder with his bid of Rs. 6,50,000/-, but his bid was also defective as he failed to submit the experience certificate at the time of submission of his tender. The next highest bidder was one Nurul Islam who quoted Rs. 4,91,500/- but defective due to non-submission of GST registration certificate. Accordingly, the petitioner is the next highest bidder whose bid was declared to be valid in all respect by the bid evaluation authority. The petitioner quoted his bid of Rs. 3,51,000/-. The tender committee took a resolution dated 20.03.2021 pursuant to the said NIT dated 17.08.2021 and accordingly decided as follows: “Decision: Tender committee recommends Jamat Ali for settlement Gerimari-Kachasila- via-Serang ferry service for the remaining period of 2020-22 subject to submission of experience certificate.” On the basis of the said resolution, the respondent Director, Inland Water Transport, Assam vide his letter dated 24.06.2021 placed the minutes of the Page No.# 4/6 tender committee before the Secretary, Government of Assam, Transport Department. Challenging the said decision, the petitioner has filed this writ petition on the ground that as the petitioner is the valid highest bidder
accordingly the decision to settle the said ferry services to the respondent No. 8 is illegal and arbitrary. The respondent No. 4 filed his affidavit-in-opposition dated 23.08.2021 wherein it is stated that the respondent No. 8 was the second highest bidder but failed to submit the experience certificate before opening of the tender. Later on, he submitted the same after opening of the tender documents.
Accordingly to generate maximum revenue the tender committee of the Directorate, IWT had recommended settlement of the impugned ferry service with the private respondent No.
The private respondent No. 8 also filed affidavit-in-opposition wherein he relied one letter dated 06.05.2021 issued by the Director, IWT, Assam directing the private respondent No. 8 to submit the experience certificate within 7 (seven) days from 06.05.2021. The petitioner filed an affidavit-in-reply dated 01.09.2021 thereby reiterating the statement made in the writ petition and also stated that in response to an RTI application by the petitioner the Executive Engineer, IWT, Ulubari Division informed that no ferry service was settled in the name of the respondent No. 8 till the date of issuance of the said letter. In support of the contention of the learned counsel for the petitioner he relied a decision of this Hon’ble Court passed in WP(C) 2680/2021 Jitesh Chandra Page No.# 5/6 WP(C) 2680/2021. By the said decision a similar issue was decided by holding as follows: “ From the aforesaid decision, I am satisfied that there is specific violation of Rule 16 of the Control & Management of Ferry Rules 1968, which is intentional in nature by the respondent authority in order to generate maximum revenue for the State. The experience certificate is one of the qualifying criteria in the said tender notice dated 17.08.2020. The said experience certificate is in confirmation of the Rule 16 of the Control & Management of Ferry Rules 1968. From the decision of the respondent tender authority a case of specific violation of the tender conditions and Rule 16 of the Control & Management of Ferry Rules, 1968 is very much evident. Mr. Kataki relied an order dated 17.09.2018 passed by this court in WP(C) 3112/2018 wherein the force of the 1968 Rules and the applicability thereon was discussed which is reproduced hereinbelow:
“10. In Abdul Mazid (supra), a Division Bench of this court held that above two provisions to be mandatory. View taken by the departmental Commissioner and Secretary that the 1968 Rules have become archaie and are taken only as guiding principles cannot be accepted. As long as the 1968 Rules are in force, the provisions thereof are required to be followed. Of course the Rule making authority may enact or may frame new Rules, but till new Rules are framed or enacted the existing Rules will continue to hold the field. Non-adherance to the requirement of the 1968 Rules by the departmental authorities cannot be permitted. In that view of the matter, impugned office order dated 31.03.2018 cannot be sustained and is accordingly set aside.” The issue before the Co-ordinate Bench in the order dated 17.09.2018 was similar as the one placed before this court as to specific violation of Rule 16 of the Control & Management of Ferry Rules 1968 and in view of the decision in Hon’ble Page No.# 6/6 recommending Sri Bidur Chandra Ray for settlement of Guma Ghat ferry service and Simlabari ferry service is also set aside and quashed thereby remanding the matter to the said Director, IWT, Assam to complete the tender process as per the tender conditions read with Rule 16 of the Control & Management of Ferry Rules, 1968 without there being any deviations. With the said observation, this writ petition stands disposed of at this motion stage.” As hereinabove stated the petitioner also annexed the experience certificate of the private respondent No.
From the decision of the tender committee referred hereinabove, it is apparent that the private respondent No. 8 failed to submit the experience certificate on the date of the opening of the bid. In view of the same and upon consideration of the ratio held by the Hon’ble respondent No. 8 for settlement of the Gerimari-Kachasila via Serang ferry service is set aside and quashed thereby remanding the matter to the Director, IWT, Assam to complete the tender process as per the tender conditions read with Rule 16 of the Control and Management of Ferry Rules, 1968 without there being any deviation. This writ petition accordingly stands disposed of. Interim order stands vacated.
JUDGE Comparing Assistant
Reproduced from the public record of the Gauhati High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.