Om Prakash Agarwalla v. The State of Assam and 4 Ors

O R D E R

19.12.2024 Heard Mr. N. Choudhury, the learned counsel appearing on behalf of the petitioners in both the writ petitions. Mr. A. Bhattacharjee, the learned counsel appears on behalf of the Revenue Department; Mr. B. Gogoi, the learned counsel appears on behalf of the PWD (Building) as well as Mr. P. Nayak, the learned counsel appears on behalf of the Finance Department.

¶2Both the writ petitions have been filed assailing the minutes of the Technical Bid Evaluation Committee dated

19.04.2024 whereby the respondent No.4, i.e. the Technical Bid Evaluation Committee had cancelled the tender process and also decided to forfeit the bid security so submitted by the petitioner in both the writ petitions.

¶3Briefly stated, the facts which arise for consideration is that the Chief Engineer, PWD (Building) had issued a press notice dated 14.02.2024 inviting fresh bids for the work of construction of Tai Museum at Heritage Site of Habung in Dhemaji District under the PWD Global Head for the year 2023-24. Subsequent thereto, a detail notice inviting tender dated 19.02.2024 was Page No.# 5/7 issued. The petitioner in both the writ petitions admittedly are related in as much as the petitioner in WP(C) No.5195/2024 is the father of the petitioner in WP(C) No.4658/2024. Both the petitioners thereupon submitted their bids. Upon submission of the bids, a technical evaluation was carried out whereby the Technical Evaluation Committee was of the opinion that the petitioner in both the writ petitions had committed breach of the Code of Integrity which was found to be in conflict of interest as per the Assam Public Procurement Rules, 2020, and more particularly, Clause 6 (3) (c), (d), (e) and (f). Accordingly, the Technical Evaluation Bid Committee, i.e. the respondent No.4 in both the writ petitions decided to cancel the tender process and forfeit the bid security of the petitioner in both the writ petitions. It is under such circumstances, the instant writ petitions were filed.

¶4It is relevant to take note of that WP(C) No.4658/2024 came up before this Court on 13.09.2024 and WP(C) No.5195/2024 came up before this Court on 04.10.2024.

¶5Mr. N. Choudhury, the learned counsel appearing on behalf of the respective petitioner in both the writ petitions during the course of the hearing has drawn the attention of this Court to Clause 38 of the "Instruction to Bidders" which contains an appellate provision against any decision, action or omission Page No.# 6/7 regarding the procurement sought to be made by way of the tender in question. The learned counsel therefore submitted that taking into account that certain facts needs to be adjudicated upon factually, the interest of the petitioners in both the writ petitions would be well served to approach the Appellate Authority as mentioned in Clause 38 of the "Instruction to Bidders". He also submitted that the petitioners had also submitted the representations earlier which have not been taken into consideration.

¶6Mr. B. Gogoi, the learned counsel appearing on behalf of the PWD submitted that he has no objection in the petitioners approaching the Appellate Authority as mentioned in Clause 38 of the "Instruction to Bidders".

¶7Taking into account the above, this Court therefore disposes of both the writ petitions with the following observations and directions:-

(i) The instant writ petitions stands closed on the ground of availability of an efficacious remedy as would appear from a perusal of Clause 38 of the "Instruction to Bidders" read with Section 38 of the Assam Public Procurement Act, 2017.

(ii) The respective petitioner in both the writ petitions are given the liberty to avail the appellate provision under Page No.# 7/7 Clause 38 of the "Instruction to Bidders" within 15 days from the date of the instant order.

(iii) The Appellate Authority shall upon filing of such appeals shall decide the same by following the mandate of Section 38, more particularly Section 38(2) and 38(3) of the Assam Public Procurement Act, 2017.

¶8Before parting with the record, this Court finds it relevant to clarify that the grievance of the petitioners which has been entertained in the instant proceedings is only in respect to the forfeiture of the bid security. The same has no connection with the initiation of fresh tender process or cancellation of the tender process.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010211562024 ooooooo 2024:GAU-AS:12962 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5195/2024o OMoPRAKASHoAGARWALLAo S/O-oLATEoARJUNoLALoAGARWALLA,o R/O-oTOWNoBANTOS,oWARDoNO-14,o P.OoANDoP.S-oKHALMATI,oNORTHoLAKHIMPUR,oDIST-oLAKHIMPUR,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo4oORSo REPRESENTEDoBYoTHEoSECRETARY,oREVENUEoANDoDISASTERo MANAGEMENToDEPARTMENT,oGOVToOFoASSAM,oDISPUR,oASSAMo SECRETARIAT,oP.O.-ASSAMoSACHIVALAYA,oGUWAHATI-781006 2:THEoCHIEFoENGINEER oPWDoBUILDING o O/OoTHEoCHIEFoENGINEERo oPWDoBUILDING oCHANDMARI oGUWAHATI-03 oKAMRUPo(M) oASSAM 3:THEoSPECIALoCHIEFoENGINEER oTHEoCHIEFoENGINEERo oPWDoBUILDING o(HEALTHoANDoEDUCATION)oCHANDMARI oGUWAHATI-03 oKAMRUPo(M) oASSAM 4:TECHNICALoBIDoEVALUATIONoCOMMITTEE oREP.oBYoTHEoCHIEFoENGINEERo Page No.# 2/7 PWD BUILDING CHANDMARI GUWAHATI-03 KAMRUP (M) ASSAM 5:THE FINANCE DEPARTMENT REP. BY THE COMMISSIONER SECRETARY TO THE GOVT OF ASSAM FINANCE DEPARTMENT GOVT OF ASSAM DISPUR ASSAM SECRETARIAT P.O. ASSAM SACHIVALAYA GUWAHATI-78100 Linked Case : WP(C)/4658/2024 MAHESH AGARWALLA AND ANR S/O- OMPRAKASH AGARWALLA R/O- TOWN BANTOS WARD NO-14 P.O AND P.S- KHALMATI NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM 2: OMPRAKASH AGARWALLA S/O- LATE ARJUNLAL AGARWALLA R/O- TOWN BANTOS WARD NO-14 P.O AND P.S- KHALMATI NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE SECRETARY TO THE DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT GOVT. OF ASSAM DISPUR GUWAHATI-06. Page No.# 3/7 2:THE CHIEF ENGINEER PWD BUILDING O/O THE CHIEF ENGINEER PWD BUILDING CHANDMARI DIST- KAMRUP (M) GUWAHATI-03 ASSAM 3:THE SPECIAL CHIEF ENGINEER PWD (BUILDING) (HEALTH AND EDUCATION) ASSAM CHANDMARI DIST- KAMRUP (M) GUWAHATI-03 ASSAM 4:TECHNICAL BID EVALUATION COMMITTEE REP. BY THE CHIEF ENGINEER PWD BUILDING CHANDMARI DIST- KAMRUP (M) GUWAHATI-03 ASSAM 5:THE FINANCE DEPARTMENT REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06 ASSAM For the petitioner (s) : Mr. N. Choudhury, Advocate For the respondent (s) : Mr. B. Gogoi, SC, PWD(B) Mr. P. Nayak, SC, Finance Page No.# 4/7 BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH