WP(C) 1794/2007 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER The settlement of PTC Negherting Bodhboria Bazar (hereafter refe rred to as the Market) in favour of the respondent No. 3 by the Dergaon Municipa l Board (hereafter referred to as the Board) has been assailed as illegal, arbit rary and unconstitutional. The petitioner being a competing tenderer seeks a wri t of mandamus to be awarded the market for the current term. 2. I have heard Mr. TJ Mahanta, learned Counsel for the petitioner and Mr. PC Dey, learned Counsel for the Board. 3. By order dated 12/4/2007, this Court permitted the petitioner to cause service of notice of the proceeding on the respondents 2 and 3 personally . By an affidavit filed on 7/5/2007, the petitioner has avowed that on being app roached with a copy of the aforementioned order and by the writ petition, the re spondent No. 3 refused to accept the same. As on date, he has neither entered ap pearance nor has represented to be heard. 4. The abridged facts are that in response to a Notice Inviting Ten der (for short NIT) issued on 11/1/2007 by the Board inter alia for settlement o f the market for the period 1/4/2007 to 31/3/2008, the petitioner submitted on 1 4/2/2007 his tender along with the security money of Rs. 10,000/- as estimated i n the NIT. Subsequent thereto, by letter dated 29/3/2007 issued by the Chairman of the Board, he was intimated that the market has been settled with him at his bid of Rs. 4,16,551/- and was asked to deposit Rs. 1,06,262/- in the Office of t he Board by 31/3/2007. According to the petitioner, the said letter was received by him on 29/3/2007 at 9.30 PM. Though he tried his level best to arrange the s aid amount, he could not do so amongst others for the financial year ending on 3 1/3/2007. As 1st of April was a Sunday and the following day a Bank holiday, his endeavours to muster the funds proved fruitless and accordingly he on 3/4/2007 submitted an application before the Chairman of the Board praying for extension of time to deposit the same. As he waited in expectation for a positive response to his request, he came to learn that by an order dated 2/4/2007, the market ha d already been settled with the respondent No. 3. His request for a copy of the order of settlement was also declined. The petitioner has asserted that the impu gned decision was taken without any prior communication to him or any opportunit y to represent against the same. Though in the petition he averred that he was t he sitting lessee of the market and that on the date of its filing, the responde nt No. 3 had not taken over possession thereof pursuant to the impugned settleme nt, the petitioner by an application (registered as MC 1590/07) clarified that t he statement was an inadvertent mistake as what was really intended to be stated was that the respondent No. 3 was not a sitting lessee. He, therefore, prayed t hat the averment to the said effect be deleted. 5. No affidavit in opposition has been filed by any of the responde nts to the statements in the writ petition. The Board in its counter to the misc . application, however, has contended that the petitioner lacked in bonafide in claiming to be the sitting lessee though in the meantime following the order of settlement, an agreement has been executed by the respondent No. 3. 6. Mr. Mahanta has argued that the impugned order of settlement is patently unfair, unjust and discriminatory inasmuch as though the settlees of th e other markets had been informed about the settlement much in advance so as to enable them to organize their resources to deposit the stipulated instalment, he was denied the said opportunity. The learned Counsel contended that in terms of the NIT, the agreement with the successful tenderer was to be executed before 2 6/2/2007 and whereas this was adhered to for the other awardees, it was departed from in his case. Moreover, in terms of Clause 11 of the NIT even if his tender was rejectable for his failure to deposit the instalment in time, the market ou ght to have been re-tendered. Mr. Mahanata urged that as respondent No. 3 was no t a participating tenderer, settlement in his favour was per se invalid. The imp ugned action besides being illegal also smacks of malafide, he urged. 7. Mr. Dey as against this submitted that the petition is liable to be dismissed, the petitioner having furnished distorted facts to mislead this C ourt. Referring to the NIT, the learned Counsel maintained that as a successful tenderer was obliged to deposit 1/4th of the offered bid within 24 hours of the intimation of settlement as required under Clause 5 thereof, the petitioner’s co mplaint in the facts of the case is apparently frivolous. There being no bar, th e petitioner being the sole tenderer for the Board, to settle the market, otherw ise in view of his failure to deposit the required instalment within a stipulate d period, the impugned decision cannot be faulted with. As the successful tender ers for the other market had approached the Board in time for extension of the p eriod for the deposit of instalment and had made part payments, they could not b e placed at par with the petitioner who remained totally inactive. Not only did he fail to deposit any amount what so ever, he abstained from approaching the Bo ard for further time and, therefore, he cannot be heard to complain against, the impugned settlement. As the market has been awarded to the respondent No. 3 at the offer made by the petitioner, there is no loss of Government revenue and on that count as well, no interference with the impugned order is warranted, he urg ed. Mr. Dey also produced the official records in support of the submissions. To reinforce his arguments, he placed reliance on the decision of the Apex Court i n Raunaq International Ltd. versus IVR Construction Ltd. and others, (1999) 1 SC C 492. 8. Mr. Mahanta who with the permission of the Court had inspected t he records submitted that the same did not merit any credence as neither does it contain any note sheet nor the notice or the communications lodged therein bear any serial number as a stamp of their contemporaneity and authenticity. He argu ed with reference thereto that the process of settling the market with responden t No. 3 was initiated and completed on the very same date i.e. 2/4/2007 which by itself was an obvious index of undue favour extended to the said respondent. Th e impugned action being devoid of fairness and transparency is liable to be adju dged as inoperative, null and void, he urged. 9. The rival submissions have been duly assessed. The NIT issued by the Chairman of the Board on 11/1/2007 mention 14/2/2007 to be the date by whic h the tenders were to be submitted. It inter alia stipulated that in case a tend erer to whom the settlement is offered fails to accept it, his security money wo uld be forfeited. Under Clause 5 thereof, the tenders were to be opened on 14/2/ 2007 and the successful tenderer would be required to deposit 1/4th of his bid w ithin 24 hours of the intimation. Clause 6 laid down that in case the successful tenderer failed to make deposit in terms of Clause 5, his security money would be forfeited and the other tenderers in order of preference would be offered the settlement. Clause 8 specified 26/2/2007 to be the date by which the awardee wo uld be required to enter into an agreement with the Board. Clause 9 and 11 coven anted that the balance of the settlement amount would have to be paid in nine mo nthly instalments on the failure whereof the security money would be forfeited a nd the market would either be re-tendered or run through a third party or by the Board. 10 The records reveal that the market Sub-Committee of the Board in its meeting held on 17/2/2007 examined the tenders for the six markets referred to in the NIT and inter alia recommended the petitioner for being awarded the P TC Negherting Bodhboria Bazar at his offer. The Board in its meeting held on 22/ 2/2007 approved the said resolution while dealing with other issues as referred to in the related minutes. The petitioner was communicated the decision by lette r dated 29/3/2007 by the Chairman whereby he was required to deposit an amount o f Rs. 1,06,262/- by 31/3/2007 and execute the agreement. From the chart produced by the learned Counsel for the Board in course of the arguments, it appears tha t the dates of intimation to the successful bidders and those for the initial de posit were as follows. Sl. No. Name of Market Date of letter of intimation Date for deposit. 1 Dergaon Town Daily Bazar 16/3/2007 21/3/2007 2 Dergaon Public Bus Stand 27/3/2007 29/3/2007 3 Dergaon Cattle Market 15/3/2007 16/3/2007 4 Neheriting Chari Ali Dainik Bazar 16/3/2007 20/3/2007 5 3 No. Gate Dainik Bazar 16/3/2007 20/3/2007 6 PTC Budhbaria Bazar 29/3/2007 31/3/2007 11. It would thus appear that except for Sl. No. 1, 4 and 5, the oth er successful tenderers were granted 48 hours or even less for making the initia l deposit. The chart further indicates that all other tenderers had made partial deposits before the dates so fixed and it was the petitioner who alone had eith er failed to make any payment or request for extension of the time therefor. The datas furnished in the chart further demonstrate that the agreements with tende rers were entered into much after 26/2/2007. From the above disclosures it is th us not possible to conclude that the flexibility in the observance of the NIT co nditions conceded by the Board had been decisively to sideline the petitioner to his prejudice. The petitioner had been granted 48 hours to deposit the first in stalment of 1/4th of his bid value though stricto senso under Clause 5 of the NI T, a successful tenderer was required to make the payment within 24 hours of the intimation of proposed settlement of the market. Not only did he fail to make t he deposit, he did not consider it necessary to request for extension of time. T he challenge to the impugned decision on this count therefore does not appeal to this Court. 12. There is, however, one more aspect having a vital bearing on the impugned settlement in favour of the respondent No. 3, which cannot be overlook ed. The records reveal that on the receipt of the report of the Tax Collector on 31/3/2007 mentioning the petitioners failure to deposit the 1/4th of the bid va lue within the time allotted, the Chairman of the Board cancelled the settlement in his favour on 2/4/2007 and ordered for initiation of a process for awarding the market afresh by inviting applications from persons willing to accept it at the bid offered by the petitioner. The Chairman in his note dated 2/4/2007 made it clear that the fresh settlement ought to be made before 4/4/2007. In terms th ereof, the Chairman on the very same date issued a notice to the above effect in viting applications from persons interested. It transpires from the record that in response to the said notice, the respondent No. 3 applied to the Chairman of the Board expressing his preparedness to accept the offer and on his application the Chairman on that day itself after consultation with the Vice Chairman and t he Members of the Ward No(s) 8 and 9 settled the market with him at the petition er’s offer. The respondent No. 3 on the very same day was communicated the said decision by Chairman and he (respondent No. 3) also made the required deposit on that date itself. 13. It is thus apparent from hereinabove that on the petitioner’s fa ilure to deposit the first instalment, the settlement in his favour was cancelle d by the Chairman of the Board and the market was awarded to respondent No. 3 on the very same date. Apart from the fact that the new process undertaken was com pleted in a day, it is apparent that it was conducted and pursued by the Chairma n of the Board alone except for a consultation with the Vice Chairman and the Co mmissioners of Ward No. 8 and 9 before finally deciding to settle the market in his favour. In other words, the Board as such was not associated with the proces s. 14. Under the Rules of Procedure for the Sale of Pounds and Markets by Municipal Boards and Town Committees in Assam (hereafter referred to as the R ules) framed under section 147, 148 and 301 of the Assam Municipal Act, 1956, (h ereafter referred to as the Act) all pounds which the Municipal Board decides to farm out and markets established by it or vested in or placed under the control and administration of the Municipal Board should be farmed out by tender subjec t to observance of rules and procedure for inviting tenders. For reasons to be r ecorded, the Board, however, in its discretion may reserve any such pound or mar ket from lease and administer it directly. 15. In all, the records as produced before this Court and the sequen ce of events pertaining to the settlement of the market as noticed hereinabove p resent a casual an nonchalant approach of the Chairman of the Board visibly in v iolation of the Rules. The procedure adopted for grant of the market in favour o f the respondent No. 3 lacks transparency and is illegal being in transgression of the Rules. It is manifest from the records that the decision of canceling the petitioner’s settlement, his default notwithstanding and providing the market t o the respondent No. 3 is not one of the Board. In face of the mandate of the Ru les, the impugned decision therefore is unsustainable in law. The Rules having p rescribed the procedure of making such settlement and the authority empowered in that regard any departure therefrom has to be at the pain of invalidation there of. No material has been produced to predicate the Chairman’s overriding power t o cancel the petitioner’s settlement and award the market to the Respondent No. 3 to the exclusion of the Board. 15. The decision in Raunaq International Ltd., supra, is of no avail to the respondent Board. No violation of any rule governing the procedure of al lotment of the contract therein was in issue. The Apex Court while dwelling on t he criteria bearing on the assessment of suitability namely the rate, quality of goods or services, financial soundness, capability, past experience and post co ntract services held that where a decision had been taken bonafide and a choice had been exercised on legitimate considerations and not arbitrarily, no interfer ence under Article 226 of the Constitution of India is warranted. The statutory rules ordaining the authority and the procedure of settlement of a market in the case in hand being in force, no deviation therefrom merits judicial approval. T he impugned decision of cancellation of the petitioner’s settlement is unsustain able in absence of any resolution of the Board to the said effect. The allotment of the market in favour of respondent No. 3 as alluded hereinabove is in violat ion of the Rules and, therefore, is invalid and inoperative in law. 16. In the result, the petition succeeds. The decision to cancel the petitioner’s settlement and to award the market in favour of respondent No. 3 i s hereby adjudged illegal and unconstitutional. The matter stands remitted to the Board for a fresh decision in accordance with the Rules and the relevant conditions of the NIT. As the term of settlement is f or a year, the exercise as ordered should be completed as expeditiously as possi ble and in no case later than a fortnight from the date of receipt of certified copy of this order. No costs.