JUDGMENT
P.P. Naolekar, C.J.
1. The necessary facts, in brief, are that the Execute Officer, Kampur Town Committee floated tender for settlement of Kampur Weekly Market. The present respondent No. 4 Shri Dhiren Choudhury, petitioner in WP(C) No. 4430/2002 alongwith the present appellant Shri Bikash Bora, petitioner in WP (C) No. 4191/2002, and other persons submitted tender. The offer of the respondent Shri Dhiren Choudhury was accepted and the market was settled with him with effect from 1st July, 2002. The appellant filed the writ petition challenging the decision of the Executive Officer. The High Court has passed an order on 23.7.2002 whefeunder the settlement of the market was directed to be kept in abeyance and as a consequence thereof permitted the Executive Officer to manage the Weekly Market. The Director of Municipal Administration, Assam later on vide order dated 4.7.2002 directed that the settlement of the Weekly Market be made with the present appellant in place of the respondent No. 4 at his rate of Rs. 69,999. This order was challenged by the present respondent No. 4 in the above writ petition WP(C) No. 4403/02.
2. The reason given by the Director for settlement of the market in favour of Shri Bikash Bora is as under :
“The Executive Officer, Kampur Town Committee has submitted a detailed report to this Directorate vide his letter No. KNS. 3/2001-2001/ 14-16 dated 27.6.2002. The above mentioned report says the following:
(1) Notice inviting tender for settlement of the Weekly Market for the period from 1.7.2002 to 31.3.2003 was issued by the Executive Officer.
(2) 7 (Seven) tenders were received and the highest rate (Rs. 69,999) was offered by Shri Bikash Bora.
(3) The Town Committee authorities did not accept the highest rate offered by Bikash Bora on the ground of his incomplete tender papers for non-furnishing the ‘No Loan Certificate’ and consent of co-Pattadars in respect of the joint Patta land offered as security.
(4) Provisional settlement was made in favour of Shri Dhiren Choudhury, the second highest rate offered at Rs. 69,222.
Rule 1 of the Rules of Procedure for the Sale of Pounds and markets by Municipal Boards and Town Committee in Assam as amended by Assam Municipal (Amendment) Rules, 1987 provides for settlement of markets by tender subject to observance of rules and procedure for inviting tenders. Normally the highest rate is accepted in tender sale unless there are appropriate reasons not to accept the highest rate and the reasons shall be recorded in writing by the authority concerned. In the present case the Town Committee authorities have shown the reasons as stated at (3) above.
In this connection Shri Bikash Bora has stated in his petition dated 24.6.2002 that he is an educated youth and dependent on his father Shri Bhadra Kanta Bora, as such, he has furnished the required certificate and affidavit in the name of his father. On verification, it appears that Shri Bikash Bora has furnished certificate from Bakijai Officer, Nagaon and Secretary, Kampur Samabai Samity issued in the name of his father Shri Bhadra Kanta Bora and an affidavit sworn in by Shri Bhadra Kanta Bora standing guarantor with his 8 Bighas of lands.
Taking into consideration the above facts and rejection of the case of the offerer of the highest rate Shri Bikash Bora on the ground of technicalities does not appear to be based on merit. In an identical case (W.A. No. 195/2002 in WP(C) No. 6271/2001 the Hon’ble Gauhati High Court has observed vide order dated 13.5.2002 as follows : “The object of settlement of markets and other things by an authority by way of tender or bid is to get maximum revenue. If the highest bidder is otherwise alright, he should not be thrown out due to hyper technicality.”
3. Thus, the market was settled in favour of Shri Bikash Bora, inspite of his non-compliance of the tender notice conditions. This order of settlement of the market in favour of Bikash Bora dated 4.7.2002 was set aside by the learned Single Judge on the ground that the tender notice condition has to be followed strictly for acceptance of a tender and the order of settlement of the market dated 27.6.2002 in favour of the petitioner Shri Dhiren Choudhury was maintained.
4. Aggrieved by the said order the present appeal in filed. It is submitted by the learned counsel for the appellant that non-submission of the documents alongwith the tender documents are mere technicalities which can be cured at a subsequent date and as such the settlement of the market in his favour was in accordance with law, whereas submission of the learned counsel for the respondent is that the submission of the certificates specified in the Notice inviting Tender are essential documents and the requirement thereof cannot be dispensed with in absence of overwhelming circumstance. It is an admitted fact that the appellant/ respondent submitted Loan Clearance Certificate from the Government and the Sales Tax Clearance Certificate issued in the name of his father and not his certificates. He also produced an affidavit sworn by his father standing as guarantor with 8 (eight) bighas of land. No document was produced by him to show that he was not in default anywhere. Clause 13 of the Notice Inviting Tender provides that the tenderer shall attach with the tender papers a copy of the Zamabandi of Khiraj Patta land which is free from all encumbrances ; and Land Revenue Clearance Certificate on the said land ; Loan Clearance Certificate from the Government; Income Tax Clearance Certificate, Sale Tax Clearance Certificate and a Bakijai Clearance Certificate, etc., from the Government financial institution including co-operative Society. The Loan Clearance Certificate from the Government and the Sale Tax Clearance Certificate, required to be submitted alowgwith the tender documents, have not been submitted by the appellant/respondent.
5. The question for adjudication before us is whether submission of these documents is mere formality or can be treated as an irregularity which will result in rejection of the tender. The learned counsel for the appellant has placed reliance on the judgment of the Division Bench of this Court in Md. Jabed Ali v. State of Assam and Ors., (2002) 2 GLR 636 wherein the court has permitted submission of the required documents within a week’s time and to rectify the defects of the tender, in the given facts and circumstances of that case. The court has specifically said that it was within the authority of the Municipality to reject the offer of the tenderer as irregular. But since there was ambiguity in regard to submission of documents along with the tender documents, which can be discerned by the court after application of mind, there is every possibility of the tenderer being misled in submission of the documents which are required to be submitted and instead thereof submit some other documents. Taking this view the court has given permission for submission of the correct document. This case cannot be read as a authority with the proposition that if the tender documents are not complete the defects can be cured at any juncture.
6. In the case of Monarch Infrastructure (P.) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and Ors., (2002) 5 SCC 287 the Municipal Corporation issued a Notice Inviting Tender for appointment of agents for collection of octroi. Five parties tendered their documents and papers. However, as a result of the interim order of the High Court the Municipal Corporation could not open the tenders on the date fixed. Meanwhile the State Government in exercise of the powers under Section 451 of the Bombay Provincial Municipal Corporation Act, 1949 deleted Clause 6(a) of the Tender Booklet. After deletion, the Commissioner awarded the contract in favour of the tenderer who at the time of submission of the tender did not satisfy the conditions under Clause 6(a). The order of allotment of the work was challenged in the High Court. The High Court set aside the order holding that fairness and equal treatment requires that the process should be carried out afresh to determine whether better or higher offer would be received upon deletion of the Clause 6(a). Upholding the judgment of the High Court the Apex Court has said that the High Court was justified in setting aside the award of contract as the tenderer at the time of submission of tender did not fulfil the conditions relating to Clause 6(a) of the tender notice. After the players entered into the arena the Corporation is not permitted to change the conditions of tender. It the Corporation is to adopt the changed criteria the only permissible course available to the Corporation was to call for fresh tender. In the same case while dealing with the case of one of the parties, namely, Ramchand Mahadeo Rao the Court found that he has not fulfilled one of the conditions to make offer, i.e., deposit of earnest money in the form of Crossed Demand Draft/Pay order or Cash alongwith other tender documents. The Apex Court observed that the conditions of the Notice Inviting Tender is that the same should be accompanied by a Crossed DD/Pay order or Cash and in no other form and thus for non-submission of the same the Corporation was justified in rejecting the tender offer made by him, as not fulfilling the conditions of the tender notice.
7. The aforesaid judgment of the Apex Court clearly lays down that the authority is justified in rejecting the tenders if they did not fulfil the conditions required for submission of the valid tender. It is not for the court to consider the rejection of tender if the conditions have not been fulfilled but it is the primary duty of the court to see that the Government or any other instrumentality of the State does not act arbitrarily in choosing any person it likes for entering into a relationship or to discriminate between the persons similarly situated. Fulfilment of the tender conditions by all the tenderers would ensure equality between the tenderers and deletion of any of the conditions in favour of any of the tenderers would result in discriminatory treatment amongst the tenderers, in fact, not only amongst the tenderers but to all other persons who would have also applied if they had known that such a relaxation would be permissible in consideration of the tender. The terms on which the tender has to be submitted has to be followed unless there are compelling reasons in which case the court may take a different view of the matter, but that depends on the factual scenario of each case. In the present case furnishing of Loan Clearance Certificate from the Government and Sales Tax Clearance Certificate is an essential condition for valid tender and in absence of the said certificates the tender of the appellant could not have been accepted.
8. For the reasons stated above, the appeal is dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.