Page No.# 1/10 GAHC010288782023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7486/2023 PANKAJ CHOUDHURY S/O- TRILOKYA CHOUDHURY, R/O- RUKMINIGAON, BYE LANE NO.- 7, HOUSE NO. 3, GUWAHATI, PIN- 781022. VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, TOURISM DEPARTMENT, GOVT. OF ASSAM, SACHIVALAYA, DISPUR, GUWAHATI- 781006, ASSAM. 2:THE ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN (4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 3:THE MANAGIND DIRECTOR ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN ( 4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 4:THE GENERAL MANAGER Page No.# 2/10 ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN ( 4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 5:THE TECHNICAL EVALUATION COMMITTEE REP. BY ITS CHAIRMAN ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN ( 4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 6:BIRINA TOURIST LODGE FATHEMABAD TEA ESTATE BAUSBARI PO BARANGABARI DISTRICT BAKSA BTAD PIN-78131 Advocate for the Petitioner : MR K K MAHANTA (Sr. Advocate), MR S GAUTAM,MS N BEGUM Advocate for the Respondent : GA, ASSAM, G TALUKDAR (R2-R5),MS N BEDI(R-2 TO 5),MR M KALITA (R-2 TO 5),MRS P BARUA(R-2 TO 5),MR. P K SARMA (r-2,3,4,5),MR. A BORPUZARI (r-2,3,4,5),MR. M MORE (r-2,3,4,5) BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER 17-06-2025 Heard Mr. KK Mahanta, learned senior counsel assisted by Mr. KM Mahanta, Page No.# 3/10 learned counsel for the petitioner. Also heard Ms. U Das, learned counsel for the respondent No. 1 as well as Ms. P Baruah, learned counsel for the respondent Nos. 2 to 5. None appears for the respondent No. 6. 2. The petitioner has prayed for setting aside the letter dated 01.11.2023 issued by the respondent No. 4, by which the petitioner’s review of the earlier cancellation notice dated 08.08.2023 had been rejected. 3. The petitioner’s case in brief is that in pursuance to the e-procurement notice vide Detail Notice Inviting Bid (QCBS) dated 03.08.2022, (hereinafter referred to as the “NIT”), for development, operation and management contract for running the newly constructed Panbari-Basbari Cluster at Manas National Park (hereinafter referred to as the “Cluster”), the petitioner had been issued letter of Intent dated 08.02.2023 at the annual lease rent of Rs.4,44,000/- plus GST. The petitioner submitted the Rs.4.44 lakhs by way of fixed deposit. However, prior to possession of the “Cluster” being given to the petitioner, a Show Cause Notice dated 24.07.2023 was issued to the petitioner, wherein the petitioner was informed that he was to submit a reply to the Show-Cause Notice, failing which his contract for running the “Cluster” would stand cancelled. The Show-Cause Notice dated 24.07.2023 was in respect of an agreement dated 15.01.2016 allegedly executed between the Birina Tourist Lodge and the petitioner, which the petitioner had used to prove that he had the experience in running a restaurant/hotel/guest house/resort. The said agreement showed that the Birina Tourist Lodge was the owner of the Birina Tourist Lodge and that a lease had been given to the petitioner to run the same. However, another document was submitted by the petitioner, i.e., a trade license, issued by the Chairman, 15 No. Bahbari VCDC, showing that the Page No.# 4/10 petitioner was the proprietor of the Birina Tourist Lodge. The above two documents had been submitted by the petitioner in respect of the present “Cluster” and in respect of a tender notice relating to running of Lakhi Bazar- Sumbagan-Bhuyapara Cluster pursuant to Detail Notice Inviting Bid (in short, ‘DNIB’) dated 07.11.2022. The petitioner was awarded the contract of running the above cluster on the basis of Letter of Intent dated 08.02.2023. 4. In the said Show Cause Notice dated 24.07.2023, the petitioner was informed that pursuant to the DNIB, the petitioner had submitted the agreement dated 15.01.2016 to prove his credentials pertaining to having experience in running a restaurant/hotel/guest house/resort having restaurant of F&B services, for a minimum period of three years. The agreement dated 15.01.2016 was shown to have been executed by the petitioner with Birina Tourist Lodge, wherein it had been specifically mentioned that the Birina Tourist Lodge was the absolute owner and possessor of Birina Tourist Lodge and the petitioner was not the owner or proprietor of Birina Tourist Lodge. However, the other document (Trade Licence) submitted by the petitioner, showed that the petitioner was the proprietor of Birina Tourist Lodge. The Show Cause Notice dated 24.07.2023 further stated that being suspicious with the contradiction in the contents of the above 2 documents, the Assam Tourism Development Corporation (in short, ‘ATDC’) wrote an e-Mail dated 02.05.2023 to Birina Tourist Lodge, with a request for confirmation as to whether the aforesaid agreement dated 15.01.2016 was duly executed. In reply, Birina Resort, vide e-Mail dated 05.05.2023, stated that they had not come to terms with any party and that the agreement was unlawful and void. The petitioner was accordingly asked to submit his reply to the Show Cause Notice dated 24.07.2023. Page No.# 5/10 5. Instead of replying to the Show Cause Notice dated 24.07.2023, the petitioner wrote a letter dated 07.08.2023 to the ATDC, stating that the allegations were false and not based on proper evidence and that he would prove his innocence in this regard with evidence. He accordingly requested that he be given two weeks’ time, as he was not in a mental position to work at the relevant time, due to his father’s poor health. 6. The petitioner not having made any reply on merit to the Show Cause Notice dated 24.07.2023, the ATDC issued cancellation notice dated 08.08.2023, cancelling the award of the contract for running the “Cluster”. The cancellation notice also stated that the fixed deposit of Rs.4,44,000/- and the amount of Rs.5,23,920/- deposited for development, operation and management of the Cluster stood forfeited. 7. The petitioner’s counsel submits that when the NIT had provided the procedure to be followed for selecting the successful tenderer and the petitioner’s documents had been scrutinized and had passed the bid evaluation stage, which resulted in the petitioner being awarded the contract for running the “Cluster”, it was the duty of the respondents to prove that the agreement dated 15.01.2016 and the trade license were fabricated. He also submits that there was violation of principles of natural justice, inasmuch as, the petitioner should have been given more time to make his reply to the Show Cause Notice. The same however was not done. He also submits that there was no sufficient material to prove that the documents submitted by the petitioners were false and as such, there was no ground for cancelling the contract for running the “Cluster”. He also submits that the Show-Cause was to inform him of the charges made against him. Instead, the respondents had concluded that the Page No.# 6/10 petitioner was guilty, thereby leaving no scope for the petitioner to bring out his side of story. 8. The petitioner’s counsel further submits that subsequent to the cancellation of the contract with the petitioner, the respondents have issued a fresh notice inviting tender dated 24.08.2023 (hereinafter referred to as the ‘fresh notice’) and extension notice dated 07.09.2023, which had extended the last date for submission of bid for running the “Cluster” up to 11.09.2023. He accordingly submits that the fresh notice dated 24.08.2023, the extension notice dated 07.09.2023 and the impugned letter dated 01.11.2023, cancelling the contract of the petitioner should be set aside. 9. Ms. P. Baruah, learned counsel for the respondent Nos. 2 to 5 submits that the petitioner had submitted the agreement dated 15.01.2016, allegedly executed between the Birina Tourist Lodge and the petitioner, which showed that the petitioner had been given the lease for running the Birina Tourist Lodge, w.e.f., 01.01.2016, for a period of 5 years. However, the petitioner also submitted a trade license dated NIL, issued by the Chairman, 15 No. Bahbari VCDC, which showed that the petitioner was the proprietor of Birina Tourist Lodge. Due to the discrepancy in the contents between the two documents, the Birina Tourist Lodge was asked as to whether they had executed the agreement dated 15.01.2016. The Birina Tourist Lodge replied vide e-Mail dated 05.05.2023, stating that no such agreement had been executed with the petitioner. 10. The counsel for the respondent Nos. 2 to 5 further submits that interestingly, the petitioner had not made Birina Tourist Lodge as a party to the Page No.# 7/10 writ petition and Birina Tourist Lodge was impleaded as a party in the writ petition only on 30.04.2024, vide I.A.(C) 1255/2024. However, they have failed to appear in this Court till date. She also submits that the petitioner has also not made any attempt to get any confirmatory letter or evidence from Birina Tourist Lodge till today, with regard to the validity of the agreement dated 15.01.2016. 11. The counsel for the respondent Nos. 2 to 5 submits that due to a typographical error, the performance security money as well as the annual lease rent for the “Cluster” was written as Rs.4,44,000/-, instead of Rs.53,28,000/-. This is clear from the NIT dated 03.08.2022, wherein it had been clearly shown that the reserve price for the “Cluster” was Rs.3.5 Lakh per month, while the petitioner’s bid was @Rs.4.44 Lakh per month. The petitioner’s bid being Rs4.44 Lakh per month, the petitioner should have paid Rs.53,28,000/- for 12 months and not Rs.4,44,000/-, which was a typographical error. Despite the petitioner being requested to deposit the balance performance security money of Rs.48,84,000/-, the petitioner has not done the same till date. She further submits that pursuant to the fresh notice dated 24.08.2023, M/s Monalisa Construction has been awarded the contract for running the “Cluster”, vide Letter of Intent dated 18.12.2024 for a period of three years. As such, as on date, M/s Monalisa Construction is still running the Cluster and the petitioner has not made M/s Monalisa Construction a party to the writ petition. 12. The counsel for the respondent Nos. 2 to 5 further submits that due to the petitioner having submitted false documents, the respondents have filed an FIR dated 25.05.2023, which has led to the registration of Paltanbazar P.S. Case No. 576/2023, being registered against the petitioner under Sections 420/468 of the IPC. She further submits that charge-sheet has been filed against the petitioner Page No.# 8/10 in Paltanbazar P.S. Case No. 576/2023. 13. As the petitioner’s bid contained a false document, there was no infirmity with the cancellation of the contract and the forfeiture of his bid security, as per Clause 10.5 of the terms and conditions of the NIT. 14. I have heard the learned counsels for the parties. 15. A perusal of the agreement dated 15.01.2016 shows that the lease agreement dated 15.01.2016 had been executed between Birina Tourist Lodge and Sri Pankaj Choudhury. However, Birina Tourist Lodge is not represented by anybody in the agreement. The extract of the deed of lease agreement dated 15.01.2016 is reproduced hereinbelow as follows:- “THIS DEED OF LEASE AGREEMENT is made on this the 15th day of January, 2016 at Guwahati- -BETWEEN- Birina Tourist Lodge, Fatemabad Tea Estate, Bausbari, Po-Barengabari, Dist- Baksa(BTAD) in the district of Baksa, Assam, hereinafter referred to as the FIRST PARTY/OWNER of the one part; (Which expression shall mean and include his legal heirs, executors, administrator and assigns) -AND- Sri Pankaj Choudhury, aged about 35 years, S/o. Trallokya Choudhury” 16. The reply by the Birina Tourist Lodge, vide e-mail dated 05.05.2023 to the request made by the ATDC, as to whether it had executed the agreement dated 15.01.2016, shows that the Birina Tourist Lodge has denied executing the agreement. 17. The above clearly shows that the petitioner would have to stand on his own legs and prove that the agreement had been executed between the Birina Page No.# 9/10 Tourist Lodge and the petitioner. However, the same has not been done by the petitioner. Another aspect of the matter is that the lease agreement shows that Birina Tourist Lodge to be the absolute owner of Birina Tourist Lodge. However, the trade license dated NIL, issued by the Chairman, 15 No. Bahbari VCDC, shows that the petitioner to be the proprietor of Birina Tourist Lodge. This apparent contradiction clearly shows that the petitioner has been blowing hot and cold, as both are his documents. Both the documents cannot be correct, inasmuch as, they are contradictory to one other. 18. With regard to the submission made by the learned counsel for the respondent Nos. 2 to 5 that the monthly rent payable by the petitioner was Rs.4,44,000/-, the same appears to be correct, inasmuch as, the reserve price of the ATDC for running the “Cluster” was Rs.3.5 Lakh per month. As such, the petitioner was to pay the annual lease rent of Rs.4,44,000/- X 12. The petitioner has used the lease agreement dated 15.01.2016 and the trade license in his bid documents, for being selected the successful tenderer not only in respect with the present case, but also in respect with the tender for the contract of running the other Cluster, i.e. Lakhi Bazar-Sumbagan-Bhuyapara Cluster. Thus, when the Birina Tourist Lodge has clarified that the agreement dated 15.01.2016 has not executed between them in respect of a clarification sought for in respect of the other tender, the answer given by Birina Tourist Lodge is naturally applicable to the present contract, as the same document had also been used by the petitioner in the present case. It is also noticed that in the charge-sheet submitted in Paltanbazar P.S. Case no.576/2023, a prima facie case under Section 420/468 IPC has been found against the petitioner. 19. The above being said, as M/s Monalisa Construction has been awarded the Page No.# 10/10 contract for running the “Cluster” for a period of three years, pursuant to the Letter of Intent dated 08.02.2023 and has not been made a party in the present case, the present writ petition suffers from non-joinder of necessary party. In any view of the matter, when Birina Tourist Lodge has taken a stand that they had not executed the lease agreement, nothing survives in this writ petition, inasmuch as, Clause 10.5 of the NIT provides that a bid can be rejected for “false or concealment or misrepresentation of facts in the bid”, besides the fact that fraud vitiates everything. However, the petitioner can always approach the Civil Court for redressal of his grievance, if he believes that the lease agreement was validly executed, vis-à-vis the trade license dated NIL, issued by the Chairman, 15 No. Bahbari VCDC. 20. In view of the reasons stated above, this Court does not find any merit in this writ petition. Accordingly, this writ petition is dismissed. J U D G E Comparing Assistant