Calcutta High Court (Appellete Side)
Masibul Hassan vs The State Of West Bengal And Others on 5 March, 2026
Author: Kausik Chanda
Bench: Kausik Chanda
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Kausik Chanda
W.P.A. No.1134 of 2026
with
IA No. C.A.N. 1 of 2026
MASIBUL HASSAN
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS
For the petitioner : Mr. P.S. Deb Barman, Adv.,
Mr. Srikanta Dutta, Adv.,
Ms. Debangana Dey, Adv.
[
For the State : Mr. Sirshendu Bandopadhyay, Adv.
For respondent nos.2 to 5 : Mr. Sunil Kumar Gupta, Adv.,
Mr. Hasibul, Adv.
For the applicant in IA No. : Mr. Mrityunjoy Chatterjee, Adv.,
C.A.N. 1 of 2026 Mr. Manas Das, Adv.,
Mrs. Suchismita Chakraborty, Adv.,
Mr. Arindam Poali, Adv.
Hearing concluded on : 12.02.2026
Judgment on : 05.03.2026
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Kausik Chanda, J.:-
The present writ petition raises questions touching upon the
formation of contracts in tender matters, the binding nature of tender
conditions, the doctrine of waiver in government contracts, and the
limits of judicial review under Article 226 of the Constitution of India in
matters arising out of contractual engagements with statutory
authorities.
2. The petitioner seeks to assail an e-auction notice dated January 6,
2026 issued by Murshidabad Zilla Parishad inviting bids for settlement
of Balia Shyampur Ferry Ghat for a period of three years. The grievance
of the petitioner is founded upon the assertion that, pursuant to an
earlier auction process initiated on October 3, 2024, a concluded and
binding contract had come into existence in his favour for a tenure of
three years commencing from December 19, 2024 and ending on
December 18, 2027. It is contended that the issuance of the impugned
auction notice during the subsistence of such alleged contractual tenure
is arbitrary, illegal, and violative of his vested contractual rights.
3. The factual backdrop, in brief, is that Murshidabad Zilla Parishad,
being a statutory body constituted under the West Bengal Panchayat
Act, 1973, issued an e-auction notice dated October 3, 2024 for
temporary settlement of the said ferry ghat for a period of three years.
The notice stipulated, inter alia, that the successful bidder would be
required to deposit the lease rent for the first year within a prescribed
period and to tender lease rent for the second and third years with an
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annual enhancement of 10%. It further mandated submission of a Bank
Guarantee commensurate with the lease rent agreed for the third year,
having a validity of two years and six months.
4. The petitioner participated in the auction and emerged as the
highest bidder by quoting Rs. 26,74,828/- for the first year,
substantially above the base rate. Thereafter, by a Letter of Acceptance
dated November 18, 2024, the petitioner was informed that his bid had
been accepted. The said letter required him to deposit the full value of
the first year’s lease rent within fifteen days, to execute an agreement on
non-judicial stamp paper, and to submit a Bank Guarantee of Rs.
32,36,540/- along with the agreement. The letter expressly stipulated
that failure to comply with the conditions would entail cancellation of
the auction and forfeiture of the earnest money.
5. The petitioner deposited the first year’s lease rent within time. He,
however, could not deposit the Bank Guarantee or execute the
agreement. Subsequently, by a communication dated December 20,
2024, the Zilla Parishad intimated that the ferry ghat had been
temporarily settled in his favour for a period of three years from
December 19, 2024 to December 18, 2027. The said communication
reiterated the requirement of immediate submission of the Bank
Guarantee. The execution of the agreement was, however, not insisted
upon.
6. It is an admitted position that the petitioner did not furnish the
Bank Guarantee as required. Instead, he addressed successive
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communications seeking extension of time to submit the same. On his
request, by a letter dated January 3, 2025 from the Zilla Parishad, time
was extended till March 19, 2025. Even within the extended period, the
petitioner failed to comply with the requirement. Thereafter, by a
communication dated April 23, 2025 from the Zilla Parishad, the tenure
of settlement was reduced to one year, i.e., up to December 18, 2025.
The petitioner continued in possession during the first year upon
payment of lease rent. After expiry of the said period, by a letter dated
January 2, 2026, a temporary extension up to January 31, 2026 was
granted to ensure continuity of ferry services. Eventually, the impugned
fresh auction notice dated January 6, 2026 was issued, giving rise to the
present writ petition.
7. The central question that falls for determination is whether, in the
facts of the case, a concluded contract for a period of three years had
come into existence between the petitioner and the Zilla Parishad.
8. It is well settled that an auction notice is merely an invitation to
offer. The bid submitted by a participant constitutes an offer, and
acceptance thereof by the authority may result in a binding contract,
provided such acceptance is absolute and unqualified. Section 7 of the
Indian Contract Act, 1872 mandates that, in order to convert a proposal
into a promise, the acceptance must be absolute and unqualified. If the
acceptance is conditional or subject to fulfilment of specified
stipulations, the contract remains inchoate until such conditions are
satisfied.
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9. In the present case, the Letter of Acceptance dated November 18,
2024 cannot be read in isolation. It expressly required not only deposit
of the first year’s lease rent but also execution of a formal agreement and
submission of a Bank Guarantee of a specified amount and duration.
The furnishing of the Bank Guarantee was not portrayed as a mere
procedural formality; rather, it was an integral financial safeguard
embedded in the tender conditions. The language employed in the Letter
of Acceptance makes it clear that non-compliance would result in
cancellation and forfeiture.
10. The subsequent communication dated December 20, 2024, while
mentioning settlement for three years, reiterated the necessity of
submitting the Bank Guarantee. The tenor of the documents indicates
that the settlement was conditional and subject to compliance with the
stipulated requirements. The mere mention of a three-year tenure
cannot override the explicit condition precedent.
11. The conduct of the petitioner assumes significance. On multiple
occasions, he sought extension of time to furnish the Bank Guarantee.
Such repeated requests demonstrate that he himself treated submission
of the Bank Guarantee as a mandatory obligation. A party cannot, after
acknowledging a contractual stipulation and seeking indulgence for non-
compliance, subsequently contend that the condition was either non-
essential or stood waived.
12. The doctrine of waiver, in the context of public contracts, demands
clear, conscious, and intentional relinquishment of a known right.
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Waiver cannot be lightly inferred against a statutory authority charged
with safeguarding public revenue. Extension of time to comply with a
condition cannot, by itself, constitute waiver of the condition. The
extension granted till March 19, 2025 was a concession; it did not
obliterate the obligation. When the petitioner failed to comply even
within the extended time, the Zilla Parishad curtailed the tenure to one
year. Such action is inconsistent with any intention to waive the
requirement.
13. The petitioner has argued that, since the tender conditions
specifically mentioned non-payment of lease rent as a ground for
cancellation but did not expressly state that failure to furnish the Bank
Guarantee would result in termination of the lease, the authority could
not rely upon such failure to curtail the tenure. This submission does
not merit acceptance. The requirement of the Bank Guarantee was
embedded in the tender conditions and reiterated in the Letter of
Acceptance dated November 18, 2024, which clearly stipulated that, in
the event of failure to submit the Bank Guarantee, the auction would be
treated as cancelled. A condition precedent, by its very nature, must be
fulfilled before rights crystallise.
14. The petitioner has also placed reliance on a judgment of the
Bombay High Court reported at (2001) 3 Mh. L.J. 415 (Cotton
Corporation of India Ltd., Bombay v. Alagappa Cotton Mills,
Rajapalayam). The said decision turned upon its own facts, where
acceptance was not conditional in the sense contemplated under Section
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7 of the Contract Act. In the present case, the acceptance was explicitly
conditional upon submission of the Bank Guarantee and execution of
the agreement. The ratio of the said decision is, therefore,
distinguishable.
15. The reduction of tenure to one year by communication dated April
23, 2025 was never challenged at the relevant point of time. The
petitioner acquiesced in such reduction and continued to operate the
ferry ghat during the curtailed tenure. The said tenure expired by efflux
of time on December 18, 2025. The subsequent extension was clearly in
the nature of a stop-gap arrangement to ensure that public utility
services were not disrupted pending fresh settlement. Such temporary
arrangements, dictated by administrative exigency, cannot ripen into
enforceable rights extending beyond their limited purpose.
16. It must be remembered that the ferry ghat is a public utility, and
the Zilla Parishad is entrusted with the responsibility of managing it in a
manner that protects public interest and revenue. The requirement of a
Bank Guarantee equivalent to the third year’s lease rent is a fiscal
safeguard. Courts exercising jurisdiction under Article 226 do not
ordinarily interfere with decisions relating to contractual matters unless
such decisions are vitiated by arbitrariness, mala fides, or violation of
statutory provisions. No material has been placed before this Court to
demonstrate that the impugned auction notice is actuated by mala fide
or that it is arbitrary in the Wednesbury sense.
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17. The petitioner’s claim ultimately rests upon the assertion of a
vested contractual right extending till December 18, 2027. For the
reasons discussed above, this Court is unable to hold that any such
vested right came into existence. At best, the petitioner had a provisional
and conditional arrangement which stood curtailed to one year and
thereafter expired. In the absence of a subsisting contractual right, the
challenge to the fresh auction notice cannot be sustained.
18. For all the aforesaid reasons, this Court holds that no concluded
contract for a period of three years came into existence between the
petitioner and Murshidabad Zilla Parishad owing to non-fulfilment of a
mandatory condition precedent, namely submission of the stipulated
Bank Guarantee. There was no waiver of such condition by the
authority. The impugned e-auction Notice dated January 6, 2026 does
not suffer from illegality or arbitrariness warranting interference in
exercise of writ jurisdiction.
19. By the time the writ was filed, the curtailed one-year tenure had
expired on December 18, 2025. The temporary extension dated January
31, 2026 was only to avoid disruption of public service. It has already
been observed that no three-year concluded contract had ever
crystallised between the parties. In the aforesaid facts, without a vested
contractual right, the petitioner has no enforceable claim to seek further
extension to submit the Bank Guarantee.
20. The petitioner’s prayer to allow him to deposit the Bank Guarantee
now and to extend the tenure for two more years cannot be accepted
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because conditions precedent must be fulfilled at the relevant time, not
at the convenience of the petitioner. Allowing post-expiry compliance
would violate tender equality and fairness, and it would amount to
rewriting the tender conditions.
21. C.A.N. 1 of 2026 is an application for the addition of a party on
behalf of a bidder in the fresh tender process initiated by the notice
dated January 6, 2026. In view of the discussion above, no order needs
to be passed in the said application.
22. W.P.A. No.1134 of 2026, along with IA No. C.A.N. 1 of 2026, is,
accordingly, dismissed. Interim order dated January 21, 2026, stands
vacated. In the facts and circumstances, there shall be no order as to
costs.
23. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(Kausik Chanda, J.)