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2006 DIGILAW 451 (CAL)

JYOTIRMAY GUHA NEOGI v. STATE OF WEST BENGAL

2006-07-25

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

body2006
BHASKAR BHATACHARYA, J. ( 1 ) AN unsuccessful writ petitioner being dissatisfied with the order of the learned Single Judge dated 1st December, 2005 has preferred the present mandamus-appeal. ( 2 ) IN the writ application, the appellant challenged the decision of the respondent-authority in selecting the private-respondent as the successful bidder for the purpose of grant of lease of a large water area, notwithstanding the fact that the appellant was the highest bidder. ( 3 ) THE following facts are not in dispute: (a) The respondent No. 5 by his memo dated 17th November, 2003 invited tenders for the purpose of selection of a lessee for cultivating fish in a water area called 'nehali Beel' at mouza Hatia for the annual rental of rs. 1,10,502/-, inter alia, specifying that the tender paper would be sold on 2nd December, 2003 from 11 a. m. to 3 p. m. and the same should be submitted in his office on 3rd December, 2003 and the tender would be opened on the same day. (b) In compliance with the aforesaid memo dated 17th November, 2003, the appellant took a tender form and participated in the said process of tender by submitting the same on 3rd December. 2003. (c) There is no dispute that there were three applicants, namely. (1) Blue revolution Fishery who proposed to pay annually Rs. 1,15,000/-, (2)Raigang Refugee Fishermen's Co-operative Society Limited, the private respondent herein who offered Rs. 1,30,001/- and (3) Blue Revolution fishermen's Co-operative Society Limited, the one represented by the appellant who offered Rs. 1,61,000/ -. (d) In the past, the private-respondent No. 10 filed a writ application being W. P. No. 18997 (W) of 2003 in connection with the said process of tender where the present appellant was subsequently added. In the said writ application there was an ad interim order passed on 28th November. 2003 restraining the State-respondents from opening the said tender and as such, the process could not be completed in view of pendency of the said writ-application. Subsequently, on 17th December, 2004 the said interim order was vacated and ultimately, on 20th May, 2005 the said writ application was withdrawn by the private respondent. 2003 restraining the State-respondents from opening the said tender and as such, the process could not be completed in view of pendency of the said writ-application. Subsequently, on 17th December, 2004 the said interim order was vacated and ultimately, on 20th May, 2005 the said writ application was withdrawn by the private respondent. (e) At last, by the order impugned in the writ application, the respondent-authority has selected the private respondent for the said lease by a reasoned order pursuant to a direction given by this Court in an earlier writ application filed by the writ petitioner. (f) In the order impugned, the concerned officer has assigned three different reasons for selecting the private respondent. First, in view of the decision of the Directorate of Fishery, West Bengal dated 8th June, 2004 thereby taking a policy decision that 10 to 12 men's primary cooperative society should not be allowed to take part in any open tender for settlement of water bodies held by the Fishery Department as well as the Land and Land Reforms Department, the writ petitioner became disqualified. Secondly, it is stated that the concerned water area being a huge area of 61. 39 acres and the private respondent's society being formed by more than 1000 fishermen whereas the appellant's society being only 10/12- men association, it is desirable that the lease should be allotted to private respondent whose members are all fishermen by occupation. Thirdly, as per provision of Rule 272 of the West Bengal Land Reforms manual, 1991, if there is only one Primary Fishermen Co-operative society in the locality, the settlement should be made with the local functional society on the basis of the estimated rent determined and in such event, no tender need be invited and the private respondent having fallen within such category, even there was no necessity of floating a tender. ( 4 ) BEING dissatisfied, the appellant preferred a writ application before the learned Single Judge and it was contended that the respondent-authority erred in law in disqualifying the writ petitioner on the basis of a subsequent decision of the Directorate of Fishery, West Bengal, which was taken long after the tender was invited during its process of completion which could not be finalized as there was an interim order restraining the respondent-authority from opening the tender. ( 5 ) THE learned Single Judge by the order impugned herein has rejected such contention holding that the subsequent decision of the Directorate of fishery having disqualified the writ petitioner from participation, the respondent-authority did not commit any illegality in selecting the private respondent. ( 6 ) BEING dissatisfied, the writ petitioner has come up with the present mandamus appeal. ( 7 ) MR. Kedareswar Chakraborty, the learned Advocate, appearing on behalf of the appellant, has, at the very outset, contended before us that the subsequent decision of the Directorate of Fishery dated 8th June, 2004 cannot affect the eligibility of his client when the process of tender was initiated in the year 2003. According to Mr. Kedareswar Chakraborty, the respondent authority, thus, illegally excluded the candidature of his client from its consideration. In support of such contention, Mr. Kedareswar Chakraborty relies upon the following decisions : (i) Secretary, A. P. Public Service Commission vs. B. Swapna and Ors. , reported in 2005 SCC (L and S) 452. (ii) P. Mahendran and Ors. vs. State of Karnataka and Ors. , reported in 1990 scc (L and S) 163. (iii) Gopal Krushna Rath vs. M. A A Baig and Ors. , reported in 1999 SCC (L and S) 325. ( 8 ) MR. Tapabrata Chakrabory, the learned Counsel appearing on behalf of the private respondent, the successful bidder, has, however, opposed the aforesaid contention of Mr. Kedareswar Chakrabory and has contended that the concerned authority having considered not only the said subsequent policy-decision but also other factors and having selected his client as the most suitable bidder, the Writ Court should not interfere with such decision and accordingly, the learned Single Judge did not commit any illegality in refusing to interfere with the decision. Mr. Tapabrata Chakraborty further contends that in the case before us. the respondent-authority has also taken into account the fact that huge area of the water bodies was involved over which the tender was called and his client's Society was represented by more than 1000 members who are all fishermen by occupation. The respondent further took note of the fact that the appellant's Society consisted of only 10-12 members and with such small number of members it could not manage such large water bodies. Mr. The respondent further took note of the fact that the appellant's Society consisted of only 10-12 members and with such small number of members it could not manage such large water bodies. Mr. Chakraborty further contends that in the matter of tender, even the authority can take into consideration the changed situation as has been reflected in the decision of the Supreme Court in the case of State of U. P. and Ors. vs. Vijay Bahadur Singh, reported in AIR 1982 SC 1234 . Mr. Chakraborty further contends that by the subsequent notification, no vested right of the appellant has been taken away as a highest bidder in the process of tender cannot acquire a right to be selected. He, therefore, prays for dismissal of the appeal. ( 9 ) MR. Sen, the learned Counsel appearing on behalf of the State respondent, supported the private respondent and contended that the decision having been taken on the basis of various factors, this Court should not interfere with the discretion exercised by the respondent-authority. ( 10 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record including the decisions cited by the learned counsel for the parties, we agree with Mr. Kedareswar Chakraborty, the learned Advocate for the appellant that where a process of selection has started, by change of existing rule, the candidates cannot be disqualified. The process of selection should be completed on the basis of law as it stood at the time of commencement of the process. The decisions cited by Mr. Kedareswar Chakraborty support the aforesaid proposition but all those decisions related to the selection of the candidates for various posts in service of the State. However, in the field of tender, the said principle cannot be strictly made applicable, as pointed out by Supreme Court in the case of state of U. P. and Ore. vs. Vijay Bahadur Singh (supra) where the Apex Court held that even after the acceptance of the provisional bid, the Government is entitled to change its policy and reject the highest bidder. Thus, while selecting the most suitable person for giving contract (in the present case management of large water area for the purpose of pisciculture), the highest or the lowest bidder, as the case may be, as a matter of right cannot claim selection. Thus, while selecting the most suitable person for giving contract (in the present case management of large water area for the purpose of pisciculture), the highest or the lowest bidder, as the case may be, as a matter of right cannot claim selection. ( 11 ) EVEN if we assume for the sake of argument that the appellant ought not to have been totally excluded from consideration, it appears from the order impugned in the writ application that the authority had also taken into consideration the fact that the private respondent association consisted of more than 1000 members whose livelihood depended on pisciculture whereas the members of the appellant were 10-12 in number and their object is to run the business through their employees. It was pointed out that other participant namely, Loknath Fishery was managed by the wife of the present appellant and though it was second in the matter of bid, she did not appear at the time of opening of the bid. Therefore, the object of the petitioner was, at any rate, to run a business through engagement of different employed persons and for that purpose even gave a different bid through another society controlled by his wife whereas the private-respondent, the selected one, will themselves look after large water bodies as their livelihood and they are also the existing lessee. ( 12 ) AS regards the subsequent decision of the Director of Fishery, West bengal, to exclude Co-operative Societies consisting of 10-12 members from participating in these types of tender in our view, the said policy cannot be branded as mala fide only to exclude the appellant. That policy has been applied throughout the West Bengal and as such, we do not find any reason to exclude the operation of the said policy-decision to the facts of the present case when the work order has been definitely issued long after such decision was taken. ( 13 ) ON consideration of the entire materials on record, we are, thus, of the view that after taking into consideration all the factors including the livelihood of the members of the private-respondent, the respondent-authority most reasonably selected the private-respondent for the aforesaid lease. We have already indicated that the private-respondent is the existing lessee and they are managing the said water area for a long time and there is no allegation of mismanagement. We have already indicated that the private-respondent is the existing lessee and they are managing the said water area for a long time and there is no allegation of mismanagement. ( 14 ) WE, thus, find that this is a fit case where we should not interfere with the order passed by the learned Single Judge for the reasons disclosed by us above. This mandamus appeal is devoid of any substance and is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed.