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2011 DIGILAW 169 (GAU)

Shujata Barman v. State of Assam

2011-03-01

A.C.UPADHYAY, AMITAVA ROY

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 05.01.2011 passed by a learned single Judge of this Court in WP(C) No. 4915 of 2010, whereby the settlement order dated 11.08.2010 of Sunduba-Pabakati fishery passed by the Managing Director, Assam Fisheries Development Corporation (AFDC), Respondent No. 4 was set aside and the Respondent-Corporation was directed to issue fresh Notice Inviting Tender (for short hereinafter as NIT) for settlement of the fishery in question and to settle the same in accordance with law on or before 31.03.2011. 2. We have heard Mr. GN Sahewala, learned Senior counsel assisted by Mr. S Banik, learned Counsel for the Appellant, Mr. PS Deka, learned Government Advocate, representing the State Respondents, Dr. B Ahmed, learned Standing Counsel, AFDC and Mr. FKR Ahmed, learned Counsel, with Mr. MK Hussain, learned Counsel, appearing on behalf of the writ Petitioner/Respondent No. 5. 3. Few basic facts leading to the presentation of the writ petition as well as filing of this writ appeal may be noted as follows: In response to the NIT dated 18.02.2008, issued by the Respondent No. 4 i.e. the Managing Director, AFDC, for settlement of 43/44 No. Shunduba-Pabakati Fishery (for short the 'fishery') of Morigaon District, the husband of the Appellant participated in the said tender process. Having emerged as the highest bidder, eventually, at the intervention of the High Court, the fishery, in question, was settled with the husband of the Appellant for the period of 2008-09 to 31.03.2015, fixing yearly revenue at Rs.1,63,000/- (rupees one lakh and sixty three thousand). During the subsistence of the lease the husband of the Appellant had represented before the authorities for remission of revenue. On 13.04.2010 Respondent No. 4, the Corporation issued a letter addressed to the husband of the Appellant to pay a sum of Rs.2,54,961/- (rupees two lakhs fifty four thousand and nine hundred sixty one), being the requisite revenue for the financial year 2009-10, failing which it was indicated that steps for cancellation of the settlement, would be initiated. The husband of the Appellant moved this Court by filing a writ petition being WP(C) No. 2734 of 2010, which was disposed of vide order dated 14.05.2010, directing the Respondent authorities to consider the representation of the husband of the Appellant. The husband of the Appellant moved this Court by filing a writ petition being WP(C) No. 2734 of 2010, which was disposed of vide order dated 14.05.2010, directing the Respondent authorities to consider the representation of the husband of the Appellant. In response to the above direction the Respondent-Corporation issued a letter dated 20.05.2010 to the husband of the Appellant to renew the agreement for the financial year 2010-11, proposing to take appropriate steps on his failure to comply. However, shortly thereafter i.e. on 04.06.2010 the husband of the Appellant expired. The writ Petitioner, Respondent No. 5 herein, by filing writ petition being WP(C) No. 4915 of 2010 challenged the aforesaid order of settlement of the fishery made by the Respondent-Corporation with the Appellant, wherein and whereunder the impugned order came to be passed by the learned single Judge, giving rise to this appeal. 4. Learned Counsel for the Appellant contended that the husband of the Appellant as a settlement holder of the fishery in question was not a defaulter in making payment of government revenue, but he died suddenly on 04.06.2010, during the subsistence of the settlement of the fishery. In the circumstance, the Respondent-Corporation, considering the predicament of the Appellant with two minor children to raise and her commitment to pay the balance amount within 30(thirty) days from the execution of the agreement, coupled with the fact that the writ Petitioner/Respondent No. 5 had no locus to pray for settlement on being the 2nd highest bidder of a tender process, concluded in the year 2008 and on humanitarian considerations, allowed the Appellant, a member of the Scheduled Caste community, to run the fishery. 5. Learned Counsel for the writ Petitioner/Respondent No. 5, however, submitted that after the death of the settlement holder, the settlement came to an end, therefore, the impugned order of settlement without issuance of NIT in favour of the Appellant is illegal in the eye of law. 6. Dr. B Ahmed, learned Counsel, representing Respondent No. 4-AFDC, submitted that since the settlement holder expired during the subsisting of the lease, the Respondent Corporation, considering the readiness and willingness of the widow of the settlement holder to manage the fishery and to pay the revenue, had allowed her to manage the fishery for the remaining period granted to the husband of the Appellant. However, on a pointed query made by us, Dr. However, on a pointed query made by us, Dr. Ahmed, learned Counsel for the Respondent No. 5 could not substantiate and authenticate the procedure, rule or guidelines of allotment followed by the Respondent-Corporation in giving settlement of the fishery in question to the Appellant, who was a widow of the settlement holder of the fishery. 7. The question, which arose for consideration before the learned single Judge, was as to whether the decision of the Respondent-Corporation to settle the fishery in favour of the wife of the deceased settlement holder either on humanitarian consideration or on compassionate ground, is vitiated? 8. Learned single Judge having discussed the circumstances leading to the settlement of the fishery to the Appellant, held that on the death of the settlement holder, the order of settlement stood cancelled and consequently the agreement entered between the parties i.e. the husband of the Respondent No. 5 and the Corporation ceased to exist. Learned single Judge also observed that the Respondent-Corporation was required to issue fresh NIT for settlement of the said fishery, which had not been done and instead, the Appellant was allowed to manage the fishery, which was not legally permissible in the facts and circumstances of the case. The operative portions of the direction issued by the learned single Judge read as follows: Since on the death of the settlement holder i.e. the husband of Respondent No. 5 the order or settlement ceased to exist so also the agreement between the parties, the Respondent Corporation was required to issue fresh NIT for settlement of the said fishery which has not been done and instead allowed to manage the said fishery by the widow, which cannot be done in law. That being the position the impugned order dated 11.8.2008 is set aside. The Respondent corporation is directed to issue the NIT for settlement of the fishery in question and settle the same in accordance with law. The said exercise is directed to be completed by 31.3.2011. The Respondent Corporation is at liberty to make interim arrangement till the fishery is settled as directed and with the time allowed. The Respondent Corporation may also consider the refund of the amount deposited by the Respondent No. 5. The writ petition is accordingly allowed as indicated above. No cost. 9. Mr. The Respondent Corporation is at liberty to make interim arrangement till the fishery is settled as directed and with the time allowed. The Respondent Corporation may also consider the refund of the amount deposited by the Respondent No. 5. The writ petition is accordingly allowed as indicated above. No cost. 9. Mr. Sahewala, learned senior counsel for the Appellant drawing the attention of this Court to the agreement signed between the husband of the Appellant and the Respondent corporation submitted that in terms of Clause 41 of the agreement, the first party and second party referred to in the agreement, would also include any authorized person. Therefore, the wife of the Appellant being the legal representative of the deceased settlement holder, can be treated as the authorized person of the settlement holder in terms of Clause 41 of the agreement. 10. In our opinion, even if we liberally interpret Clause 41 of the Agreement, it would not be possible to extend the status of authorized person to the wife of the deceased settlement holder, since Clause 41 can include only those authorized persons, who must have been authorized by the settlement holder during his life time. There is no reference of legal representative to be among the authorized person of the settlement holder in terms of the agreement. Therefore, we are of the view that the proposition sought to be projected to interpret the status of the Appellant wife, as the authorized person of the deceased settlement holder, in terms of Clause 41 of the agreement, is not acceptable. 11. On careful evaluation of the rival contentions advanced by the learned Counsel for the Appellant as well as the Respondents, we are of the considered view that the settlement of the fishery in question ought to have been made by issuing the NIT in terms of the prescribed procedure. The Respondents authority could not have made a departure from the existing system of settlement of fishery on compassionate ground in the absence of rules or guidelines prescribed in that regard. It cannot be forgotten by the Respondent-department that Article 14 of the Constitution of India prohibits the Government from choosing a contractor/supplier at its will and pleasure. The Respondent-Corporation will have to be fair, reasonable and transparent in all its dealings and activities. It cannot be forgotten by the Respondent-department that Article 14 of the Constitution of India prohibits the Government from choosing a contractor/supplier at its will and pleasure. The Respondent-Corporation will have to be fair, reasonable and transparent in all its dealings and activities. As a matter of fact, fairness, reasonableness and transparency in State's action are the foundations of the democratic procedure, which is also the backbone of fundamental rights. The Respondent-Corporation cannot act like a private individual. It should act according to certain established healthy norms and standards. Therefore, the action of the Respondent-Corporation, in offering the settlement of fishery to the Appellant, is apparently arbitrary, irrational and discriminatory, which cannot be allowed to continue. 12. The action of the Respondent-Corporation, in offering the settlement of fishery to the Appellant, for being the wife of the deceased settlement holder, in the absence of rules, guidelines or law permitting it, is violative of Article 14 of the Constitution of India. 13. In view of the above discussions, we do not find any ground to assail the impugned order passed by the learned single Judge. Accordingly, the writ appeal filed by the Appellant stands dismissed. 14. However, there shall be no order as to costs. Appeal dismissed.