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2014 DIGILAW 339 (GAU)

PURANA SONAI v. STATE OF ASSAM

2014-03-20

B.K.SHARMA

body2014
ORDER 1. The challenge in this writ petition is the Annexure-H order dated 04/03/2014 of the Government of Assam in the Fishery Department, issued under the signature of the Deputy Secretary. By the said order, the Fishery in question (165/166/167/168 Purana Sonai/Sola, Garanga/Sukhraj) Group Fisheries of Morigaon District has been settled with the respondent No. 4 at its bid value of Rs. 3,51,001/-. Earlier the fishery was settled with the petitioner vide order dated 02/04/2013, challenging which the present respondent No. 4 had approached this Court by filing WP(C) No. 2852/2013. In the writ petition, amongst others, following wee the grounds urged:- “1. As per the requirement of the NIT dated 22.11.2012, the tender document must accompany PAN card but the tender submitted by the respondent No. 4 did not accompany the PAN card. 2. The respondent No. 4 being not a Society consisting of 100% actual fisherman, the settlement could not have been made in its favour. 3. The President of the Society being a retired Government employee and receiving Government Pension cannot be said to be a fisherman. 4. Two other members of the respondent No. 4 Society being the owners of two grocery shops, they cannot be regarded as actual fisherman.” 2. Considering the materials on record and the arguments advanced by the learned counsel appearing for the parties, the writ petition was disposed of directing the authority to reconsider the matter and then to pass a speaking order. Pursuant to the said order, the impugned order dated 04/03/2014 having been passed, granting the settlement in favour of the respondent No. 4 reversing the earlier settlement made in favour of the petitioner, it has filed the instant writ petition challenging the said order. 3. I have heard Mr. A.C. Borbora, learned senior counsel assisted by Ms. M. Dutta, learned counsel for the petitioner and have also heard Mr. J. Handique, learned State Counsel, who has also produced the relevant records. I have also heard Mr. S.N. Sarma, learned senior counsel assisted by Mr. T. Islam, learned counsel representing the respondent No. 4. Additionally I have also perused the file in respect of the earlier round of litigation in the form of WP(C) No. 2852/2013. 4. Mr. A.C. Borbora, learned counsel for the petitioner has submitted that the impugned order being devoid of any reason is liable to be interfered with. T. Islam, learned counsel representing the respondent No. 4. Additionally I have also perused the file in respect of the earlier round of litigation in the form of WP(C) No. 2852/2013. 4. Mr. A.C. Borbora, learned counsel for the petitioner has submitted that the impugned order being devoid of any reason is liable to be interfered with. He further submits that the impugned order having been passed without considering the relevant materials, same is not sustainable in law. 5. Countering the above argument, Mr. J. Handique, learned State Counsel submits that the impugned order having been passed after remand of the matter by this Court, the same is required to be upheld. Mr. S.N. Sarma, learned counsel representing the respondent No. 4 submits that irrespective of the projections sought to be made by the petitioner in respect of the impugned order when the materials stare on the face of it towards sustaining the impugned order, this Court exercising writ jurisdiction will not interfere with the impugned order. 6. In the earlier round of litigation, this Court noticing the above quoted grounds urged in the writ petition, disposed of the same by remanding the matter back to the Govt. in the Fishery Department to pass appropriate order. Pursuant to the said order, the Govt. of Assam in the Fishery Department taking note of the aforesaid grounds urged in the writ petition, while reversing the earlier order of settlement made in favour of the writ petition, has made the settlement in favour of the respondent No.4. Since the order has been challenged on the ground of being non-speaking and also the grounds being not based on facts, this Court instead of remanding the matter once again back to the Government, decided to settle the issue once for all, on perusal of the relevant records including the records pertaining to the earlier round of litigation. 7. In the earlier writ petition being WP(C) No. 2852/2013, It was the specific plea of the respondent No. 4 as writ petitioner that the Chairman/President of the petitioner society Shri Ramnath Hira being a retired defence personnel and Govt. pensioner, could not have held the office of the Chairman of the petitioner society. It was further alleged that two of the members of the petitioner society, namely, Shri Ganashyam Hira and Lambudhar Hira being Grocery shop owners, could not have been actually fishermen by profession. pensioner, could not have held the office of the Chairman of the petitioner society. It was further alleged that two of the members of the petitioner society, namely, Shri Ganashyam Hira and Lambudhar Hira being Grocery shop owners, could not have been actually fishermen by profession. It will be pertinent to mention here that if these two issues are answered in favour of the respondent No.4, than the settlement cannot be made in favour of the petitioner. For a ready reference, the stand in the earlier writ petition in paragraphs 8, 9 and 12 are reproduced below:- “8. That the petitioner begs to state that on the day of the opening of the tender the petitioner society objected before the Tender Committee that the respondent No. 4 society was registered in the year 1971 as Sukhdol Sorubori Matchyajibi Samabai Smiti Ltd. and the said society defaulted in payment of government revenue in the year 1974 and 27 defaulting members of the said samiti constituted the respondent no. 4 society in the year 1977. It was also objected that the President of the respondent No. 4 society is a retired Constable General Duty (GD) of 49 Battalion of the Central Reserve Police Force (CRPF) receiving Government pension. It was further objected that Shri Ghanashyam Hira, son of Late Kerkutua Hira and Shri Lambodar Hira, who are members of the respondent No. 4 society had own grocery shop at their respective village and are not actual fishermen by profession. The Tender Committee however declined to redress any objection and asked the petitioner to submit appropriate objection before the settling authority. 9. That on 28-02-2013, the petitioner submitted a representation before the Hon’ble Minister, Fisheries, Assam, stating that the 1st and 3rd highest bidder namely, Ouguri Malputa Matchyajibi Samabai Samiti Ltd. and No. 129 Haria Dablong Meen Samabai Samity Ltd. are not in neighbourhood of the fishery in question and both the societies are 10 Kms and 30 Kms respectively away from the fishery in question. The President of the respondent No. 4 society, Shri Ramnath Hira is a retired defence personal and government pensioner. The President of the respondent No. 4 society, Shri Ramnath Hira is a retired defence personal and government pensioner. The respondent No. 4 soceity was registered in the year 1971 as Sukhdol Sorubori Matchyajibi Samabai Samti Ltd. and the said society defaulted in payment of government revenue in the year 1974 and the defaulting members of the said samiti constituted the respondent No. 4 society in the year 1977. It was also stated that there was an earlier litigation before this Hon’ble Court between the petitioner and the respondent No. 4 society, wherein this Hon’ble Court by an order dated 06-05-1996 passed in Civil Rule No. 3289 of 1995 held that the respondent No. 4 society is not constituted by actual fishermen. Such representation forwarded to the respondent No.1 for looking into the matter. 12. That the petitioner begs to state that the members of the respondent No. 4 society are not actual fishermen by profession and their main source of livelihood is not fishing. The President of the respondent No. 4 society, Shri Ram Nath Hira is not a fisherman by profession. He is a retired Constable (GD) in 49 Batalion of the Central Reserve Police Force. He joined as a Constable (GD) in 49 Battalion of the central Reserve Police Force way back in the year 1983-84 and retired from service on superannuation in the year 2006. He is receiving government pension. The fact that the President of the respondent No. 4 society, Shri Ram Nath Hira is a retired Constable of CRPF has been certified by the President of Tarabori Gaon Panchayat of Morigaon District. The petitioner society has also submitted an application before the Commandant, 49 Battalion of Central Reserve Police Force under the provisions of Right to Information Act, 2005 and the information has not been furnished as yet. The petitioner craves leave of this Hon’ble Court to produce the copy of the reply, if provided by the Commandant, 49 Battalion, CRPF at the time of hearing of this application.” (Emphasis added) 8. The writ petition was filed on 20/05/2013 and responding to the same, counter affidavits were filed by the official respondents and the private respondents i.e. the present writ petitioner. In the counter affidavit filed by the respondent No. 1 i.e. the Government of Assam in the Fishery Department, the aforesaid pleas raised in the writ petition had not been denied. The writ petition was filed on 20/05/2013 and responding to the same, counter affidavits were filed by the official respondents and the private respondents i.e. the present writ petitioner. In the counter affidavit filed by the respondent No. 1 i.e. the Government of Assam in the Fishery Department, the aforesaid pleas raised in the writ petition had not been denied. In the counter affidavit filed by the respondent No.3 i.e. the Deputy Commissioner, Morigaon, the pleas were dealt with, with the statement that as per the report of the District Fishery Development Officer, the said two members of the petitioner society, namely, Shri Ghanashyam Hira and Shri Lambodar Hira having grocery shop being managed by their family members. While dealing with the plea regarding Ramnath Hira, it was stated that he is a retired defence personnel. It was not denied that he was holding the office of the Chairman of the petitioner society. The present petitioner, who was respondent, in its affidavit, categorically denied that Shri Ramnath Hira was a Member/President of the petitioner society at any point of time. It was also pleaded that Shri Ramnath Hira was not a share holder of the petitioner society. For a ready reference, the stand of the petitioner society in the said affidavit (paragraph 7 and 7A) are reproduced below:- “7. That the statements made in paragraph 8 and 9 of the writ petition is emphatically denied by the deponent. It is stated that the said Sukhdol Sorubori Matchyajibi Samabai Samity Ltd. has no nexus with Respondent No. 4 society, which is entirely a distinct and different society form with 100% actual fishermen of neighbourhood of the fishery in question, nor any members of the said defunct society has been inducted in the Respondent No. 4 society. The deponent further denies that Ram Nath Heera had neither been a member nor President of the Respondent No. 4 society at any point of time. In this connection, it is very pertinent to mention that the Assistant Registrar of Cooperative Societies, Morigaon in his letter dated 19/07/2013 addressed to the Deputy Commissioner, Morigaon while submitting the para-wise comments in response to the instant writ petition has categorically stated that the so-called ‘Ram Nath Heera’ is not a share holder of the deponent society and besides that the area of operation of the petitioner society and the deponent society are not the same. It is further stated that like the 1st and 3rd highest bidders, the petitioner society is also not within the neighbourhood of the fishery in question. It is further stated that by the order dated 06/05/1996 passed in Civil Rule No. 3289/1995, this Hon’ble High Court did not conclusively decided the question of ‘source of livelihood’ rather at the concluding paragraph left it open before the authority to decide the question by appreciation of materials and factual position. However, the authorities in the cooperative Department accordingly enquired into the matter and upon appreciation of materials and factual position found that the members of the Respondent No. 4 society are 100% actual fishermen and certificate in that regard was also issued. 7(A) That, the deponent denies the correctness of the statements made in paragraphs 10, 11, 12 and 13 of the writ petition and states that the petitioner has made such illusory statements to empathize this Hon’ble Court. It is stated that the settling authority upon consideration of pros and cons and relevant records rightly allotted the fishery in question in favour of the Respondent 4 society constituted with 100% actual fishermen. It is stated that said Ram Nath Hira is neither a member nor President of the Respondent No. 4 Society. It is stated that the settlement order and other documents would clearly reveal that the settlement order has been issued in the name of the Respondent No. 4 society represented by its Secretary Shri Miniram Hira, who is 100% actual fisherman. As stated in the foregoing paragraph, the deponent denies that Shri Ghanashyam Hira and Lambodhar Hira, are running any grocery shop. The deponent further begs to state that for proper adjudication of facts involved in the writ petition, the Respondent No. 4 craves leave of this Hon’ble Court to call for status report from the Deputy Commissioner, Morigaon as regards members of Respondent No.4 society, their livelihood, location etc.” (Emphasis added) 9. As noted above, the writ petition was disposed of by order dated 23/01/2014. It was only during the course of hearing of the writ petition, a submission was made that said Shri Ramnath Hira had resigned from the membership of the society and the same was accepted vide resolution adopted in the meeting held on 27/12/2013, contrary to the categorical statement in the counter affidavit that he was never a member of the society. Subsequently, by filing a Misc. Application, the said date “27/12/2013” was prayed to be corrected as “27/12/2012”, which was allowed. 10. The above aspect of the matter is mentioned in view of the stand now taken in the present proceeding that the earlier Chairman of the petitioner society namely, Shri Ramnath Hira had tendered his resignation as Chairman of the petitioner society on 25/12/2012 and the same was accepted vide resolution adopted in the meeting held on 27/12/2012. Significantly, the purported proceeding of the meeting dated 27/12/2012 started at 1.00 p.m. and the last date of submission of tender was also the same date i.e. 27/12/2012 at 2.00 p.m. According to the petitioner with the adoption of the resolution in the proceeding of the meeting held on 27/12/2012 (proceeding started at 1.00 p.m.) the earlier Chairman/member of the society Shri Ramnath Hira ceased to be a member of the society and accordingly the tender was submitted before the closing time at 2.00 p.m. of the same date. Thus, according to the petitioner society, it submitted its tender without Shri Ramnath Hira being the Chairman/member of the society. 11. The instant writ petition was entertained by order dated 12/03/2014 with the following order:- “12.03.2014 When the matter was taken up at about 2.30 pm Mr. S.N. Sarma, learned senior counsel representing the respondent No. 4 submitted on the basis of the instructions received that the respondent No.4 has taken over possession of the fishery. However at this hour i.e. 4.25 pm Mr. A.C. Borbora, learned senior counsel for the petitioner submits that the respondent No. 4 has not taken over possession as per his instruction. Since the matter is going to be disposed of on the next date fixed, status quo existing as on today at 4.25 pm shall be maintained. One of the questions to be decided in this petition is as to whether the Chairman of the petitioner society who was a recipient of Govt. pension was a member of the Society as on the last date of submission of the tender, Mr. A.C. Borbora, learned counsel for the petitioner fairly submits that if he was a member of the said society on the last date of submission of tender, on the score alone the petitioner may not a case. List on 18.03.2014.” 12. pension was a member of the Society as on the last date of submission of the tender, Mr. A.C. Borbora, learned counsel for the petitioner fairly submits that if he was a member of the said society on the last date of submission of tender, on the score alone the petitioner may not a case. List on 18.03.2014.” 12. With the passing of the aforesaid order, the petitioner society has filed an additional affidavit on 18/03/2014 enclosing therewith the photocopy of the minutes of the meeting of the society purportedly held on 27/12/2012. Significantly, the said minutes also contain the seal and signature of the Assistant Registrar of Cooperative Society, Morigaon with the endorsement in Assamese (translated into English) “approved”. Such approval was accorded on 28/12/2012. On being asked about the original of the said resolution annexed to the additional affidavit (Photocopy), the learned counsel for the petitioner has produced the original proceeding book, of the society containing the said minutes. I have carefully gone through the originals of the minutes of the meeting purportedly held on 27/12/2012. It is found that the aforesaid purported endorsement of Assistant Registrar of Cooperative Societies with his seal dated 28/12/2012 is not available in the original. If the endorsement could appear in the photocopy of the original, naturally the original should have contained the endorsement. However, no such endorsement is available in the original proceeding book. 13. Being confronted with the aforesaid position, Mr. A.C. Borbora, learned counsel for the petitioner submits that the original proceeding book was not produced before the Assistant Registrar of Cooperative Societies and what was produced was the photocopy of the same, on the body of which the endorsement was made. Two things have emerged from this. Firstly, there is no endorsement of the Assistant Registrar of Cooperative Societies in the original proceeding book and secondly, if the submission made by the learned counsel for the petitioner is to be accepted, the Assistant Registrar had endorsed the proceeding on the basis of a photocopy of the proceeding produced before him, which is normally not acceptable in any official transaction. 14. If any endorsement is to be accorded by an official authority like the Assistant Registrar of Cooperative Societies, such endorsement will have to be on the body of the original proceeding book and not on the body of the photocopy of the said proceeding. 14. If any endorsement is to be accorded by an official authority like the Assistant Registrar of Cooperative Societies, such endorsement will have to be on the body of the original proceeding book and not on the body of the photocopy of the said proceeding. Even the purported original of the photocopy of the proceeding could not be produced by the petitioner. However, it is submitted that original photocopy of the original proceeding book was produced before the Assistant Registrar of Cooperative Societies and in all possibility, he has kept the same in his office providing another photocopy of to the petitioner. I am afraid such a submission made is not at all acceptable. There is room to believe that the aforesaid endorsement is the work of manipulation and secondly even if any such endorsement was there, the same could not have been on the basis of a photocopy of the original proceeding book. A photocopy of the original cannot be made use of unless the same is compared with the original. Even for attestation of any certificate, testimonials, mark-sheets etc., originals are always insisted and it is only on the basis of the comparison made with the original, attestation is allowed. In the instant case, the case sought to be projected is that the Assistant Registrar of Cooperative Societies made the endorsement on the body of the photocopy of the original proceeding which is not at all acceptable. 15. Mr. S.N. Sarma, learned counsel representing the respondent No. 4 has drawn my attention to Section 45 of the Assam Cooperative Societies Act, 2007, so as to emphasis that upon adoption of any resolution etc. in a proceeding of a society, the original proceeding book is required to be sent to the Registrar of Cooperative Societies for approval etc. However, Mr. A.C. Borbora, learned counsel for the petitioner submits that the said provision is not applicable to the proceeding in question as the same was a proceeding of the Executive Committee of the Cooperative Society and not a proceeding of the General meeting of that society. 16. Mr. A.C. Borbora, learned counsel for the petitioner further submits that irrespective of the above position, the fact of the matter is that the society in its executive meeting adopted the resolution dated 27/12/2012, accepting the resignation tendered by Shri Ramnath Hira, the said position will hold the field. 16. Mr. A.C. Borbora, learned counsel for the petitioner further submits that irrespective of the above position, the fact of the matter is that the society in its executive meeting adopted the resolution dated 27/12/2012, accepting the resignation tendered by Shri Ramnath Hira, the said position will hold the field. According to him, the proceeding of the Executive Committee meeting of the society held on 27/12/2012 is admissible in evidence. However, the said submission does not answer the above question as to why in the original proceeding book, the purported endorsement of the Assistant Registrar of Cooperative Societies dated 28/12/2012 is not available and why the endorsement is only on the photocopy of the said original resolution. 17. The above position will have to be appreciated in reference to the stand of the petitioner society in its affidavit filed in the earlier round of litigation. The affidavit-in-opposition filed in WP(C) No. 2852/2013 was much after the aforesaid purported resolution dated 27/12/2012. To be precise, the petitioner, who was the respondent No. 4, filed the counter affidavit on 20/09/2013 nearly one year after the purported resolution. If the said resolution was in existence, that was a very good ground for the petitioner society to agitate in the said round of litigation, but instead the stand taken was that Shri Ramnath Hira was never a member of the society. Further, as noted above, it was only during the course of hearing, a submission was made that he ceased to be member w.e.f. 27/12/2013 (later on corrected as 27/12/2012). 18. Above apart, even assuming that the purported resolution was adopted but keeping it in the file without communication to the concerned authorities is of no consequence. It is not the case of the petitioner that the resolution was sent to the authorities. The same was not even annexed to the tender submitted for appraisal about change of Chairman of the society. As in the case of internal notings in official files without communication cannot be made use of, and inconsequential, the purported resolution also cannot be projected by the petitioner to develop its case. 19. This now leads us to the second question as to whether two of members of the petitioner’s society are running grocery shop. As in the case of internal notings in official files without communication cannot be made use of, and inconsequential, the purported resolution also cannot be projected by the petitioner to develop its case. 19. This now leads us to the second question as to whether two of members of the petitioner’s society are running grocery shop. It is an admitted position that two of the members named above, are owners of grocery shops, a fact which was corroborated in the affidavit filed by the ADC, Morigaon. However, the only plea taken was that the grocery shops are being run by the family members and the members themselves are not engaged in running the grocery shops. The fact remains that 2 of the members of the petitioner’s society are owners of grocery shops and thus could not have become members of the petitioner’s society, so as to identify as 100% actual fishermen society. 20. Above apart, it is also an admitted position that while submitting tender documents, the petitioner also could not furnish the PAN card as required as per the terms and conditions of the NIT. However, it is the stand of the petitioner that the PAN card was applied for and the said fact was made known to the authority and that PAN card was also later on provided to the authority. According to the petitioner, the requirement of submission of PAN card is not an essential condition of tender and at best a curable defect. 21. In the additional affidavit filed by the petitioner dated 18/03/2014, which is after entertaining the writ petition on 12/03/2014, the petitioner has annexed a certificate dated 15/03/2014 purportedly issued by the Assistant Registrar of Cooperative Societies certifying receipt of the resolution dated 27/12/2012, discussed above on 27/12/2012 at 1.30 p.m. It is really surprising that the Assistant Registrar of Cooperative Societies could remember the date and time of receipt of the resolution dated 27/12/2012 on 15/3/2014, which incidentally after filing of the writ petition and passing of the aforesaid order. There is room to believe that the Assistant Registrar of Cooperative Societies, Morigaon is not acting bonafide. It will be pertinent to mention here that the submission made by Mr. There is room to believe that the Assistant Registrar of Cooperative Societies, Morigaon is not acting bonafide. It will be pertinent to mention here that the submission made by Mr. Sarma, learned counsel for respondent No. 4 that even if the photocopy of the resolution dated 27/12/2012 along with the endorsement is believed to be valid and accepted, then also on the date of submission of tender on 27/12/2012, the earlier Chairman/member of the cooperative society Shri Ramnath Hira was very much a member of the society as his resignation accepted by the society was approved only on 28/12/2012. 22. Above apart on perusal of the tenders submitted by the petitioners society through its Secretary Shri Moniram Hira, it appears that the said tender is not supported by names and addresses of the witnesses unlike others whose tenders are supported by such witnesses. The names and addresses of the witnesses are insisted upon, firstly to testify the signature of the tenderer and secondly to support the datas submitted in the tender papers. However, in case of the petitioner’s tender, there is no names, signatures and addresses of the witnesses. 23. For all the aforesaid reasons, I am not inclined to interfere with the impugned and accordingly the writ petition is dismissed, without however, any order as to costs. Interim order dated 12/03/2014 operating in this proceeding stands vacated.