GUTUNG VETTALI FISHERY CO-OPERATIVE SOCIETY LTD v. STATE OF ASSAM
2018-05-18
A.K.GOSWAMI
body2018
DigiLaw.ai
JUDGMENT AND ORDER : 1. Heard Mr. S. Banik, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned State counsel, appearing for the respondent Nos.1 to 5 in both the writ petitions. 2. The petitioner is a registered Fishery Co-operative Society. The Additional Deputy Commissioner cum In-charge Sub-Divisional Officer, Dhakuakhana had invited a Notice Inviting Tender (NIT) dated 01.02.2018 for settlement of No.40 Sela Charikoria Meen Mahal indicating that the selected tenderer would be granted settlement for a period of 3 (three) years. A Corrigendum dated 02.03.2018 was issued by the Additional Deputy Commissioner cum In-charge Sub-Divisional Officer, Dhakuakhana incorporating additional terms and conditions and the last date of submission of tenders, fixed on 05.03.2018, was re-fixed on 12.03.2018. 3. 4 (four) tenderers participated in the tender process and the petitioner emerged as the second highest tenderer. It is pleaded that though the petitioner had submitted a certificate demonstrating that it is a 100% fishermen Co-operative Society, it was wrongly indicated in the Comparative Statement that the same was not submitted. It is averred that the bid of the highest tenderer being invalid, it having no valid registration, the petitioner is the valid highest tenderer. 4. A WT Message dated 09.04.2018 was issued by the Joint Secretary to the Government of Assam, Fishery Department addressed to the Additional Deputy Commissioner cum In-charge Sub-Divisional Officer, Dhakuakhana Sub-Division to cancel the earlier NIT dated 01.02.2018 on the ground that the NIT was issued for a period of 3 (three) years. It was stated in the said WT Message dated 09.04.2018 that in view of amendment of Rule 50 of the Assam Fishery Rules, 1953 (for short, "1953 Rules") vide Government Notification No.Fish 2/2000/171 dated 31.03.2018 (ought to have been 31.03.2005) , the period of lease of registered fisheries is to extend up to a maximum period of 7 (seven) years and the NIT issued was not in conformity with the said Rule, as amended. 5. WP (C) No.2645/2018 was filed challenging the aforesaid WT Message dated 09.04.2018 and praying for a direction to the respondents to take the NIT dated 01.02.2018 to its logical end. WP (C) No.2696/2018 was filed challenging the tender notice dated 13.04.2018 issued by the Additional Deputy Commissioner cum In-charge Sub-Divisional Officer, Dhakuakhana inviting fresh tenders for settlement of No.40 Sela Charikoria Meen Mahal. 6.
WP (C) No.2696/2018 was filed challenging the tender notice dated 13.04.2018 issued by the Additional Deputy Commissioner cum In-charge Sub-Divisional Officer, Dhakuakhana inviting fresh tenders for settlement of No.40 Sela Charikoria Meen Mahal. 6. At this juncture, it may be stated that in WP (C) No.2696/2018, when Mr. T.C. Chutia, learned State counsel had prayed for taking up the case on 11.05.2018, an interim order was passed on 03.05.2018 providing that the petitioner may participate in the tender process without prejudice to its contentions advanced in the writ petition. It was also provided that the tenders received pursuant to the tender notice dated 13.04.2018 shall not be opened till 11.05.2018. On 11.05.2018, the case was adjourned, on the request of the learned State counsel, to 18.05.2018, in presence of the learned counsel for the petitioner and the interim order passed earlier was continue till then. 7. It is brought to the notice of the Court that the tenders had been opened subsequently on 15.05.2018, which, according to Mr. Banik, is in violation of the order of this Court. 8. On a query of the Court, Mr. Banik submits that he is not aware as to whether the second order of this Court dated 11.05.2018 was brought to the notice of the respondents. 9. A stay order passed by a Court is to be communicated to the authorities and unless the same is brought to the notice of the authorities, it cannot be said that an order of the Court is violated. 10. Mr. Banik has submitted that the impugned WT Message dated 09.04.2018 is not sustainable in law inasmuch as having regard to the provision for extension in Rule 8 (b) of the 1953 Rules, an order of settlement has to be necessarily for less than 7 (seven) years. 11. Rule 50 of the 1953 Rules, as it stands today, provides that the right of fishing in registered fisheries shall extend up to a maximum of 7 (seven) years subject to fulfillment of the conditions enumerated from Clauses (a) to (g) . The language in the provision is clear and unambiguous to the effect that right of fishing can extend to 7 (seven) years.
The language in the provision is clear and unambiguous to the effect that right of fishing can extend to 7 (seven) years. This right of fishing, in the first place, has to be conferred by a known process of distribution of state largess and as is seen in the instant case, NIT was issued for the purpose of settlement to enable the selected tenderer to exercise the right of fishing. An NIT cannot be issued inviting tenders for conferring right of fishing by way of settlement, having regard to the provision contained in Rule 50 of the 1953 Rules, for a period of more than 7 (seven) years. The power to grant extension to the original order of settlement subject to fulfillment of conditions as indicated in Rule 8 (b) is on a separate footing altogether. It cannot be countenanced that though power is provided in Rule 50 for grant of right of fishing for 7 (seven) years, the original settlement order has to be for a period less than the aforesaid period so as to accommodate extension, if any, granted. 12. Admittedly, the NIT dated 01.02.2018 limited the period of settlement to 3 (three) years and as the Government had taken a view that it should be in consonance with Rule 50 and that settlement should be offered for a period of 7 (seven) years, it cannot be said that the WT Message dated 09.04.2018 was issued arbitrarily or in violation of the 1953 Rules. The NIT dated 13.04.2018 is challenged on the ground that the same was issued pursuant to the WT Message dated 09.04.2018, which itself was not legally sustainable. When the WT Message is held to be valid, necessarily, as a logical corollary, challenge to the NIT dated 13.04.2018 must fail. 13. In view of the aforesaid discussions, I find no merit in these writ petitions and accordingly, the same are dismissed. No cost.