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2020 DIGILAW 401 (GAU)

Purana Sonai/sola v. State Of Assam

2020-03-17

MANISH CHOUDHURY

body2020
JUDGMENT 1. Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. M. Das, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned Junior Government Advocate appearing for respondent nos. 1 to 7 and Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. T. Islam, learned counsel for respondent no. 9. None has, however, appeared for respondent no. 8. 2. The subject-matter of challenge in this writ petition, preferred under Article 226 of the Constitution of India , is an order of settlement dated 29.03.2018, whereby, No. 165/166/167/168 Purana/Sonai/Sola/Garanga/Sukhraj Fishery in Morigaon district (the Fishery, for short) has been settled with the respondent no. 9 society for a period of 7 (seven) years at its offered bid value of Rs. 7,51,000/- per annum with effect from the date of handing over the possession of the Fishery, subject to observance of all usual terms and conditions as laid down in the Assam Fishery Rules, 1953 (the Fishery Rules, for short). 3. Mr. K. N. Choudhury assailing the said order of settlement made in favour of respondent no. 9 society has submitted that the Fishery ought to have been settled with the petitioner society as the petitioner society was the 2 nd highest bidder which had offered its bid value at Rs. 7,52,000/- per annum. As the bid of the 1 st highest bidder was found invalid for a number of reasons it is but natural to settle the Fishery with the 2 nd highest bidder. All the documents required to be submitted for settlement of the Fishery, had been submitted by the petitioner society. Although 2 (two) of the certificates were not submitted initially but the same were submitted later on. Since submission of those 2 (two) certificates were duly acknowledged by the Deputy Commissioner, Morigaon who issued the NIT and were before the settling authority on the date of consideration of the bids, the same should have been considered for settlement. To deny the settlement in favour of the petitioner society, the settling authority had referred to an order of this Court passed in a writ petition, WP(C) No. 1068/2015 which is of no relevance and consequence at all. The settlement of the Fishery in question in favour of the respondent no. 9 society who was only the 3 rd highest bidder, has been assailed also on the ground that the respondent no. The settlement of the Fishery in question in favour of the respondent no. 9 society who was only the 3 rd highest bidder, has been assailed also on the ground that the respondent no. 9 society is not in the neighbourhood of the Fishery because in an enquiry conducted by the Deputy Commissioner, Morigaon it has been found that the respondent no. 9 society is at a distance of 7 (seven) kilometers from the Fishery whereas the same enquiry disclosed that the petitioner society is in the immediate neighbourhood of the Fishery. Thus, the order of settlement demonstrates sheer non-application of mind. 4. Mr. G. Pegu, learned Junior Government Advocate has opposed the submissions advanced on behalf of the petitioner. He submits that all the requisite documents, as mentioned in the NIT, had to be submitted along with the sealed bid on or before the last date and time fixed for submission of sealed bids. Any document submitted thereafter, could not have been considered and as such, the decision of the settling authority to settle the Fishery in favour of the respondent no. 9 society is not to be interfered with. 5. Mr. M. K. Choudhury has supported the submissions of the learned Junior Government Advocate. He has further submitted that the petitioner society is not comprised of 100% actual fishermen belonging to the Scheduled Castes community. Referring to instances cited in paragraph-4 in the affidavit-in-opposition filed on behalf of the respondent no. 9 society, he has submitted that the majority of the members of the petitioner society are not solely dependent on earnings derived from fishing. It is also submitted by him that the petitioner society had submitted the 2 (two) certificates, referred above, only on 23.01.2018 before the Deputy Commissioner, Morigaon thus, making its bid invalid. None of the aforesaid averments of the respondent no. 9 society made in its affidavit-in-opposition, has been controverted by the petitioner society. He further submits that pursuant to the impugned order of settlement, the respondent no. 9 society had taken possession of the Fishery on 11.04.2018 and when the writ petition was moved, this Court by order dated 18.05.2018 had rejected the prayer for interim order made on behalf of the petitioner society. With the difference in the bid values between the petitioner society and the respondent no. 9 society only Rs. 1,000/- per annum i.e. Rs. With the difference in the bid values between the petitioner society and the respondent no. 9 society only Rs. 1,000/- per annum i.e. Rs. 7,000/- for 7 (seven) years, no submission as regards loss of revenue to the State Exchequer is sustainable and no interference is called for at this stage. 6. The relevant facts sans the unnecessary details, for determination of the issue raised in this writ petition may be exposited first for a better comprehension. Both the petitioner society and the respondent no. 9 society claim that they are registered fishery cooperative societies, registered under the provisions of the Assam Registered Cooperative Societies Act, 2007 as amended. Both have stated that their members comprise of 100% actual fishermen belonging to the Scheduled Caste communities. 7. By a notice inviting tender (the NIT, for short) dated 19.12.2017, the Deputy Commissioner, Morigaon invited sealed bids for settlement of the Fishery for a period of 7 (seven) years from the order of settlement by the Government in the Fishery Department. The said NIT mentioned that the sealed bids would be received in the office of the Deputy Commissioner, Morigaon upto 2-00 p.m. on 08.01.2018. As per the terms and conditions of the NIT, a number of documents were required to be submitted along with the sealed bid. Included amongst them were a fishing experience certificate, a certificate of persons belonging to Scheduled Castes/Maimal community and a certificate of actual fishermen. The last date of submission of sealed bids was upto 2-00 p.m. on 08.01.2018 in the office of the Deputy Commissioner, Morigaon. 8. The case projected on behalf of the petitioner society is that it had submitted a bid quoting a bid value of Rs. 7,52,000/- per annum on the last date fixed. However, due to inadvertent omission, 2 (two) nos. of documents - the fishing experience certificate and the certificate of actual fishermen belonging to Scheduled Castes/Maimal community - could not be submitted along with the bid and were left out to be enclosed with the tender papers. Realizing about the omission, the petitioner society stated to have submitted the said 2 (two) documents before the Deputy Commissioner, Morigaon at a later date and those were duly received and accepted by the Deputy Commissioner, Morigaon. 9. Realizing about the omission, the petitioner society stated to have submitted the said 2 (two) documents before the Deputy Commissioner, Morigaon at a later date and those were duly received and accepted by the Deputy Commissioner, Morigaon. 9. After expiry of the time of submission of the bids, the bids were opened and after examination of the tender papers submitted by all the 4 (four) participating bidders, the Tender Committee prepared a comparative statement keeping in view the terms and conditions of the NIT dated 19.12.2017. The bid values submitted by the 4 (four) bidders were as under :- No. Name of the Bidder Cooperative Society Total Bid Value 1 M/s Purana Sonai/Sola/Goranga/Sukraha Matsyajibi S.S. Ltd. (Petitioner) Rs. 52,64,000/- 2 M/s Ouguri Katahguri Bhurbhanda Matsyajibi S.S. Ltd. Rs. 52,57,000/- 3 M/s Satgaon Jalgotha Matsyajibi S.S. Ltd. (Respondent no. 9) Rs. 52,57,000/- 4 M/s Oujari Malputa Matsyajibi Samabai Samiti Ltd. Rs. 56,35,007/- The Tender Committee besides mentioning the offered bid amounts, scrutinized the certificates directed to be enclosed with the bid as per clause no. 4 of the NIT and made their comments in respect of each of such certificates in the respective column in the comparative statement. The tender papers along with the comparative statement were thereafter, forwarded by the Deputy Commissioner, Morigaon to the State Government on 12.01.2018 for necessary action. 10. It transpires that one of the bidders, M/s Ouguri Katahguri Bhurbhanda Matsyajibi S.S. Ltd. had submitted a complaint before the State Government in respect of the settlement of the Fishery in question. Acting of the said complaint, the State Government desired to obtain a report in connection with the Fishery and the Deputy Commissioner was directed by communication dated 09.02.2018 to conduct an inquiry and to submit a report in respect of the 4 (four) bidder societies as regards on 2 (two) aspects, firstly, their status of neighbourhood with specific distance from the Fishery; and secondly, their status as to 100% actual fishermen belonging to Scheduled Castes/Maimal community covering all their members. The Deputy Commissioner submitted a report to the State Government on 27.02.2018 stating, inter-alia, that all the members of the 4 (four) societies are 100% actual fishermen. Some of the members of M/s Oujari Malputa Matsyajibi Samabai Samiti Ltd. are found engaged in other professions also. The Deputy Commissioner submitted a report to the State Government on 27.02.2018 stating, inter-alia, that all the members of the 4 (four) societies are 100% actual fishermen. Some of the members of M/s Oujari Malputa Matsyajibi Samabai Samiti Ltd. are found engaged in other professions also. In respect of the matter of neighborhood, it was reported by the Deputy Commissioner that the petitioner society is in the neighbourhood of the society while distance of the respondent no. 9 society from the Fishery is about 7 (seven) kilometers. The distances of the other 2 (two) bidder societies were also mentioned. Apart from reporting on the aspects what had been asked for by the State Government, the Deputy Commissioner, Morigaon in his report dated 27.02.2018, had further informed that the petitioner society had submitted a fishing experience certificate dated 25.01.2018 and terming the said fishing experience certificate to be valid, had forwarded the same to the Government. 11. The tender papers forwarded by the Deputy Commissioner, Morigaon in respect of the Fishery had been examined by the State Government in the Fishery Department and findings on each of the tender papers of the 4 (four) bidders had been recorded by the authority in the impugned order dated 29.03.2018. In respect of the 1 st highest bidder, M/s Oujari Malputa Matsyajibi Samabai Samiti Ltd., it was found that the said society did not submit the PAN Card, 100% actual fishermen certificate from the Assistant Registrar of Cooperative Society, Morigaon and the fishing experience certificate in the proper manner. In respect of the petitioner society, who was the 2 nd highest bidder, it was recorded that the society did not submit fishing experience certificate and the certificate from the Assistant Registrar of Cooperative Society about 100% actual fishermen belonging to Scheduled Castes/Maimal community, in compliance of the terms and conditions of the NIT. In respect of M/s Ouguri Katahguri Bhurbhanda Matsyajibi S.S. Ltd. who quoted the same value as that of the respondent no. 9 society, it was found that the PAN Card submitted by the said society was not in compliance with the terms and conditions contained in the NIT. The respondent no. 9 society was found to have furnished all the required documents in terms of the NIT and on the examination, they were found to be in order. 9 society, it was found that the PAN Card submitted by the said society was not in compliance with the terms and conditions contained in the NIT. The respondent no. 9 society was found to have furnished all the required documents in terms of the NIT and on the examination, they were found to be in order. The impugned order further reflects that a specific complaint was received at the end of the Government that the petitioner society did not submit an audited balance sheet and the fishing experience with the tender. 12. In the light of the above observations, it was held that the documents of the 1 st highest bidder were not valid and it was not in the neighbourhood. As regards the petitioner society, it was recorded that the petitioner society i.e. the 2 nd highest bidder did not submit all the required documents viz. audited balance sheet for the year 2016-2017 and the fishing experience certificate with the tender which were pre-conditions for acceptance of the bid. From the impugned order, it is further discerned that those 2 (two) documents were submitted by the petitioner society in valid forms at a subsequent date and the authority in the State Government had observed that the same were not acceptable. That apart, a reference was made of an order passed by this Court in a writ petition, W.P.(C) No. 1068/2015 wherein this Court stated to have observed that documents which were not submitted along with the tender documents could not be considered. Citing the said 2 (two) grounds, the bid of the petitioner society was not found acceptable. For the reason already indicated above, the bid of the M/s Ouguri Katahguri Bhurbhanda Matsyajibi S.S. Ltd. Was rejected. Resultantly, the bid of the respondent no. 9 society who was the 3 rd highest bidder had been accepted for settlement at its offered bide value of Rs. 7,51,000/- per annum i.e. Rs. 52,57,000/- for 7 (seven) years. 13. It is in the above factual matrix obtaining in the present case, the contentions raised on behalf of the petitioner Society are required to be examined. As has been indicated above, the impugned order dated 29.03.2018 has been assailed on 3 (three) grounds. The first contention is that the petitioner society had submitted all the documents required to be submitted in terms of the NIT. As has been indicated above, the impugned order dated 29.03.2018 has been assailed on 3 (three) grounds. The first contention is that the petitioner society had submitted all the documents required to be submitted in terms of the NIT. The 2 (two) documents inadvertently left out initially, had been submitted later on and the same were accepted by the Deputy Commissioner, who, in turn, forwarded the same to the settling authority in the State Government. The settling authority having received the same prior to making the order of settlement, could not have disregarded the same. Secondly, the resort to an order passed in the writ petition, W.P.(C) No. 1068/2015, demonstrates lack of application of mind. The other contention is that the respondent no. 9 society is found to be not in the neighbourhood of the Fishery. 14. The NIT dated 28.12.2017 itself indicates that the Fishery for which bids were invited, is a 60% category Fishery. The settlement of a 60% category fishery has been envisaged as per the proviso to Rule 12 of the Fishery Rules. As per Rule 12, except those referred to in sub-rule No. 8(b) of the Fishery Rules, all registered fisheries shall be settled under tender system of sale in place of sale auction. As per the said proviso to Rule 12, the Government shall settle a 60% category fishery with special category of cooperative societies, non- government Organizations and self help groups consisting of 100% actual fishermen in the neighbourhood of the Fishery. The definition of 'special category' has been provided in Explanation 1 thereto. Explanation 2 has provided that 'a 60% category fishery' means 60% of registered fisheries available in a Civil Sub-Division eligible for settlement in a particular year. Thus, it is very much evident that a 60% category fishery has to be settled by the tender system. Such settlement shall be made with the entities, mentioned specifically therein, in the neighbourhood of the fishery. The dominant objective and purpose of framing of the said proviso is to extend the privilege of settlement to the fishing population in the neighbourhood taking their socio-economic conditions into consideration. 15. It is the State Government who is the settling authority in respect of a 60% of category fishery. The dominant objective and purpose of framing of the said proviso is to extend the privilege of settlement to the fishing population in the neighbourhood taking their socio-economic conditions into consideration. 15. It is the State Government who is the settling authority in respect of a 60% of category fishery. The Deputy Commissioner, Morigaon in the instant case had published the NIT dated 28.12.2017 inviting sealed bids from the intending bidders along with the documents and information to be submitted before the time and date indicated therein i.e. upto 2-00 p.m. on 08.01.2018. The bidders had to submit their bids in sealed form enclosing all the documents indicated in the NIT on or before the time and date stipulated therein. As it is evident from above, the petitioner society did not submit 2 (two) of the documents viz. the fishing experience certificate and the certificate as regards 100% actual fishermen of its members belonging to Scheduled Castes/Maimal community. From the very wordings of the proviso of the rule 12, it is evident that the most essential requirement to be fulfilled by a bidder to be settled with a 60% category fishery is that 100% of its members are to be actual fishermen of the Scheduled Castes community or Maimal community. Thus, the submission of the certificate of 100% actual fishermen of Scheduled Castes community or Maimal community is one of the essential documents required to be submitted with the bid which was to be submitted in sealed form. It is no longer integra in view of the Division Bench decision in Khoraghat Gulihara Fishery Cooperative Society Ltd. vs. State of Assam and others, reported in (2014) 1 GLR 723 , that the fishing experience certificate and the certificate about 100% actual fishermen of Scheduled Castes/Maimal community undoubtedly fall within essential criteria for settlement of a 60% category fishery and non-submission of such documents renders the bid of a bidder society invalid. In view of such settled position of law, it cannot be held that at the time of submission of the bid, the bid of the petitioner society in the case in hand was a valid one. 16. It has been admitted by the petitioner society that it had submitted the above mentioned 2 (two) documents at a later point of time before the Deputy Commissioner, Morigaon. The categorical assertion made by the respondent no. 16. It has been admitted by the petitioner society that it had submitted the above mentioned 2 (two) documents at a later point of time before the Deputy Commissioner, Morigaon. The categorical assertion made by the respondent no. 9 in its affidavit-in- opposition that the petitioner society had submitted the 2 (two) certificates, referred above, only on 23.01.2018 before the Deputy Commissioner, Morigaon has not been traversed by the petitioner society by filing any affidavit-in-reply. The Deputy Commissioner of the concerned district not being the settling authority for a 60% category fishery, cannot be held to be authorized to receive documents which are required to be submitted in sealed form, after expiry of the last date of submission of bids. Any such acceptance of any essential document required to be submitted along with the sealed bid, after expiry of the last date of the submission of the bids and any consideration of such document subsequent thereto would also amount to denial of the benefit of privilege of participation to the those persons who had not submitted bids due to lack of possession of those essential documents prior to or on the last date of submission of bids as per the NIT under reference. The power of judicial review in respect of settlement entered into on behalf of the State primarily involves examination of the question whether there was any infirmity in the decision making process, and if such process is found reasonable, rational and not arbitrary the Court exercising the power under Article 226 does not interfere with such decision if the State and its instrumentalities are found to have adhered to the norms, standards and procedures laid down by them. If the decision making process is not found vitiated by unreasonableness, irrationality and arbitrariness, there is no scope for interference. 17. It is, however, noticed that the reference to an order of this Court rendered in a writ petition, W.P.(C) No. 1068/2015 (Abdur Rofique Khan vs. the Chief Information Commissioner and 4 others) is of no relevance. The petitioner society has enclosed a copy of an order dated 27.02.2015 (Annexure-10) passed in the said writ petition. By the said order, the writ petition was dismissed as not pressed as per the prayer made by the learned counsel for the petitioner with the liberty to file afresh. The petitioner society has enclosed a copy of an order dated 27.02.2015 (Annexure-10) passed in the said writ petition. By the said order, the writ petition was dismissed as not pressed as per the prayer made by the learned counsel for the petitioner with the liberty to file afresh. But irrelevance of the said order does not, in any way, come in the assistance of the petitioner society whose bid was invalid on the date of submission of the tender. In view of the invalidity of the bid of the petitioner Society which required no consideration for settlement by the settling authority on the date of consideration of the bids, the other contention raised on behalf of the petitioner as regards neighbourhood needs no dilation in the fact situation obtaining in the present case. 18. In view of the discussions and observations made above in relation to the competitive bidding process initiated by the NIT dated 28.12.2017 for the settlement of the Fishery in question, this Court finds no merit in the writ petition and accordingly, the same is dismissed. In the facts and circumstances of the case, there will be no order as to costs.