High Court
Case Details
WP(C) 1586/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) By way of this petition under Article 226 of the Constitution of India , petitioner seeks quashing of order dated 28.2.2013 passed by the Commissioner and Secretary to the Government of Assam, Fishery Department settling the Karha Pt-II fishery of Dhakuakhana Sub Division in the district of Lakhimpur with re spondent No.6. 2. rief narration of the relevant facts is considered necessary. Before examining the validity of the impugned order dated 28.2.2013, a b
Legal Reasoning
BACKGROUND FACTS A sale notice dated 3.6.2011 was issued by the Sub Divisional Officer, 3. Dhakuakhana on behalf of the State for settlement of Karha Pt-II fishery( fisher y). As per the terms and conditions of the sale notice, the tenderers should sub mit alongwith their tenders income tax clearance certificate, fishing experien ce certificate, caste certificate, bakijai clearance certificate etc. As per con dition No.2, the tenderers should be within the neighbourhood of the fishery. Th e fishery is a 60% category fishery, settlement of which is governed by the pr ovisions of the proviso to Rule 12 of the Assam Fishery Rules, 1953. 3. By order dated 27.9.2012 issued by the Secretary to the Government of A ssam, Fishery Department, the fishery was settled with the petitioner for a per iod of 7 years. In the said order, it was noted that the petitioner had offered the 2nd highest bid value of Rs.5,75,000.00 per annum and it had submitted the r equired documents for settlement of the fishery. In the comparative statement p repared by the Sub Divisional Officer( Civil), Dhakuakhana, it was mentioned as against the tender of the petitioner that it had submitted caste certificate i ssued by Fishery Officer. 4. The above settlement was challenged by respondent No.6 before this Court by filing WP( C) No.4696/2012. This Court by order dated 1.10.2012, while issui ng notice, stayed the operation of the settlement order dated 27.9.2012. Ultimat ely, by order dated 17.12.2012, a Single Bench of this Court quashed the settle ment order dated 27.9.2012 and remanded the matter back to the Government in the Fishery Department for fresh consideration. While quashing the settlement order , this Court noted that the tender submitted by the petitioner was defective i n view of non-submission of caste certificate from the appropriate authority. Ca ste certificate was submitted after the tender process was over. It was further noted that instead of income tax clearance certificate, petitioner had submitte d only an affidavit. The fishing experience certificate was also not from the competent authority. 5. Petitioner assailed the correctness of the above decision before the Div ision Bench by filing writ appeal, which was registered as Writ Appeal No.12/20 13. The Division Bench by order dated 23.1.2013 modified the order of the learne d Single Judge dated 17.12.2012 and directed that the settling authority while t aking a fresh decision should not exclude the bid of the petitioner from conside ration on the basis of the order passed by the learned Single Judge. 6. It has been brought on record that before passing of the aforesaid orde r dated 23.1.2013 by the Division Bench, the settling authority had passed an o rder on 21.1.2013 settling the fishery with respondent No.6 for a period of 7 ye ars. When the decision of the Division Bench was brought to the notice of the se ttling authority, fresh order dated 28.2.2013 was passed, which is impugned in t he present proceeding, whereby the previous order dated 21.1.2013 was upheld an d settlement of the fishery was granted in favour of respondent No.6.
Decision
7. Hence the writ petition. 8. Respondent Nos. 1 and 2 have filed a common affidavit. Stand taken is that the petitioner did not enclose the caste certificate alongwith the tender. Last date of submission of tender was on 20.6.2011 whereas petitioner submitted the caste certificate on 28.6.2011 i.e., after submission of the tender on 20. 6.2011. Therefore, tender of the petitioner was rejected. Since respondent No.6 society fulfilled all requirements, settlement was made in its favour. 9. Respondent No.6 has not filed any affidavit. 10. Heard Mr.S.S. Dey, learned counsel for the petitioner and Mr. M.Bhaga wati, learned Govt. Advocate, Assam. Also heard Mr.H.Sarma, learned counsel appe aring for respondent No.6. 11. Mr.Dey, learned counsel for the petitioner submits that the impugned order dated 28.2.2013 is ex facie illegal as the bid of the petitioner was not given due consideration as per order of the Division Bench dated 23.1.2013. Pet itioner had submitted the caste certificate of its members alongwith the tender. This fact would be borne out by the record as well as from the judgment of the learned Single Judge dated 17.12.2012 and from the order of the Division Bench dated 23.1.2013. Therefore, to say that the petitioner did not enclose the cas te certificate with the tender papers and that it had submitted the caste certi ficate subsequently would be a travesty of truth and on that basis, bid of the petitioner could not have been rejected. He submits that bid value of the peti tioner is much higher than the bid value of respondent No.6 and therefore, it wa s in the public interest that the bid of the petitioner ought to have been co nsidered. Settling authority also did not consider the aspect of neighbourhood which is a relevant factor for settlement under proviso to Rule 12 of the Assam Fishery Rules, but instead considered the criteria of area of operation, which is not a relevant factor. Impugned settlement therefore cannot be sustained and should be set aside. 12. Learned State Counsel while supporting the order of settlement, has pro duced the settlement record. He submits that there is no infirmity in the decis ion making process leading to issuance of the settlement order and therefore, n o interference is called for. Further submission made is that the settlement of the fishery has already seen a series of litigation and prolongation of such li tigation would certainly not either be in the interest of the parties or in the public interest. 13. Mr. Sarma, learned counsel for respondent No.6 has strenuously argued t hat since the tender of the petitioner was found to be defective for non-submiss ion of caste certificate, question of its bid being higher than the bid offered by respondent No.6 would be of no consequence. He submits that some free play in the joint has to be given to the settling authority in matters of settlemen t and if a broad view is taken, it would be evident that the respondent No.6’s s ettlement does not suffer from any major infirmity so as to call for judicial in terference. In support of his submissions, learned counsel for respondent No.6 has placed reliance on the following decisions :- (1) (2002) 6 SCC 315, Kanhaiyalal Agarwal vs. Union of India and Others ; (2) 2003(2) GLT 485,Bikash Bora vs. State of Assam and Ors.; (3) 2005(3) GLT 580, Benjamin Lalrinawma vs. State of Mizoram and Ors.; (4) (2012) 8 SCC 216, Michigan Rubber(India) Limited vs. State of Karnataka and Others ; and 14. I have heard learned counsel for the parties and have also perused th e record produced by learned Government Advocate. 15. A perusal of the settlement order dated 28.2.2013 would show that t he petitioner had offered Rs. 5,75,00.00 per annum, which is the 2nd highest bid . Bid of the first highest bidder was rejected for non-submission of call deposi t money, neighbourhood certificate and fishing experience certificate. In respec t of the petitioner, the settling authority recorded that it did not enclose the caste certificate alongwith the tender. Subsequently, by a petition dated 28.6 .2012, petitioner submitted the caste certificate after the last date of submiss ion of tender on 20.6.2011. It was on this ground that the bid of the petitione r was rejected. 16. In so far bid of respondent No.6 is concerned, it had offered Rs. 4,2 1, 101.00 per annum, which is the 5th highest bid. In between, the bid of the 3r d highest bidder and 4th highest bid were rejected on various grounds. In so far respondent No.6 is concerned, it is stated that as per the report of Sub Divisi onal Officer, the society is formed of 100% scheduled caste fishermen having ex perience of operating fishery in previous term and is within the area of opera tion. Impugned settlement order further says that respondent No.6 had submitted all required papers. 17. Coming first to the consideration of the bid of the petitioner, as no ticed above, it was rejected only on the ground that the caste certificate was n ot enclosed with the tender but was submitted subsequently much after the last d ate of submission of tender was over. At this stage, it would be relevant to r efer to the previous order of settlement dated 27.9.2012, where it was clearly s tated that the petitioner had submitted the required documents for settlement of the fishery. As already noticed, in the comparative statement prepared by the Sub Divisional Officer, it was noted as against the tender of the petitioner tha t it had submitted caste certificate issued by Fishery Officer. When the said o rder was put to challenge, this Court in the order dated 17.12.2012 noted from the record that tender submitted by the writ petitioner [respondent No.5 in WP( C) No.4696/2012] is defective in view of non-submission of caste certificate fr om the competent authority. The caste certificate submitted by the petitioner with the tender was issued by the (cid:28)Agriculture Department (cid:29) which is not the co mpetent authority. It was further noted that the petitioner subsequently submitt ed a caste certificate from the competent authority after the tender process wa s over. When the order of the learned Single Judge was put to challenge in Writ Appeal No.12/2013, the Division Bench recorded as under :- (cid:28)Learned counsel for the appellant submits that in the report relied upon in the impugned order, it is clearly mentioned that some people of the village in the neighbourhood of the Fishery in question are shareholders of the appellant socie ty. It is further mentioned that all shareholders belong to Scheduled Caste Fish ery Community and had experience from their childhood. In Column 10 of the compa rative statement, signed by the Sub-Divisional Officer (Civil), Dhakuakhana, it was mentioned that an affidavit in respect of Income Tax Clearance Certificate w as submitted by the appellant. These facts emerge from Annexure-E (page 50), Ann exure-G (Page 54) and Annexure-J (page 60). Learned counsel for respondent No.5 writ petitioners has not been able to disput e the same. In view of above, we modify the impugned order and direct that while taking fres h decision, the bid of the appellant may not be excluded from consideration on t he basis of the impugned order passed by the leaned Single Judge. (cid:29) 18. It was on the above basis which could not be disputed by the respo ndent No.6 that the Division Bench had modified the order of the learned Single Judge. 19. What, therefore, transpires is that the petitioner had submitted a c aste certificate alongwith the tender which was considered to be not from the ap propriate authority. However, the report of the Sub Divisional Officer mentioned that all share holders of the petitioner belonged to scheduled caste community and had fishing experience from their childhood. A perusal of the record woul d show that petitioner had submitted a fisherman experience certificate issued b y the Sub Divisional Fishery Development Officer, Dhakuakhana which certified th at members of the petitioner belonged to scheduled caste fishing community and have fishing experience. As per terms and conditions of the sale notice, the te nderers were required to submit a caste certificate. It did not indicate or spe cify that the caste certificate has to be from a particular authority. Authent icity of the caste certificate submitted by the petitioner has not been disput ed. What has been disputed is that such a certificate ought to have been obtaine d from a competent authority, thereby contending that the Sub Divisional Fisher y Development Officer is not the competent authority. Even if the subsequent ce rtificate is ignored, the authority could have relied upon the certificate submi tted alongwith the tender. 20. When the petitioner had submitted the caste certificate, if the author ity had any doubt or confusion, it could have called for necessary verification. Calling for a clarification or calling for a report from the competent authori ty to verify such a report would not have caused any prejudice to the public i nterest when admittedly the bid value of the petitioner is much higher than respondent No.6. 21. In such circumstances, Court is of the view that rejection of the bid of the petitioner on the above ground is not justified. 22. As rejection of the petitioner’s bid has been held to be not justif ied, discussion on the consideration of the bid of respondent No.6 may not be n ecessary, except for the reason that there is no finding by the settling author ity regarding neighbourhood of respondent No.6 to the fishery. It has been held that respondent No.6 is within the area of operation whereas as per condition of the sale notice as well as under the proviso to Rule 12 of the Assam Fishery Rules, the relevant factor to be taken into consideration is the neighbourhood of the fishery and not the area of operation. [ See Majorati Min Samabai Samity Ltd -vs- Sukhraj Min Samabai Samity Ltd.- 1998(1) GLT 405 ]. The settlement ord er does not indicate that the above aspect was present in the mind of the settli ng authority or that it was alive to the above requirement while making the sett lement. 23. In view of the discussions made above and the conclusions reached, de liberation on the judgments cited by learned counsel for respondent No.6 is con sidered not necessary. 24. Thus ,having regard to the above and taking an over all view of th e matter, impugned order dated 28.2.2013 is set aside and quashed. The settling authority shall now re-consider the settlement of the fishery strictly in accord ance with law within a period of 4(four) weeks from the date of receipt of a cer tified copy of this order. 25. Writ petition is accordingly allowed. However, there shall be no order as to cost. Settlement record produced is returned back.