High Court
Case Details
WP(C) 138/2013 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT & ORDER(CAV)
Legal Reasoning
No. 25/28/103/104 - Dhipujijan / Garanga Garsag / Malia Group of fisheries was s ettled by order dated 14.12.2012 in favour of Katahguri Matshajibi Samabhai Samm itte Ltd. and the said settlement has been challenged before this Court through two writ petitions. One writ petition being WP(C) No. 138/2013 has been filed by Sri Santosh Barman, President of No. 5 Sanai, Nadi, Part-III, Fishery Co-operat ive Society Limited, Morigaon and the other being WP(C) No. 328/2013 has been fi led by No. 11 Part-V Kallong Nadi Anchalik Meen Samabay Samity Ltd. Since both t he writ petitions are based on common facts and with respect to same settlement order they are taken-up together for hearing. 2.
Decision
WP(C) No. 328/2013 was admitted on 30.04.2013. In the said case the writ petitioner claimed to be a registered Cooperative Society of actual fisherman b elonging to schedule caste community residing in the neighbourhood of No. 11 Par t-V Kallong Nadi Fishery in the district of Morigaon. According to the writ peti tioner, the society is eligible and suitable for settlement of fishery in questi on by way of direct settlement under proviso to Rule 12 of the Assam Fishery Rul es inasmuch as it is a registered Cooperative Society formed by actual fishermen by occupation and they are residents of the neighbourhood of the fishery in que stion. It is the case of the writ petitioner that an NIT was issued on 15.09.201 2 by the Deputy Commissioner, Morigaon inviting tenders from intending bidders f or settlement of all the 60% fisheries of Morigaon district stating that sealed tenders would be received till 2 p.m. of 12.10.2012 in the office of the Deputy Commissioner and settlement would be made on the basis of the conditions mention ed in the NIT. The petitioners claimed to have submitted tenders alongwith other similarly situated persons and upon opening of the bids it was found that he wa s the 9th highest bidder among all the tenderers. According to the petitioner al l the 8 bidders above him were ineligible for some or other reasons and accordin gly the writ petitioner being the 9th bidder was entitled to be settled with the fishery but the Government by Order dated 14.12.2012 settled the same with the Private Respondent No. 4 (Kataguri Meen Samabai Samitee Ltd.) which is the third highest bidder as per the comparative statement. The petitioner has stated that the said respondent No.4 is ineligible because his certificate of fishing exper ience / actual fisherman certificate was issued by Mayong Development Block & Co -operative Sub-Register Office and not from the office of the Fishery Developmen t Officer as required in the NIT and the law holding the field. It is urged that ’Area Person Certificate’ issued by the Sonapur Circle Officer is invalid as th e said officer has no authority to issue such certificate inasmuch as the fisher y in question falls within the jurisdiction of Chandrapur and not Mayong Circle Office. In paragraph 15 of the writ petition the petitioner has laid down as man y as 6 grounds of objection against the settlement of the respondent No. 4 and t he same are as follows: a) The certificate of fishing experience / Actual Fisher Man Certificate having been issued by Mayong Development Block & Co-operative Sub- Register Office and not from Fishery Development Officer as required under the NIT and the law, the same is invalid; b) That the tender was submitted by one Kandulal Mandal in person on his behalf and not by the Kataguri Meen Samabai Samittee Ltd. and as such the settlement or der is bad; c) The caste certificate was issued to said Kandulal Mandal only and not for all the members of the Society; d) That the certificate issued by Fishery Extension Officer in favour of Kandula l Mandal cannot be construed to be a certificate for all the members of the Soci ety; e) That Bakijai Clearance Certificate furnished by the respondent No. 4 was also in the name of said Kandulal Mandal and not in favour of the respondent No. 4 S ociety; f) And that the comparative statement prepared by the Tender Committee shows tha t respondent No. 4 did not furnish the Pan Card as they had only applied for it. The respondent No. 4 has submitted an affidavit and in the affidavit swo 3. rn by said Kandulal Mandal the averments of the writ petitioner have been denied . It is stated that in paragraph 11 of the affidavit-in-opposition that the Cert ificate of fishing experience and the Actual Fisherman Certificate was issued by the competent authority, namely, the Office of the District Fishery Development Officer, Morigaon. So far as the objection referred to above and in paragraph 1 5 of the writ petition are concerned the respondent No. 4 denied the same as wel l and claimed that respondent No. 4 had submitted all certificates and other doc uments issued by the competent authority and these documents are in conformity w ith the requirements of the conditions of NIT and hence the allegation that the tender of respondent No. 4 was incomplete was not correct. 4. By filing an affidavit-in-reply the Secretary of the writ petitioner Soc iety reiterated and reaffirmed their stand made in the writ petition and denied the averments made in the affidavit-in-opposition of the respondent No. 4. The G overnment who is the settling authority did not file any affidavit-in-opposition . 5. In WP(C) No. 138/2013 the case of the writ petitioner was that they are the highest bidders and that its tender was complete in all respects and that is why in the comparative statement prepared by the Tender Committee and signed by the Deputy Commissioner, Morigaon as Chairman it was shown that the writ petiti oner submitted all the certificates. The comparative statement prepared by the T ender Committee at Annexure-1 of this writ petition bears testimony to the claim made by the writ petitioner. But in the impugned order dated 14.12.2012 the Com missioner & Secretary to the Government of Assam in the department of Fisheries mentioned that his tender papers were not complete. However, the said order does not contain recital as to how the tender papers were not complete, whereas the comparative statement prepared by the tender committee which is annexed to the w rit petition clearly shows that the petitioner had furnished all the documents. The case of the writ petitioner was, therefore, simple to the extent that he bei ng the highest eligible bidder, the government should have settled the contract in his favour and not in favour of 9th bidder thereby causing huge loss to the g overnment exchequer. It was shown that the petitioner submitted bid for Rs. 11,5 1,205/- whereas the respondent No. 4 submitted bid for only Rs. 9,99,999/- and t hus there was apparently a loss to the Government revenue because of the impugne d order. Writ petitioner, therefore, prayed for setting aside the said settlemen t order and claimed to be settled with the fishery. Private Respondent was imple aded as respondent No. 5 in this writ petition and he filed an affidavit-in-oppo sition. In paragraph 5 of the affidavit-in-opposition, the respondent No. 5 clai med that there were three Bakijai cases pending against the writ petitioner befo re Additional Deputy Commissioner, Bakijai, Morigaon for non-payment of Rs. 77,6 55/- for the year 1976-77 against which an amount of Rs. 66,206/- was still pend ing and the same was subject matter of Bakijai Case No. 55/77-78. The respondent No. 4 also stated that there are two other Bakijai cases pending against the wr it petitioner Society and thus the writ petitioner is ineligible. As against the said affidavit the writ petitioner has submitted an affidavit-in-reply and in t he said affidavit-in-reply it has been stated at paragraph 5 that the aforesaid Bakijai proceedings in Bakijai Case No. BC 54/77-78 had been dropped by the Addi tional Deputy Commissioner and Circle Officer, Morigaon on 19.04.2013 and that n o other amount was pending. The writ petitioner also mentioned therein that Baki jai Clearance Certificate was issued in his favour on 08.08.2013 consequent to d ropping of the Bakijia case. 6. The Government did not file any affidavit in either of the two writ peti tions but the learned counsel for the petitioner Mr. B.J. Ghosh has produced the case records at the time of hearing. 7. I have heard Mr. G.N. Sahewalla, learned senior counsel assisted by Md. Aslam and Mrs. S.S. Bawri for the writ petitioner in WP(C) No. 328/13 and Mr. D. P. Borah, learned counsel for petitioner in WP(C) No. 138/2013. Mr. D.K. Sarmah has appeared and argued in both the cases on behalf of the Private Respondent (K atahguri Meen Samabay Samiti). I have also heard Mr. B.J. Ghosh, learned Governm ent Advocate. 8. Mr. B.J. Ghosh, learned Government Advocate, has strenuously urged on be half of the Government and defended the settlement order challenged by the two w rit petitioners. Showing the original records, Mr. B.J. Ghosh submits that the r espondent No. 4 produced the actual fishermen certificate issued by District Fis hery Development Officer and as such the contention of the writ petitioner in WP (C) No. 328/2013 that the said certificate was issued by incompetent person is b aseless. The learned counsel has also taken me through the records and showed th at Assistant Registrar, Co-operative Society issued certificate in favour of M/s . Katahguri Meen Samabay Samiti certifying that it is in the neighbourhood of th e fishery in question and thus all the three ingredients of settlement laid down in proviso to Rule 12 of the Assam Fishery and Rules have been satisfied in the present case. Undoubtedly respondent No. 4 in WP(C) No. 328/2013 is a registere d Cooperative Society, that the said society is certified to be constituted by 1 00% actual fisherman belonging to schedule caste and that it is situated in the neighbourhood of the fishery in question. The settlement order of the private re spondent, therefore, is perfectly in tune with the provisions of law. The learne d counsel relied on a judgment of the Hon’ble Supreme Court in the case of Bagho puri M.M. Samabai Samiti v. State of Assam reported in 1999(2) GLT (SC) 7 in thi s regard. Challenging the eligibility of writ petitioners in WP(C) No. 138/2013 the learned counsel showed the tender papers and argued that the certificate iss ued in favour of the said Society bears signature of President of Burdubatap Gao n Panchayat. The certificate of fishing is also issued by the same authority and thus the said certificates are not acceptable inasmuch as certificates should b e issued either by District Fishery Development Officer or by the Assistant Regi strar of Co-operative Society. However, on being specifically asked as to whethe r any rule or guideline has been issued by the government specifying as to who w ould be competent to issue such certificates and/or whether the same was specifi ed in the NIT, the learned Government Advocate fairly answered in the negative. So far as the writ petitioner in WP(C) No. 138/2013 is concerned, the learned Go vernment Advocate could not explain as to why the Tender Committee found that th e said writ petitioner had furnished all the required documents. Impugned order shows that the tender paper was incomplete. However, learned Government Advocate submitted that the Tender Committee had no authority to prepare any comparative statement but it is the Government who is to prepare the statement. The tender papers are forwarded by the Deputy Commissioner to the Government and thereupon the decision is taken. He has also showed from record that a comparative stateme nt was prepared by the Government and in the said comparative statement the Gove rnment found that the writ petitioner in WP(C) No. 138/2013 did not furnish neig hbourhood certificate. So, once the first bidder was ineligible for not furnishi ng all the required papers the next eligible person being the third bidder was s ettled with the fishery. However, the said comparative statement stated to have been prepared by the Government is a mere sheet of paper and does not contain an y seal or signature showing as to who had prepared the same. Even it does not in dicate the constitution of the select committee. On the other hand the comparati ve statement annexed by the writ petitioner in WP(C) No. 138/2013 shows the name s of the persons who are members of the Tender Committee and it also appears to have been signed by them including the Deputy Commissioner. Mr. D.K. Sarmah, on the other hand has submitted that even if the first highest bidder is otherwise eligible and is considered to have submitted all the documents as observed in th e comparative statement prepared by the Tender Committee even then he is not eli gible for being settled with the fishery in view of the fact that he was admitte dly a defaulter on the date of settlement. The affidavit-in-reply filed by the s aid writ petitioner had been used by the respondent No. 4 to negate the petition er’s case to the effect that the Bakijai case was dropped only on 19.04.2013 whe reas settlement order was issued on 14.12.2012. The learned counsel has drawn my attention to Clause-’Kha’ of the NIT which requires production of certificate b y the office of the District Deputy Commissioner certifying a bidder to be free from Bakijai proceeding. It is stated that it is a necessary qualification for e ligible bidder and as such on this additional ground itself the bid of the first highest bidder is liable to be rejected. 9. After hearing all the learned counsel and the learned counsel for the pa rties and the learned Government Advocate, I find that the NIT is silent as to w ho should issue certificate of actual fisherman. None of the parties could show any rule, executive instruction or office memorandum as to who should be conside red as competent authority for certifying the status of the member of a Fishery Co-operative Society and as such none of the bidders can be held to be ineligibl e for non-furnishing of these certificates. But admittedly highest bidder cannot be held to be eligible for two reasons, namely, first, it was a defaulter as on the date of submitting tender as well as on the date of settlement in view of p endency of Bakijai proceeding before ADC, Morigaon and secondly it did not produ ce any neighbourhood certificate. Although the NIT does not require submission o f neighbourhood certificate yet essential criteria laid down under proviso to Ru le 12 of the Assam Fishery Rules require that a Co-operative Society of an actua l fishermen of the neighbourhood is only eligible and as such the same is deemed to be an essential document. Once the first highest bidder is found to be ineli gible then the question comes as to whether the third highest bidder, namely, th e Private Respondent herein is eligible or not. It is true that records produced by the learned Government Advocate do not support the contention of the writ pe titioner in WP(C) No. 328/2013 as the actual fishermen certificates of the respo ndent No. 4 of the said writ petition was issued by Fishery Extension Officer. T he first objection against the Private Respondent therefore, is found to be base less. The other objections of the writ petitioner in WP(C) No. 328/2013 is that the Private Respondent did not produce photocopy of the Pan Card. In this connec tion Mr. G.N. Sahewalla has placed reliance on a judgment of this court delivere d in the case of 151/152 Karmari Nandini Fishery Co-operative Society Ltd. & Anr . v. State of Assam delivered on 06.08.2013. In the NIT of the said case also fu rnishing of photocopy of the Pan Card was required. It appears, an argument was put forwarded in the said case that furnishing a photocopy of the Pan Card was n ot an essential requirement under the NIT but this Court did not accept the cont ention and the same is available in paragraph 18 of the said judgment. So it ema nates from the aforesaid judgment that requirement of Pan Card and neighbourhood certificates are necessary ingredients of the NIT and are not ancillary conditi ons. In that view of the matter, the Private Respondent also cannot be said to b e eligible inasmuch as admittedly no Pan Card was submitted by it. Under such ci rcumstances, settlement in his favour cannot be held to be valid. 10. Now, the writ petitioner in WP(C) No. 328/2013 is also stated to be inel igible in the impugned order on the ground that he did not furnish all the requi red documents. The learned Government Advocate drawing my attention to the compa rative statement prepared by the government argued that the writ petitioner in W P(C) No. 328/2013 did not produce the neighbourhood certificate which is an esse ntial criterion for settlement under proviso to Rule 12 of the Assam Panchayat R ules. In that view of the matter all the three stake holders, namely, the writ p etitioner in WP(C) No. 328/2013, the writ petitioner in WP(C) No. 138/2013 and t he private respondent are ineligible. The settlement order, therefore, is liable to be set aside and the government should issue fresh NIT for settlement of the fishery in question. 11. Consequently both the writ petitions are disposed of with the aforesaid observations. The settlement of Private Respondent vide order dated 14.12.2012 i s hereby set aside.