High Court
Case Details
WA 112/2013 PRESENT HON’BLE THE CHIEF JUSTICE MR. A.K.GOEL HON’BLE MR JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER (CAV) (Ujjal Bhuyan,J.) This appeal is directed against the judgment and order dated 21.3.2013 p Relevant facts necessary for adjudication of the case are briefly set ou
Facts
assed by the learned Single Judge in WP(C) No. 297/2012. 2. t hereunder. 3. Matter relates to settlement of a fishery called Group No.1 Dhar Brahmap utra Fishery of Dhubri district (’Fishery’ hereafter). First appellant is a regi stered fishery cooperative society (appellant society) and the second appellant is its Secretary. Deputy Commissioner, Dhubri issued a Notice Inviting Tender (N IT) dated 16.12.2009 inviting sealed tenders from eligible parties for settlemen t of the fishery for a period of seven years. It was stated that the tenders wou ld be accepted till 2 p.m of 20.01.2010 and at 3 p.m of the same day, the tender s would be opened. As per Clause 4 of the NIT, the tenderers were required to su bmit alongwith the tenders, amongst other documents, the following:- (cid:28)(a) Fishing experience Certificate, (b) Bakijai clearance Certificate, (c)Scheduled Caste certificate/Maimal Community Certificate and certificate of actual fisherman, (d) Postal Order/Cheque/Bank Draft of Rs. 10/-, (e) Revenue deposit of 15% of the Government yearly value, (f) Society Registration Certificate, (g) Tax clearance Certificate, (h) Photo of the person authorized to submit tender on behalf of the society, (i) A copy of the Balance Sheet of the Society, (j) List of name, address and age of the members of the society. (cid:29)
Legal Reasoning
Holding that appellant society did not submit the essential certificates and, therefore, there was nothing wrong in the decision of the settling authori ty in not considering the tender of the appellant society on merit, learned Sing le Judge dismissed the writ petition. 21. We are in agreement with the views expressed by the learned Single Judge . As already noticed above, considering the requirement of Rule 12 of the Assam Fishery Rules, 1953 (as amended), and the nature of settlement, in our view, atl east three of the four documents not submitted by the appellant society alongwit h the tender fall within the category of essential qualification criteria. Membe rship list, 100% Scheduled Caste actual fishermen certificate and fishing experi ence certificate undoubtedly fall within essential qualification criteria. Non-s ubmission of such documents, therefore, rendered the tender of the appellant soc iety invalid. Reliance placed on Abu Talib (Supra) is misplaced inasmuch as in t hat case Bakijai clearance Certificate was not submitted, which was rightly held by this Court to be not an essential qualification criteria. 22. For the aforesaid reasons, we find no merit in the writ appeal, which is accordingly dismissed. 23. However, there shall be no order as to cost.
Arguments
4. In response to the said NIT, all together 7 parties submitted tender, in cluding appellant society and respondent No. 7 society (M/s Gauripur Cooperative Fishery Society Ltd.). Tenders were opened on 21.1.2010. 7(seven) tenderers had submitted tender. Bid offered by appellant society was Rs. 98,00,000/- which wa s the highest whereas bid offered by respondent No. 7 society was Rs. 23,94,707/ -, which was the 4th highest bid. Appellant society did not submit the list of members alongwith its tende 5. r. According to the appellant society, it had submitted an application dated 18. 1.2010 before the Assistant Registrar of Cooperative Societies, Dhubri for furni shing a copy of the list of its members, which was furnished to it only on 22.01 .2010. On that day itself, appellant society submitted a copy of the said list t o the Deputy Commissioner, Dhubri with a request to accept the same. 6. As the authority proceeded with the settlement process without consideri ng the document submitted on 22.01.2010, appellant society instituted WP(C) No. 872/2011 before this Court seeking a direction to the respondents not to reject the tender of the appellant society on the ground of non-submission of list of m embers alongwith the tender and to consider the tender of the appellant society on its own merit. Contention of the appellant society was that non-submission of the list of members along with the tender was a curable defect, which was cured when it was submitted immediately after opening of tenders. 7. This Court by the judgment and order dated 22.11.2011 took the view that the said writ petition was pre-mature as the settling authority was yet to take a decision. Settling authority was directed to proceed with the settlement proc ess by considering the tenders of all the tenderers in accordance with law and, thereafter, to pass necessary order of settlement. 8. Pursuant thereto, Secretary to the Government of Assam, Fishery Departme nt passed the order dated 26.12.2011 settling the fishery with respondent No. 7 society for 7 years at its bid value of Rs. 23,94,707/-. The above settlement order was put to challenge by the appellants in WP( 9. C) No. 297/2012. Two other unsuccessful tenderers had also filed two separate wr it petitions challenging the said order of settlement. All the three writ petiti ons were heard together by the learned Single Judge and by the common judgment a nd order dated 21.3.2013, all the three writ petitions were dismissed. Since the present appeal arises out of WP(C) No. 297/2012 filed by the appellants, the de liberation will be confined only to the discussions and findings of the learned Single Judge relating to the said writ petition. Heard Mr. M. Bhuyan, learned counsel for the appellants and Mr. B.J. Tal 10. ukdar, learned Govt. Advocate, Assam for the State respondents. Also heard Mr. M .K. Choudhury, learned senior counsel appearing for respondent No. 7. 11. Mr. Bhuyan, learned counsel for the appellants submits that the bid offe red by the appellant society was the highest. Therefore, it would have been in t he public interest to have considered the tender of the appellant society. Membe rship list could not be submitted along with the tender as it was belatedly furn ished by the Assistant Registrar of Cooperative Societies, over whom the appella nts had no control. Non-submission of membership list was a curable defect and i f such a defect was allowed to be cured, no prejudice would have been caused to any of the parties. In fact, it would have furthered the cause of public interes t as acceptance of the bid of appellant society would have resulted in fetching higher revenue. Learned counsel has placed reliance on an order dated 29.9.2011 passed by a Division Bench of this Court in WA No. 294/2011 in support of his su bmission. He, therefore, submits that the impugned judgment of the learned Singl e Judge as well as the impugned order of settlement should be quashed and the se ttling authority should be directed to settle the fishery with the appellant soc iety, being the highest bidder. 12. Submissions made by learned counsel for the appellants have been opposed by the learned State counsel as well as by Mr. Choudhury, learned senior counse l for respondent No. 7. It is submitted that appellant society not only failed t o submit membership list but also other relevant documents, including the certif icate certifying that appellant society comprises of 100% Scheduled Caste actual fishermen. These documents fall in the criteria of essential qualification whic h needs to be strictly enforced. As there was non-compliance with the essential qualification criteria, settling authority was justified in rejecting the tender of the appellant society. As the bid of respondent No. 7 society was valid in a ll respects and was the highest amongst the valid bidders, settling authority ri ghtly settled the fishery with respondent No. 7 society. They, therefore, conten d that the judgment of the learned Single Judge does not suffer from any infirmi ty and seeks dismissal of the appeal. 13. 14. d 26.12.2011 may be referred to, which is quoted hereunder:- (cid:28)Altogether, 7(seven) nos. of tender has submitted there tender papers in favour of their Societies for settlement of Gr. No. 1 Dhar Brahmaputra Fishery of Dhub Submissions made have been considered. Before proceeding further, relevant portion of the settlement order date Amount offered for 7 (seven) years M/s Khoraghat Gulihara FCS Ltd. M/s Jogighopa Meen SS Ltd. M/s Kachudola FCS Ltd. M/s Gauripur Co-op Fishery Society Ltd. Rs. 23,94,707/- M/s Manash Padmabari Jingiram FCS Ltd. Rs. 22,78,970/- M/s Dakhin Salmara Matshyajibi FCS Ltd. Rs. 21,88,970/- M/s Dharnad Brahmaputra FCS Ltd. ri District which are as follows:- Name of tenderer 1) 2) 3) 4) 5) 6) 7) M/s Khoraghat Gulihara FCS Ltd. has offered the highest bid value of Rs. 98,00,0 00/- for seven years for settlement of the fishery, but the society has not subm itted 100% actual SC fishermen Certificate alongwith the tender proposal. Furthe r, the tender Committee of the District Administration referred that the Society Rs. 79,34,659/- Rs. 54,39,773/- Rs. 19,97,030/- Rs. 98,00,000/- has not submitted three other relevant documents. M/s Jogighopa Meen SS Ltd. has offered second highest bid value as stated above, whereas the Society has not submitted the neighbourhood Certificate and fishing experience certificate. M/s Kachudola FCS Ltd. has offered third highest bid value as shown above, but S ociety is resides in the other District. M/s Gauripur Co-op Fishery Society Ltd. has offered fourth highest bid value and submitted all required certificate alongwith tender paper for settlement of the fishery. M/s Manash Padmabari Jingiram FCS Ltd. has offered fifth highest bid value as ab ove but the Society is resides in the other District. M/s Dharnad Brahmaputra FCS Ltd. has offered bid value of Rs. 19,97,030/- as low est tendered and submitted documents. On reflecting the above, it is observed that M/s Gauripur Co-op Fishery Society Ltd. has submitted all required materials alongwith the tender papers for settle ment of the fishery in question, whereas other three highest bidder than the Soc iety has not submitted required materials and as such their tender proposal coul d not be considered and in view of above, the tender proposal of M/s Gauripur Co -op Fishery Society Ltd. is accepted. Hence, the Governor of Assam in exercise of the power conferred under Rule 12 of the Assam Fishery Rules, 2005 (as amended) is pleased to settle Gr. No. 1 Dhar Brahmaputra Fishery of Dhubri District for 7(seven) years with M/s Gauripur Co-o p Fishery Society Ltd. at their bid value of Rs. 23,94,707/-(Rupees twenty three lakh ninety four thousand seven hundred and seven) only subject to observance o f usual terms and conditions laid down in the Fishery Rules. (cid:29) 15. It is thus seen that though the bid offered by the appellant society was the highest, it had not submitted 100% actual Scheduled Caste fishermen certifi cate alongwith the tender. The tender Committee also indicated that the appellan t society had not submitted three other relevant documents. 16. In the case of Poddar Steel Corporation -vs- Ganesh Engineering Works & Ors reported in (1991) 3 SCC 273, Hon’ble Supreme Court held that in a tender pr ocess there could be two categories of qualification criteria- essential and anc illary or subsidiary. Essential qualification criteria needs to be rigidly enfor ced, but ancillary or subsidiary requirement need not be regidly followed. 17. We have already noticed the documents which were required to be submitte d by the parties alongwith the tender. This is a settlement under Rule 12 of the Assam Fishery Rules, 2005 (as amended). As per the requirement of the said Rule , the tenderer, which may be a cooperative society or a non-Government organizat ion or a self help group, must be formed with 100% actual fishermen belonging to the Scheduled Caste or Maimal community of erstwhile Cachar district and it mus t be in the neighbourhood of the fishery. 18. In the course of the proceedings of the earlier writ petition i.e. WP(C) No. 872/2011 as well as of the related writ petition i.e. WP(C) No. 297/2012, i t was brought on record that the appellant society did not submit the following documents alongwith the tender:- (cid:28)i) Members list of the society, ii) 100% scheduled caste actual fishermen certificate, iii) Fishing experience certificate, iv) Approved managing committee’s resolution of the society. (cid:29) In respect of the above, learned Single Judge on due consideration held 19. as under:- (cid:28)22. As per the tender conditions noted above, tenderer was to accompany the req uisite certificates indicated in the NIT which included Fishing Experience Certi ficate, SC Certificate and Certificate of Actual Fishermen; the list of names an d address and age of the members of the Society etc. Upon verification of the re cords what I have found is that the tenders submitted by the petitioner did not accompany the duly approved resolution of its society authorizing its Secretary Shri Dulal Chandra Sarkar to submit tender. On the other hand, the tender submit ted by M/s. Gauripur Society Ltd. did contain the duly approved resolution of th e society authorizing its Secretary Shri Debendra Nath Sarkar to submit the tend er. The resolution was approved by the Assistant Registrar of Cooperative Societ ies, Dhubri. Such approval is essential, inasmuch as, in absence of any such app roval, any person purportedly representing a society could submit tender, althou gh not duly authorized by the Cooperative society. Even otherwise also in the ac tivities of a Cooperative Society, its resolutions are required to be approved b y the authority acting under the Registrar of Cooperative Societies, Assam. Apart from the above deficiencies, the tender submitted by the petitione 23. r was also not accompanied by Fishing Experience Certificate; 100% SC Actual Fis hermen and their livelihood is fishing and the approved member list of the Socie ty. On scrutiny of the tender submitted by the petitioner, it is found that the fishing experience certificate was issued by the Sub-Divisonal Fishery Developme nt Officer, Bilasipara on 4.1.2010 but not by an authority under the Registrar o f Cooperative Societies, Assam. That apart, the requirement of being 100% SC act ual Fishermen and their livelihood is fishing was also not enclosed along with t he tender documents. As to what is the position relating to the list of members of the society has been noted above. Admittedly, the tender submitted by the pet itioner did not accompany the said membership list. It was only after opening of the bids and preparation of the comparative statement, the petitioner had submi tted the said list which the authority declined to accept. Par contra, the respo ndent No. 7 i.e. M/s. Gauripur Society submitted its tender accompanied by 100% actual fishermen belong to SC community Certificate of the Assistant Registrar o f Cooperative Societies, Dhubri and all other documents along with the list of m embers and the approved resolution of the society in respect of submission of te nder (cid:29). 20.