Judgment · High Court · 2012

All the aforesaid 3 writ petitions were taken up for hearing tog C. ether and by an order dated 3.5.2011, this Court allowed the writ petition filed by the petitioner being W.P.(C)1314/2011 and directed the authorities to settle the fishery in favour of the petitioner. Consequently, the other 2 writ petitio ns, namely, W.P(C) 839/2011 and W.P(C) 1937/2011 were dismissed. Pursuant to the aforesaid judgment and order dated 3.5.2011, the fishery was settled with the w rit petitioner. However, 2 Writ Appeals, being W.A 149/2011 and W.A 189/2011, ca me to be filed against the said judgment and order dated 3.5.2011. The Writ Appe llate Court, by an order dated 21.10.2011, held that as there was a specific ten der condition requiring distance to be indicated, such a requirement has to be c omplied with even in absence of such a requirement in the Rules and therefore, t he learned Single Judge was not justified in treating the writ petitioner eligib le without compliance of the said condition. It was further provided that the wr it petitioner herein could be given permission to comply with the condition, on which a fresh decision will be required to be taken. Accordingly, the concerned authority was directed to take a fresh decision in the matter within one month f rom the date of receipt of the copy of the order after taking into account the a ppropriate certificate, which may be furnished by the writ petitioner, making it clear that the settlement already awarded to the writ petitioner will abide by such fresh decision. D. The writ petitioner filed an application dated 31.10.2011 before the respondent No.2 praying for a certificate indicating the distance of the so ciety from the fishery, enclosing thereto the copy of the order passed by the Wr it Appellate Court. However, respondent No.2 did not issue any distance certific ate in favour of the writ petitioner society and in such circumstances, an appli cation, registered as Misc. Application No.3209/11, was filed by it in Writ Appe al No.149/2011 (since disposed of) with a prayer for a direction to the responde nt No.2 to issue the certificate and also for extension of period of one month f ixed by the order dated 21.10.2011. It is stated that such certificate was not i ssued to the petitioner at the behest of the respondent No.4 though an enquiry w as conducted regarding the distance of the society from the fishery and that a r eport was submitted before the settling authority mentioning the distance. E. Subsequently, a recommendation was made by Office Note dated 19 .12.2011 recommending settlement in favour of the petitioner on the ground that though distance of the petitioner society is more than that of respondent No.5 s ociety, both the aforesaid societies are in the neighbourhood of the fishery and that the petitioner had offered more revenue. Subsequently, a fresh Note was pu t up on 30.12.2011 and 31.12.2011 by respondent No.7 and 1, respectively, recomm ending settlement of the fishery with the respondent No.5 as the respondent No.5 is situated nearer to the fishery in question. The said Notes were approved by the Minister of Fisheries on 2.1.2012. This prompted the writ petitioner to appr oach this Court by filing W.P(C) 51/2012. On 6.1.2012, however, the impugned ord er of settlement was passed in favour of the respondent No.5. F. An affidavit has been filed by respondent No.5 questioning the m aintainability of the writ petition stating that the petitioner, in the facts an d circumstances of the case, having not enclosed the NIT dated 25.11.2010 in the writ petition deliberately with the intention of misleading this Court, the sam e amounts to suppression of relevant and material facts and on that ground alone , the writ petition is liable to be dismissed. Similar plea has been taken with regard to non-furnishing of the report submitted by the fact finding committee o f field officers, who were entrusted with the responsibility of ascertaining the distance of the residence of the members of the petitioner’s society, which cam e to be treated as a certificate indicating the distance as required by Clause-4 (k) of the NIT, which was submitted on 4.12.2011 after the enquiry was conducted on 3.12.2011 pursuant to the direction of the respondent No.1 given on 19.11.20 11 to respondent No.2. It has also been stated that the report dated 4.12.2011 h aving not been challenged, challenge to the order dated 6.1.2012 is not maintain able. It is also pleaded that the writ petition is also not maintainable as the writ petitioner has not questioned Clause-4 (k) of the NIT and had accepted the said term of invitation to tender. It is also stated that the notings on the re levant files by the Minister of Fishery is mandated by law in terms of Rule 9 of Assam Rules of Executive Business, 1968. G. The respondent No.1 filed an affidavit stating that in terms of the order 21.10.2011 of the Writ Appellate Court, the Deputy Commissioner, Dhubr i, i.e. respondent No.2, was requested to submit distance certificate in respect of the writ petitioner and accordingly, after a joint verification by a team co mprising of District Fishery Development Officer, Dhubri, the Assistant Registra r of Co-operative Society, Dhubri, Circle Officer, Dhubri Revenue Circle, a repo rt was submitted stating that distance of the petitioner society from the fisher y in question is 2 km to 7.55 Km. It is stated that the distance of the responde nt No.5 society from the fishery is 50 mts to 4 Kms. It is also stated that quan tum of bid value, neighbourhood of the society along with relevant information o f the society as per the terms and conditions of the NIT are considered for sett lement of 60% category fishery like the instant fishery and that there is no ill egality in passing the impugned order of settlement. H. The respondent No.2 in its affidavit has stated that on the basi s of the application filed by the writ petitioner, a joint survey was conducted to ascertain the distance of the fishery to the villages in the area of operatio n of the society by a team of officers constituted vide order dated 23.11.2011 a nd the report dated 4.12.2011 prepared after such enquiry was forwarded to the S tate Government. I. vit-in-opposition filed by the respondent No.5, denying the contentions. A reply-affidavit was filed by the writ petitioner to the affida

#3. Pleadings in W.P(C) 280/12 A. The writ petitioner is a registered fishery Co-operative Society formed with 100% actual fisherman belonging to Scheduled Caste community and re siding in the immediate neighbourhood of the fishery and the distance between th e villages covered by the petitioner society and the fishery in question is betw een 50 mts to 500 mts and the petitioner is in the closest neighbourhood of the fishery. It is stated that the Circle Officer of the concerned revenue Circle an d District Fishery Officer are the only competent authorities to issue distance/ neighbourhood certificate and the petitioner had submitted along with its tende r, distance of neighbourhood certificate dated 10.12.2010 issued by the aforesai d 2 authorities showing the exact distance. It is stated that respondent No.3, i n whose favour settlement order dated 6.1.2012 has been issued, had annexed alon g with its tender neighbourhood certificate dated 9.12.2010 issued by the Circle Officer, Dhubri showing that members of the said society are residing nearby th e river (cid:28)Gr.No.1/87-Dharnad Brahmaputra and 2/88 Satakuri Nadi (cid:29), which is not th e fishery in question and therefore, the respondent No.3 had not enclosed with t he tender the distance/neighbourhood certificate from the fishery in question. I t is stated that the observation of the tender committee that the said certifica te also covers the fishery in question is not correct. It is also stated that th ere is no fishery by the name of Gr. 2/88 Satkuri Nadi in Dhubri district and Sa tkuri Nadi is attached to Gr. No.1/87 Dharnad Brahmaputra Pt-I fishery. It is al so stated that there was no distance certificate in terms of Clause-4 (j) of the NIT in respect of the writ petitioner in W.P(C) 124/2012. It is further stated that the settlement holder fishery is a defunct society that had gone into liqui dation and a notice had been issued by the competent authority on 25.2.2010 to s how cause as to why its registration should not be cancelled. Subsequently, regi stration of the respondent No.3 society was cancelled and the District Deputy Re gistrar of Co-operative Society, Dhubri, who had issued the show cause notice, h ad directed a Junior Inspector/ Auditor of Co-operative Society to submit a deta iled report of the Co-operative society and to collect pass book, books of accou nt of the society. B. Pleadings are also offered with regard to passing of the settlem ent order as indicated in W.P(C) 124/2012 culminating in passing of the order da ted 21.10.2011 in Writ Appeal No.149/2011 and W.A.189/2011. Reliance has also be en placed on the report submitted to the State Government on 4.12.2011 regarding the distance of the writ petitioner society in W.P(C) 124/2012 from the fishery in question. It has been asserted that the tender submitted by the society in w hose favour settlement order dated 6.1.2012 was passed, was defective and hence, settlement order could not have been issued in its favour. C. In the affidavit filed by the respondent No.3, namely, the settl ement holder, it is stated that a perusal of the comparative statement, prepared during evaluation of the tenders, would indicate that distance and neighbourhoo d certificate was duly submitted by the society. It is also stated that the writ petitioner is the lowest tenderer and thus have no locus standi to challenge th e settlement made in favour of respondent No.3. It is also stated that the writ petition is not maintainable in absence of other tenderers who quoted rates high er than the writ petitioner. D. A reply-affidavit is filed by the writ petitioner reiterating t he statement that no distance certificate was submitted by the respondent No.3 a long with its tender showing distance of the villages covered by the respondent No.3 society from the fishery in question. The plea of non-maintainability of th e writ petition on the ground of not arraying other tenderers is also denied.

#4. Mr. M.K. Choudhury, learned senior counsel for the petitioner in W.P (C) 124/2011 submits that Rule 12 provides for settlement of 60% category f ishery with special category of Co-operative Societies, Non-Governmental Organiz ations and Self Help Groups consisting of 100% actual fisherman in the neighbour hood of the fishery concerned by tender system. He submits with reference to jud gment rendered in the case of Brahmaputra Part-II Mach mahal Samiti Ltd vs State of Assam and ors, reported in 2003 (1) GLT 155, that neighbourhood cannot be me asured by distance and once a society is found to be in the neighbourhood of a f ishery, distance cannot be a relevant consideration in settling a fishery with a society on the ground that such society is nearer to the fishery though it had offered less revenue in response to a tender. He submits that if nearest to the fishery is held to be the yardstick and the criteria, then the entire process o f inviting tenders becomes a farce. He strenuously urges that the impugned order has been passed settling the fishery in favour of the respondent No. 5 only on the sole consideration that the 3rd highest bidder is nearest to the fishery in question than the highest bidder and therefore, the order cannot be sustained in law. He also relies on the decision of this Court in M/S Majorati Min Samabai S amiti Ltd vs Sukhraj Min Samabai Samiti Lts ors, reported in 1998 (1) GLT 405, w ith regard to the concept of neighbourhood.

#5. Mr. Choudhury has also submitted that by the note dated 17/12/20 11, the Secretary, Department of Fisheries, after considering the report receive d from the ADC, Dhubri suggested settlement in favour of the highest bidder. The Minister of Fisheries, by his note dated 22.12.2011 directed the Secretary, Dep artment of Fisheries to verify the tenders with their distance certificates. Aft er the said note of the Minister, on consideration of the distance in between th e highest tenderer and 3rd highest tenderer, suggested settlement in favour of t he respondent No. 5 i.e. the 3rd highest tenderer on the ground that the 3rd hig hest tenderer was nearest to the fishery and the said note having been approved by the Minister of Fisheries, the impugned order was passed in favour of the res pondent No. 5.

#6. Mr. A. K. Sarma, learned counsel for the petitioner in W.P. (C) 280/2012 submits that the Clause 4 (k) requires a tenderer to enclose along with the tender a certificate showing the distance/neighbourhood from the concerned meen mahal and that the Deputy Commissioner is to enquire the same as well as th e certificate relating to list of members, age, addresses required to be enclose d with the tender in terms of clause 4 (j) at the appropriate time through conce rned officers. Clause 2 of the NIT also prescribes that the tenderer must be fro m the district concerned and should be in the neighbourhood of the fishery. He s ubmits that Clause-4(k) having not been challenged by any of the tenderers, the clause cannot be ignored and the petitioner being the nearest to the fishery, th e petitioner is entitled to settlement of the fishery. The learned counsel submi ts that the tender of the respondent No.4 society is invalid inasmuch as the cer tificate of neighbourhood annexed with the tender was not in relation to the fis hery in question and the said certificate issued on 9.12.2010, ex-facie, relate s to a different fishery. Mr Sarma has cited a decision rendered in the case of M/s D.S. Trading vs. Padum Gogoi & ors., reported in 2002(3) GLT 653, to substan tiate his argument that when there is a valid tenderer in the fray, there cannot be any justification for offering settlement to a tenderer whose tender is inva lid.

#7. Mr I Choudhury, learned counsel for the settlement-holder, submits that authorities took into consideration relevant consideration while passing the ord er of settlement. The authorities considered the amount offered by the tenderers and the distance and, striking a balance between the tender amount and distance , had passed the order of settlement. The learned counsel submits that there is no merit in the contention that the settlement holder did not submit the neighbo urhood/ distance certificate in respect of the fishery in question and that a pe rusal of the comparative statement would belie such a contention.

#8. The relevant extract of the certificate of registration of neighbourhood of the settlement holder reads as follows: (cid:28)This is to certify that as per the L.R. staff’s report submitted Dharna d Brahmaputra Part-I Chatakuri Nadi Fishery Cooprative Society Ltd(Dhubri(Assam) is a registered fishery cooperative society having covered 3(three) numbers of registered area of operation villages (1) Baluchor 3 No (2) Alomganj (3) Newghat , Dhubri, which fall under Dhubri Revenue Circle and the members are residing ne arby the river Gr. No. 1/87 Dharnad Brahmaputra and Gr No. 2/88 Satakuri Nadi. T he approx. distance between the fishery from the area of villages of the society are as follows:- Name of the villages Baluchor 3 No Alomganj Newghat, Dhubri Distance from the Fishery 50 Mtrs. 4 Km. 50 Mtrs. (cid:29)

#9. der: Prior to amendment, Rule 12 of the Assam Fishery Rules, 1953, read as un (cid:28)12. Except those referred to in sub-rule No. 8(b) above, all registered Fish eries shall be settled under tender system of sale in place of sale by auction: Provided that the State Government may settle any registered fishery oth erwise than under tender system with Fishery Co-operative Society formed with 10 0 per cent actual fishermen of the fishing population in the neighbourhood of th e fishery concerned and belonging to the Scheduled Caste of the State or Maimal Community of the Cachar District at a revenue calculated and for a period decide d by the State Government from time to time. (cid:29)

#10. ads as follows: After the amendment on 31.3.2005, Rule 12 of the Fishery Rules, 1953, re (cid:28)12. Except those referred to in sub-rule No. 8(b) above, all registered Fisheries shall be settled under tender system of sale in place of sale auction : Provided that the Government shall settle a 60% category fishery with sp ecial category of co-operative Societies, Non-Government Organisations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fish ery concerned by the Tender System. (cid:29) Explanation 1:- For the purpose of this rule, the words (cid:28)special categor y (cid:29) means and includes the Co-operative Societies, Self-Help Groups, Non-Governme ntal Organisations comprising of 100% actual fishermen of the Scheduled caste co mmunity or Maimal community of erstwhile Cachar district, who can not participat e in competitive bidding because of poor financial condition due to famine, floo d, draught, epidemic or any other circumstances which are beyond control of the society, Non-Governmental Organisation or Self Help Groups as the case may be; Explanation 2:- For the purpose of this rule (cid:28)a 60% category fishery (cid:29) me ans 60% of registered fisheries available in a Civil Sub-Division eligible for s ettlement in a particular year. Thus, the proviso to Rule 12, as amended, provides for settlement of a (cid:28) 11. 60% category fishery (cid:29), which term has been explained in Explanation 2 of Rule 12 , by tender system with special category of cooperative societies, Non-governmen t Organisations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery. The Explanation - 1 further provides that the actual fishermen must comp rise of Scheduled Caste community or Maimal community of erstwhile Cachar distri ct. Therefore, to be eligible for settlement under proviso to Rule 12, the speci al category of cooperative societies, Non-government Organisations and Self Help Groups must consist of 100% actual fishermen of Scheduled Caste community or Ma imal community of erstwhile Cachar district in the neighbourhood of the fishery concerned.

#12. A perusal of the certificate of neighbourhood of the settlement holder, notwithstanding the emphatic submission of Mr I Choudhury to the contrary, would go to show that the said certificate is in no way relatable to the fishery in q uestion as in the said certificate there is no mention of Gr. No. 2/88 Dharnad B rahmaputra Pt.II & III fishery. Reliance placed by Mr I Choudhury on the compara tive statement is also of no avail inasmuch as conclusion drawn by the committee regarding neighbourhood certificate and the distance from the fishery, in absen ce of the relevant certificate, is of no moment. In absence of the certificate o f neighbourhood (cid:28)relevant to the fishery (cid:29), the settlement holder did not satisfy the relevant eligibility criteria under the Fishery Rules as also the tender co ndition and as such, the tender of the settlement holder ought to have been reje cted by the committee evaluating tenders. The distance mentioned in the said cer tificate, as a logical corollary, will have to be seen in reference to the fishe ries mentioned therein. The settling authority also overlooked the deficiency in the tender of the settlement holder which merited rejection of the tender as in valid.

#13. The meaning of the term ’neighbourhood’ was a subject of debate in Brahm aputra Part II (supra) and Majorati Min Samabay(supra). This court had held that ’neighbourhood’ is a relative term which is to be taken into account along with other conditions at the time of consideration of grant of settlement. It was fu rther held that there is an element of flexibility and it is neither permissible nor desirable to ascertain the neighbourhood by a measuring tape. If the reside nce of the members of an eligible tenderer is in the vicinity and proximity to t he fishery as is understood in common parlance, it can be said to be in the neig hbourhood of the fishery. Though both the aforesaid judgments were rendered in t he context of the Rule prior to amendment, the concept of neighbourhood remains the same in the sense that settlement, both before amendment and after amendment , is sought to be given with special category of entities consisting of special class of persons in the neighbourhood of the particular fishery in question.

#14. There is no dispute that both the writ petitioners are cooperative socie ties in the neighbourhood of the fishery in question. The distance certificate i n respect of the petitioner in WP(C) No. 124/2012 is also on the record of the s ettling authority and the same was also taken note of by the settling authority. As the distance certificate was taken on record by the settling authority, the tender of the petitioner in WP(C) 124/2012 is valid in all respects.

#15. nd WA 149/2011 had stated as follows: The Writ Appellate Court, in its order dated 21.10.2011 in WA 189/2011 a (cid:28)While we are in agreement with the view taken by the learned Single jud ge to the effect that the distance may not be conclusive for taking decision for awarding the contract, but in view of specific tender condition requiring dista nce to be indicated, such requirement has to be complied with even in absence of such requirement in the Rules. (cid:29)

#16. Mr A K Sarma, learned counsel for the petitioner in WP(C) 280/2011, urge d the court to accept his submission that in the face of the tender condition, w hich is not under challenge, a society nearest to the fishery is only entitled t o settlement and the writ petitioner he represented being nearest to the fishery , is entitled to the settlement and yet inexplicably, as the impugned order woul d go to show, the case of the society was not even considered.

#17. Distance cannot be the only criteria, if at all the same is a relevant c onsideration, and on the face of the adjudication in WA 149/2011 and WA 189/2011 , such contention is only to be rejected. It is to be remembered, the tender of the writ petitioner in WP(C) 280/2011 was the 8th highest tenderer. The impugned order of settlement dated 6.1.2012 demonstrates in categori 18. cal terms that the settlement was offered to the 3rd highest tenderer only on th e ground that after exclusion of 4th to 9th highest tenderers, without, however, categorically citing any specific ground for their non-consideration but only m entioning by way of passing reference, lesser bid offered by them, the 3rd highe st bidder is found to be nearest to the fishery in question. Apart form the fact that the tender of the 3rd highest tenderer was liable to be rejected for the r easons already assigned, the ground on which the settlement was offered, is also clearly not sustainable in law as in any view of the matter, distance cannot be a decisive factor in granting settlement under the provision of the Rules.

#19. In view of the aforesaid discussion and for the reasons recorded, the im pugned order of settlement dated 6th January, 2012 passed by the Commissioner & Secretary to the Government of Assam, Fisheries Department is set aside and quas hed. The settling authority is now directed to consider the matter afresh and pa ss order of settlement in respect of Gr. No.2/88 Dharnad Brahmaputra Pt-II & III Fishery within a period of one month from today. It is further ordered that in the meantime, none will be permitted to operate the fishery in question.

#20. The writ petitions are allowed. No costs.