High Court
Case Details
WA 277/2013 BEFORE THE HON’BLE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI [A.K.GOSWAMI, J]
Decision
This Writ Appeal is presented against the Judgment and Order dated 27.08 .2013 passed by the Learned Single Judge in W.P.(C) No. 4461/2013, whereby the o rder of settlement dated 30.07.2013 passed by the Managing Director, Assam Fishe ries Development Corporation Ltd., settling the Sibasthan - Potakalang Fishery o f Nagaon District, for short, fishery, with the appellant for a period of 7 year s, commencing from financial year 2013-2014 to 2019-2020 at a total revenue of R s. 1,96,28,000/-, was set aside. 2. The writ petitioner, who is arrayed as respondent No. 1 in the Writ Appe al, the writ appellant and 3 other tenderers had submitted their tenders for set tlement of the fishery in response to Tender Notice No. 3/2013 dated 25.06.2013. The writ petitioner emerged as the highest tenderer at his bid value of Rs. 33, 33,333/- per annum (Rs. 2,33,33,331/- for 7 years). The writ appellant was the 2 nd highest tenderer at his bid value of Rs. 28,04,000/- per annum (Rs.1,96,28,00 0/- for 7 years). The order of settlement dated 30.07.2013 indicates that the tender of th 3. e writ petitioner was regarded as not valid as in the Affidavit that was require d to be submitted alongwith the tender documents, he had put the date of accepta nce of tenders instead of putting the date of notice inviting tender. Consequent ly, fishery was settled with the writ appellant, his tender being found valid in all respects. The Learned Single Judge had recorded as follows 4. (cid:28)Mr. Choudhury, learned counsel for the petitioner submits that the same very au thority of the AFDC, in respect of the tender process pertaining to another fish ery, condoned the said mistake in the order of settlement and settled the fisher y with the highest tenderer. However, in case of the petitioner, the same treatm ent was not given. The date mentioned in the supporting affidavit as 12.7.2013 did not affect at al l the tender conditions. Admittedly, the same is a typographical error and easil y discernable. For that reason the respondent Corporation cannot afford to compr omise with the revenue. The tender submitted by the petitioner being complete in all respects and he being the highest bidder, his tender could not have been re jected because of the said typographical error and the petitioner ought to have been treated at par with the aforesaid case in respect of another fishery settle d under the same tender process. In view of the above, the impugned order of settlement dated 30.7.2013 (Annexure -5) stands set aside and quashed and the matter is remanded back to the responde nt Corporation for re-consideration consistently with the observations made abov e and in accordance with law. (cid:29) 5. We have heard Mr. D. Das, learned Senior Counsel appearing for the appel lant, Mr. M. Choudhury, learned counsel appearing for respondent No. 1, Mr. S. R . Rajbongshi, learned Standing Counsel, AFDC, representing respondent Nos. 3 and 4 and Mr. M. Bhagawati, learned State Counsel appearing for respondent Nos. 2 a nd 5. Mr. Das has not challenged the correctness of the order of the learned S 6. ingle Judge during the course of hearing. Thus, the writ appellant has accepted the quashing of the order of settlement. Only submission of Mr. Das is that as t he counsel for the appellant did not appear before the learned Single Judge, cer tain factual aspects of the matter could not be pointed out. He submits that pur suant to the order of settlement dated 30.07.2013, the possession of the fishery was handed over to the appellant on 05.08.2013 and the appellant had also paid an amount of Rs. 9,28,500/- being the kist money for the year 2013-2014. It is a lso contended that the appellant had bought fingerlings worth Rs.14,00,000/- and released them in the fishery and furthermore, had incurred incidental and ancil lary expenses amounting to Rs. 12,00,000/-. According to him, an amount of Rs. 2 8. s. 9. 6,00,000/- in total was invested in the fishery. His limited prayer is for a dir ection to allow the writ appellant to continue to run the fishery for a period o f 3 months in order to enable the writ appellant to recover at least some amount of investment made. 7. Mr. M. Choudhury, learned counsel for the respondent No. 1 submits that copy of the writ petition was served on 05.08.2013 on the counsel for the writ a ppellant as the writ appellant had filed a Caveat. The learned Single Judge, on 08.08.2013, while issuing notice of motion making it returnable on 23.08.2013, h ad passed an order of status-quo. Learned counsel submits that that the writ app ellant had made investment of Rs. 26,00,000/- within a period of less than 1 mon th, that too, after coming to know of filing of the writ petition on 05.08.2013 i.e. the date on which possession of the fishery was handed over to it, is not b elievable. Referring to the bills/cash-memos annexed by the writ appellant in th e writ appeal showing purchase of fingerlings, learned counsel submits that all these bills/cash-memos are subsequent to passing of the order of status-quo date d 05.08.2013. It defies all business sense and the claim is grossly exaggerated, he submits. We have considered the submissions of the learned counsel for the partie In view of the order of the learned Single Judge setting aside the order of settlement dated 30.07.2013 and directing the respondent corporation to reco nsider the matter consistently with the observations made in the said order, the respondent corporation will now have to pass a fresh order of settlement. Such order will be passed within a period of 2 weeks from to-day. Without expressing any opinion on merits with regard to the plea of the appellant in respect of amo unt of investments made, which is seriously disputed by the counsel for the resp ondent No.1, we deem it appropriate to direct the respondent corporation to also decide within a period of 10 days from to-day as to whether the writ appellant should be allowed to operate the fishery for some period because of investments made notwithstanding this Court having set aside his order of settlement. We mak e it clear that under no circumstances, the writ appellant shall be allowed to o perate the fishery beyond a period of 3 months from to-day and the tenderer in w hose favour the fresh order of settlement would be passed, shall invariably be p ut in possession of the fishery. In the event of the corporation deciding again st allowing the writ appellant to operate the fishery any further, possession of the fishery shall be immediately delivered to the fresh settlement holder. We a lso make it clear that the writ appellant shall be paid back the kist money paid by him for the period 2013-2014 after pro-rata adjustment based on the period f or which the writ appellant was in enjoyment of the fishery. 10. isposed of. No cost. With the aforesaid directions and observations, the writ appeal stands d