High Court
Case Details
WP(C) 1293/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) In both the writ petitions the challenge being one and the same i.e order of set tlement of the fishery made in favor of the respondent No.5, they have been hear d together and are being disposed of by this common judgment and order. WP(C) No. 986/2013 Tenders will be accepted in the concerned office of the Deputy Commissio 60% category fishery shall be settled for 7 years with Co-operative Soci 2. NIT was issued on 27.04.2012 for settlement of the Group 1/87 Dharnad Br ahmaputra Part 1 and Sathkuri River Fishery under Dhubri/South Sathmara Circle i n the district of Dhubri for a period of 7 years (2012-2019). Tenders were to be accepted till 2 P.M on 29.05.2012 in the office of the Additional Deputy Commis sioner, Dhubri and the same were to be opened on the same date at 3 P.M. The con ditions for settlement were as follows:- 1. eties/ Self Help Groups, NGO’s formed with fishermen. Tenders can be submitted by the Co-operative Societies/ Self Help Group 2. s, NGO’s comprising of 100% actual fishermen of the Schedule Caste community or Maimal Community of Barak Valley. Tenderer has to be of that district and neighb ourhood of the fishery concerned. 3. ner/ Sub-Divisional Officer on the fixed date. 4. Intending tenders have to be submit tenders i n the concerned Box by 2 P .M. on 29.05.2012 in the concerned office and no tender will be accepted after t he time fixed. Tenders have to be submitted along with requisites/certificates a s mentioned below: (a) (b) (c) ctual fisherman. (d) (e) (f) (g) (h) , (i) (j) Certificate showing the distance/area from the concerned Min Mahal. The Deputy C ommissioner will enquire the settlement by the concerned Magistrate in time, Postal Order/cheque/ bank draft of Rs. 10/- Revenue deposit of 15% of the Government yearly value. Society Registration Certificate, Tax clearance certificate, Photo of the person authorised to submit tender on behalf of the society A copy of the Balance Sheet of the Society, List of name, address and age of the members of the society, Schedules Certificate/ Maimal Community Certificate and certificate of a Fishing experience certificate, Bakijai clearance certificate 3. In response to the said NIT, the petitioner, a registered Fishery Co-ope rative Society stated to be comprised of 100% actual fishermen belonging to S.C community submitted its tender along with other 7 tenderers. As stated in the wr it petition, the bid value offered by the petitioner was for Rs. 76,65,000/- and that of the respondent No. 5 was for Rs. 60,11,250/-. The fishery having been s ettled with the respondent No. 5, the petitioner has filed this writ petition ch allenging the order dated 22.02.2013 (Annexure-2), by which the settlement has b een made. The petitioners have identified the following grounds of rejection con tending that the said grounds are without any basis and substance. The grounds a re:- 1. 2. 3. Not being in the neighborhood, Society not belonging to the district in question i.e. Dhubri and Violation of Clause-2 of the NIT. 4. According to the petitioner the documents submitted along with the tende rs would demonstrate that the petitioner society is in the neighborhood of the F ishery. It has been contended that the term (cid:28)Neighborhood (cid:29) is not required to be measured with mathematical precision and needs to be interpreted so as to advan ce the object and propose of the relevant rules i.e. the Assam Fishery Rule 1953 .
Decision
As regards the second ground that the petitioner does not fall within Dh 5. ubri district, it has been contended that the petitioner having submitted releva nt documents along with the tenders as a proof of the fact that it is located in Dhubri district, the authority making the settlement could not have held otherw ise. In this connection, the petitioner has referred to the certificate of regis tration approving the amendment of by-laws issued by the Assistant Registrar of Cooperative Societies, Dhubri so as to contend that although the petitioner’s so ciety initially registered on 23.02.1959 in the district of Goalpara, but after bifurcation of districts it is within Dhubri district. Referring to the document s annexed to the writ petition, the petitioner has contended that only 2 village s out of total 14 revenue villages covering the area of operation of the petitio ner society fall under BTAD area and the rests of the revenue villages are locat ed within Dhubri district. 6. As regards violation of Clauses-2 of the NIT. it is a plea of the petiti oner that the said ground is also not tenable being contrary to the records. Cla uses-2 of the NIT envisaged that the Cooperative Society/Self Help Group/NGO com prising of 100% actual fishermen of the SC community and Maimal Community of Bar ak Valley and the petitioner society having comprised of 100% fishermen belongin g to the SC community, the authority making the settlement ought to have been co nsidered the said aspect of the matter in reference to the documents submitted b y the petitioner along with its tenders. 7. In the counter affidavit filed by the official respondents, the contenti ons raised in the writ petition have been denied. Referring to the report of the Executive Officer, Bogribari Revenue Circle submitted vide letter dated 10.12.2 012, it has been stated in the affidavit that the members of the petitioner’s so ciety do not reside in the neighborhood of the fishery as because the distance o f the area of operation namely village Khoraghat and Gulihara is about 10-12 KM away from Fishery. As per the report, the said villages are also under BTAD with in Kokrajhar District and thus it does not fulfill the criteria as contemplated under Rule 12 of the Fishery Rules (as amended). It has also been stated in the affidavit that the petitioner’s society does not come within the ambit of the te nder which is confined to Dhubri District only. As regards the settlement made i n favour of the respondent No.5, it has been stated that the Deputy Commissioner , Dhubri had recommended two bids namely the respondent No. 5 and M/s Dharnad Br ahmaputra Fishery Cooperative Society as they fulfilled all the requirements of the NIT. Thereafter, taking into account all the relevant considerations, the se ttlement was made in favour of the respondent No.5. 8. The respondent No. 5 has also filed its affidavit denying the plea of th e petitioner that it is in the neighborhood of the fishery and that its members are the residents of the neighbourhood of the fishery. It has further been state d that some of the villages covering the areas of operation of the petitioner so ciety fall in another district and other villages are also distantly placed rang ing from 12 to 40 km. Referring to the reports, which were called for by the Dep uty Commissioner, it has been stated that the Circle Officer, Bagribari Revenue Circle, in his report categorically stated that the members of the petitioner so ciety are not residing in the neighbourhood of the fishery. It has also been sta ted that the members of the petitioner society are engaged in some other avocati on. As per the information furnished to the respondent No. 5 society on the basi s of its application under RTI Act 2005, out of 14 villages covering the petitio ner society, 3 villages fall under Bogribari Circle in Korajhar District and the other villages are about 12 to 20 KM away from the fishery. It has also been st ated that the petitioner society does not consist of 100% actual fishermen. As against the said position, if we refer to the Annexure-III to the cou 9. nter affidavit filed by the respondent No. 5 in WP(C) No. 1293/2013, it is found that the neighborhood distance of the area of operation of the village of the s ociety from the fishery in question is would range of 3 KM to 4 KM, 1.5 KM to 2K M, 300M to 500M, 500M to 1KM and 550M to 700M. WP(C) NO. 1293/2013 As in the aforesaid writ petition, in this writ petition also the challe 10. nge is the order of settlement made in favour of the respondent No. 5. It is the plea of the petitioner that it being the highest bidder at its bid value of Rs. 91,00,000, the fishery ought to have been settled with it instead of settling t he same with the respondent No.5 at its bid value Rs. 60,04,250. In the counter- affidavit filed by the respondent No. 5, it has been stated that as per the repo rt of the Circle Officer, Dhubri revenue Circle dated 03.09.2012, the petitioner society does not consist of 100% actual fishermen and are also not engaged in t he profession of fishing. In the said report, it has been stated that the petiti oner society is located at Chawkbazar Fishery Market, Dhubri and its share holde rs/members are directly engaged in fish selling clearly indicating the same with its signboard hanging in its office. As per the said report of the Circle Offic er, almost all the members of the society are engaged in the profession of fish selling and purchase of fish except a few who are either housewife or running gr ocery business etc. As per the report, the main occupation of livelihood of the members of the society is sell and purchase of fish. The District Fishery Develo pments Corporation, Dhubri as well as the Assistant Registrar of Cooperative Soc iety, Dhubri, have also approved such finding. The respondent No.5 in its affida vit has further stated that merely because the petitioner was the highest bidder and for that matter other highest bidders above the respondent No.5 cannot clai m automatic settlement of the fishery on the basis of their bid amounts irrespec tive of fulfilling other required conditions mandatory in nature. 11. I have heard Mr. M Bhuyan, learned counsel for the petitioner in WP(C) N o. 986/13 and so also Mr. D. K. Sharma, learned counsel representing the petitio ner in WP(C) No.1293/13. I have also heard Mr. A. Sharma, learned counsel for th e respondent No. 5 and Mrs. H. M. Phukan, learned State Counsel. While Mr. Bhuya n and Sarmah, learned counsel for the petitioners have placed reliance on the de cision of this Court dated 03.05.2011 passed in WP(C) No. 839/2011 (M/s. Dakhin Salmara Matsyajibi Fishery Co-Operative Society Ltd. Vs. State of Assam & Ors.), in which the judgment in Brahmaputra Part 2 Masmahal Sabha Samiti Limited Vs. G overnment of Assam and others reported in 2003 1 GLT 155 has been referred to an d the decision reported in 1995 1 GLR 408 (Surjya Das Vs. Assam State Fisheries Development Corporation Ltd.), Mr. A. Sarma, learned counsel representing the re spondent No.5 has placed reliance on the following decisions as follows: (1993) 1 SCC 445 .) (Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd (2000) 2 SCC 617 (AIR India Ltd. Vs. Cochin International Airport Ltd.) (1994) 6 SCC 651 (Tata Cellular Vs. Union of India) (2004) 4 SCC 19 (Directorate of Education Vs. Educomp Datamatics Ltd.) (2007) 14 SCC 517 (Jagdish Mandal Vs. State of Orissa) (1989) 1 GLR 263 (Babul Das Vs. State of Assam) (2012) 8 SCC 216 (Michigan Rubber (India) Ltd. Vs. State of Karnataka) (2008) 16 SCC 215 on of India) (Siemens Public Communication Networks Pvt. Ltd. Vs. Uni 12. M/s. Dakhin Salmara Matsyajibi Fishery (supra), this Court referring to the earlier judgment in Brahmaputra Part II Masmahal (supra) held that the expre ssion (cid:28)neighbourhood (cid:29) needs interpretation so as to advance the object and purpo se of the rules and not frustrate it. It was held that the distance in regard to neighborhood is not required to be measured with mathematical precision. In the said case, the Court was concerned with the criterion of (cid:28)neighborhood (cid:29) and it was held that there being no mention of any distance relatable to (cid:28)neighborhood (cid:29) , a narrow interpretation of the term (cid:28)neighborhood (cid:29) cannot be accepted. What wa s emphasized in the said judgment is that the term (cid:28)neighborhood (cid:29) cannot be inte rpreted with any mathematical precision. However, it cannot be said that the aut hority making the settlement cannot take into account the very concept of (cid:28)neigh borhood (cid:29) as envisaged under the Fishery Rules while making the settlement consid ering the (cid:28)neighborhood (cid:29) of the tenderer. 13. In the instant case, the tender submitted by the petitioner has been rej ected on 3 grounds, which have been noted above. Apart from being not in the nei ghborhood relatable to the term (cid:28)neighborhood’’ finds mention in the Rules as ha s been recorded in the impugned order, it also does not belong to the tender inv iting district i.e. Dhubri. The Deputy Commissioner of the District has also rep orted that it violates Clause 2 of the NIT requiring the tenderer to be a Cooper ative Society/Self Help Group/NGO comprising of 100% actual fishermen of the SC community and that it will also have to be of that district and the neighborhood of the fishery. 14. In the judgment reported in 2009 (4) GLT 909 (Manash Padmabari Jiniram F ishery Co-Operative Society Ltd. Vs. State of Assam), it has been held by this C ourt that the objective of Rule 12 of the Fishery Rules is to take care of requi rement of livelihood of fishermen in the neighborhood of the fishery. It has bee n also held in the judgment and order dated 21.3.2013 passed in WP (C) No. 297/2 012 (Khoraghat Guliara Fishery Co-operative Society Vs. State of Assam), that th e party seeking settlement in respect of a fishery will have to be of the jurisd ictional district. In the instant case, admittedly some of the villages over whi ch petitioner society operates fall within the BTAD area in the district of Kokr ajhar. As per the report dated 10.12.2012 annexed to the counter affidavit filed by the official respondents, the petitioner society although comprised of 100% actual fishermen belonging to the SC Community but few of them are engaged in ot her works and that, two of its Revenue villages fall under BTAD area in the dist rict of Kokrajhar. 15. As per the Fishery Rules, for the purpose of settlement of 60% Governmen t running fishery by tender system, one of the main requirements and criteria is that the settlement is to be made to the society comprising of 100% actual fish ermen of SC Community engaged in fishing only and residing in the neighbourhood of the fishery. For effective implementation of the said condition, one of the c onditions specified in the NIT is that the tenderer society must be from the sam e district from which tender is floated. As stated in the counter affidavit file d by the respondent No. 5, the Government of Assam in the Fishery Department vid e circulars dated 19.08.2008 and 29.11.2010 requested the authority to enquire t he distance of the tenderer society from the fishery. In the instant case, after opening of the tenders, the authority made the enquiry as to the neighborhood i ssue on the basis of the certificates submitted by the tenderers. If upon making the said enquiry, it was reported that the petitioner society was not within th e neighborhood of the fishery compared to other tenderers, no fault can be attri buted in passing the impugned order. If the concept relating to neighborhood for the purpose of settlement of a fishery is not adhered to, the particular prescr iption of the Rule and its object would get frustrated. In the report of the Dep uty Commissioner dated 25.01.2013, it has been stated thus: (cid:28)M/S Khoraghat Gulihara Fishery Co-op: Society Ltd, Khoraghat, offered the 3rd h ighest rate of Rs. 76, 65, 000.00 for 7 years. It is seen from the enquiry repor t submitted by Circle officer, Bogribari Revenue Circle vide letter No. BBC. 11/ 99/450 dtd. 10.12.12 that the members of the Society are not reside in the neigh bourhood of the fishery as because the distance of the area of operation village Khoraghat & Gulihara is about 10 K.M. to 12 K.M. away from the fishery and it i s also reported that the said village wherefrom the distance was defined are fal ls under BTAD in Kokrajhar Dist. Hence, the Society does not fulfil the criteria of Rule-12 of Assam Fishery Rule’2005(as amended) as well as the tender conditi on of the NIT and moreover the Society do not belongs to the Tender Invited Dist rict(i.e). Dhubri Dist) as stipulates in terms of clause II of the Nit.(Copy of the enquiry report enclosed as Annexure-IV). (cid:29) 16. I have gone through the records produced by the learned State Counsel to quel any doubt in respect of the impugned order of settlement. As the record ha s revealed, while making the settlement, the authority considered the relevant d ocuments towards arriving at the findings recorded in the impugned order. It can not be said to be a case of making the impugned order on extraneous consideratio n and/or any irrelevant consideration. 17. In Babul Das (supra), it has been held that the relevant factors to be c onsidered for the purpose of proviso to Rule 12 of the Fishery Rules is not the area of operation of the society but the fact whether the particular society is in the neighborhood of the fishery or not. In Michigan Rubber (India) Ltd. (supr a), the Apex Court, while reiterating the nature and scope of Judicial Review in the matter of Government contracts held that the scope of Court’s interference in such matter is very restricted and limited. Greater latitude is to be concede d to State authorities in matter of formulating conditions of tenders and awardi ng contracts. Interference by Court is not warranted unless action of tendering authority is malafide and is a misuse of statutory power. On perusal of the reco rds, I do not find any malafide exercise of power and/or any misuse of statutory power. In Jagdish Mandal (supra) once again the Apex Court dealing with the sco 18. pe of interference in awarding contract and Judicial Review of administrative ac tion reiterated the aforesaid position of law holding the field. In Educomp Data matics Ltd. (supra), it was held by the Apex Court awarding of contract is open to interfere only when arbitrary, discriminatory or bias action is discernible a nd not otherwise. 19. In Tata Cellular, the Apex Court reminding the Court of its duties in th e matter of determination of legality and/or validity of the decision making pro cess in the matter of awarding of contract made the following significant observ ation. 77. the duty of the Court is to confine itself to the question of legality. Its concern should be: 1. 2. 3. 4. 5. Whether a decision-making authority exceeded its powers? Committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal would have reached or, abused its powers. Therefore, it is not for the court to determine whether a particular policy or p articular decision taken in the fulfilment of that policy is fair. It is only co ncern with the manner in which those decisions have been taken. The extent of th Illegality: This means the decision maker-make understand correctly the e duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be c lassified as under: (i) law that regulates his decision-making and must give effect to it. Irrationally, namely, Wednesbury unreasonableness. (ii) (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of furthe r grounds in course of time. As a matter of fact, in R.v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one developm ent, namely, the possible recognition of the principal of proportionality. In al l these cases the test to be adopted is that the Court should, (cid:28) consider whethe r something has gone wrong of a nature and degree which requires its interventio n (cid:29). 20. In Cochin International Airport (supra), the Apex Court referring to its earlier decision dealing with awarding of a contract by State, held that the di scretionary power under Article 226 must be exercised with great caution and sho uld exercise it only in furtherance of public interest and not merely on the mak ing out of a legal point. 21. On perusal of the entire materials on record and upon hearing the learne d counsel for the parties, it cannot be said to be a case of exercising the part icular power in making impugned settlement of the fishery with the respondent No . 5 arbitrarily, irrationally and/or the decision is founded on malafide exercis e of power and/or misuse of any statutory power. The bid amount cannot be sole c riterion for settlement of a Fishery. Various other factors are to be considered in reference to the Rules. 22. accordingly it is dismissed. In view of the above, I do not find any merit in this writ petition and WPC No. 1243/13 23. Although the petitioner quoted a higher bid amount, as per the report an d certificates available on record, they do not fulfill the tender conditions as the impugned order would reflect. As per the certificate issued by the District Fishery Development Officer, Dhubri, although the members of the society are sh own as belonging to fishermen community and SC by caste, but their main occupati on is purchase and sell of fish. Annexure-14 and 15 certificate annexed to the w rit petition clearly depict the said position. As per the requirement of the ten der condition, tenders can be submitted by the Cooperative Society/Self Help Gro up/NGO comprising of 100% actual fishermen. A tenderer as member of the society will have to be actual fishermen. However, the records have revealed that they a re not the actual fishermen, but are engaged in purchase and sell of fish. In su ch a situation, if it was not settled with the fishery having had no experience of actual fishing which is the required condition for settlement of the fishery. It cannot be said that the authority issuing the impugned order committed any i llegality. 24. The decision, on which, Mr. D. K. Sarmah, learned counsel for the petiti oner has referred to i.e. Surjaya Das (supra) is not at all applicable to the ca se in hand. In the said case, the Court was concerned with the question as to wh ether the particular society was a Fishery Co-operative Society constituted by a ctual fishermen or not. In the given facts and circumstances, it was answered in the affirmative. No ratio as such has been laid down in the said decision. In t he instant case, there categorical finding that the members of the petitioners s ociety are not actual fishermen engaged in fishing, but are engaged in purchase and sell of fish and other avocations cannot be said to be falling under the cat egory of actual fishermen. 25. In view of the above, I do not find any merit in this writ petition also and accordingly stands dismissed. 26. ties to bear their own costs. Both the writ petitions are answered in the above manner leaving the par