High Court
Case Details
WP(C) 2819/2010 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (Oral) By way of this petition, under Article 226 of the Constitution of India, petitio ner seeks quashing of order dated 27.04.2010, passed by the Commissioner and Sec retary, Govt. of Assam, Fisheries Department, Dispur settling No. 5 Sonai Nadi P art-III Fishery in the district of Morigaon with respondent No. 4 at the value o f Rs.7, 77, 777.00 per annum for a period of seven years. 02. Deputy Commissioner, Morigaon issued tender notice dated 22.07.2 009 for settlement of No. 5 Sonai Nadi Part-III Fishery (Fishery), which is a 60 % category fishery. The tender period is for seven years. Tenders were opened on 24.08.2009. Deputy Commissioner, Morigaon then prepared the comparative stateme nt. It appears that altogether five tenderers, including the petitioner and the respondent No. 4, had submitted tenders. The particulars of the tenderers and th e amounts quoted by them are as under : - Serial No. 1. ed 2. d 3. Name of the Bidder Amount President, No. 5, Sonai Nadi Part-III, Fishery Cooperative Society Limit Rs. 63,02,343/- President, Ouguri Katahguri Bhurbandha Matchyajibi Samabai Samiti Limite Rs. 47,81,700/- Secretary, No. 122, Gorolu Meen Samabai Samiti Limited Rs. 39,29,527/- 4. 5. President, Navayug Matchyajibi Samabai Samiti Limited Rs. 54,44,439/- Secretary, Satanguri Fishery Samabai Samiti Limited Rs. 42,12,823/- 03. From the above, it is evident that bid of the petitioner was Rs. 47,81,700.00, whereas that of respondent No. 4, Rs.54,44,439.00 (The bids were composite for the entire tender period of 7 years). The highest tender was of Sr i Santosh Barman, President No. 5, Sonai Nadi Part-III, Fishery Co-operative Soc iety Ltd., who offered Rs.63,02,343.00. By the impugned order dated 27.04.2010 t ender of the highest tenderer was rejected on the ground of non-submission of se curity deposit and annual balance sheet. Respondent No. 4 being the second highe st bidder and the tender having been found valid in all respects, the settlement was made with respondent No. 4. 04. Aggrieved, petitioner has filed the present writ petition.
Legal Reasoning
14. That brings us to the next ground of challenge, namely, neighbou rhood. As already noticed, under proviso to Rule 12 of the Assam Fishery Rules, one of the essential pre-conditions of settlement, which is required to be fulfi lled for such a settlement, is that the co-operative society or the self-help gr oup or the NGO must be in the neighbourhood of the fishery. The settling authori ty, i.e. the Commissioner and Secretary to the Govt. of Assam, Fishery Departmen t has recorded a clear finding of fact that respondent No.4 society is in the ne ighbourhood of the fishery. Though, neither the settling authority nor the Deput y Commissioner, who had issued the tender notice have filed affidavit, surprisin gly one Smti. Alaka Goswami, Sub-Divisional Officer (Sadar), Morigaon has filed an affidavit. In her affidavit, she has stated that the tender submitted by the petitioner society was found to be in order. It is also stated that respondent N o. 4 is about two kilometers away from the fishery in question and that responde nt No. 4 did not submit income tax clearance certificate alongwith the tender. I ssue relating to submission of income tax clearance certificate having already b een discussed in the preceding paragraphs, the said issue did not detain us any further. In so far neighbourhood is concerned, the said affidavit does not say t hat respondent No. 4 is not in the neighbourhood of the fishery. It only says th at respondent No. 2 is two kilometers away from the fishery in question. The con cept of neighbourhood in the context of the Assam Fishery Rules, 1953 was gone i nto by a Division Bench of this Court in Brahmaputra Part-II Mach Mahal Samabai Samity Ltd. Vs. State of Assam & Ors. (Supra), wherein it was emphasized that th e said expression needs an interpretation so as to advance the object and purpos e of the Rules and not to frustrate it. It was observed that the term neighbourh ood does not express any definite idea of distance. A few feet or several 100 ya rds or even a greater distance from an object would be in its neighbourhood. Nei ghbourhood cannot be measured and understood in a mathematical formula with an a rithmetical precision. It was held thus:- (cid:28)(13) Turning to the aspect of neighbourhood, we feel that the expression needs interpretation so as to advance the object and purpose of the rules and not to f rustrate it. As observed earlier, in a given fact situation, there may be more t han one society in the neighbourhood of the fishery. It may so happen that a soc iety fulfilling the other conditions of the proviso and which is more deserving for such settlement is, distance wise, slightly further away from the fishery, t han the other eligible societies. Will the object and purpose of the proviso be served if the former society is discarded only on the ground that though it is m ore deserving, the other societies are nearer to the fishery? In other words, is the word ’neighbourhood’ to be interpreted in terms of inches, feet and yards o r a more pragmatic and purposive, interpretation has to be provided thereto. The Black Law’s Dictionary defines the word ’neighbourhood’ as a place near; an adj oining or surrounding district; a mere minimum vicinity; vicinage. In ordinary a nd common usage ’locality’ is synonymous in meaning with ’neighbourhood’. In Law Lexicon by P. Ramanatha Aiyer, the word ’neighbourhood’ has been defined to sig nify nearness as opposed to remoteness. (cid:28)whether a place is in the neighbourhood of another place depends upon no arbitr ary rule of distance or topography. One house may be said to be in the neighbour hood of another house and not structurally adjoin it & & & & & & & &. (14) The term ’neighbourhood’ does not express any definite idea of distance. A few feet or several 100 yards or even a greater distance from an object would be in its neighbourhood. (15) Thus, no mathematical formula has been devised to define and measure neighb ourhood. Within the meaning attributed to the word as above, there is evidently an element of flexibility and, therefore, while dealing with the proviso to Rule 12 as above, it would, in our opinion, neither be permissible nor desirable to ascertain the neighbourhood by a measuring tape. If the residence of the members of an otherwise eligible fishery co-operative society is in the vicinity and pr oximity of the fishery as is understood in common parlance, they are deemed to b e in the neighbourhood thereof. Any attempt to measure the neighbourhood in term s of inches, feet, yards or centimeters and meters, would render the proviso oti ose in a given fact situation. (16) It would be appropriate at this stage to extract the observation of this Co urt on the aspect of neighbourhood as contained in its decision in Majorati Min Samabai Samity Ltd. (Supra) wherein, this Court observed as follows: (cid:28)the question of neighbourhood and area of operation has been the subject matter of debate and discussions in several judgments and even the learned Single Judg e has also made a reference to it, towards end of the judgment, indicating as to what is meant by neighbourhood in the context of Rule 12. Without disputing the proposition, here again, the question that falls for consideration is one of th e extent and scope of judicial review whether this Court in exercise of its powe r under Article 226 examine the question of neighbourhood with such minutest fac tual details as to measure every inch of the distance at which a Society is situ ated. It is not something to be measured in foot and inches, all that this Court extending the writ jurisdiction such an extent would be nothing sort being viol ent to the Article 226 of the Constitution, all that the Court can examine as to whether the condition and requirements of neighbourhood, as prescribed under th e rules, it was present to the mind of the settling authority. It is not expecte d that the writ court would be the Surveyor and measure the distance in meter an d centimeter. If the Settling authority is alive to the requirements of the rule s and the same is reflected in the order of settlement of a fishery, the writ co urt will not be justified an undertaking and exercise of measuring the distance between two competent claimants. After all ’neighbourhood’ is a relative term wh ich is to be taken into account alongwith other conditions. It is not the intend of rules to treat neighbourhood with geometrical altitude and procedure. (17) We are in respectful agreement with the views expressed as above. (cid:29) 15. In a subsequent judgment following the above decision, namely, C hatanguri Meen Samabai Samity Ltd. (M/s.) Vs. State of Assam & Ors. (Supra), thi s Court held that while considering the term ’neighbourhood’ appearing in the pr oviso to Rule 12, it is imperative to bear in mind that the term ’neighbourhood’ does not convey any definite idea of distance. It is not to be measured by a me asuring tape. The difference in the distance of a few feet or several yards or e ven 1 or 2 kilometers would not really be material for the purpose of determinin g the question of neighbourhood. Having regard to the judicial pronouncements as noticed above, t 16. his Court is of the view that the question of neighbourhood being essentially a question of fact may not be gone into in a writ proceeding in the absence of any overwhelming materials to the contrary. In the present case, there is a clear f inding recorded by the settling authority that respondent No. 4 is in the neighb ourhood of the fishery and the petitioner has failed to show that the said findi ng is perverse and contrary to the materials on record. That being the position, this Court finds no merit in the writ p 17. etition, which is, accordingly, dismissed. Record produced by the learned State Counsel is returned back. No costs.
Arguments
05. Heard Mr. FKR Ahmed, learned counsel for the petitioner and Ms. P Boruah Bardoloi, learned Govt. Advocate, Assam, who has produced the record. A lso heard Ms. B Sarma, learned counsel for respondent No. 4. 06. Learned counsel for the petitioner submits that impugned settlem ent has been challenged by the petitioner on two grounds. Firstly, respondent No . 4 did not submit income tax clearance certificate alongwith the tender, which is one of the essential conditions laid down in the tender notice. Therefore, th e settling authority could not have treated the respondent No. 4 as a valid tend erer. Secondly, he submits that respondent No. 4 is not in the neighbourhood of the fishery, which fact is admitted by respondent No. 3 in her affidavit, wherei n she has stated that respondent No. 4 is about 2 kilometers away from the fishe ry. Learned counsel submits that to be in the neighbourhood of the fishery in qu estion is one of the conditions precedent for getting settlement under proviso t o Rule 12 of the Assam Fishery Rules. As the respondent No. 4 is admittedly not in the neighbourhood of the fishery, impugned settlement cannot be sustained. 07. r has placed reliance on the following judgments: - In support of his submissions, learned counsel for the petitione 1. Bikash Bora Vs. State of Assam & Ors., 2003 (2) GLT 485. 2. Bijulibari Multipurpose Development Society Vs. State of Assam & Ors., 2003 ( 3) GLT 503. 3. Benjamin Lalrinawma Vs. State of Mizoram & Ors., 2005 (3) GLT 580. 08. rred to the affidavit filed by respondent No. 3. Learned Govt. Advocate has produced the record and has also refe 09. Ms. B Sarma, learned counsel appearing for the respondent No. 4 on the other hand submits that both the grounds urged by the petitioner to quest ion the validity of the settlement made in favour of respondent No. 4 are wholly untenable and no interference with the impugned settlement is called for. She s ubmits that Income Tax Department had itself issued Circular No.2/2004, dated 10 .02.2004 abolishing requirement of obtaining income tax clearance certificate by persons entering into commercial contracts. That being the position, though the respondent No. 4 had applied for such a certificate from the income tax authori ties, the same was not issued by the departmental authority and, therefore, ques tion of submitting such a certificate alongwith the tender does not arise. As a matter of fact, none of the tenderers had submitted income tax clearance certifi cate. In so far question of neighbourhood is concerned, learned counsel for resp ondent No. 4 asserts that respondent No. 4 is in the neighbourhood of the fisher y and submits that neighbourhood of a society vis-a-vis the fishery in question cannot be measured in terms of centimeters, inches and meters. It is a relative concept and has to be considered taking an overall objective view of the matter. In support of her contention, she has placed reliance on two decisions of this Court, namely, Brahmaputra Part-II Mach Mahal Samabai Samity Ltd. Vs. State of A ssam & Ors., 2003 (1) GLT 155 and Chatanguri Meen Samabai Samity Ltd. (M/s.) Vs. State of Assam & Ors., 2006 (Suppl.) GLT 137. She, therefore, submits that ther e is no good ground to interfere with the impugned settlement. In any case, the bid value of respondent No. 4 is much higher than that of the petitioner and the impugned decision awarding the settlement with respondent No. 4 is, therefore a lso in the public interest, as fetching of higher revenue is an important consid eration in matters of settlement. 10. the record produced. Submissions made have been considered. I have also gone through Before proceeding further, the impugned order of settlement date 11. d 24.07.2010 may be referred to. As noticed above, Sri Santosh Barman, President No. 5 Sonai Nadi Part-III Fishery Co-operative Society Ltd. had offered the hig hest bid at Rs. Rs.63,02,343.00. Respondent No. 4 had offered the second highest bid of Rs.54,44,439.00. Bid value of the petitioner at Rs. 47,81,700/- was the third highest. Tender of the highest bidder was rejected on the ground of non-su bmission of security deposit and annual balance sheet. Bid of respondent No. 4 b eing the second highest, the same was next considered by the settling authority. It was found that respondent No. 4, a Co-operative Society, comprised of 100% a ctual fisherman community and is in the neighbourhood of the fishery. It also fu lfilled the other required qualifications. Therefore, it was decided to settle t he fishery with respondent No. 4. As a result, there was no need to consider the tender of the petitioner. 12. A perusal of the tender notice dated 22.07.2009 indicates that o ne of the conditions was that the tender should be accompanied by income tax cle arance certificate. The above insistence on such a certificate appears to be onl y for the purpose of assessing the solvency of a party and to ascertain its fina ncial soundness. Respondent No. 4 in his affidavit has stated that income tax cl earance certificates are no longer issued by the Income Tax Department for submi ssion of tender, as issuance of such certificates was abolished by the Govt. of India in the Ministry of Finance. Subsequently, a copy of circular No. 2/2004, d ated 10.02.2004 abolishing requirement of obtaining income tax clearance certifi cate by persons entering into commercial contracts has been placed on record. Th is position has not been disputed by the petitioner or by the State Government. Financial soundness or solvency of a party can be judged or assessed from other documents such as annual balance sheet, profit and loss statement, security depo sit etc. 13. That being the position, in the contextual facts of the case, it cannot be said that submission of income tax clearance certificate along with t he tender could be treated as an essential condition of tender, which has to be rigidly enforced.