High Court · 2012

e tender has been rejected on the ground of non-submission of required papers. The aforesaid reflection made in the impugned order is contrary to the records p roduced by the learned State counsel. I have very carefully gone through the entire file in which the tender p rocess was initiated and finalised. I have also gone to the tender submitted by the tenderers. On perusal of the file, what is seen is that the file was process ed with detailed discussion of the tender submitted by the various tenderers. It was found that out of all the tenders only two are Cooperative Societies consis ting of 100% actual fishermen. They are petitioner and the respondent No. 5. It was also found that the highest bidder with bid value of Rs. 8,00,201/- did not submit fishing experience certificate, resolution of the Managing Committee. It was found that call deposit was not 15% of the Govt. lease value. Accordingly th e said tender was rejected. Secondly, the office note states that the tender submitted by the respon dent No. 5 is defective in view of non-submission of caste certificate from the appropriate authority. The said certificate was issued by the Agriculture Depart ment which is not the competent authority. Accordingly, the office note suggeste d for rejection of bid offered by the respondent No. 5. The aforesaid note was initiated on receipt of the tender papers and the reafter the matter was placed before the Commissioner and Secretary clearly indi cating therein the discrepancies in respect of the tender submitted by the respo ndent No. 5 which are the non-submission of caste certificate from the appropri ate authority and that the society is not located within the area of operation o f the fishery. Another ground assigned in the note is that the respondent No. 5 had already been settled with two other fisheries. When the file was put up befo re the concerned Minister, the aforesaid writ petition was mentioned about which there is notings in the file. Views of the Deputy Commissioner, Lakhimpur was a lso obtained in respect of settlement of the fishery. Since in terms of the aforesaid interim order of this Court in case of detection of any major defects in the tender documents submitted by the respondent No. 5 the fishery was not to be settled to it without the leave of this Court, the mat ter was processed taking note of the said direction of this Court and it was not ed that the caste certificate submitted by the respondent No. 5 was not from the appropriate authority. The said note also refers to the views of the Deputy Com missioner, Lakhimpur. On perusal of the said views of the Deputy Commissioner, L akhimpur alongwith the statement of tenders, it appears that no definite views w as expressed. However, the statement discusses that out of three villages compri sing the respondent No. 5 Society, only one village is nearby to the fishery in question. So far as the petitioner is concerned, the said statement did not reco rd any adverse report against it. However, it was stated that the balance sheet submitted by it is upto 2002-2003. On perusal of the file, it further appears th at the respondent No. 5 submitted a caste certificate after the tender process i s over. As regards the income tax clearance certificate, as against the submissi on of the same by the petitioner from the income tax authority, the respondent N o. 5 submitted only an affidavit stating therein that there is no income tax lia bility. As per the terms and conditions of the NIT, amongst others the caste cer tificate and income tax clearance certificate are required to be annexed. The ca ste certificate that was annexed alongwith the tender of the respondent No. 5 is dated 01.11.2008 and was issued by the Sub-Divisional Fishery Development Offic er, Dhakuakhana which reads as follows: (cid:28)Govt. of Assam Office of the Sub-Divisional Fishery Dev. Officer, Dhakuakhana No. AFLD 24/2007-08/35 Dated 1st Nov./08 FISHERMEN EXPERIENCE CERTIFICATE Certified that the member of Gutung Bhettoli Fishery Cooperative Society of Dhakuakhana are known to me. They are belongs to all in to Scheduled Caste F ishery Community and have experience from their childhood age. I wish their success in fishing and fish trading business in life. Sub-Divisional Fishery Dev. Officer, Dhakuakhana (cid:29) From the above, what is seen is that the respondent No. 5 did not submit the caste certificate from the appropriate authority and also did not submit th e income tax clearance certificate which were substituted by the aforesaid above quoted certificate issued by the Sub-Divisional Fishery Development Officer, Dh akuakhana which is not appropriate authority and by an affidavit sworn on 20.06. 2011. Above apart, there is also a question mark about the neighbourhood of fi shery of the respondent No. 5. In this connection, learned counsel for the petit ioner has placed reliance on the decision of the Apex Court reported in 2009 4 G LT 909 (Manash Padmabari Jiniram Fishery Co-operative Society Ltd. vs. State of Assam and ors.) in which it has been held that the Co-operative Society in neigh bourhood of the fishery will have better claim than the one which is not in the neighbourhood of the fishery. There being a definite report stating that the res pondent No. 5 Society is not in the neighbourhood of the fishery, the authority passing the impugned order ought to have considered that aspect of the matter in cluding the fact that at the time of submission of the tender the respondent No. 5 did not annex the caste certificate from the appropriate authority and that i ncome tax clearance certificate was also not annexed alongwith the tender docume nts, but the same was substituted by a self sworn affidavit. Learned counsel for the respondent No. 5 has placed reliance on the deci sion of the Apex Court reported on (2012) 8 SCC 216 (Michigan Rubber (India) Ltd . vs. State of Karnataka and ors.) so as to submit that the discretionary value to the tendering authority may not be interfered with on minor grounds/defects i n the tender documents. In the said decision, the Apex Court was concerned with the nature and scope of judicial review in respect of the discretionary value of tendering authority to settle the tender condition/liability criteria in tender . It was held that the Court may not interfere on the ground that on some other terms, the same would have been fairer, wiser and more logical. Needless to say that in such matters the Court is concerned with whether the process adopted or the decision made by the authority is legally valid or n ot. In the instant case, as against the aforesaid recording in the file, an abr upt decision was taken to settle the fishery with the respondent No. 5 without d ealing with the discrepancies in respect of non-submission of caste certificate, income tax clearance certificate and more significantly, the report stating tha t the respondent No. 5 is not within the neighbourhood of the fishery. So far as the petitioner is concerned, the impugned order states that its tender cannot be accepted because of non-submission of the required materials alongwi th the tender paper. However, nothing has been stated as to what are those requi red materials. On the other hand, the entire file and the office note only speak of submission of documents by it alognwith the tender papers. As regards the su bmission of balance sheet, it is true that the petitioner submitted balance shee t covering the period of 2002-2003 and not thereafter. However, learned counse l for the petitioner submits that no further balance sheet could be prepared and /or necessary as the petitioner has not been settled with any fishery after the said period. Considering the matter in its entirety, I am of the considered opinion t hat the impugned order dated 27.09.2012 is not legally sustainable and according ly same is set aside and quashed. The matter shall now go back to the Govt. in t he Fishery Department for fresh consideration of the matter consistently with th e observations made above. Let the entire exercise be carried out by passing a r easoned order as expeditiously as possible, preferably within 31.01.2013.