High Court
Case Details
WP(C) 4848/2011 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. MK Choudhury, learned senior counsel appearing for the petitioner M/s. Ouguri Katahguri Bhurbandha MSS Ltd. (hereinafter referred to as ’the petitione r society’). The official respondents are represented by Mr. J Handique, learned Govt. Advocate and Senior Counsel Mr. N.C. Das appears for the respondent No.7 i.e. M/s Satgaon/Jalgutha/ Matshyajibi Samabay Samity Ltd. (hereinafter referred to as ’the respondent No.7 society’). 2. The matter pertains to settlement of the No.49/51 Patuakata / Bhaluakata / Salkata / Morsonai Group Fishery (hereinafter referred to as ’the Group Fishe ry’) of Morigaon District for which NIT was issued on 20.5.2011 (Annexure-A) by the Dy. Commissioner, Morigaon. The petitioner society was one of the 4 tenderer s and their bid at Rs.3,03,333/- was the highest, whereas the bid of respondent No.7 society at Rs.1,31,000/- was the 3rd highest, as can be seen from the compa rative statement (page 25), prepared by the Tender Committee. But considering th e petitioner society to be outside of the (cid:28)neighbourhood (cid:29) of the fishery, their tender was rejected. Similar fate followed the 2nd highest tenderer. Eventually through the impugned order dated 19.8.2011 (Annexure-C), the settlement was gran ted to the respondent No.7 society at their 3rd highest bid of Rs.1,31,000/- . 3.1. Assailing the settlement order, Mr. MK Choudhury, learned senior counsel submits that the tender of the respondent No.7 society was incomplete as they d id not enclose the PAN Card of the society with their tender and it is for this reason the settling authority used the word almost in describing the eligibility of the respondent No.7 society. 3.2. On the neighbourhood aspect, Mr. Choudhury submits that this Group Fishe ry spread across Lahorighat, Mikirbheta, Dhing and Morigaon Circles and the peti tioner society is located at a distance of 3 K.M. in Morigaon portion of the fis hery and therefore it can’t be considered to be outside of the neighbourhood of the fishery. 3.3. Questioning the neighbourhood status of the settlement holder the counse l refers to the resolution of 15.5.2008 adopted by the Executive Committee of th e respondent No.7 society to project that as the previous leasee of this very Gr oup Fishery the society itself decided to surrender the balance lease, since the fishermen were required to traverse long distance to catch fish in the Group Fi shery. Responding to the challenge of the unsuccessful tenderer, Mr. NC Das, th 4.1. e learned senior counsel appearing for the respondent No.7 society firstly submi ts that PAN Card was a new requirement and accordingly the tenderer had indicate d that PAN Card is applied for. Thereafter soon after the PAN Card of the societ y was received, they furnished the same on 4.7.2011, well before the settlement order was issued on 19.8.2011. Accordingly the senior counsel projects that at t he time of consideration, the tender of the respondent No.7 was complete in all respect. 4.2. On the surrender resolution of 15.5.2008 of the respondent No.7 society, Mr. Das submits that as the previous lessee of the same Group Fishery for the t erm from 5.6.2004 to 4.6.2011, the respondent No.7 society operated fishery for the full term and there was no occasion to surrender the fishery midway. On the (cid:28)neighbourhood (cid:29) issue the respondent No.7 contends that major por 4.3. tion of the Group Fishery is within the Mikirbheta Circle and the fishermen unde r the respondent No.7 are all within the neighbourhood of the fishery. But on th e other hand, the writ petitioner has failed to furnish any certificate to show that their members are in the neighbourhood of the Group Fishery. In the context of the certificate dated 21.10.2011 of the Morigaon Circle Officer to the petit ioner society, Mr. Das submits that the said certificate can’t be considered as a neighbourhood certificate, as it does not refer to the fishermen members but m ay perhaps refer to the office of the petitioner society being at a distance of 3 K.M. from the Group Fishery. The settlement holder further contends that although the petitioner was 4.4. the higher tenderer, not being in the neighbourhood of the Group Fishery, they a re ineligible for settlement since such 60% Group Fishery are meant to be settle d for the benefit of the actual fishermen residing in the neighbourhood of the F ishery. 5. Representing the settling authority Mr. J Handique, the learned Govt. Ad vocate submits that the main ground for rejection of the tender of the petitione r society is that they are not in the neighbourhood of the Fishery and on the si milar neighbourhood question raised against the respondent No.7 society, the Gov t. Advocate submits that this society was the settlement holder for the previous term (2004-2011) and accordingly their eligibility on the neighbourhood aspect can’t be questioned at this stage. 6. The comparative statement prepared by the Tender Committee shows that ag ainst the respondent No.7 in the remark column, the PAN Card is shown to be appl ied for therefore this was not furnished with the tender. But when it was later received, the respondent No.7 furnished the same on 4.7.2011 and perhaps on this basis, their tender was found to be eligible. Non furnishing of the PAN Card in a given case may be fatal for a tenderer, but since the respondent No.7 was the sitting lessee and furnished the PAN Card well before the settlement order, I c onsider this deficiency to be a curable one and on this aspect it is held that t hat the tender of the respondent No.7 can’t be invalidated. 7. But since the higher tenderer was not considered on the ground that they do not satisfy the neighbourhood criteria, I feel that this issue requires a fr esh examination. Since neighbourhood eligibility of the settlement holder is als o being questioned, this may also be re-examined simultaneously. Of-course this issue will have to be considered in the context of the fishermen members of the society and not on the basis of location of the office of the concerned society since the settling authority is to bear in mind the welfare of the neighbourhood fisherman members. Since the No.49/51 Patuakata / Bhaluakata / Salkata / Morsonai Group Fis 8. hery is in Morigaon District and is spread across 4 circles namely, Lahorighat, Mikirbheta, Dhing and Morigaon Circles, the settling authority should obtain rep ort from the Dy. Commissioner, Morigaon on whether the members of the petitioner society and the members of the respondent No.7 society reside in the neighbourh ood of the No.49/51 Patuakata / Bhaluakata / Salkata / Morsonai Group Fishery, t o make either or both to be eligible for settlement of the Gruoup Fishery. If th e report of the Dy. Commissioner confirms that the petitioner society is not in the neighbourhood and affirms that the respondent No.7 society is in the neighbo urhood, the settlement order dated 19.8.2011 should be left undisturbed. But if a contrary report is received on the neighbourhood vis-à-vis the petitioner and the respondent No.7 society, the settling authority will re-visit the settlement order dated 19.8.2011 and take a fresh decision on the settlement of the No.49/ 51 Patuakata / Bhaluakata / Salkata / Morsonai Group Fishery. In either case, th e authority will pass a fresh order in 6 weeks to either affirm the impugned set tlement or to pass a fresh settlement order depending upon the report of the Dy. Commissioner on the neighbourhood aspect. The settlement order dated 19.8.2011 (Annexure-C) will abide by the fresh decision to be taken in pursuant to this Co urt’s order. 9. on cost.
Decision
With the above direction, the case stands disposed of without any order