M/S Geramari Gaon Panchayat Meen ... vs The State Of Assam And 8 Ors
2021 Latest Caselaw 486 Gua

                                                                 Page No.# 1/16

GAHC010114062020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3379/2020

         M/S GERAMARI GAON PANCHAYAT MEEN SAMABAY SAMITY LTD.
         GERAMARI, REP. BY ITS SECY. SRI ANIL CH. BARMAN, AGED ABOUT- 60
         YEARS, S/O- LT. MUKUNDA BARMAN, R/O- VILL- ASHARIKANDI, P.O.
         ASHARIKANDI, P.S. GAURIPUR, PIN- 783331, DIST.- DHUBRI, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 8 ORS
         REP. BY THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM, FISHERY
         DEPTT., DISPUR, GHY-6

         2:THE JOINT SECRETARY
          GOVT. OF ASSAM
          FISHERY DEPTT.
          DISPUR
          GHY-6

         3:THE DY. COMMISSIONER
          DHUBRI
          P.O. AND DIST.- DHUBRI
          PIN- 783301
         ASSAM

         4:THE ADDL. DY. COMMISSIONER
          (REVENUE FISHERY DEPTT.) DHUBRI
          P.O. AND DIST.- DHUBRI
          PIN- 783301
         ASSAM

         5:THE CIRCLE OFFICER
          GAURIPUR REVENUE CIRCLE
          DHUBRI
                                                                  Page No.# 2/16

             DIST.- DHUBRI
             ASSAM
             PIN- 783301

            6:JOY SANKAR SARMA
             CIRCLE OFFICER
             GAURIPUR REVENUE CIRCLE AND DHUBRI REVENUE CIRCLE
             DIST.- DHUBRI
            ASSAM
             PIN- 783301

            7:NAMEZ UDDIN AHMED
             LAT MANDAL
             GAURIPUR REVEUE CIRCLE
             DHUBRI
             DIST.- DHUBRI
            ASSAM
             PIN- 783301

            8:THE ASSTT. REGISTRAR OF CO.OP. SOCIETIES
             DHUBRI
             DIST.- DHUBRI
            ASSAM
             PIN- 783301

            9:M/S GAURIPUR FISHERY CO. OP. SOCIETY LTD.
             HAVING ITS REGD. OFFICE AT WARD NO. 2
             P.O. GAURIPUR
             PIN- 783331
             DIST.- DHUBRI
            ASSAM

Advocate for the Petitioner   : MR. D K SARMAH

Advocate for the Respondent : GA, ASSAM




             Linked Case : WP(C)/5216/2020

            M/S GAURIPUR COOP FISHERY LTD
            GAURIPUR
            DIST DHUBRI
            ASSAM. 783331
            REPRESENTED BY ITS PRESIDENT SRI SHIBEN NAMASUDRA
                                                     Page No.# 3/16



VERSUS

THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF
ASSAM
CO OPERATION DEPARTMENT
DISPUR GUWAHATI 781006

2:THE REGISTRAR OF CO OPERATIVE SOCIETIES
ASSAM
KHANAPARA
 GUWAHATI 781022
 KAMRUP M ASSAM
 3:THE ADDITIONAL REGISTRAR OF COOPERATIVE SOCIETIES (G)
KHANAPARA
 GUWAHATI 781022
 KAMRUP M ASSAM
 4:THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES
 DHUBRI
DIST DHUBRI
ASSAM
 783301
 5:M/S GERAMARI GAON PANCHAYAT MIN SAMABAY SAMITY LIMITED.
VILLAGE BAGURAPARA
 PO ASHARIKANDI
 DIST DHUBRI
ASSAM
 783331
 ------------

Advocate for : MR S KHOUND Advocate for : SC CO OP appearing for THE STATE OF ASSAM AND 4 ORS

Linked Case : WP(C)/3051/2020

M/S. GAURIPUR COOP. FISHERY SOCIETY LTD. GAURIPUR P.O- GAURIPUR DIST- DHUBRI ASSAM PIN- 783331 REP. BY ITS PRESIDENT SRI SHIBEN NAMASUDRA

Page No.# 4/16

VILL- GAURIPUR P.O AND P.S- GAURIPUR DIST- DHUBRI ASSAM PIN- 783331

VERSUS

THE STATE OF ASSAM AND 5 ORS.

REP. BY THE ADDL CHIEF SECRETARY TO THE GOVT OF ASSAM FISHERY DEPTT DISPUR GHY- 06

2:THE JOINT SECRETARY TO THE GOVT OF ASSAM FISHERY DEPTT DISPUR GUWAHATI- 06 3:THE DEPUTY COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 4:THE ADDL DEPUTY COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 5:THE CIRCLE OFFICER GAURIPUR REVENUE CIRCLE DIST- DHUBRI ASSAM 6:M/S GERAMARI GAON PANCHAYAT MIN SAMABAY SAMITY LIMITED VILL- BAGURAPARA P.O- ASHARIKANDI DIST- DHUBRI ASSAM PIN- 783331

------------

Advocate for : MR D DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.

Page No.# 5/16

Linked Case : WP(C)/2562/2020

M/S. GAURIPUR COOP. FISHERY SOCIETY LTD. GAURIPUR P.O- GAURIPUR DIST- DHUBRI ASSAM PIN- 783331 REP. BY ITS PRESIDENT SRI SHIBEN NAMASUDRA R/O- WARD NO.2 VILL- GAURIPUR P.O AND P.S- GAURIPUR DIST- DHUBRI ASSAM PIN- 783331

VERSUS

THE STATE OF ASSAM AND 5 ORS REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM FISHERY DEPTT DISPUR GUWAHATI- 06

2:THE JOINT SECRETARY TO THE GOVT OF ASSAM FISHERY DEPTT DISPUR GUWAHATI- 06 3:THE DEPUTY COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 4:THE REGISTRAR OF COOPERATIVE SOCIETIES ASSAM KHANAPARA GUWAHATI- 22 5:THE ASSTT REGISTRAR OF COOPERATIVE SOCIETIES DHUBRI DIST- DHUBRI ASSAM PIN- 783331 6:M/S GERAMARI GAON PANCHAYAT MIN SAMABAY SAMITY LTD VILL- BAGURAPARA P.O- ASHARIKANDI Page No.# 6/16

DIST- DHUBRI ASSAM PIN- 783331

------------

Advocate for : MR D DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS

Linked Case : WP(C)/2343/2020

M/S GERAMARI GAON PANCHAYAT MEEN SAMABAY SAMITY LTD A CO-OPERATIVE SOCIETY REGD. UNDER THE ASSAM CO-OPERATIVE SOCIETIES ACT

HAVING ITS REGD. OFFICE AT ASHARIKANDI (BAGURAPARA) P.O. ASHARIKANDI DIST.- DHUBRI ASSAM REP. BY ITS SECY. SRI ANIL CH. BARMAN AGED ABOUT- 60 YEARS S/O- LT. MUKUNDA BARMAN R/O- VILL- ASHARIKANDI P.O. ASHARIKANDI P.S. GAURIPUR DIST.- DHUBRI ASSAM PIN- 783331

VERSUS

THE STATE OF ASSAM AND 4 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM FISHERIES DEPTT.

DISPUR GHY-6 DIST.- KAMRUP ASSAM

2:THE DY. COMMISSIONER DHUBRI P.O. AND DIST.- DHUBRI ASSAM 3:THE CIRCLE OFFICER DHUBRI REVENUE CIRLCE DHUBRI Page No.# 7/16

4:THE DISTRICT FISHERY DEVELOPMENT OFFICER DHUBRI P.O. AND DIST.- DHUBRI ASSAM 5:M/S GAURIPUR FCS LTD.

GAURIPUR P.O. AND P.S. GAURIPUR PIN- 783331 DIST.- DHUBRI ASSAM

------------

Advocate for : MR. D K SARMAH Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS

Linked Case : WP(C)/4434/2020

M/S GAURIPUR COOP FISHERY SOCIETY LTD GAURIPUR P.O.-GAURIPUR DIST-DHUBRI ASSAM PIN-783331 REPRESENTED BY ITS PRESIDENT SRI SHIBEN NAMASUDRA

VERSUS

THE STATE OF ASSAM AND 5 ORS.

REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM FISHERY DEPARTMENT DISPUR GUWAHATI-6

2:THE DEPUTY COMMISSIONER DHUBRI DIST-DHUBRI ASSAM PIN-783301 3:THE ADDITIONAL DEPUTY COMMISSIONER DHUBRI DIST-DHUBRI ASSAM PIN-783301 4:THE ASSISTANT REGISTRAR OF COOP. SOCIETIES Page No.# 8/16

DHUBRI DIST-DHUBRI ASSAM PIN-783 5:THE CIRCLE OFFICER GAURIPUR REVENUE CIRCLE DIST-DHUBRI ASSAM 6:M.S GERAMARI GAON PANCHAYAT MIN SAMABAY SAMITY LTD. VILL-BAGURAPARA P.O.-ASHARIKANDI DIST-DHUBRI ASSAM PIN NO.

------------

Advocate for : MR. M K CHOUDHURY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

JUDGMENT AND ORDER (Oral) Date : 11-02-2021

Heard Mr. M. K. Choudhury, learned senior counsel assisted by Mr. S. Khound,

learned counsel appearing on behalf of the writ petitioner M/S Gauripur Cooperative

Fishery Society Ltd. in WP(C) Nos.2562/2020, 3051/2020, 4434/2020 and 5216/2020.

Also heard Mr. D. K. Sarmah, learned counsel appearing on behalf of the writ

petitioner M/S Geramari Gaon Panchayat Meen Samabay Samity Ltd. in WP(C)

Nos.3379/2020 and 2343/2020.

Ms. M. Bhattacharjee, learned Addl. Senior Govt. Advocate, Assam, is present

on behalf of the official respondents. Mr. G. Bordoloi, learned Standing Counsel,

Cooperation Department is also present.

Page No.# 9/16

2. The dispute in this batch of writ petitions relates to regular settlement of the

Group No.1/87 Dharnad Brahmapputra Pt-I & Satakuri Nadi Fishery situated in the

district of Dhubri. The aforesaid fishery was earlier settled with M/S Gauripur

Cooperative Fishery Society Ltd. for a period of 7 years with effect from 04.03.2013.

The lease was due for expiry on 03.03.2020. As such, the Deputy Commissioner, Dhubri

had issued Notice Inviting Tender (NIT) dated 27.02.2020 inviting fresh bids for regular

settlement of the aforesaid fishery for a further period of seven years. In response to

the aforesaid NIT both the rival societies, besides three other tenderers have

submitted their bids. After evaluating the bids, the Deputy Commissioner, Dhubri had

forwarded his recommendation vide letter dated 29.09.2020 addressed to the

Commissioner and Secretary to the Govt. of Assam, Fisheries Department, Dispur,

recommending the tender of M/S Geramari Gaon Panchayat Meen Samabay Samity

Ltd. for settlement of the fishery viz., Group No.1/87 Dharnad Brahmapputra Pt-I &

Satakuri Nadi Fishery, by treating it as the highest bidder. It also appears that, on the

basis of the order dated 27.02.2020 issued by the authorities, the sitting lessee viz., M/S

Gauripur Cooperative Fishery Society Ltd. was allowed to operate the aforesaid

fishery on daily basis until regular settlement of the same.

3. Aggrieved by the order dated 27.02.2020 M/S Geramari Gaon Panchayat

Meen Samabay Samity Ltd. (for short "Geramari") had approached this Court by

filing WP(C) No.2343/2020 with a prayer to set aside the order dated 27.02.2020. By

order dated 25.06.2020 passed by the learned Single Judge, the respondents were

restrained from issuing any final order of settlement pursuant to the NIT dated

27.02.2020.

Page No.# 10/16

4. Thereafter, M/S Gauripur Cooperative Fishery Society Ltd. (for short "Gauripur")

had also approached this Court by filing WP(C) No.2562/2020 praying for a direction

to dispose of the representations dated 16.03.2020 and 17.03.2020 submitted by it

before the Additional Deputy Commissioner and Assistant Registrar of Cooperative

Societies (ARCS) respectively, alleging that M/S Geramari Gaon Panchayat Meen

Samabay Samity Ltd. had enrolled 48 nos. of members falling within the jurisdiction of

the petitioner society and thereby, illegally obtained the distance certificate. On such

ground a prayer was also made to reject the tender submitted by "Geramari".

5. Due to the pendency of the aforementioned writ petitions and the interim

order operating therein, the process of regular settlement of the fishery could not

progress. Situated thus, "Gauripur" had filed WP(C) No.3051/2020 and by relying

upon the order dated 23.06.2020, whereby the distance certificate of "Geramari"

was cancelled, praying for a direction upon the respondents to take a final decision

in the matter of settlement of the fishery by taking into account the fact that

"Geramari" was not entitled to the settlement of the fishery.

6. During the pendency of WP(C) No.3051/2020, "Geramari" had also

approached this Court by filing WP(C) No.3379/2020 assailing the order dated

23.06.2020, by means of which, the Circle Officer had cancelled the distance

certificate earlier issued to the said society.

7. Soon thereafter, "Gauripur" had filed another writ petition being WP(C)

No.4434/2020 assailing the recommendation dated 29.09.2020 of the Deputy

Commissioner, Dhubri for settlement of the fishery in favour of "Geramari" by treating Page No.# 11/16

it as the highest valid bidder. The main contention of the petitioner in the aforesaid

writ petition is to the effect that in view of the order dated 23.06.2020 cancelling the

distance certificate of "Geramari" the Deputy Commissioner could not have

recommended the settlement of the fishery in favour of the said society by ignoring

the order dated 23.06.2020.

8. It appears that the Assistant Registrar of Cooperative Society (ARCS) had also

made an enquiry into the allegations and counter-allegations made by the rival

societies regarding the area of operation of both the societies and thereafter,

submitted a report dated 07.07.2020 which prima facie goes to negate the allegation

made by "Gauripur" against "Geramari". Aggrieved by the report of the ARCS

dated 07.07.2020, "Gauripur" had preferred an appeal before the Registrar of

Cooperative Societies, Assam on 14.09.2020 which is pending disposal. As per the

averments made in the writ petition, the appeal was heard by the Additional

Registrar of Cooperative Societies, Assam, on 30.09.2020 but no order has been

passed till date. As such, a prayer has been made in WP(C) No.5216/2020 to issue a

direction for early disposal of the appeal preferred before the RCS.

9. It is in aforesaid factual backdrop that these writ petitions are being taken up

for final disposal at the stage of admission hearing with the consent of learned

counsel appearing for all the parties.

10. Mr. D. K. Sarmah, learned counsel appearing for "Geramari" submits that the

representations dated 16.03.2020 and 17.03.2020 submitted by the writ petitioner

already having been disposed of by the concerned authorities, WP(C) No.2562/2020 Page No.# 12/16

has become infructuous. Likewise, submits Mr. Sarmah, since a recommendation has

already been made by the Deputy Commissioner, Dhubri vide order dated

29.09.2020 forwarding the decision to the Government for issuing the order of

settlement, WP(C) No.3051/2020 has also become infructuous, more so, in view of the

fact that by the subsequent order dated 28.08.2020 the concerned Addl. Deputy

Commissioner has recorded a finding that there was no illegal inclusion of members in

the Geramari Gaon Panchayat Meen Samabay Samity Ltd. According to Mr.

Sarmah, the order dated 28.08.2020 issued by the Additional Deputy Commissioner,

Dhubri, for all practical purposes, cancels and revokes the earlier order of the Circle

Officer dated 23.06.2020 cancelling the distance certificate of "Geramari".

11. In so far as the writ petition being WP(C) No.5216/2020 is concerned, Mr.

Sarmah submits that he would have no objection if a direction is issued to the

concerned authority to dispose of the appeal preferred by the appellant "Gauripur"

but the aforesaid appeal would not have any bearing on the question of regular

settlement of the fishery. Therefore, the pendency of the appeal before the Registrar

of Cooperative Societies, Assam, cannot be a ground to delay the regular settlement

of the fishery through the tender process.

12. It is also the submission of Mr. Sarmah that having operated the fishery for 7

long years M/S Gauripur Cooperative Fishery Society Ltd. is continuing to run the

same on daily basis at a nominal price thereby not only causing huge loss of the

revenue for the Government but also by depriving genuine fishery cooperative

societies such as the petitioner from deriving benefits under a regular process of Page No.# 13/16

settlement. Referring to the facts and circumstances of the case, Mr. Sarmah

therefore, submits that these writ petitions be disposed of directing the Govt. of

Assam to issue final order of settlement of the fishery by vacating the order dated

25.06.2020 passed by this Court in WP(C) 2343/2020.

13. Mr. M. K. Choudhury, learned senior counsel appearing on behalf of

"Gauripur" on the other hand, contends that the appeal pending before the

Registrar of Cooperative Societies (RCS) would have a relevant bearing on the

question of validity of the tender submitted by "Geramari" and therefore, unless the

aforesaid appeal is disposed of, no final order of settlement of the fishery can be

passed by the authorities. Mr. Choudhury has also argued that the order dated

28.08.2020 does not expressly revoke the earlier order of cancellation of distance

certificate of "Geramari" issued on 23.06.2020. Therefore, until such time, the distance

certificate of "Geramari" is restored by following the due process of law, the tender

submitted by the aforesaid bidder shall have to be treated as invalid. In such view of

the matter, submits Mr. Choudhury, the recommendation dated 29.09.2020 issued by

the Deputy Commissioner is ex-facie illegal and is therefore, liable to be interfered

with by this Court. Mr. Choudhury has, however, fairly submitted that the

representations dated 16.03.2020 and 17.03.2020 submitted by his client having been

disposed of by the concerned authorities, nothing survives for adjudication in WP(C)

No.2562/2020.

14. Ms. M. Bhattacharjee, learned Addl. Sr. Govt. Advocate, Assam, appearing for

the official respondents, submits that before issuing any final order of settlement of the Page No.# 14/16

fishery, the Govt. of Assam will examine all the issues carefully and only thereafter

take appropriate decision, if liberty is granted by this Court. Therefore, it is the

submission of learned Additional Sr. Govt. Advocate that the matter be remanded to

the Government for taking an appropriate decision in the matter.

15. Mr. G. Bordoloi, learned Standing Counsel, Cooperation Department, Assam,

also submits that the appeal preferred by "Gauripur" has been heard by the

Additional Registrar of Cooperative Societies but no final order has been passed till

date due to the pendency of these proceedings before this Court. However, if leave

is granted to that effect, final order would be issued within a period of 10 days from

today.

16. It is to be noted herein that the earlier lessee i.e. M/S Gauripur Cooperative

Fishery Society Ltd., has continued to operate the fishery on daily basis even after the

expiry of the seven years lease period granted in its favour in the year 2013. Although

the NIT was issued on 27.02.2020 inviting tenders for regular settlement of the fishery

on the basis of fresh bids, the said process could not be taken to its logical end due to

the pendency of these proceedings and the interim order operating therein.

17. Regular settlement of fishery, through tender process, is not only the mandate

of the statute but the same is also required to be done so as to protect the interest of

Government revenue. Moreover, delay in regular settlement of fisheries through

proper tender process would also prejudicially affect the rights and interests of the

fishery cooperative societies. Viewed from that angle, this Court is of the opinion that

the NIT dated 27.02.2020 should be brought to its logical end by issuing final order of Page No.# 15/16

settlement as expeditiously as possible.

18. A perusal of the order dated 29.09.2020 issued by the Deputy Commissioner,

Dhubri goes to show that there were five tenderers who had submitted their bids

pursuant to the NIT dated 27.02.2020 out of which, "Geramari" has quoted

Rs.1,90,05,000.00 for seven years, whereas its rival "Gauripur" has quoted

Rs.1,09,04,299.00. In terms of the prices quoted by the bidders "Geramari" is the

highest bidder. The second highest bidder appears to be Milanpur Anusuchita Jati

Kalyan FCS Ltd. which had quoted Rs.1,70,10,707.00. Taking note of the price quoted

by the different bidders the Deputy Commissioner, Dhubri had recommended

settlement of the fishery with "Geramari". However, even if a recommendation goes

from the Deputy Commissioner, the Government of Assam, in the Fisheries

Department, would have a duty to verify the eligibility of each of the bidder and only

thereafter, take a final decision in the matter. Such power and duty is cast upon the

Government under Rule 42 of the Assam Fishery Rules, 1953. The mandate of the

Fishery Rules is to award the settlement in favour of the "highest valid bidder" and not

merely the highest bidder. If the tender submitted by "Geramari" is found to be

technically valid then only the highest price quoted by it would be relevant.

19. Although there are claims and counter-claims regarding the validity of the

tender submitted by "Geramari" I am of the view that there would be no need for

this Court to embark on a process of adjudication of such claims, more particularly

when those are based on factual realities existing at the ground level. Rather, this

Court is of the opinion that the departmental authorities would be the best judge to Page No.# 16/16

figure out whether the bid submitted by the tenderers are technically valid or not.

20. In view of the above, without expressing any opinion on the claims and

counter-claims of the parties, I dispose of all these writ petitions by granting leave to

the Government of Assam, Fishery Department, to examine the recommendation

dated 29.09.2020 issued by the Deputy Commissioner, Dhubri and thereafter,

approve the settlement of the fishery in favour of the "highest valid bidder" after

taking into account all the relevant facts and circumstances of the case pertaining to

the eligibility of the bidders. The said exercise be carried out and completed within

two weeks from today.

21. In so far as the appeal filed by M/S Gauripur Cooperative Fishery Society Ltd.

before the Registrar of Cooperative Societies, Assam, is concerned, it would now be

open for the concerned authority to pass appropriate order disposing of the appeal

within 10 days from today.

The interim order dated 25.06.2020 passed by this Court in WP(C) No.2343/2020

shall stand modified accordingly.

The writ petitions are disposed of.

JUDGE

Comparing Assistant