WP(C)/3954/2019
2021 Latest Caselaw 280 Gua

                                                            Page No.# 1/7

GAHC010133342019




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

                              WP(C)3954/2019

KAMRUL ISLAM
S/O RAHMAT ALI,
R/O VILL. BAKRIHAWAR PART-VIII,
P.O. KALINAGAR, DIST.-HAILAKANDI, ASSAM
                                        .................. Petitioner
                   -Versus-


1) ASSAM FISHERIES DEVELOPMENT CORPORATION LTD.




2)THE MANAGING DIRECTOR
ASSAM FISHERIES DEVELOPMENT CORPORATION LTD.
B.P.CHALIHA ROAD, GUWAHATI-36


3) THE DISTRICT FISHERY DEVELOPMENT OFFICER
HAILAKANDI-7815


                                     ...................Respondents

Page No.# 2/7

WP(C) 4212/2019

1) AMBEDKAR PISCICULTURE COOPERATIVE SOCIETY LTD.

SITUATED AT VILLAGE BAKRIHAWAR PART-VII, P.O. KALINAGAR DIST. HAILAKANDI, ASSAM

2) MAINUL HAQUE S/O. LT. JUNAB ALI VILL. BAKRIHAWAR PART-VII, P.O. KALINAGAR DIST. HAILAKANDI, ASSAM

.................. Petitioners

-Versus-

1) THE ASSAM FISHERIES DEVELOPMENT CORPORATION LTD.

2) THE MANAGING DIRECTOR ASSAM FISHERIES DEVELOPMENT CORPORATION B.P. CHALIHA ROAD, GUWAHATI-36

3) THE DISTRICT FISHERY DEVELOPMENT OFFICER

...................Respondents

Advocate for the Petitioners : Mr. J. Laskar and Mr. A.H.M.R. Choudhury

Advocate for all the Respondents : Mr. P. Sarma, Standing counsel

Date of Judgment & Order : 29thJanuary, 2021 Page No.# 3/7

BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER

Heard Mr. J. Laskar, learned counsel for the petitioner in the writ petition, W.P.(C) no. 3954/2019 and Mr. A.H.M.R. Choudhury, learned counsel for the petitioner in the writ petition, W.P.(C) no. 4212/2019. Also heard Mr. P. Sarma, learned Standing counsel, Assam Fishery Development Corporation (AFDC) for all the respondents.

2. By a Notice Inviting Tender (NIT) dated 21.02.2019 published by the respondent no. 2 i.e. the Managing Director, Assam Fisheries Development Corporation ('the AFDC' and/or 'the Corporation', for short), bids were invited from the fishermen belonging to Scheduled Caste (SC) in the district, registered co-operative societies consisting of 100% fishermen, etc. for settlement of Baiya Meen Mahal Fishery ('the Fishery', for short), a fishery under the respondent Corporation, for a period of 7 (seven) years from the Financial Year : 2019-2020. Initially, the last date of submission of bids was fixed on 12.03.2019. The petitioner in W.P.(C) no. 3954/2019 is the President of one Bakrihawar Fishermen Multipurpose Cooperative Society. Though he has preferred the petition in his individual capacity, he claims that he has been authorized to institute the writ petition by the members of the said society. The other writ petition, W.P.(C) no. 4212/2019, has been preferred by one Ambedkar Pisciculture Cooperative Limited through its Secretary.

3. According to the petitioners, by a subsequent notice published in the newspaper on 09.03.2019, the last date of submission of bids was extended up to 20.03.2019. The petitioner societies - Bakrihawar Fishermen Multipurpose Cooperative Society & Ambedkar Pisciculture Cooperative Limited - collected the bid document from the office of the respondent Corporation and submitted their bids due course in response to the said NIT dated 21.02.2019. They claim that they have submitted their bids along with all the necessary documents as required to be submitted in terms of the NIT and though the date of opening of the bids was fixed on 23.03.2019, but the bid document were not opened on the Page No.# 4/7

scheduled date due to declaration of the Lok Sabha Election, 2019. The petitioners are aggrieved when the respondent AFDC by a notice dated 07.06.2019 had intimated that the tender process in respect of the Fishery had been cancelled/rejected on technical ground and the bidders were asked to take back their bids. It was further intimated by the said notice dated 07.06.2019 that a fresh NIT would be issued.

4. The primary ground for which the petitioners have approached this Court, according to the learned counsel for the petitioners, is that the respondent authorities have taken the decision to cancel the tender process in respect of Fishery without any cogent reason and the reason behind the decision to issue a fresh NIT is only to accommodate some other tenderers who did not submit their tenders in time. The petitioners have submitted that there was wide publicity of the tender process and as such, the ground which the respondent authority had cited as technical is not tenable.

5. The respondent no. 2 has filed affidavits-in-opposition in both the writ petitions. It has been averred that though the respondent corporation fixed the date, 20.03.2019 for opening of the bids, the same could not take place due to coming into force of the Model Code of Conduct of the Election Commission of India. Therefore, the respondent corporation by the notice dated 07.06.2019 had to cancel the tender process in respect of Fishery on technical ground. It has been denied that the decision to cancel the tender process in respect of the Fishery in question was taken only to accommodate some other persons who did not submit their bids. It is, however, admitted that the respondent Corporation had received a representation from few other persons who were interested to submit bids but could not collect the bid document because of imposition of the Model Code of Conduct of the Election Commission of India before the last date of submission of bids. The decision to cancel the tender process by the notice dated 07.06.2019 and to issue a fresh NIT was taken by taking all the relevant factors taking into consideration so that all the interested bidders can take part in the fresh tender process to be undertaken through issuance of a fresh NIT. It is the further stand of the respondent Corporation that the sealed bids submitted in connection with the Fishery are not opened till date. Contentions are also made by the respondent corporations, by referring to the documents annexed to the writ petition, that some of the Page No.# 5/7

documents submitted by the petitioners in respect of their bids were not in terms of the NIT.

6. I have duly considered the rival submissions advanced by the learned counsel for the parties and also perused the pleadings submitted by the parties. On 07.01.2021, this Court directed the respondent Corporation to produce the relevant file wherein the decision to cancel the tender process was made. Learned Standing Counsel, AFDC has produced the records and I have also perused the records produced before the Court.

7. It is found that one Sk. Ayeen Uddin being the previous settlement holder, was operating the Fishery in question pursuant to an award of settlement and his term of settlement was to end on 31.03.2019. When Sk. Ayeen Uddin made a representation on 28.11.2018 seeking extension of the term of his settlement beyond 31.03.2019, the respondent no. 2 after considering his representation, rejected the said prayer by an order dated 01.02.2019. Assailing the said order dated 01.02.2019 taken by the respondent no. 2, Sk. Ayeen Uddin had instituted a writ petition, W.P.(C) no. 1549/2019. This Court, by an order dated 18.03.2019 passed in W.P.(C) no. 1549/2019, had set aside the order dated 01.02.2019 and the matter was remanded to the respondent no. 2 to consider the prayer of the petitioner therein i.e. Sk. Ayeen Uddin and to take a fresh decision in accordance with law within 31.03.2019. By the time the said order dated 18.03.2019 was passed, the bidding process for settlement of the Fishery was initiated by the NIT dated 21.02.2019. As has been noted above, the last date of submission of bids was extended up to 20.03.2019. During the period between the starting date of obtaining of the bid document and the last date of submission of sealed bids i.e. 20.03.2019, the Model Code of Conduct came to be enforced by the Election Commission of India w.e.f. 10.03.2019. As a result of enforcement of the Model Code of Conduct, the bidding process appear to have been affected in the midway. In the meantime, some persons submitted representation before the respondent Corporation complaining that because of the enforcement of the Model Code of Conduct they could not collect the bid document in respect of the Fishery as after 10.03.2019, the business in the State Government offices got affected. The contents/complaint made in the representation was considered and deliberated upon. From the records, it is found that the tender box containing the sealed bids was not opened by the respondent Corporation and they did not have the knowledge as to Page No.# 6/7

how many bids were submitted in response to the NIT dated 21.02.2019. On the other hand, at the same time, it was commented that a decision to extend the last date of submission of bid would not be proper since the last date of submission of bids was once extended earlier. Taking all those factors into consideration, it was deliberated upon as to whether the respondent Corporation should go for a fresh tender process. In the meantime, the respondent no. 2 by his order dated 26.03.2019, upon consideration of the representation of Sk. Ayeen Uddin, had rejected his prayer for extension. After the issues were deliberated upon, a decision was taken by the respondent no. 2 to call for a fresh tender process for settlement of the Fishery on 06.06.2019 and accordingly, the impugned notice was published on 07.06.2019 to cancel the tender process and to return the bids submitted by the bidders in view of the decision to go for a fresh tender process.

8. Simply because a bidder has submitted his bid in response to an invitation to make offers by way of an NIT, it cannot said that an indefeasible right has accrued to such a bidder to claim that his bid must be considered even after the tendering authority for good and sufficient reasons has decided to cancel tender process and to initiate a fresh one. Though the tender process in the case in hand was initiated through the NIT dated 21.02.2019, the same got interrupted in the mid-stream due to enforcement of the Model Code of Conduct w.e.f. 10.03.2019 and as a result, the competitive bidding process got in someway affected prior to the last date of submission of bids on 20.03.2019. A situation that some of the persons who were interested to submit their bids in response to the NIT dated 21.02.2019, had failed to collect the bid document from the office of the respondent Corporation and/or to obtain the supporting documents from the Government offices required to be to submitted with the bid could not be the ruled out outrightly. A competitive bidding process envisages wider participation and fair competition amongst the interested bidders and the same is also important for the interest of revenue. Moreover, it is the stand of the respondent Corporation that it has not opened the tender box containing the sealed bids, therefore, it is not open for the petitioners to allege prejudice since the financial bids of those who had earlier submitted their bids including the petitioners, are not disclosed so as to affect their interests in the fresh tender process. By this time, a considerable period of more than 1 ½ years has elapsed since the date of publication of the NIT. The State or an instrumentality of the State like the Page No.# 7/7

respondent Corporation is also well within its right to take into consideration its interests as regards maximization of revenue to be collected from an open and transparent competitive bidding process with wider participation of bidders. Taking note of all the factors into consideration, the action of the respondent no. 2 in cancelling the tender process initiated by the NIT dated 21.02.2019 and to initiate the tender process by way of a fresh NIT vide the impugned order dated 07.06.2019 cannot be said to arbitrary, unfair or based on irrelevant considerations. The question of infringement of Article 14 of the Constitution of India does not arise in a case if the State or an instrumentality of the State tries to get a wider participation of the bidders with the objective of maximization of revenue by going for a fresh competitive bidding process when the earlier process had suffered or appeared to have suffered for reasons not attributable to it or for lack of wider participation.

9. It has been submitted at the bar that the Fishery has not been settled through a competitive bidding process till date. Learned Standing counsel for the respondent Corporation has submitted that because of the pendency of these two writ petitions, the respondent Corporation has not gone ahead for the fresh competitive bidding process for settlement of the Fishery till date. As distribution of State largesses like settlement of the Fishery in question is required to be settled through a competitive bidding process, this Court finds it appropriate to direct the respondent corporation to take appropriate measures in order to settle the Fishery by issuance of a fresh NIT within a period of 1 (one) month from today. It is needless to mention that there should be wide publication of the fresh NIT.

10. In the light of the above discussion, this Court finds no merit in the two writ petitions and accordingly, the same are dismissed with the directions above. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant