Bhupen Chandra Das vs The State Of Assam And 4 Ors. A
2022 Latest Caselaw 570 Gua

                                                               Page No.# 1/7

GAHC010200582021




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

                           Case No. : WA/53/2022

         BHUPEN CHANDRA DAS
         SECRETARY, NAMAH SUDRA FISHERY CO-OPERATIVE SOCIETY LTD., S/O-
         LATE BHOGI RAM DAS, R/O- NATUN BASTI, P.O. PALASHBARI, DIST.-
         KAMRUP, PIN- 781128.


         VERSUS

         THE STATE OF ASSAM AND 4 ORS. A
         REP. BY THE COMMISSIONER AND SECRETARY, FISHERY DEPARTMENT,
         DISPUR, GOVT. OF ASSAM, GUWAHATI- 781006.

         2:THE DEPUTY COMMISSIONER
          KAMRUP
         AMINGAON
         ASSAM
          PIN- 781039

         3:THE ADDITIONAL DEPUTY COMMISSIONER
          REVENUE FISHERY BRANCH KAMRUP
         AMINGAON
         ASSAM
          PIN- 781039

         4:THE DISTRICT FISHERY DEVELOPMENT OFFICER
          P.O. AND DIST.- KAMRUP
         ASSAM
          PIN- 781031.

         5:SRI RAM PRASAD MALODAS
          SECRETARY
          BAHARI RESERVE GAON MIN SAMABAI SAMITI LTD.
          R/O- VILL.- BAHARI RESERVE
                                                                            Page No.# 2/7

             P.O. BAHARIHAT
             P.S. TARABARI
             DIST.- BARPETA
             ASSAM
             PIN- 781302

Advocate for the Petitioner   : MR K K MAHANTA (Sr. Advocate)

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                         HONOURABLE THE CHIEF JUSTICE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Oral

Date : 18.02.2022

Heard Mr. K. K. Mahanta, learned Senior Advocate, appearing for the writ appellant. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for respondent nos. 1 to 4, and Mr. D. Das, learned Senior Advocate, appearing for private respondent no. 5.

2. This writ appeal has been filed before this court challenging the order dated 29.05.2018, passed by the learned Single Judge in three writ petitions, namely, WP(C) 4896/2017, WP(C) 7934/2017 and WP(C) 5001/2017 and the order dated 27.09.2021, passed by the learned Single Judge in Review Petition No. 25/2020. Writ petition Nos. WP(C) 4896/2017 and WP(C) 7934/2017 were filed by the present respondent no. 5 and the Writ petition Nos. WP(C) 5001/2017 was filed by the present appellant. Aggrieved by the order passed in the writ petitions, the present appellant has filed the review petition.

3. The subject-matter involved in the writ petitions relates to settlement of a Page No.# 3/7

fishery, namely, "3(Ka) Lower Part Brahmaputra Min Mahal" for a period of seven years. Both the writ appellant and the private respondents had submitted their respective bids in response to the Notice Inviting Tender (NIT) for settlement of the said fishery. The NIT stipulated submission of (i) Caste Certificate for ascertaining whether the tenderer belongs to fishing community,

(ii) Fishing Experience Certificate, and (iii) Bakijai Certificate along with other tender documents.

4. The respondent authorities, after evaluation of the bid documents submitted by the private respondent no. 5, declared him as not qualified for non-submission of Experience Certificate and Caste Certificate as stipulated in the NIT. Aggrieved, the private respondent no. 5 filed the two writ petitions as already mentioned above.

5. In the writ proceeding, the learned Single Judge had examined the validity of the aforesaid three documents. As far as the Bakijai Certificate is concerned, the learned Single Judge was of the view that Bakijai Certificate was on record, but regarding Experience Certificate the learned Single Judge was of the view that nothing definite could be extracted from this document as it is not clear from the Experience Certificate whether the requirement of experience was fulfilled. Similarly, conclusions were drawn by the learned Single Judge on the Caste Certificate. In paragraphs 8 and 9 of the order passed in the writ petitions, the learned Single Judge recorded as under:

"8. On the above two counts, let a fresh decision be taken by the State respondents on the basis of the records available as to whether the petitioner had submitted the documents fulfilling the requirement of Experience Certificate in the name of the Society in question as well as Caste Certificate certifying the status of the Members of the Society in question along with the Page No.# 4/7

Tender for the purpose of settlement. Insofar as the issue with regard to Bakijai Certificate is concerned, no further consideration is to be made by the State respondents as the Bakijai Certificate of the petitioner is part of the records, though it was mixed up with the Tender papers of the one of the bidder i.e. Sri Gobinda Sarkar.

9. The present writ petition i.e. W.P.(C)No.4896/2017 stands disposed of with a direction to the State respondents to make a fresh consideration on the aspects alluded to above within a period of 3 (three) weeks from today. Settlement of the Fishery in question will follow the decision taken after making fresh consideration on the aforesaid two aspects."

6. Consequent to the order passed by the learned Single Judge, the matter thereafter proceeded before the concerned authorities and now this court has been informed at the Bar that the settlement has already been given in favour of the private respondent no. 5, which is under challenge before the learned Single Judge in the writ petition filed by the writ appellant.

7. Meanwhile, the writ appellant also filed a Review Petition (Review Petition No. 25/2020) on 11.02.2020, i.e. after almost two years after the passing of the order sought to be reviewed, praying for review of the order dated 29.05.2018 passed by the learned Single Judge in the earlier round of litigation. The review petition was disposed of by the learned Single Judge vide order dated 27.09.2021, which is quite a detailed order noting down the entire factual events which took place between 29.05.2018 and 11.02.2020 but then, on the merits of the case, the learned Single Judge was of the opinion that the prayers made in the review petition cannot be granted as the court has certain inherent limitations under review jurisdiction. What were stated by the learned Single Judge in paragraphs 22 and 23 of the order dated 27.09.2021, passed in the review petition, are reproduced below:

Page No.# 5/7

"22. The present review petition has been filed on 11.02.2020. Conspicuously, none of the previous events afore-stated, have been mentioned in this review petition. From the afore-stated events that took place during the intervening period from 29.05.2018 till the filing of this review petition, this Court is of the view that the present review petition has been filed as an afterthought. On the aspect of consideration of the Bakijai Certificate stated to be submitted by the respondent no. 5 herein along with his tender pursuant to the NIT dated 29.06.2017, the Court after hearing all the parties and perusal of the concerned records of settlement, had given a decision on the said Bakijai Certificate. With the grounds that have been urged on behalf of the review petitioner now, some of which have already been agitated in the writ petition, W.P.(C) no. 7691/2018, it is not within the ambit and scope of the review jurisdiction of this Court to sit virtually in judgment over the decision of the learned Judge who decided on it and to construe the document differently as the same would amount to exercise of appellate jurisdiction in disguise. This Court in review cannot examine as to whether there is possibility to arrive at a different view on the document than the one already arrived at by the learned Judge on 29.05.2018. The review petitioner became aware, if not at any earlier point of time, of the Bakijai Certificate and the contents thereof, on 29.05.2018. What prevented him not to agitate the grounds on which the present petition is filed during the intervening period from 29.05.2018 to 11.02.2020 has not been alluded in the present petition. It has not been pleaded that there was discovery of new and important matter. There is, thus, apparent lack of due diligence on the part of the petitioner.

23. For all the afore-stated reasons, this Court is of the unhesitant view that the review petition is devoid of any merit and is liable to be dismissed. It is accordingly done. No cost."

8. This order has also been put to challenge along with the order dated 29.05.2018 passed in the writ petitions.

9. In the order dated 29.05.2018, all the learned Single Judge had stated Page No.# 6/7

was that as far as the issues of Caste Certificate and Experience Certificate were concerned, the court had not given any opinion but directed the authorities to examine the issue. Regarding the Bakijai Certificate, the court had said that the Certificate is on record. Therefore, nothing further needed to be stated regarding Bakijai Certificate inasmuch as a Bakijai Certificate is only a "No Dues Certificate". The authorities were then directed to consider the validity and usefulness of the other two certificates, i.e. Experience Certificate and Caste Certificate. In our view, therefore, the review petition has been rightly dismissed. In any case, as already stated above, in a review petition the court has a very limited jurisdiction. Although the procedures under the CPC are not applicable in a review petition, the principles are applicable and, therefore, the court has to exercise this extremely limited jurisdiction as provided under Order XLVII Rule 1.

10. We do not find any error apparent on the face of the order 29.05.2018. We are in agreement with the view of the learned Single Judge that nothing could have prevented the petitioner at the relevant point of time from placing before the learned Single Judge the grounds on which the review petition was filed. Therefore, in our view the learned Single Judge has rightly refrained from interfering with the findings arrived at by the learned Single Judge in the writ proceeding. Therefore, on the face of the records we do not find anything which may call for interference.

11. In any case, the challenge to the settlement given in favour of the private respondent is pending consideration before the learned Single Judge in the writ petition filed by the present appellant, where all the relevant factors and aspects will be examined by the learned Single Judge.

12. In view of the above, we are not inclined to interfere with the impugned Page No.# 7/7

orders passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.

                                 JUDGE                    CHIEF JUSTICE




Comparing Assistant