M/S Gauripur Coop. Fishery ... vs The State Of Assam And 7 Ors
2022 Latest Caselaw 4383 Gua

                                                                    Page No.# 1/7

GAHC010218612022




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

                          Case No. : WP(C)/6885/2022

         M/S GAURIPUR COOP. FISHERY SOCIETY LTD.
         REP. BY ITS PRESIDENT, SRI SHIBEN NAMASUDRA, AGED ABOUT 60
         YEARS, R/O- VILL- GAURIPUR, P.O. GAURIPUR, DIST.- DHUBRI, ASSAM,
         PIN- 783331



         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, FISHERY
         DEPTT., DISPUR, GHY-06

         2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
          FISHERY DEPTT.
          DISPUR
          GHY-06

         3:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
          FISHERY DEPTT.
          DISPUR
          GHY-06

         4:THE REGISTRAR OF COOPERATIVE SOCIETIES
         ASSAM
          KHANAPARA
          GHY-22

         5:THE DY. COMMISSIONER
          DHUBRI
          DHUBRI DISTRICT
         ASSAM
          PIN- 783301
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            6:THE ADDL. DY. COMMISSIONER (FISHERY)
             DHUBRI
             DHUBRI DISTRICT
            ASSAM
             PIN- 783301

            7:THE CIRCLE OFFICER
             GAURIPUR REVENUE CIRCLE
             DIST.- DHUBRI
             PIN- 783331
            ASSAM

            8:M/S GERAMARI GAON PANCHAYAT MIN SAMABAY SAMITY LTD.
            VILL- BAGURAPARA
             P.O. ASHARIKANDI
             DIST.- DHUBRI
            ASSAM
             PIN- 78333

Advocate for the Petitioner   : MR. M K CHOUDHURY

Advocate for the Respondent : SC, CO OP

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) Date: 11.11.2022

Heard Mr. MK Choudhury, learned senior counsel for the petitioner. Also heard Mr. BJ Talukdar, learned senior counsel for the respondents No.1, 2, 3, 5, 6 and 7 being the authorities under the Fishery Department, Government of Assam, the Deputy Commissioner Dhubri, the Additional Deputy Commissioner (Fishery) Dhubri, the Circle Officer, Gauripur Revenue Circle respectively as well as Mr. KN Choudhury, learned senior counsel for the respondent No.8, being M/s. Geramari Gaon Panchayat Min Samabay Samity Ltd., Bagurapara in the Dhubri district and Mr. G Bordoloi, learned counsel for the respondent No.4 Page No.# 3/7

being the Cooperation Department.

2. Both the petitioner and the respondent No.8 participated in a tender process pursuant to the tender notice dated 27.02.2020, amongst others, for the Gr. No.1/87 Dharnad Brahmaputra Part-I and Satkuri Nadi Fishery (hereinafter to be referred to as the Fishery) under the Dhubri district. In the tender process, the petitioner offered a rate of Rs.1,09,04,299/-, whereas the respondent No.8 quoted a rate of Rs.1,90,05,000/-. Although there was a writ petition instituted by the petitioner being WP(C)No.1441/2021 which was given a final consideration by the order dated 30.09.2022, we take note that by the said order, there was a direction to the Settling Authority to settle the fishery as per the tender process. Consequent thereof, the order dated 17.10.2022 was passed by the Joint Secretary to the Government of Assam in the Fishery Department in respect of the Fishery in question. As regards the tender submitted by the respondent No.8 M/s. Geramari Gaon Panchayat Min Samabay Samity Ltd., a conclusion was arrived that although the Bakijai certificate submitted by the respondent No.8 Society was issued in the name of its Secretary Anil Ch.Barman in his capacity as the Secretary of the Society, but the said certificate be construed to be a certificate in the name of the respondent No.8 Society, and as the Secretary of the respondent No.8 Society represents the Society, which fact was also clearly stated in the resolution of the Society authorizing the Secretary to take necessary steps for submitting the tender, therefore, the tender bid offered by the respondent No.8 Society was accepted and by the order dated 26.02.2021 it was settled in their favour.

3. The order of settlement dated 26.02.2021 made in favour of the Page No.# 4/7

respondent No.8 Society is assailed by the writ petitioner in the present writ petition by referring to the Notification dated 18.01.2018 of the Additional Chief Secretary to the Government of Assam in the Fishery Department wherein in respect of Bakijai Clearance Certificate in Clause 4 thereof it has been provided that the Bakijai Clearance Certificate is to be issued by the Bakijai authority under the concerned Deputy Commissioner, invariably in the name of the Society/NGO/SHG and not in the name of the office bearers of the Society/NGO/SHG. Clause 4 of the Notification dated 18.01.2018 is extracted as below:

"4. Bakijai Clearance Certificate: Bakijai clearance certificate is to be

furnished by the Bakijai authority under the concerned Deputy Commissioner where the Society/NGO is registered which should invariably be in the name of the Society/NGO/SHG and not in the name of the office bearers of the Society/NGO/SHG."

4. A reading of the Clause 4 of the Notification dated 18.01.2018 makes it explicitly clear that the Bakijai Clearance Certificate in respect of the Society invariably has to be in the name of the Society concerned and not in the name of the office bearer of the Society. In the instant case, the Bakijai Clearance Certificate dated 12.03.2020 that had been relied upon by the respondent No.8 Society was issued in the name of its Secretary Anil Ch. Barman and not in the name of the Society. Accordingly, it is the stand of the writ petitioner in the present writ petition that the conclusion arrived at by the Joint Secretary to the Government of Assam in the Fishery Department dated 17.10.2022 that the Bakijai Clearance Certificate issued in the name of the Secretary of the respondent No.8 Society may be construed as a certificate in the name of the Page No.# 5/7

Society concerned would be unacceptable in law.

5. Considering the provisions of Clause 4 of the Notification dated 18.01.2018, we are in agreement with Mr. MK Choudhury, learned senior counsel for the petitioner that the aforesaid conclusion arrived at by the Joint Secretary would be contrary to the provisions of Clause 4 of the Notification dated 18.01.2018.

6. But, in the meantime, Mr. KN Choudhury, learned senior counsel for the respondent No.8 has produced a fresh certificate issued by the appropriate authority in the office of the Deputy Commissioner, Dhubri wherein a certificate had been issued in the name of the respondent No.8 Society. We also have to take note that the certificate dated 12.03.2020 which was earlier in the name of the Secretary of the respondent No.8 Society was assailed by the respondent No.8 in WP(C)No.7056/2022 wherein by the order dated 04.11.2022 it had been judicially accepted that the certificate was incorrectly issued in the name of the Secretary, although the original application remained an application for a certificate to be issued in the name of the Society concerned. Further no material is also made available to the Court that at the relevant point of time when the application was made by the respondent No.8 Society for issuing the Bakijai Clearance Certificate, there was any pending dues of the Society to the authorities.

7. In the circumstance, although the reasoning of the Joint Secretary in the impugned order dated 17.10.2022 is contrary to the provisions of Clause 4 of the Notification dated 18.01.2018, but in view of the fact that subsequently, a Page No.# 6/7

corrected certificate had been issued and also the earlier certificate which was incorrectly issued was not because of any fault on the part of the respondent No.8 Society and further that at the relevant point of time when the Bakijai Clearance Certificate was applied for there was no Bakijai proceeding pending against the respondent No.8 Society, we are of the view that the corrected certificate issued to the respondent No.8 Society may be taken as the appropriate material in the tender process by the Settling Authority. We observe as such in view of the fact that the circumstance in which the incorrect certificate dated 12.03.2020 was issued to the respondent No.8 Society and also the fact that at the relevant point of time when the application for obtaining the certificate was made there was no Bakijai proceeding pending against the respondent No.8 Society, it would be permissible under the law to take into consideration the corrected certificate for the purpose of the tender process, inasmuch as, the earlier incorrect certificate would be in the nature of a curable defect, which is an acceptable proposition of law in a tender process.

8. Accordingly, although we are not interfering with the settlement made with the respondent No.8 on the merit of the settlement, but a limited interference is made as regards the reasoning of the Joint Secretary that the Bakijai Clearance Certificate issued in the name of the Secretary of the Society concerned can be construed to be also a certificate issued in the name of the Society. But in view corrected certificate subsequently issued which also can be taken as a part of the material on record, we direct the Joint Secretary to the Government of Assam in the Fishery Department to pass a fresh order on the issue of the acceptance of the Bakijai Clearance Certificate of the respondent No.8 Society. The fresh order be passed within a period of seven days from the date of Page No.# 7/7

receipt of a certified copy of this order.

9. Till the reasoned order is passed, it is provided that the Deputy Commissioner shall not allow anyone to fish in the Fishery, in question.

10. A copy of the corrected Bakijai Clearance Certificate dated 10.11.2022 be kept as part of the record.

11. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant