Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 4 Ors on 2 June, 2023
Page No.# 1/5
GAHC010119082023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/186/2023
M/S DHARNAD BRAHMAPUTRA FISHERY CO-OP SOCIETY LTD.
DHUBRI DISTRICT, REPRESENTED BY ITS SECRETARY SRI BIMAL DAS,
SON OF BROJEN DAS, RESIDENT OF WARD NO. 16, R.K. MISSION ROAD,
DHUBRI, P.O. BIDYAPARA, P.S.- DHUBRI, DIST- DHUBRI, ASSAM, PIN-
783324.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT OF ASSAM, FISHERY DEPARTMENT, DISPUR, GUWAHATI,
PIN- 781006.
2:THE SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERIES DEPARTMENT
DISPUR
GUWAHATI
PIN- 781006.
3:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERIES DEPARTMENT
DISPUR
GUWAHATI
PIN- 781006.
4:DEPUTY COMMISSIONER
DHUBRI
P.O. AND P.S.- DHUBRI
DISTRICT- DHUBRI
PIN- 783301
ASSAM.
5:M/S DHIR BEEL FISHERMAN CO-OPERATIVE SOCIETY LTD.
REPRESENTED BY ITS PRESIDENT PARIMAL DAS
Page No.# 2/5
SON OF LATE PRAHLAD DAS
RESIDENT OF VILL.- SATYAPUR
P.O. AND P.S.- CHAPAR
DIST.- DHUBRI
ASSAM
PIN- 783371
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : GA, ASSAM
Linked Case : I.A.(Civil)/1544/2023
M/S KACHUDOLA FISHERY CO -OPERATIVE SOCIETY LTD.
A REGISTERED FISHERY CO-OPERATIVE SOCIETY
KACHUDOLA
P.O. KHELUWAPARA
DIST. NONGAIGAON
ASSAM
ASSAM
REPRESENTED BY THE SECRETARY SHRI SONI RAM DAS.
VERSUS
M/S DHARNAD BRAHMAPUTRA FISHERY CO-OP SOCIETY LTD. AND 5 ORS.
DHUBRI DISTRICT
REPRESENTED BY ITS SECRETARY SRI BIMAL DAS
SON OF BROJEN DAS
RESIDENT OF WARD NO. 16
R.K. MISSION ROAD
DHUBRI
P.O. BIDYAPARA
P.S.- DHUBRI
DIST- DHUBRI
ASSAM
PIN- 783324.
2:THE STATE OF ASSAM
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
GOVERNMENT OF ASSAM
FISHERY DEPARTMENT
DISPUR
Page No.# 3/5
GUWAHATI
PIN- 781006.
3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERIES DEPARTMENT
DISPUR
GUWAHATI
PIN- 781006.
4:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERIES DEPARTMENT
DISPUR
GUWAHATI
PIN- 781006.
5:THE DEPUTY COMMISSIONER
DHUBRI
DISTRICT- DHUBRI
PIN- 783301, ASSAM.
6:M/S DHIR BEEL FISHERMAN CO-OPERATIVE SOCIETY LTD.
REPRESENTED BY ITS PRESIDENT PARIMAL DAS
SON OF LATE PRAHLAD DAS
RESIDENT OF VILL.- SATYAPUR
P.O. AND P.S.- CHAPAR
DIST.- DHUBRI
ASSAM, PIN- 783371.
------------
Advocate for : MR. N C DAS
Advocate for : GA
ASSAM appearing for M/S DHARNAD BRAHMAPUTRA FISHERY CO-OP
SOCIETY LTD. AND 5 ORS.
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HON'BLE MR. JUSTICE ROBIN PHUKAN
ORDER
02.06.2023
[Achintya Malla Bujor Barua, J.]
Heard Mr. K.N. Choudhury, learned Senior counsel for the appellant. Also heard
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Mr. N.C. Das, learned Senior counsel, who entered appearance on caveat on behalf of
the tenderer M/s Kachudola Fishery Cooperative Society Ltd. and Mr. R.K. Bora,
learned counsel for the respondent Fishery Department.
Pursuant to a tender notice dated 17.12.2018, for settlement of, amongst others,
Gr. No.1 Dhar Brahmaputra Fishery of Dhubri district, the appellant M/s Dharnad
Brahmaputra Fishery Cooperative Society Ltd., the respondent M/s Dhir Beel
Fisherman Cooperative Society Ltd. as well as M/s Kachudola Fishery Cooperative
Society Ltd., Abhayapuri had submitted their tender bids. In the bidding process M/s
Dhir Beel Fisherman Cooperative Society Ltd. offered the highest bid of
Rs.3,13,43,949.00 for 7 years, whereas M/s Kachudola Fishery Cooperative Society
Ltd. offered the rate of Rs.1,74,78,317.00 for 7 years and the appellant M/s Dharnad
Brahmaputra Fishery Cooperative Society Ltd. offered the bid of Rs.1,22,50,000.00 for
7 years. The bid of the appellant M/s Dharnad Brahmaputra Fishery Cooperative
Society Ltd. was accepted inasmuch as on the technical bids of M/s Dhir Beel
Fisherman Cooperative Society Ltd. and M/s Kachudola Fishery Cooperative Society
Ltd. were rejected.
The bid of M/s Dhir Beel Fisherman Cooperative Society Ltd. was rejected,
amongst others, on the ground that the Bakijai certificate was more than 90 days old
whereas the requirement was that it should be within a period of 90 days on the date
of consideration, the call deposit was submitted in the individual name of the
Secretary of the society whereas Clause 4(Unga) of the NIT required that it should be
in the name of the society or the NGO itself and that the audited accounts of the
previous three years were required to be submitted whereas the said tenderer had
submitted the audited accounts of three years not immediately preceding but prior to
it.
The settlement made in favour of the appellant was assailed in WP(C)
No.4450/2022 of M/s Dhir Beel Fisherman Cooperative Society Ltd. and in WP(C)
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No.3736/2022 in respect of M/s Kachudola Fishery Cooperative Society Ltd. and by the
judgment dated 22.05.2023 the settlement made in favour of the appellant was
interfered. One of the reason of the learned Single Judge in the judgment dated
22.05.2023 is that the provisions regarding the eligibility of the tenderers, as indicated
above, in respect of Bakijai certificate and submitting the audit reports which were
pursuant to a notification, was not a part of the relevant rules and accordingly, a view
was formed that a notification cannot be given precedence over the statute holding
the field. The judgment of the learned Single Judge is assailed in this writ appeal
primarily on the ground that the Gazette notification containing the executive
instructions are supplementary in nature over and above the provisions of the
statutory rules and not in derogation or in conflict with the rules itself and therefore,
the same cannot be totally ignored.
In view of the prima facie case being made out, which requires interpretation as
regards the acceptability of the executive instructions contained in the notification
dated 18.01.2018, the common judgment and order dated 22.05.2023 of the learned
Single Judge in WP(C) No.4450/2022 and WP(C) No.3736/2022 is stayed till the next
returnable date. Any consequential order that may be passed pursuant to the
judgment impugned shall also remain stayed till the next returnable date.
List the matter on 08.06.2023 for further consideration. The State respondents to
make the records of the settlement available on the next returnable date.
A copy of this order be made available to Mr. R.K. Bora, learned Addl. Senior
Government Advocate, Assam.
Sd/- Robin Phukan Sd/- Achintya Malla Bujor Barua
JUDGE JUDGE
Comparing Assistant
