Gauhati High Court
WA/144/2022 on 19 October, 2023
GAHC010045372022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO.144 OF 2022
Pub- Jaluguti Co-Operative Fishery Society Ltd.,
represented by its Present Secretary Sri Arup Kumar
Das, aged about 47 years, S/o Shri Anil Kumar Das,
R/o: Village Pub-Jaluguti, P.O. Jaluguti, P.S.
Mikirbata, District: Morigaon, Assam, PIN: 782104.
......Writ Appellant
-Versus-
1. The Kuji Satra Mashmora Samabai Samitee Ltd.,
represented by its President Sri Ganesh Chandra Das,
S/o Late Ananda Das, aged about 63 years, R/o Vill:
Kuji Satra, P.O. & P.O : Borchila, District: Morigaon,
Assam.
2. The State of Assam, represented by the
Commissioner & Secretary to the Government of
Assam, Fisheries Department, Dispur, Guwahati-6.
3. The Additional Secretary to the Government of
Assam, Fisheries Department, Dispur, Guwahati-6.
4. The Deputy Commissioner, Nagaon, District:
Nagaon, Assam, PIN: 782001.
...... Respondents
Writ Appeal No.144/2022 1|Page
- BEFORE -
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KARDAK ETE
For the Appellant : Mr. A. Sarma, Advocate.
Mr. K. Kalita, Advocate.
For the Respondent(s) : Mr. D.K. Das, Advocate for respondent
No.1.
: Mr. D.K. Sarmah, Additional Senior
Government Advocate, Assam for respondent
Nos.2 to 4.
Date of Hearing : 13.10.2023
Date of Judgment : 19.10.2023
JUDGMENT & ORDER
[Sandeep Mehta, CJ]
Heard learned counsel representing the parties and
perused the material placed on record.
2. The instant intra-Court writ appeal is directed against the
judgment and final order dated 08.01.2022 passed by the learned
Single Judge in a batch of writ petitions including WP(C)
No.6152/2017 filed by the respondent No.1 herein.
3. Brief facts relevant and essential for disposal of the writ
appeal are noted hereinbelow:
Notice Inviting Tender (in short, "NIT"), dated 13.02.2017,
was issued by the Deputy Commissioner, Nagaon for settlement of
No.4 Sonai Nadi Part-II Fishery (Min Mahal), Nagaon. The appellant
herein and 6(six) other bidders participated in the tender process.
The competent authority, upon objective consideration of the bid
documents submitted by the 7(seven) bidders, found the documents
Writ Appeal No.144/2022 2|Page
of 6(six) bidders defective and only the documents of the appellant
society were found to be in order. Accordingly, vide order dated
24.08.2017, the Additional Secretary to the Government of Assam,
Fishery Department, on the basis of the report submitted by the
Tender Committee as well as the Deputy Commissioner, Nagaon
settled the No.4 Sonai Nadi Part-II Fishery, Nagaon in favour of the
appellant herein.
4. Two writ petitions, being WP(C) No.5561/2017 and WP(C)
No.6152/2017 came to be filed before the Single Bench of this Court
questioning the award of fishery settlement to the appellant herein.
The learned Single Judge accepted the writ petitions and vide order
dated 18.01.2022, directed the respondent authorities to settle the
fishery in question to the new settlement holder i.e. the respondent
No.1 herein. The ground, as set out in the evaluation process for
rejecting the tender of respondent No.1, was that the Society was a
defaulter of the Government revenue as per the observation of the
Tender Committee and hence, it's bid was rejected.
5. The learned Single Judge, upon examination of the
material available on record, found that the said observation of the
authority was unsubstantiated by corroborative material.
The relevant findings of the learned Single Judge on this
aspect are recorded at paragraph 14 of the impugned order, which
is reproduced hereinbelow for the sake of ready reference:
"14) Although there is a mention in the settlement order that the
petitioner in W.P.(C) 6152/2017 is a defaulter, but in the
affidavit-in-opposition, no document has been annexed to
cement such statement with record. The report of the Three-
Member Tender Committee dated 29.03.2017, signed by (i)
Additional Deputy Commissioner (Fishery), Nagaon, (ii) District
Writ Appeal No.144/2022 3|Page
Fishery Development Officer, Nagaon, and (iii) Treasury Officer,
Nagaon is available at Annexure -IV of W.P.(C) 5561/2017 and
the same is also available in the records produced by the
learned Government Advocate. From the contents of the said
report dated 29.03.2017, the learned Government Advocate
could not show mentioning of any relevant particulars
regarding the amount of Government revenue due, the date
when it became due, the account on which any revenue became
due. The learned Government Advocate has also not been able
to show any document from the record which discloses
Government revenue due from the petitioner. In para-12 of
W.P.(C) 6152/2017, the petitioner had specifically denied any
liability against Government revenue, and that the said
assertion by the petitioner has not been specifically denied by
the respondent no. 2 in the affidavit-in-opposition. Therefore, by
applying doctrine of non-traverse, the allegations that the
petitioner in W.P.(C) 6152/2017 was a defaulter in paying
Government Revenue hopelessly falls flat. Moreover, in the
absence of record and material particulars, the Court is inclined
to draw presumption under Section 114 Ill.(g) of the Evidence
Act that document, if produced, would have been unfavourable
to the respondent authorities."
In continuation, the learned Single judge also found the
decision to award the fishery settlement to the appellant herein to
be seriously flawed holding that the authorities concerned had
utterly disregarded the aspect of the paramount public interest of
getting highest revenue for the State. Accordingly, the writ petitions
were allowed and the settlement in question was directed to be
made in favour of the respondent No.1.
6. During pendency of this writ appeal, an Interlocutory
Application, being I.A.(Civil) No.3802/2022 came to be filed by the
appellant with a specific assertion that the private respondent, i.e.
M/s Kuji Satra Mashmora Samabai Samitee Ltd. was a defaulter
towards the Government revenue right from the year 2006 onwards
towards earlier fishery settlements. This submission was based on
Writ Appeal No.144/2022 4|Page
the letter dated 26.09.2022, issued from the office of the Deputy
Commissioner, Nagaon (Revenue Fishery Branch).
7. A perusal of the aforesaid letter would indicate that a total
amount of Rs.21,71,500/- was default outstanding in respect of
respondent No.1 with effect from 12.07.2006 to 05.09.2017.
8. The learned counsel representing the respondent No.1 had
been given opportunity for explaining the said communication. It is
noteworthy to state that the respondent No.1 seems to have
accepted his position as a defaulter and deposited a sum of
Rs.4,00,000/- against the outstanding dues. A fresh notice dated
15.07.2023 has been issued to such respondent for depositing the
balance amount.
9. During the course of submissions, learned counsel Mr. D.K.
Das, representing the respondent No.1, vehemently and fervently
urged that the respondent No.1 had filed an appeal/representation
against the said demand notice. But the said representation has not
been responded to till date. However, Mr. Das was not in a position
to dispute the fact that his client has deposited the amount of
Rs.4,00,000/- against the default attributed to it without any
protest.
10. Having considered the submissions advanced by learned
counsel representing the parties and after going through the record,
we are of the firm view that unimpeachable material is available on
record which establishes that the respondent No.1 was in default of
the Government dues on the date of submitting its tender in subject
settlement process.
Writ Appeal No.144/2022 5|Page
11. The learned Single Judge seems to have been swayed by
the fact that the appropriate record was not presented by the State
respondents in support of the assertion that the respondent No.1
was a defaulter of government dues. However, we feel that the
matter should not have been brushed aside in such a light manner
by the observations made in paragraph 14 (reproduced supra) and
the authorities should have been given more time and opportunity
to establish the fact that the respondent No.1 was a defaulter.
12. It seems that the Government Counsel concerned was not
provided proper information because the defaulter status of the
respondent No.1 had been flagged way back in the year 2018 when
the audit objections were received. It seems that the details
available to the Government officials at the time of settling the
fishery may have been sketchy but as of now, it cannot be denied
that the respondent No.1 is in default and thus, is not entitled to
hold the fishery settlement in question.
13. Nearly 6(six) years, out of the total period of 7(seven)
years of the fishery settlement, have passed since the original
settlement was made and thus, at this belated stage, it would not
be justified to award the fishery settlement to anyone else.
14. Thus, while reversing and setting aside the impugned
judgment dated 18.01.2022 and the direction to award the fishery
settlement to the respondent No.1, it is hereby directed that a fresh
tender process shall forthwith be initiated for awarding the fishery
settlement in question.
Writ Appeal No.144/2022 6|Page
15. The settlement process as directed above, will be
completed within a period of 45(forty five) days from today. Till
such process is completed, the Department shall manage the fishery
operations at its own level.
The writ appeal is allowed in the above terms.
No order as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal No.144/2022 7|Page
