Page No.# 1/28 vs The State Of Assam And 7 Ors
2025 Latest Caselaw 5510 Gua

Gauhati High Court

Page No.# 1/28 vs The State Of Assam And 7 Ors on 19 June, 2025

                                                                     Page No.# 1/28

GAHC010111242022




                                                                2025:GAU-AS:8305
                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/3826/2022

          M/S MATSHYA GANDHA MATSHYA BEBASAI SAMABAI SAMITY LTD
          BEING REPRESENTED BY ITS SECRETARY, SRI KUSHAL DAS, R/O VILL-
          DHANKHUNDA, MALAUBEATY, P.O.-KAMARPUR, P.S.-MORIGAON,
          MORIGAON DISTRICT, ASSAM, PIN-782401

          VERSUS

          THE STATE OF ASSAM AND 7 ORS
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
          GOVERNMENT OF ASSAM, FISHERY DEPARTMENT, DISPUR, GUWAAHTI-
          781006

          2:TEH SECRETARY TO THE GOVERNMENT OF ASSAM
           FISHERY DEPARTMENT DISPUR GUWAHATI-781006

          3:TEH JOINT SECRETARY FISHERY DEPARTMENT
           GOVT. OF ASSAM DISPUR GUWAHATI-781006

          4:TEH DIRECTOR OF FISHERIES ASSAM
           MEEN BHAWAN SARABBHATTI GUWAHATI-781016

          5:THE DEPUTY COMMISSIONER MORIGAON PIN-782105 ASSAM

          6:THE DEPUTY COMMISSIONER KAMRUP(M)
           GUWAHATI PIN-781001 ASSAM

          7:THE DISTRICT FISHERY DEVELOPMENT OFFICER
           MORIGAON PIN-782105 ASSAM

          8:THE DISTRICT FISHERY DEVELOPMENT OFFICER
           GUWAHATI PIN-781016 ASSA

Advocate for the Petitioner : MR. D DAS SR. ADV, MS. R DUTTA,MR. S KATAKI,MR D J
MEDHI,MR S KHOUND
Advocate for the Respondent : GA, ASSAM, MR. K H CHOUDHURY (FOR CAVEATOR),MR. L
                                                                Page No.# 2/28

MOHAN (FOR CAVEATOR),MS F BEGUM (FOR CAVEATOR),MR. J I BORBHUIYA (FOR
CAVEATOR)

         Linked Case : WP(C)/4208/2022

         M/S DHIPUJIJAN GARANGA GARCHAK MALIA MEEN PALON CSS LTD
         REPRESENTED BY ITS SECRETARY MR. ANANTALAL DAS
         AGED ABOUT- 72 YEARS
         S/O- LATE HARALAL DAS
         R/O- VILL.- THENGBHANGA
         P.O. BARPAK
         DIST- MORIGAON.

          VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
         FISHERY DEPARTMENT
         JANATA BHAWAN
         DISPUR- 781006
         DISTRICT- KAMRUP(M)
         ASSAM.

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          FISHERY
         JANATA BHAWAN
          DISPUR- 781006
          DISTRICT- KAMRUP(M)
          ASSAM.

          3:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
          FISHERY DEPARTMENT
         JANATA BHAWAN
          DISPUR- 781006
          DISTRICT- KAMRUP(M)
          ASSAM.

          4:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
         JANATA BHAWAN
          DISPUR- 781006
          DISTRICT- KAMRUP(M)
          ASSAM.

         5:THE DEPUTY COMMISSIONER
         MORIGAON
         DIST- MORIGAON
         ASSAM.
                                                             Page No.# 3/28

6:THE ASSTT. REGISTER OF CO-OPERATIVE SOCIETIES
MORIGAON/ NAGAON DISTRICT
ASSAM.

7:M/S MATCHYAGANDHA MATCHYA BEBOSAYEE SAMITY LTD.
NO.-2 DHANKHUNDA (MALOBOSTI)
KAMARPUR
P.S- CHANDRAPUR
DISTRICT- KAMRUP(M)
ASSAM
REPRESENTED BY ITS SECRETARY NAMELY KUSHAL DAS
NO-2 DHANKHUNDA (MALOBOSTI)
P.O. KAMARPUR
P.S.- CHANDRAPUR
DIST.- KAMRUP(M)
ASSAM.
------------

Advocate for : MR. B K DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS

Linked Case : WP(C)/3975/2022

M/S DHIPUJIJAN GARANGA GARCHAK MALIA MEEN PALON CSS LTD REP. BY ITS SECRETARY MR. ANANTALAL DAS S/O- LATE HARALAL DAS R/O- VILL.- THENGBHANGA P.O. BARPAK DIST. MORIGAON.

VERSUS

THE STATE OF ASSAM AND 5 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FISHERY DEPTT.

JANATA BHAWAN DISPUR-781006 DIST. KAMRUP(M) ASSAM

2:THE SECRETARY TO THE GOVT. OF ASSAM FISHERY JANATA BHAWAN DISPUR-781006 DIST. KAMRUP(M) ASSAM

3:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM FISHERY DEPARTMENT JANATA BHAWAN DISPUR GHY-06.

Page No.# 4/28

4:THE JOINT SECRETARY TO THE GOVT. OF ASSAM JANATA BHAWAN DISPUR GHY-06 DIST. AKMRUP(M) ASSAM

5:THE DEPUTY COMMISSIONERMORIGAON DIST. MORIGAON ASSAM

6:THE DISTRICT FISHERY DEVELOPMENT OFFICER MORIGAON ASSAM

7:M/S MATSHYA GANDHA MATSHYA BEBASAI SAMABAI SAMITY LTD. BEING REPRESENTED BYTITS SECRETARY SRI KUSHAL DAS RESIDENT OF VILLAGE DHANKHUNDA MALAUBEATY P.O. KAMARPUR P.S. MORIGAON DISTRICT. MORIGAON ASSAM PIN. 782401

8:N0.11 PART V KALONG NADI ANCHALIK MEEN SAMABAI SAMITY LTD. A REGISTERED FISHERY COOPERATIVE SOCIETY NIZGOBARDHAN P.O. CHANDRFAPUR DISTRICT. KAMRUP (M) ASSAM AND IS REPRESENTED BY ITS SECRETARY NAMELY SRI.

JAGADISH BARMAN S/O LATE JAY GOBINDA BARMAN OF NIZ GOBARDHAN P.O. CHANDRAPUR DISTRICT. KAMRUP (M).

------------

Advocate for : MR. B K DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS

:::BEFORE:::

HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 19.06.2025 Date of Judgment: 19.06.2025

Judgment & Order(Oral)

Heard Mr. S. Kataki, learned counsel, appearing on behalf of the petitioner in WP(c)3826/2022, and respondent No. 7, in WP(c)3975/2022, and WP(c)4208/2022; and Mr. S. Banik, learned counsel for the petitioner in WP(c)3975/2022, and WP(c)4208/2022. Also heard Mr. D. Nath, learned Senior Government Advocate, appearing on behalf of the State respondents in all these 3(three) writ petitions.

Page No.# 5/28

2. The issue involved in the above-noted 3(three) petitions pertains to the settlement of a fishery, namely, No. 11, Part 5, Kolong Nadi Fishery, Morigaon District, for a period of 7(seven) years, in pursuance to an Notice Inviting Tender(NIT), issued on 27-09-2021.

3. For the sake of convenience, the facts requisite for adjudication of the issue arising in the above-noted writ petitions, is noticed from WP(c)4208/2022 and the parties to the proceedings are also described as they are placed in the said writ petition.

4. The said writ petition i.e. WP(c)4208/2022, was instituted by M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd.. The Deputy Commissioner, Morigaon, vide Notice Inviting Tender(NIT), dated 27-09-2021, had invited bids for settlement of No. 11, Part 5, Kolong Nadi Fishery, Morigaon District, for a period of 7 years. The last date fixed for submission of bids was 22-10-2021. The petitioner, herein, along with the respondent No. 7, namely, M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda (Malobosti), submitted their respective bids in the matter.

5. On the opening of the bids, a comparative statement was made by the jurisdictional Deputy Commissioner. The respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), was found to have offered its bid at Rs. 65,17,007/- for a period of 7 years at the uniform rate of Rs. 9,31,001/- per annum. The petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., had quoted an amount of Rs. 63,77,000/- for a period of 7 years at the uniform rate of Rs. 9,11,000/- per annum, whereas, No. 11, Part 5, Kolong Nadi Fishery, Morigaon District, had offered its bid at Rs. 63,00,763/- for a period of 7 years Page No.# 6/28

at the uniform rate of Rs. 9,00,109/- per annum. Accordingly, it is seen that respondent No. 7 Soicety had quoted the highest rate. The matter was, thereafter, forwarded to the Government in the Fisheries Department. The Government in the Fisheries Department on receipt of the tender documents along with the comments/report submitted by the Office of the jurisdictional Deputy Commissioner, proceeded to issue an order, dated 25-05-2022, settling the said fishery with the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., at its offered rate. The petitioner Society, thereafter, submitted his first kisht in the matter and was awaiting issuance of orders towards handing over the fishery to it.

6. At this stage, being aggrieved; the respondent No. 7 i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), had approached the Government by way of submitting representation, pleading for review of the order, dated 27-05-2022. On a consideration of the representation submitted by the respondent No. 7 Society, the Government, vide order, dated 31-05-2022, proceeded to cancel the settlement of the fishery with the petitioner i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., effected on 25-05-2022. Thereafter, on a further consideration of the matter, noticing that the respondent No. 7 Society fulfilled the requisite eligibility criteria for being settled with the fishery and also noticing that it had quoted the highest rate; proceeded to settle the fishery, in question, with the respondent No. 7 Society, at its quoted rate, vide order, dated 17.06.2022.

7. Being aggrieved by the settlement made with the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti); the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., has instituted WP(c)4208/2022. At this Page No.# 7/28

stage, it is to be noted that on the settlement entered with the petitioner Society in WP(c) 4208/2022 being cancelled; the respondent No. 7 Society in WP(c)4208/2022, had approached this Court by way of instituting WP(c) 3826/2022, praying for a direction upon the respondents to settle the fishery in its favour.

8. The petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., in WP(c)4208/2022, being aggrieved by the issuance of the order, dated 31-05-2022, cancelling the settlement effected of the fishery with it; had approached this Court assailing the same by way of instituting WP(c)3975/2022.

9. Mr. Banik, learned counsel for the petitioner in WP(c)4208/2022, after reiterating the facts noticed hereinabove, has submitted that although the respondent No. 7 Society had emerged as the highest bidder yet there being a complaint lodged against it to the effect that although the respondent No. 7 Society was registered under Morigaon District; majority of its members resided in Kamrup (Metro) District. The learned counsel has further submitted that the said complaint was examined by the Government and reports were so called from the Office of the jurisdictional Deputy Commissioner. The learned counsel has also submitted that the neighbourhood issue was also gone into and the reports so submitted, was also inclusive of the issue of neighbourhood of the 3(three) contending bidders.

10. Mr. Banik, learned counsel, has submitted that the Government being pleased by the report submitted by the Office of the jurisdictional Deputy Commissioner, proceeded to settle the fishery with the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., vide issuance of Page No.# 8/28

an order, dated 25-05-2022, at the rate quoted by it. The learned counsel has further submitted that such settlement was made considering the issue of neighbourhood and it being found that all the members of the petitioner Society resided within the neighbourhood of the fishery at Zero Point. Mr. Banik, learned counsel, has also submitted that in pursuance of the order, dated 25-05-2022, the petitioner Society had submitted the first kisht money. However, without affording an opportunity of hearing and without any notice being issued in the matter; the Government proceeded to issue the order, dated 31-05-2022, cancelling the settlement order, dated 25-05-2022. The petitioner Society being aggrieved, assailed the said order, dated 31-05-2022, by way of filing a writ petition being WP(c)3975/2022 before this Court. The learned counsel has submitted that the order, dated 31-05-2022, was so issued basing on a representation made by the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), before the Minister, Fisheries Department and it was only on account of such interference made in the matter by the Minister that the fishery settled with the petitioner, came to be cancelled by issuance of the order dated 31-05- 2022.

11. Mr. Banik, learned counsel, has further submitted that the respondent authorities, thereafter, proceeded to issue an order, dated 17-06-2022, settling the fishery with the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), at the marginally higher bid submitted by it. Accordingly, WP(c)4208/2022, came to be filed by the petitioner Society, assailing the order, dated 17-06-2022. The learned counsel has submitted that the order of cancellation, dated 31-05-2022, is liable to be interfered with by this Court on the ground that the same was so issued without affording an opportunity of hearing to the petitioner Society. The learned counsel has further submitted that in the event, the order, dated Page No.# 9/28

31-05-2022, is so interfered with; the order, dated 17-06-2022, having been so issued basing on the interference made in the matter by the Departmental Minister, the same would also mandate an interference.

12. Mr. Banik, learned counsel, has submitted that it is a fact that the members of the respondent No. 7 Society are scattered and residing both in Morigaon District and Kamrup (Metro) District. While a few of the members reside in Morigaon District, the majority of the members reside in Kamrup(Metro) District and they do not reside within the neighbourhood of the fishery. The learned counsel has further submitted that the Fisherman Certificate relied upon by the respondent No. 7 Society was so issued by the authorities of the Cooperation Department of Morigaon Department and no similar certificate from the authorities of the Cooperation Department of Kamrup(Metro) District, was brought on record. Accordingly, the learned counsel has submitted that the fact as to whether the members of the respondent No. 7 Society residing in Kamrup(Metro) District, were actual fishermen; has not been established. The learned counsel has, accordingly, submitted that the Certificate, dated 06-08-2022, issued by the Assistant Registrar of Co-operative Societies, Morigaon, certifying all members of the respondent No. 7 Society to be belonging to the fishermen community; cannot be given any credence, inasmuch as, the said authority was not empowered to certify the said fact also in respect of the members of the respondent No. 7 Society residing within the Kamrup(Metro) District.

13. In the above premises, Mr. Banik, learned counsel, has submitted that the orders, dated 31-05-2022 and 17-06-2022, would mandate an interference with further direction to the respondent authorities, to allow the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Page No.# 10/28

Ltd., to carry-out fishing activities in the fishery, in question, in terms of the settlement effected by the order, dated 25-05-2022.

14. Per contra, Mr. Kataki, learned counsel representing the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), in WP(c)4208/2022, has submitted that from the order, dated 25-05-2022, it would be evident that the settling authority had drawn a conclusion that both the petitioner Society as well as the respondent No. 7, had all the requisite documents and were in the neighbourhood of the fishery, in question. However, the learned counsel has submitted that the settling authority, thereafter, by concluding that the members of the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., being found to reside in the neighbourhood of the Fishery at Zero Point; proceeded to settle the fishery with the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd..

15. Mr. Kataki, learned counsel, has submitted that the said conclusion drawn by the settling authority for the purpose of settling the fishery with the petitioner Society, is clearly erroneous, in-as-much as, it is a settled position of law that for the purpose of ascertaining the neighbourhood concept, the residence of the members of a Society in relation to a fishery; cannot be measured in inches, feet and yards, but, has to be so construed in a pragmatic and purposive manner. In this connection, the learned counsel has placed reliance on the decision of the Division Bench of this Court in Pub Goalpara Fishery Cooperative Society v. State of Assam & ors. [judgment and order, dated 27.04.2022, in WA 306/2021]. The learned counsel has further submitted that the fishery being settled with the petitioner Society; the respondent No. 7 Society had approached the respondent authorities and Page No.# 11/28

therein, had also placed reliance on the decision of the Division Bench of this Court in the case of Pub Goalpara Fishery Cooperative Society(supra). Accordingly, the respondent authorities, on consideration of the matter; proceeded to issue the order, dated 31-05-2022, cancelling the settlement made in favour of the petitioner Society. The Government after appreciating the decision of this Court in the case of Pub Goalpara Fishery Cooperative Society (supra) as well as after receiving due reports in the matter and being satisfied that the members of the petitioner Society were 100% actual fishermen by profession and that they were in the neighbourhood of the fishery, in question; proceeded to issue the order, dated 17-06-2022, settling the fishery in favour of respondent No. 7 i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), who, otherwise, was also the highest valid bidder.

16. Mr. Kataki, learned counsel, has further submitted that the respondent No. 7 Society along with his bid, had enclosed a certificate, dated 06.08.2022, issued by the Assistant Registrar of Cooperative Societies, Morigaon, wherein, it was certified that the members of the petitioner Society belonged to the fishermen community. The learned counsel has submitted that the said aspect of the matter was further verified by the Government before issuance of the order, dated 17-06-2022. The learned counsel has denied the submission of the learned counsel for the petitioner that the order, dated 17-06-2022, was the result of the interference in the matter by the Departmental Minister and has submitted that the said order was preceded by a process of enquiry and the relevant factors requisite for settlement of a fishery being examined and the respondent No. 7 Society, having been found to be eligible for such settlement; the order, dated 17.06.2022, came to be issued, noticing that it was the highest valid bidder.

Page No.# 12/28

17. With regard to the contention of the learned counsel for the petitioner that the order, dated 31-05-2022, would require an interference, in-as-much as, the settlement made with it, came to be cancelled without affording an opportunity of hearing, Mr. Kataki, learned counsel, has submitted that the said contention would not mandate an acceptance, in-as-much as, the cancellation of the order, dated 31-05-2022, would result in the revival of an illegal order, dated 25-05-2022, which would not be permissible.

18. Mr. Kataki, learned counsel, has further submitted that where a decision is taken by the competent authority and the same is manifest in consonance with the language of the tender document, or, sub-serves the purpose for which the tender is floated, the Court should follow the principle of restraint. The technical evaluation, or, comparison by the Court, would not be permissible. The learned counsel has further submitted that the authority who floats the tender, is the best judge as to how the documents, requisite for the purpose, is to be interpreted. The learned counsel has also submitted that the interpretation as given by the tendering authority, is to be accepted, even if there is a possibility of two interpretations coming to light on the basis of the documents.

19. Mr. Kataki, learned counsel, has submitted that the settling authority is reposed with the responsibility to draw a satisfaction that the settlement is made with the most deserving group and at the same time, the Government revenue is also adequately protected. The learned counsel has further submitted that the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., has not alleged any malafide and/or perversity in issuance of the settlement order, dated 17-06-2022. In support of his submissions, Mr. Kataki, learned counsel, has also relied upon the decision of Page No.# 13/28

the Hon'ble Supreme Court in the case of Agmatel Inda Pvt. Ltd. v. M/s Resoursys Telecom, reported in (2022) 5 SCC 362 and in the case of Silppi Construction Contractors v. Union of India , reported in (2020) 16 SCC 489.

20. In the above premises, Mr. Kataki, learned counsel, has submitted that the claim made by the petitioner in the writ petitions being WP(c)3975/222 and WP(c)4208/2022, would not mandate acceptance and the same would be liable to be dismissed with further direction that the fishery, in question, be operated by the respondent No. 7 Society M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda (Malobosti).

21. Mr. Nath, learned Senior Government Advocate, has submitted that the respondent authorities on realising that the reasoning advanced in the order, dated 25-05-2022, for settlement of the fishery with the petitioner Society in WP(c)4208/2022, was so made on application of erroneous parameters; had proceeded to issue the order, dated 31-05- 2022, cancelling the same. The learned Senior Government Advocate has further submitted that the neighbourhood issue was reviewed by the respondent authorities in the light of the decision of the Division Bench of this Court in the case of Pub Goalpara Fishery Cooperative Society(supra). The learned Senior Government Advocate has also submitted that both the petitioner Society as well as the respondent No. 7 Society, having satisfied all the requisite eligibility criteria; the bid value as quoted by them in their respective bids, would be the determining factor. The respondent No. 7 Society having quoted the highest bid, accordingly, the settlement came to be made with it. By referring to the order, dated 08-06- 2022, passed by the co-ordinate Bench of this Court in the proceedings of WP(c)3826/2022, the learned Senior Government Advocate has submitted that the Court had left it to the discretion of the settling authority to settle the Page No.# 14/28

fishery in accordance with law. Accordingly, the proposal was revisited by the respondent authorities and on finding the respondent No. 7 Society, to be suitable in all respects; considering its higher bid value, the settlement came to be made with it.

22. Mr. Nath, learned Senior Government Advocate, by producing the original records in the matter, has submitted that a perusal of the same, would go to show that the settling authority had before issuance of the order, dated 17-06- 2022, carried-out due diligence in the matter and such settlement was so made after the reports, in this connection, was received from the Office of the Deputy Commissioner, Morigaon. Accordingly, the learned Senior Government Advocate has submitted that the order, dated 17-06-2022 would not mandate an interference from this Court.

23. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

24. For the purpose of convenience, the parties to the proceedings and the facts are continued to be noticed from the writ petition being WP(c)4208/2022.

25. In pursuance of the Notice Inviting Tender(NIT), dated 27.09.2021, 3(three) bids were so received by the authorities. The bid submitted by the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), was for an amount of Rs. 65,17,007/- for a period upto 7 years at the uniform rate of Rs. 9,31,001/- per annum. The petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Page No.# 15/28

Ltd., had submitted its bid for an amount of Rs. 63,77,000/- for a period of 7

years at the uniform rate of Rs. 9,11,000/- per annum while the 3rd bidder i.e. No. 11, Part 5, Kolong Nadi Fishery, Morigaon District, had offered its bid at Rs. 63,00,763/- for a period of 7 years at the uniform rate of Rs. 9,00,109/- per annum. The fishery, in question, is No. 11, Part 5, Kolong Nadi Fishery, Morigaon District, and it flows through Morigaon to Kamrup(Metro) District. The members of the respondent No. 7 Society resides both in Morigaon District and Kamrup(Metro) District.

26. A perusal of the order, dated 25.05.2022, by which the fishery, in question, was settled with the petitioner Society i.e. M/S Dhipujijan Garanga Garchak Malia Meen Palon CSS Ltd., would go to reveal that the settling authority had drawn a conclusion that the members of the respondent No. 7 Society by considering their place of residence, were held to be in the neighbourhood of the fishery. Similarly, the members of the petitioner Society were also held to be in the neighbourhood of the fishery. Accordingly, it was concluded that it was the petitioner Society and the respondent No. 7 Society, who were in contention with valid documents and in the neighbourhood of the fishery, in question. However, the settling authority proceeded to conclude that the petitioner Society although the second highest bidder, fulfilled the condition of neighbourhood of the fishery as all the members of the petitioner Society resided in the neighbourhood of the fishery at Zero Point and the same was held to be in satisfaction of the provisions of Rule 12 of the Assam Fishery Rules.

27. Accordingly, basing on the said conclusion, the fishery was settled with the petitioner Society at its quoted rate. The said conclusion drawn by the settling authority, would mandate an examination by this Court. The said issue Page No.# 16/28

need not detain this Court, in-as-much as, a Division Bench of this Court in the case of Pub Goalpara Fishery Cooperative Society(supra), had considered the said issue and after noticing the judgments existing in the matter, had drawn the following conclusions:

"21. The issue of neighbourhood in the context of a fishery came up for consideration earlier before this Court. A Co-ordinate Bench of this Court in Brahmaputra Par II Mach Mahal Samabai Samity Limited -Vs- State of Assam and Ors., reported in (2003) 1 GLR 528, while considering the proviso to Rule 12 of the Fishery Rules, 1953 held that it is a provision to ameliorate the socio economic conditions of the fishing population residing in the neighbourhood of the fishery concerned. This Court held that the provision embodies a social purpose and has been incorporated in the Rules to provide succour to the needy fishermen of the neighbourhood so as to provide the means of livelihood. It was held that the provision is therefore to secure the settlement of the fishery to the deserving and actual fishermen of the neighbourhood of the fishery. Although, there may be more than one eligible fishery society, the settlement under Rule 12 is to be made taking into account all relevant considerations and it has to be fair, reasonable and non-arbitrary. This Court held that:-

"13. Turning to the aspect of neighbourhood, we feel that the expression needs interpretation so as to advance the object and purpose of the Rules and not to frustrate it. As observed earlier, in a given fact situation, there may be more than one society in the neighbourhood of the fishery. It may so happen that a society fulfulling the other conditions of the proviso and which is more deserving for such settlement is, distance wise, slightly further away from the fishery, than the other eligible societies. Will the object and purpose of the proviso be served if the former society is discarded only on the ground that though it is more deserving, the other societies are nearer to the fishery? In other words, is the word 'neighbourhood' to be interpreted in terms of inches, feet and yards or a more pragmatic and purposive, interpretation has to be provided thereto. The Black Law's Dictionary defined the word 'neighbourhood' as a place near; an adjoining or surrounding district; a mere minimum vicinity; vicinage ... In ordinary and common usage "locality" is synonymous in meaning with "neighbourhood". In the Law Lexicon by P. Ramanatha Aiyer, the word "neighbourhood" has been defined to signify nearness as opposed to remoteness.... "Whether a place is in the neighbourhood of another place depends upon no arbitrary rule of distance or topography. One house may be said to be in the neighbourhood of another house and not structurally adjoin it."......

14. The term 'neighbourhood' does not express any definite idea of distance. A few feet or several 100 yards or even a greater distance from an object would be in its neighbourhood."

22. In Raidak Burarchora Fishery Co-Operative Society Limited -Vs State of Assam and Ors., reported in (2018) 2 GLR 19 another Co-ordinate Bench of this Court held that it was incumbent upon the respondent authority to make such enquiries in order to reach the satisfaction that not only the most deserving group is given the settlement but also to ensure that the interest of the Government revenue is adequately protected.

23. In Arabinda Das etc -Vs- State of Assam and Others reported in 1980 SCC OnLine Gau 13, the proviso to Rule 12 came to be considered by a Full Bench of this Court and it was held as under:-

"The purpose behind the incorporation of the proviso to Rule 12 seems to be to give opportunity to the deserving actual fishermen of the locality who may be eminently suitable for the settlement of the fishery but their economic conditions may be such that they may not be in a position to compete with the other tenderers in settlement Page No.# 17/28

of fisheries under tender system. This proviso is really very wholesome, pragmatic and meaningful which is meant to secure settlement to the deserving actual fishermen of the neighbourhood of the fishery. This proviso, in a sense, is an improvement on the old Rule 12. Now the State Government's power is to a certain extent circumscribed inasmuch as, it can only exercise when the prerequisites noted above are in existence but within that constricted sphere, its power is plenary. In our opinion, this is a piece of social legislation, which is framed for the purpose of giving opportunity to the listed class of persons mentioned in the proviso to Rule 12, in the matter of their avocation".

24. Having examined the various judicial pronouncements rendered by this Court, it is seen that the entire purpose and purport of the fishery Rules are two folds, namely, to garner revenue for the State and also to enable Fishing Community to eke their livelihood by permitting all the Fishing Community/Fishermen society to participate in such settlement process who may be engaged in Fishing in neighborhood by the concerned fishery.

25. As discussed above, the Rules categorically do not define "neighbourhood". However, upon examining the law laid down by this Court in the various judicial pronouncements discussed above, it is clear that the term "neighbourhood of the fishery" cannot be restricted to the territorial limits of a district or Sub-division as the case may be. A neighbourhood will have to be understood in the context of the areas through which the concerned fishery flows through or is situated in. As is revealed from the affidavits filed on behalf of the Deputy Commissioner, Bongaigaon and Deputy Commissioner, Goalpara, the fishery concerned flows through territorial limits of two districts, namely, Goalpara and Bongaigaon. Therefore, to restrict fishing community people or cooperative societies not registered within the Goalpara district but who are otherwise situated in the vicinity of the fishery but are within the territorial limits of another district/sub-Division, will lead to a situation not envisaged under the fishery Rules. The settlement process resorted to by the State Authorities besides enhancing the revenue for the State must also provide ample opportunity for the fishing community people/fishermen of cooperative societies who carry on their livelihood in the neighbourhood of any fishery, cannot be prevented from participating in a settlement process merely on the ground that they are not otherwise registered or situated in the territorial limits of the district through which the settlement by way of tender process is initiated."

28. Applying the above conclusions drawn by the Division Bench of this Court in the case of Pub Goalpara Fishery Cooperative Society (supra) to the facts of the present case, this Court is of the considered view that the conclusion of the settling authority in the order, dated 25.05.2022 , that the members of the petitioner Society residing at Zero Point in relation to the fishery, would have to be given preference; is clearly not sustainable. It is a settled position of law that the term 'neighbourhood' cannot be permitted to be interpreted in terms of inches, feet and yards and a pragmatic and purposive interpretation to the same, has to be given. The materials brought on record reveal that the members of the respondent No. 7 Society are also in the neighbourhood of the said fishery and the respondent authorities could not have further sub-

Page No.# 18/28

categorised the issue of neighbourhood by measuring the distance of the residence of the members of the petitioner Society and that of the members of the respondent No. 7 Society from the fishery, in question. The only ground on which the fishery was settled with the petitioner Society vide the order, dated 25-05-2022, being the distance of the residence of the members of the petitioner Society from the fishery in comparison to that of the residence of the members of the respondent No. 7 Society although both were held to be in the neighbourhood of the fishery, in question; would not mandate an acceptance and accordingly, the cancellation of the settlement by the order, dated 31-05-2022, in the considered view of this Court, would not mandate an acceptance.

29. Having drawn the above conclusions; this Court would now proceed to examine the other contention of the learned counsel for the petitioner Society that the members of the petitioner Society being scattered both in Morigaon and Kamrup(Metro) District, the certificate, dated 06.08.2022, being issued by the Assistant Registrar of Cooperative Societies, Morigaon; the same cannot be said also to cover the members of the respondent No. 7 Society residing within the Kamrup(Metro) District and the same must be limited to the members so residing in the District of Morigaon.

30. Before proceeding to further consider the order, dated 17-06-2022; an order passed by this Court in WP(c)3826/ 2022, filed by the respondent No. 7 Society in WP(c)4208/2022, would be required to be noticed.

31. A coordinate Bench of this Court, vide order, dated 08-06-2022, in WP(c)3826/2022, had observed as follows:

"2. By a Tender Notice dated 27.09.2021, bids were invited by the respondent no. 5 for Page No.# 19/28

settlement of a 60% category of fishery viz. No. 11 Kolong Nadi Part-V Meen Mahal ['the Fishery', for short] for a period of 7 [seven] years. 3 [three] bidders responded to the Tender Notice and they are - [1] M/s Matshya Gandha Matshya Bebasai SS Limited [the petitioner]; [2] M/s Dhipujijan Garanga Garchak Malia Meen Palon CSS Limited; and M/s No. 11 Part-V Kalong Nadi Anchalik MSS Limited. The petitioner society offered an amount of ₹ 65,17,007/- for the period of 7 [seven] years and emerged as the 1st highest bidder [H-1]. M/s Dhipujijan Garanga Garchak Malia Meen Palon CSS Limited had offered a bid value of ₹ 63,77,000/- and emerged as the 2nd highest bidder [H-2] whereas M/s No. 11 Part-V Kalong Nadi Anchalik Meen Samabay Samiti Limited offered a bid value of ₹ 63,00,763/-, thereby, emerged as the 3rd highest bidder [H-3]. After Page No. 3/4 evaluation of the bids, the Settling Authority i.e. the Government of Assam in the Fishery Department by an order of settlement dated 25.05.2022 settled the Fishery in favour of the H-2 bidder viz. M/s Dhipujijan Garanga Garchak Malia Meen Palon CSS Limited. At the time of evaluation, the Settling Authority had observed that 29 members of the petitioner society are residents of Mayong Revenue Circle and the rest 58 members are from Kamrup [Metro] District. With such observation, the bid of the 1st highest bidder [H-1] was not accepted. By a subsequent order dated 31.05.2022, the order of settlement dated 25.05.2022 made in favour of the 2nd highest bidder [H-2] viz. M/s Dhipujijan Garanga Garchak Malia Meen Palon CSS Limited has been cancelled."

32. A perusal of the said order would go to reveal that the coordinate Bench of this Court had required the settling authority to decide the matter of settlement of the fishery, in question, in its own discretion. Reverting back to the order, dated 17-06-2022, this Court notices that the settling authority after the reports submitted in the matter; had concluded that both the respondent No. 7 Society as well as the petitioner Society are in equal footing as regards the neighbourhood issue. For the said purpose, the decision of this Court in the case of Pub Goalpara Fishery Cooperative Society(supra), was also noticed. Thereafter, appreciating the fact that the respondent No. 7 Society had offered a higher bid than that of the petitioner Society, proceeded to settle the said fishery with the respondent No. 7 Society.

33. The materials brought on record in the writ petitions including the records placed before this Court by Mr. Nath, learned Senior Government Advocate, goes to reveal that the respondent authorities had before issuing the order, dated 17-06-2022, carried-out due diligence in the matter. A perusal of the records brings to the forefront that prior to the issuance of the order, dated 17-06-2022, the settling authority had required the office of the Page No.# 20/28

Deputy Commissioner, Morigaon, to carry-out an enquiry into the said aspect of the matter. The enquiry was, accordingly, carried-out and positive reports were submitted in the matter to the effect that the members of the petitioner Society even residing within the Kamrup(Metro) District, were actual fishermen. It was only after the said materials were placed on record by the Office of the Deputy Commissioner, Morigaon, that the settling authority after drawing satisfaction with regard to the eligibility of the respondent No. 7 Society i.e. M/S Matchyagandha Matchya Bebosayee Samity Ltd, Dhankhunda(Malobosti), for settlement of the fishery, in question; had proceeded to issue the order, dated 17-06-2022, settling the fishery with the respondent No. 7 Society.

34. The respondent No. 7 Society had brought on record, a certificate from the Assistant Registrar of Cooperative Societies, Morigaon, dated 06-08-2022, and therein, it having been certified that the members of the respondent No. 7 Society, all belonged to the fishery community; the records further reveals that disclosure made in the certificate, dated 06.08.2022, was also enquired into and it was only, thereafter, that the same was accepted by the settling authority to be in satisfaction of the conditions as set-out, in this connection, both in the Assam Fishery Rules as well as in the Notice Inviting Tender (NIT), in question. The above being the position, this Court would not be in a position to second guess the same.

35. It is a settled position of law that in evaluating tenders and awarding contracts, the parties are to be governed by the principles of commercial prudence. The principles of equity and natural justice, accordingly, must stay at a distance. While formulating the conditions of the tender document and awarding of a contract, greater latitude must be granted to the State Page No.# 21/28

authorities. Unless the action of the tendering authority is found to be malicious and/or in misuse of the powers conferred on it; interference by a Court is not warranted. Pre-conditions or qualifications for evaluation of tenders are requisite so as to ensure that the contractor has the capacity and the resources to execute the work successfully.

36. Having noticed the above position; this Court would now examine the decisions of the Hon'ble Supreme Court holding the field with regard to the power of the writ Court to interfere with the prescriptions made in a tender condition as well as the importance so required to be given with regard to interpretation of such tender conditions set-out by the employer.

37. With regard to the power of judicial review of the administrative action; the Hon'ble Supreme Court in the case of Jagdish Mandal v. State of Orissa , reported in (2007) 14 SCC 517, had drawn the following conclusions:

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Page No.# 22/28

Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition tenderer/contractor or distribution of State largesse of penal consequences on a tenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships and frances) stand on a different footing as they may require a higher degree of fairness in action."

38. The Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & anr., reported in (2016) 16 SCC 818, had drawn the following conclusions:

"11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.

12. In Dwarkadas Marfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa as mentioned in Central Coalfields.

13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.

14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2 (a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is Page No.# 23/28

not a reason for interfering with the interpretation given."

39. In the case of Galaxy Transport Agencies v. New J. K. Roadways, Fleet Owners & Transport Contractors, reported in (2021) 16 SCC 808, a 3-Judge Bench of the Hon'ble Supreme Court had held that the authority that authors the tender document is the best person to understand and appreciate its requirements and thus, its interpretation should not be second guessed by a Court in judicial review proceeding.

40. The Hon'ble Supreme Court in the case of M/s Agmatel India Pvt. Ltd. (supra), after noticing its earlier decisions in the case of Galaxy Transport Agencies(supra); Bharat Cooking Coal Ltd. & ors. v. AMR Dev Prabha & ors., reported in (2020) 16 SCC 759; and Silppi Constructions Contractors (supra); had drawn the following conclusions:

"24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject-matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies wherein, among others, the said decision in Afcons Infrastructure has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment.

25. This Court referred to various decisions on the subject and stated the legal principles as follows: (Galaxy Transport Agencies case, SCC paras 14-20)

"14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., this Court held: (SCC p. 825, para 15)

"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."

15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, under the Page No.# 24/28

heading "Deference to authority's interpretation", this Court stated: (SCC p. 776, paras 50-52)

"50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.

51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.

52. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought, not to have been grounds for the High Court to come to a finding that the appellant committed illegality."

16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, this Court held as follows: (SCC pp. 501-02, para 20)

"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent Arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."

17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word both" appearing in Condition No. 31 of the NIT For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be negligible, is set aside.

18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa, this Court noted: (SCC pp. 531-32, para 22)

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial Page No.# 25/28

review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. 13, this Court stated as follows: (SCC p. 288, para 26)

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of Page No.# 26/28

judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."

20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own."

(italicised matter emphasised in the original; emphasis in bold italics supplied)

26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given."

41. The ratio of the decisions of the Hon'ble Supreme Court as noticed in the above-noted cases, is to the effect that the tendering authority having authored the tender document is the best person to understand and appreciate its requirement and interpret its documents. A constitutional Court is to defer to this understanding and appreciation of the tender documents unless there is mala fide, or, perversity in the understanding or appreciation or in the application of the terms of the tender conditions. Even if the interpretation of a tender document as projected by the tendering authority, is not acceptable to a constitutional Court, that, by itself; would not be a reason for interfering with the interpretation so projected by the employer. It also further stipulates that if two interpretations are possible then the interpretation of the employer, must be accepted. The said decisions lay down that the interference of a Court would be only to prevent arbitrariness, irrationality, bias, mala fide, or, perversity.

Page No.# 27/28

42. Applying the ratio of the said decisions of the Hon'ble Supreme Court, noticed hereinabove, to the facts of the present case, we find that the certificate, dated 06-08-2022, issued by the Assistant Registrar of Cooperative Societies, Morigaon, on due scrutiny, having been accepted by the settling authority; no error is found, therein. The petitioner Society has also not brought on record any material to demonstrate that such acceptance of the said certificate was so made to favour the respondent No. 7 Society and the same to be actuated by mala fide.

43. Having drawn the above conclusions, we would now examine the contention of the learned counsel for the petitioner that the cancellation of the settlement made with it, vide order, dated 31-05-2022, is bad in law, in-as- much as, the same was not so issued after affording an opportunity of hearing to the petitioner Society. The said contention is noticed only to be rejected, in- as-much as, this Court, hereinabove, had already while considering the order, dated 25-05-2022, concluded that the same was so done on application of an erroneous parameter which is again contrary to the decision of the Division Bench of this Court in the case of Pub Goalpara Fishery Cooperative Society (supra). Accordingly, this Court is of the considered view that an interference with the order, dated 31-05-2022, would have the effect of reviving an illegal order, dated 25-05-2022. Accordingly, the said contention of the learned counsel for the petitioner also would not mandate any acceptance.

44. In view of the above discussions; this Court is of the considered view that the petitioner in WP(c)4208/2022, has failed to make-out a case for interference with the order, dated 17-06-2022, and accordingly the order, dated 17-06-2022, would not mandate any interference.

Page No.# 28/28

45. In the above view of the matter; the writ petitions being WP(c)3975/2020 and WP(c)4208/2022, do not mandate acceptance and accordingly, the same stands dismissed. However, there shall be no order as to costs.

46. In view of the conclusions reached hereinabove; the order, dated 17-06- 2022, having not been interfered with, the petitioner in WP(c)3826/2022, having been granted the relief sought for by it, the writ petition being WP(c)3826/2022, stands disposed of with a direction to the respondent authorities to act in the matter in terms of the order, dated 17-06-2022.

47. Original records be handed over to Mr. Nath, learned Senior Government Advocate, forthwith.

JUDGE

Comparing Assistant