Gauhati High Court
Page No.# 1/ vs The State Of Assam And 6 Ors Rep. By The ... on 19 March, 2025
Page No.# 1/10
GAHC010113212024
2025:GAU-AS:2914-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1731/2024
NAMAH SUDRAH FISHERY COOPERATIVE SOCIETY LTD VILL- PARLY,
REP. BY ITS SECY. SRI BHUPEN CHANDRA DAS, AGED ABOUT 84 YEARS,
S/O- LT BHOGIRAM DAS, R/O- VILL- PARLY NOTUN BASTI, P.O.
PALASHBARI, DIST- KAMRUP PIN- 781128
VERSUS
1: THE STATE OF ASSAM AND 6 ORS REP. BY THE ADDL. CHIEF SECY.,
FISHERIES DEPTT., GOVT. OF ASSAM, DISPUR, GHY-6
2:THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR GHY-6
3:THE ADDL. SECY. FISHERIES DEPTT.
GOVT. OF ASSAM DISPUR GHY-6
4:THE SPIO FISHERIES DEPTT.
GOVT. OF ASSAM DISPUR GHY-6
5:THE DIRECTOR OF FISHERY ASSAM
MIN BHAVAN BIRUBARI GHY-16
6:THE DY. COMMISSIONER
KAMRUP AMINGAON PIN- 781031
7:THE BAHARI RESERVE GAON MIN SAMABAI SAMITTEE LTD.
BAHARI HAT DIST- BARPETA REP. BY SRI RAMPRASAD MALODAS
S/O- LT SUREN MALODAS R/O- BAHARI RESERVE P.O. BAHARIHAT
P.S. TARABARI DIST- BARPETA ASSAM
Linked Case : W.A. No.5653/2024 (Filing Number)
NAMAH SUDRAH FISHERY COOPERATIVE SOCIETY LTD
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VERSUS
THE STATE OF ASSAM AND 6 ORS (F)
For the Applicant/Appellant(s) : Mr. K.K. Mahanta, Sr. Advocate, assisted by Mr. K.M. Mahanta
and Mr. M.H. Ansari, Advocates.
For the Respondent(s) : Mr. P. Sarmah, Standing Counsel, Fishery Department for
respondent Nos.1, 3, 4 & 5.
: Mr. N. Das, Junior Government Advocate, Assam for respondent
Nos.2 & 6.
: Mr. K. Mohammed, Advocate for respondent No.7.
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
19.03.2025
(Vijay Bishnoi, CJ)
The matter comes upon for consideration of the interlocutory
application preferred on behalf of the applicant with a prayer to condone the
delay of 21 days in filling the connected writ appeal.
There is no serious opposition on the part of the respondents.
Having heard the learned counsel appearing for the parties and after
going through the contents of the interlocutory application, we deem it
appropriate to condone the delay of 21 days in filing the connected writ appeal.
Hence, the delay of 21 days is condoned. The interlocutory application is
allowed.
With the consent of the learned counsel appearing for the parties, the
connected writ appeal, which is yet to be numbered, is heard finally.
1. This writ appeal is preferred by the appellant being aggrieved with
the judgment & order dated 27.03.2024 passed by the learned Single Judge in
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WP(C) No.7691/2018, whereby the learned Single Judge has dismissed the writ
petition.
2. The dispute in this case is regarding the settlement of a fishery,
namely, 3-A Lower Brahmaputra Min Mahal aka 3-Ka Lower Brahmaputra Min
Mahal (hereinafter to be referred as the "fishery in question").
3. The appellant has challenged the settlement of the fishery in question
in favour of the respondent No.7, namely, Bahari Reserve Gaon Min Samabai
Samitee Limited, Bahari Hat, vide order dated 08.10.2018 issued by the
competent authority.
4. The chequered history of the case has been noted by the learned
Single Judge in the impugned judgment, which we are dealing in brief, is that
the authorities concerned issued a Notice Inviting Tender (NIT) in June, 2017
for settlement of the fishery in question for a period of 7(seven) years and
pursuant to the said NIT, as many as 7(seven) bidders, including the appellant
and the respondent No.7, submitted their bids. After evaluating the bids
submitted by all the bidders, the settlement authorities concluded that out of
the 7(seven) bidders, the bid submitted by the appellant was the only valid bid,
whereas the other bids could not be treated as valid because certain required
documents had not been furnished by them along with their bids. While
concluding so, the settlement authorities decided to initiate fresh tender process
for the reason that the amount offered by the appellant for settlement of the
fishery in question was too low.
5. Aggrieved by the said decision of the settlement authorities, the
appellant preferred a writ petition before this Court, however, prior to that, the
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respondent No.7 had also preferred a writ petition challenging the action of the
settlement authorities of declaring its bid as invalid. The respondent No.7 also
preferred another writ petition with a prayer for interfering with the decision of
the settlement authorities of declaring its bid as invalid and also seeking a
direction to the settlement authorities not to issue fresh tender notice.
6. The learned Single Judge of this Court, vide order dated 29.05.2018,
has disposed of all the above-referred 3(three) writ petitions, i.e. WP(C)
No.7934/2017 and WP(C) No.4896/2017 preferred by the respondent No.7 and
WP(C) No.5001/2017 filed by the appellant, with a direction to the settlement
authorities to make a fresh consideration on the basis of the record available to
ascertain as to whether the petitioner, i.e. the respondent No.7, had submitted
the documents along with the tender fulfilling the requirement of experience
certificate in the name of the society in question as well as the caste certificate
certifying the status of the members of the society in question for the purpose
of settlement. At the same time, the learned Single Judge has recorded a
finding that no further consideration is to be made in respect of the bakijai
certificate of the respondent No.7, as the bakijai certificate of the respondent
No.7 is a part of record. The learned Single Judge has further made it clear that
after completing the exercise, as directed, the settlement of the fishery in
question shall be made to the highest valid bidder.
7. Pursuant to the said direction, the settlement authorities have
proceeded further and have settled the fishery in question in favour of the
respondent No.7 vide order dated 08.10.2018, while recording a finding that the
experience certificate and caste certificate submitted by the respondent No.7
are sufficient to declare the bid submitted by it as valid.
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8. It appears that in the meantime the appellant preferred another writ
petition, being WP(C) No.5185/2018, before the Writ Court with certain prayers.
However, the learned Single Judge has disposed of the said writ petition vide
order dated 30.08.2018 with a direction to the settlement authorities to finalize
the settlement of the fishery in question in accordance with law, taking note of
the grievances expressed by the appellant.
9. Be that as it may, the appellant thereafter preferred a review petition
before the learned Single Judge seeking review of the order dated 29.05.2018
passed in WP(C) No.7934/2017; WP(C) No.4896/2017 and WP(C)
No.5001/2017. However, the said review petition came to be dismissed by the
Writ Court, against which the appellant preferred a writ appeal before the
Division Bench of this Court. However, the same was also dismissed on
18.02.2022 with an observation that since the challenge to the settlement of the
fishery in question in favour of the respondent No.7 is pending consideration
before the Writ Court, all the relevant factors and aspects will be examined in
the writ proceeding.
10. The learned Single Judge, after taking into consideration the above
facts, as noted above, has passed the impugned judgment with the following
findings:-
"22. The rival submissions of the learned counsel for the parties have
been duly considered and the materials placed before this Court including
the records in original have been carefully examined.
23. It is not in dispute that the impugned order dated 08.10.2018 has
been passed pursuant to an order dated 30.08.2018 of this Court in WP(C)/
5185 of 2018. The earlier order dated 29.05.2018 in the bunch of three writ
petitions also would be a relevant consideration in considering the present
challenge. In the first order dated 29.05.2018 while disposing of the three
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writ petitions it was directed that a fresh decision be taken by the
Department on the basis of the records available as to whether the
respondent no. 7 herein had submitted the documents fulfilling the
requirements of fishing experience in the name of the Society as well as the
members belonging to Schedule Caste. With regard to the Bakijai Certificate,
it was observed that no further consideration was required to be made by
the State respondents as the said Bakijai Certificate was part of the records
which was mixed up with the tender papers of another bidder. In the
subsequent order dated 30.08.2018, this Court had come to a finding that
no case for interference was made out in the challenge made by the
petitioner as final order of settlement was yet to be issued. Accordingly, a
direction was issued to finalize the settlement process.
24. A perusal of the order dated 08.10.2018 which is the subject
matter of challenge would reveal that both the orders dated 29.05.2018 and
30.08.2018 of this Court have been taken into consideration and to arrive at
a just and proper finding, a report from the Deputy Commissioner, Kamrup
along with the views and comments of the ARCS, Barpeta was sought for.
Accordingly, the ARCS, Barpeta vide communication dated 07.06.2018
informed the Deputy Commissioner, Kamrup that the respondent no. 7
comprised of 100% actual fishermen belonging to SC Community and fishing
was their main source of livelihood. The caste certificate was also found
available in the records.
25. With regard to the submission that new documents were
considered in examining the bid of the respondent no. 7, in the opinion of
this Court, no new documents were introduced by any of the parties and the
documents which were considered were only the reports of the Deputy
Commissioner Kamrup and the views and comments of the ARCS, Barpeta.
26. This Court is of the view that the exercise to be carried out by the
authorities on the remand order dated 30.08.2018 as well as the earlier
order dated 29.05.2018 by which the initial three writ petitions were
disposed of cannot be a mechanical exercise and to maintain transparency
and fair play, calling for reports from the Deputy Commissioner, Kamrup
with the views and comments of the ARCS, Barpeta cannot be termed as
either exceeding of jurisdiction or taking into consideration extraneous
factors. This Court is also of the view that the aspect of experience and
caste, unlike academic degrees are not obtained on a particular date and
therefore this Court is unable to accept the submission made on behalf of
the petitioner that any documents of a date subsequent to the last date of
submission of tender cannot be considered. Though the aforesaid contention
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may hold good in a given case, such contention cannot have universal
application.
27. With regard to the challenge on the Caste Certificate, this Court
has made a minute examination of the said Certificate which is at page 71
of the writ petition. The Certificate has two parts. In the first part, Shri Ram
Prashad Malo Das is recognized to be the Secretary of the respondent no. 7
Society which was registered on 04.02.1972 and the second part is that
member of the Society belong to SC and actual fisherman. Though the
formation of the sentence may not be grammatically correct, it cannot be
contended that the certification of Schedule Caste and actual fisherman
pertains only to the said Shri Ram Prashad Malo Das. In fact a harmonious
construction and logical conclusion would be that such certification of
Schedule Caste and being actual fishermen is for all the members of the
respondent no. 7 Society. In any case, this Court has noted the submission
of Shri S. S. Roy, the learned Government Advocate that there is a
clarification from the ARCS, Barpeta that all the members of the respondent
no. 7 Society are actual fishermen.
28. This Court has also noticed that the difference of price offered by
the petitioner and that of the respondent No. 7 is huge. While the respondent
no. 7 had offered its bid of Rs.1,48,47,777/- (Rupees One Crore Forty Eight
Lakh Forty Seven Thousand Seven Hundred Seventy Seven) only, the bid of
the petitioner was Rs.36,47,000/- (Rupees Thirty Six Lakh Forty Seven
Thousand) only. The difference is a major one of Rs.1,12,00,777/-(Rupees
One Crore Twelve Lakh Seven Hundred Seventy Seven) only. This Court is
of the opinion that the authorities have genuinely considered the said aspect
which concerns Government revenue. It is a settled position of law that a
price is one of the paramount factors in determining a tender process. In this
connection, one may gainfully referred to the decision of this Court in the
case of Dhaniram Gogoi Vs. State of Assam reported in 1998 (4) GLT 37
wherein it has been held that public interest is of paramount consideration
for settlement. This Court in the case of Tarun Bharali Vs. State of Assam &
Ors. reported in (1991) 2 GLR 296, has categorically held that in matters of
settlement which earns revenue for the Government the paramount factor is
public interest. The case of Malegarh (supra) which has been upheld by the
Hon'ble Division Bench in WA No. 306/2021 vide judgment dated
27.08.2022 would also support the aforesaid position of law.
29. Having held that the challenge made to the order dated
08.10.2018 is not sustainable qua the bid of the respondent no. 7 and the
consequent settlement made in its favour, this Court is however of the view
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that the observation towards declaring the bid of the petitioner as invalid
does not appear to be a correct observation for more than one reason.
Firstly, the remand order was only to re-examine the bid of the respondent
no. 7 and therefore there was no occasion for re-examining the bid of the
petitioner. Secondly, though there is an order dated 10.08.2017 to issue a
fresh tender process, the comparative statement in the earlier process
reflects that the bid of the petitioner was complete. However, having said
that, this Court is of the view that the aforesaid observation is rendered
otiose inasmuch as the bid of the respondent no. 7 is held to be correctly
declared valid and the financial bid of the respondent no. 7 is significantly
higher than the financial bid of the petitioner. This Court has also taken into
consideration that there is no complaint against the respondent no. 7 in
operating the fishery and till now there is no default in payment of the kist,
as submitted by the learned Government Advocate.
30. The conduct of the petitioner is also to be taken into consideration.
As recorded above, when the initial three writ petitions were disposed of
vide judgment dated 29.05.2018 and the matter was pending consideration
before the authorities, the petitioner had filed another writ petition WP(C)/
5185 of 2018 which was dismissed on 30.08.2018 reiterating the earlier
direction to finalize the settlement. Even after filing of the present writ
petition in the year 2018 challenging the settlement order dated 08.10.2018,
in the year 2020, the petitioner had filed review petition being Review
Petition No. 25 of 2020 against the order dated 29.05.2018 which was
dismissed vide order dated 27.09.2021. The appeal preferred thereafter by
the petitioner being WA No. 53 of 2022 was also dismissed on 18.02.2022.
This Court finds force in the contention raised on behalf of the respondent
no. 7 that the conduct of the petitioner has been inconsistent and wavering
and would also stand as an impediment in seeking equitable relief under
Article 226 of the Constitution of India.
31. Under the aforesaid facts and circumstances, this Court is of the
opinion that the petitioner has not been able to make out a case for
interference with regard to the order dated 08.10.2018 of the Fishery
Department. Accordingly, the writ petition is dismissed."
11. Mr. K.K. Mahanta, learned senior counsel for the appellant has argued
that once the Division Bench of this Court, while disposing of the appeal filed on
behalf of the appellant, has observed that the relevant factors and aspects
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regarding the settlement of the fishery in question in favour of the respondent
No.7 are to be examined in the writ proceeding, the learned Single Judge ought
to have taken into consideration that the settlement authorities were required to
take into consideration only those documents which were submitted by the
respondent No.7 along with its bid and not any other documents furnished by
the respondent No.7 thereafter.
It is argued that the respondent authorities had illegally taken into
consideration those documents, which were not produced by the respondent
No.7 along with its bid and illegally settled the fishery in question in favour of it
vide order dated 08.10.2018. It is contended by the learned senior counsel that
the learned Single Judge has ignored this aspect and, therefore, on this ground
alone the impugned judgment passed by the learned Single Judge is liable to be
interfered with.
12. We have considered the submission made on behalf of the learned
senior counsel for the appellant but for rejection only.
13. It is not reflected from the settlement order dated 08.10.2018 that
the settlement authorities had taken into consideration any such documents,
which had been produced by the respondent No.7 afterwards, or which had not
been furnished along with its bid. In other words, it cannot be concluded that
the settlement authorities had taken into consideration any such documents,
which had not been furnished by the respondent No.7 at the time of initial
assessment carried out by the assessing authorities. The learned Single Judge,
vide order dated 29.05.2018, passed in the above-referred 3(three) writ
petitions, has issued a specific direction to the settlement authorities that a
fresh decision be taken on the basis of the record available whether the
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respondent No.7 had submitted experience certificate in the name of the society
in question fulfilling the requirement of experience as well as the caste
certificate certifying the status of the members of the society in question along
with the tender, meaning thereby, the learned Single Judge has directed the
settlement authorities to consider only those documents, which were submitted
along with the bid and not otherwise. The settlement authorities, on examining
the matter afresh, found that the documents submitted by the respondent No.7
along with its bid were satisfying the criteria of experience as well as the status
of caste of its members and thereafter, decided to settle the fishery in question
in favour of the respondent No.7.
14. In such circumstances, we are of the view that the learned Single
Judge has not committed any illegality in passing of the impugned judgment &
order dated 27.03.2024 in WP(C) No.7691/2018 and, therefore, no case for
interference is made out. The writ appeal filed by the appellant is, therefore,
dismissed.
No orders as to cost.
15. Registry is directed to register the connected writ appeal [Writ Appeal
No.5653/2024 (filing Number)] immediately and treat it as dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
