Nagaon District Federation Of Fishermen Coop. Socoety Ltd. vs State Of Assam And 4 Ors.

1) Heard Mr. M. Choudhury, learned counsel for the petitioner in W.P.(C) 5561/2017 and Mr. K. Singha, learned counsel for the petitioner in W.P.

(C) 6152/2017. Also heard Mr. R. Talukdar, learned Government Advocate, representing State respondent and Mr. A. Sarma, learned counsel for the

settlement holder of the fishery in question, namely, Pub-Jaluguti Cooperative Fishery Society Ltd., arrayed as respondent nos. 4 in W.P.(C)

5561/2017 and respondent no. 5 in W.P.(C) 6152/2017. None appears on call for respondent no. 5 in W.P.(C) 5561/2017.

2) As both writ petitions arise from same order, at the instance of the learned counsel for the appearing parties, the matter had been analogously

heard. In both the writ petition settlement of fishery to the private respondent, namely, Pub-Jaluguti Cooperative Fishery Society Ltd., has been

challenged and the petitioners are seeking a direction upon the respondent authorities to settle the fishery in reference to the petitioners.

3) The Deputy Commissioner, Nagaon had issued a “Notice Inviting Tenderâ€​ (NIT for short) dated 13.02.2017 for settlement of No. 4 Sonai Nadi

Part-II Min Mahal of Nagaon, fixing the minimum revenue of Rs.3,52,118/-. The said fishery is falls partly in Morigaon District and partly in Nagaon

District from where it originates. It is projected that the said 60% category fishery (Min Mahal) is settled under the Rule 12 of the Fishery Rules. It is

projected that 6 (six) bidders had participated in the tender process. The bid of the respondent no. 5 in W.P.(C) 5561/2017 was the highest at

Rs.7,51,105/-, and that the bid of the petitioner in W.P.(C) 6152/2017 was second highest at Rs.7,00,000/-, but both the highest and second highest bids

were rejected on the ground that the tender/bid was not accompanied with the call deposit receipt for a sum of 15% of the bid amount. The petitioner

in W.P.(C) 5561/2017 had quoted the fourth highest bid of Rs.5,52,991/-, but his bid was rejected on the ground that the neighbourhood certificate was

not issued by competent authority, i.e. Revenue Circle. Nonetheless, vide order dated 24.08.2017, impugned herein, the respondent authorities had

settled the said fishery with Pub-Jaluguti Cooperative Fishery Society Ltd., although its bid was 5th highest for a sum of Rs.4,24,242/-. Therefore, the

petitioners in both the writ petitions have approached this Court by filing this writ petition under Article 226 of the Constitution of India with a prayer to

set aside and quash the settlement order dated 24.08.2017 and for a further direction upon the respondent authorities to settle the said fishery with the

petitioners.

4) The Assistant Commissioner, Nagaon had filed his affidavit-in-opposition on behalf of the Deputy Commissioner, Nagaon (respondent no. 3) and

claimed that the petitioner in W.P.(C) 5561/2017 ought to have deposited call deposit for Rs.82,949/-, being 15% of his bid value. In W.P.(C)

6152/2017, the Joint Secretary to the Government of Assam, Fisheries Department had filed an affidavit-in-opposition on behalf of respondent no. 2,

i.e. the Additional Secretary to the Government of Assam, Fisheries Department, stating, inter alia, that the third, sixth and seventh highest bidder did

not submit the call deposit for required amount and that the first and fourth highest bidders had nor deposited any call deposit for which their

respective bids were held to be invalid. It was further stated that the second highest bidder i.e. the petitioner in W.P.(C) 6152/2017 did not submit the

neighbour certificate from the competent authority, viz., the Revenue Circle. Therefore, the fishery was settled with the 5th highest bidder. In their

affidavit-in-reply, the petitioner in W.P.(C) 6152/2017 had taken a stand that the petitioner had submitted neighbourhood certificate issued by the

Assistant Registrar of Cooperative Societies, Morigaon (Annexure-

4) and it was also stated that in the tender clause no such requirement was mentioned.

5) The settlement holder, i.e. Pub-Jaluguti Cooperative Fishery Society Ltd. had entered appearance in the case by filing a caveat, but affidavit-in-

opposition has not been filed in both the writ petitions. The learned counsel for the settlement holder has submitted that neighbourhood certificate is an

integral part of the tendering process for settlement of fishery in the State and that as the Assistant Registrar of Cooperative Society does not maintain

any land record from which distance of the place of the bidder and the fishery in question can be ascertain, the Officers of the Revenue Circle would

be the only competent authority to issue a certificate of neighbourhood. In support of his submissions, the learned counsel for the respondent No. 5 has

relied on the following cases, viz., (i) Brahmaputra Part II Mach Mahal Samabai Samity Ltd. v. State of Assam, 2003 (1) GLT 155: (2003) 1 GLR

528, (ii) Manash Padmabari Jiniram Fishery Cooperative Society Ltd. v. State of Assam & Ors., (2011) 3 GLR 187, (iii) M/s. Kachudola Fishery

Cooperative Society Ltd. v. The State of Assam & Ors., AIR 2013 Gau 143, (iv) Khoraghat Gulihara Fishery Cooperative Society Ltd. v. State of

Assam & Ors., (2014) 1 GLR 623. The learned counsel for the settlement holder, has made an alternative submission that they had made substantial

investment, which is required to be quantified and returned. The said submission has been noted.

6) As per the affidavit-in-opposition filed by respondent no. 2 in the two writ petitions, the grounds on which the bids submitted by the petitioners was

rejected are as follows:-

a. The petitioner in W.P.(C) 5561/2017 ought to have submitted call deposit of Rs.82,949/-, being 15% of bid amount of Rs.5,52,991/-, but he had

submitted call deposit of Rs.53,000/-.

b. The bid submitted by the petitioner in W.P.(C) 6152/2017 was not accompanied with neighbourhood certificate issued by the competent authority,

i.e. Revenue Circle.

7) On examination of the NIT and terms and conditions contained therein, there is no dispute at the Bar that the NIT does not contain (i) the

requirement to deposit 15% of the bid amount by way call deposit; (ii) the requirement that neighbourhood certificate must be issued by Revenue

Circle.

On quantum of call deposit towards earnest money:

8) Perused the photocopy records produced by the Deputy Commissioner, Nagaon, and original records produced by the Fishery Department . The

said record contains the prescribed bid application form and it is seen that in para/row no. 7(unga) thereof, the requirement of submitting call deposit is

mentioned. A rough English translation of the relevant para/row no. ‘7 (unga)’ of the bid application form reads as follows â€" “Call deposit

number, date and name of Bank, if any submitted towards 15 percent of first year’s minimum prescribed revenue.†Thus, the language of the

said para/row no. 7(unga) is clear, plain, simple and unambiguous.

9) Accordingly, in the context of the terms and conditions of the NIT dated 13.02.2017 for settlement of No. 4 Sonai Nadi Part-II Min Mahal of

Nagaon, the Court is inclined to hold that the call deposit that was required to be submitted along with tender was 15% of lowest revenue of the

fishery (Min Mahal) i.e. 15% of Rs.3,52,118.00, and not 15% of the bid amount of the respective bidder as interpreted by the Deputy Commissioner,

Nagaon and Fishery Department, Govt. of Assam.

10) Thus, on this count, the Court is inclined to hold that the bid submitted by the first highest bidder and the petitioner in W.P.(C) 5561/2017 (i.e.

fourth highest bidder) was arbitrarily and illegally rejected.

On the issue of neighbourhood certificate:

11) There cannot be and in fact there is no dispute at the Bar that the terms and conditions of the NIT do not contain any clause prescribing the

authority that is to issue neighbourhood certificate. In the settlement order dated 24.08.2017 issued by the Additional Secretary to the Government of

Assam, Fishery Department, no reference has been made to any Act, Rules or Notification(s) prescribing that neighbourhood certificate submitted for

bidding in fishery must be issued by officers of the Revenue Circle. The learned counsel for the settlement holder has not been able to show that in

any of the cases cited by him the Rule 12 of the Fishery Rules has been interpreted to the effect that no neighbourhood certificate other than the one

issued by the Revenue Circle would be admissible as a proof of neighbourhood for the purpose of bidding for settlement of a fishery.

12) Moreover, none of the respondents have denied that the petitioner in W.P.(C) 6152/2017 is not in the neighbourhood of the fishery in question. The

petitioner had made a positive and specific statement that the petitioner society was the last settlement holder whose term had expired on 29.01.2017

and that the said settlement was made on the basis of the neighbourhood certificate issued by the Assistant Registrar of Cooperative Societies. The

said statements have not been disputed or specifically denied by any of the respondents. Therefore, if previously the same authorities have accepted

the neighbourhood certificate issued by the Assistant Registrar of Cooperative Societies for last settlement period ending on 29.01.2017, under the well

settled principles of estoppel, waiver and acquiescence, the State respondents are estopped from doubting the same certificate in the present

settlement process. None of the respondents have disputed that the Assistant Registrar of Cooperative Societies would not be covered by the

definition of “State†as defined under Article 12 of the Constitution of India. Therefore, a certificate issued by such an authority carries with it a

presumption under Section 114 Ill.(e) â€" “That judicial and official acts have been regularly performed.†However, in this case, no steps have

been taken by any of the respondents to call for the records from the Assistant Registrar of Cooperative Societies to repel such presumption.

Therefore, on facts, the cases cited by the learned counsel for the respondent no. 5 are distinguishable because in this case, the NIT did not contain

any stipulation that certificate issued by which particular authority would only be acceptable and thereby putting the prospective bidders to notice of

such requirement.

13) Thus, in view of above, on this count, the Court is inclined to hold that the bid submitted by the petitioner in W.P.(C) 6152/2017 was arbitrarily and

illegally rejected.

Rejection of bid on ground of petitioner in W.P.(C) No. 6152/2017 being a defaulter:

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 Fishery Development Officer, Nagaon, and (iii) Treasury Officer, Nagaon is

available at Annexure â€"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.

Decision:

15) In light of the discussions above, the action of the respondent authorities including the Tender Committee and the Additional Secretary, Fishery

Department to (a) read, construe and/or interpret para/row no. 7 (unga) of tender/ bid submission form to treat as if the said para/row required that

the bid must be accompanied with call deposit of 15% of the bid amount; (b) to reject the neighbourhood certificate; and (c) is so absurd that the same

is hit by the three tests laid down in the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223

(more popularly known as Wednesbury case). On the basis of para-7(unga) of bid/tender submission form, the Court is inclined to return a finding to

the effect that the decision-makers, viz., Tender Committee as well as the Fishery Department had (i) given undue misread and misconstrued the

tender conditions and bid/tender submission form in the decision-making process, (ii) had not given relevance to facts like the tender conditions and

bid/tender submission form that were relevant and worthy of being considered in the decision-making process, and in the process, (iii) had made a

decision that was completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it. Thus, vitiating the impugned

settlement order is not found sustainable on facts and in law.

16) Accordingly, the bid/ tender of the petitioner in W.P.(C) 5561/2017 (i.e. fourth highest bidder) as well as the bid/ tender of the petitioner in W.P.

(C) No. 6152/2017 (second highest bidder) are held to be arbitrarily and illegally rejected, on grounds which are not covered by the terms and

conditions of the NIT dated 13.02.2017..

17) However, no finding could be returned in respect of the bid submitted by the highest bidder, who is arrayed as respondent no. 5 in W.P.(C)

5561/2017, as appears to have accepted the rejection of his tender and is deemed to have waived his claim and that no affidavit-in-opposition had been

filed by the said bidder to bring on record his stand, for which no occasion had arisen for the Court to enter into such determination.

18) The rejection of the bid submitted by the petitioner in both the writ petition, who had submitted fourth and second highest bid respectively, is held to

be arbitrary and illegal use of power. Therefore, the settlement of the No. 4 Sonai Nadi Part-II Min Mahal of Nagaon with Pub-Jaluguti Cooperative

Fishery Society Ltd., appears to be “fishy†in “literal sense of the term†and is liable to be interfered with. The impugned order of settlement

24.08.2017 is liable to be set aside and quashed and the petitioners are found eligible for being offered the settlement of fishery. Ordinarily, the best

course would have been to remand the matter back to the settling authority, but as the settlement holder has been permitted by the authorities to enjoy

the said fishery for almost 5 (five) years, in the interest of higher revenue to the public exchequer, this is a fit case for directing the authorities to settle

the said fishery to the petitioners for the remaining term/tenure. In so far as the alternative submission of the learned counsel for the private

respondent (i.e. settlement holder) is concerned, the Court is not inclined to grant any relief to him in the writ petition filed by the petitioners against

him as such he may avail such remedy as may be so advised.

19) The original records of the bidding process of the fishery in reference produced by the Deputy Commissioner, Nagaon has been examined. It is

seen that highly positioned officers in the (a) Three-Member Tender Committee consisting of (i) Additional Deputy Commissioner (Fishery), Nagaon,

(ii) District Fishery Development Officer, Nagaon, and (iii) Treasury Officer, Nagaon; and (ii) Additional Secretary, Government of Assam, Fishery

Department, had examined the tender papers. Because of the position they are holding, it is not possible to presume that the said highly placed officers

had not examined the NIT conditions or the Bid Submission Form, but it appears that the said authorities had utterly disregarded the paramount public

interest of getting higher revenue for the State. The petitioner in W.P.(C) 6152/2017 had quoted bid value of Rs.7,00,000/-, but the respondent

authorities had settled the fishery with the private respondent at Rs.4,24,242/-, thereby causing the State exchequer a loss of Rs.2,75,758/- per year

and during 5 years this writ petition is pending, the cumulative loss to the State exchequer comes to Rs.13,78,790/-. A faint attempt was made to

project that bid of the petitioners was excessively higher than the government value, which is not acceptable for two reasons, firstly, because the bid

was not rejected on the said count and secondly, the said petitioner was the immediate previous settlement and he is presumed to have taken a wise

business decision.

20) Therefore, for illegally ousting the petitioners from competition by arbitrary exercise of power by illegally interpreting para/ row no. ‘7

(unga)’ of the bid application form as per their whims and fancies, the Fishery Department, Government of Assam shall pay a cost of Rs.25,000/-

(Rupees Twenty five thousand only) each to the petitioner in both the writ petitions, which shall be paid within a period of one month from the date of

service of the certified copy of this order at the Office of the Secretary to the Government of Assam, Fishery Department [respondent no.2 in W.P.

(C) 5561/2017]. It is, however, left open to the wisdom of the State to take a decision whether they would want to recover the said cost from the

concerned officials by following due process of law.

21) In light of the discussions above, the Court in inclined to pass the following â€

 ORDER

a. The impugned order no. FISH.377/2013/188 dated 24th August, 2017 issued by the Addl. Secretary to the Government of Assam, thereby settling

the No. 4 Sonai Nadi Part-II Min Mahal of Nagaon to Pub-Jaluguti Cooperative Fishery Society Ltd. for a period of 7 (seven) years from the date of

delivery is held to be void ab initio and the same is hereby set aside and quashed forthwith.

b. The petitioner in W.P.(C) 6152/2017 had quoted second highest bid of Rs.7,00,000/- and the petitioner in W.P.(C) 5561/2017 had quoted the fourth

highest bid of Rs.5,52,991/-. Therefore, the Head of the Fishery Department, Government of Assam [Commissioner & Secretary to the Government

of Assam and in his absence, any other Head of the Department] shall cause issuance of an appropriate order to settle the No. 4 Sonai Nadi Part-II

Min Mahal of Nagaon to the Kuji Satra Mashmora Samabai Samittee Ltd., represented by its President, Ganesh Chandra Das [petitioner of W.P.(C)

No. 6152/2017] at his bid amount for the balance settlement period; and on their reluctance to accept the settlement at this juncture, to settle the said

fishery to Nagaon District Federation of Fishermen Cooperative Society Ltd., represented by its Secretary, Pramod Chandra Das [petitioner in W.P.

(C) No. 5561/2017] at his bid amount for the balance period. The process shall be concluded within an outer period of 2 (two) weeks from the date of

service of the certified copy of this order at the Office of the Secretary to the Government of Assam, Fishery Department.

c. The respondent authorities including the Deputy Commissioner, Nagaon shall ensure that the physical possession of the said fishery is handed over

to the new settlement holder within 10 (ten) days from the date of issuance of the settlement order.

d. The Fishery Department shall pay a cost of Rs.20,000/- (Rupees Twenty thousand only) separately to the respective petitioner in both the writ

petitions. The said amount shall be paid within a period of one month from the date of service of the certified copy of this order upon the Office of the

Secretary to the Government of Assam, Fishery Department. It is left open to the wisdom of the State to take a decision whether or not they would

want to recover the said cost from the concerned officials by following due process of law.

22) These two writ petitions stands allowed with cost to the extent as indicated above.

23) The Court Master shall return the records (two photocopy records from Deputy Commissioner, Nagaon and one original file no. FISH-377/2013

from Fishery Department) to the learned Government Advocate.