1. Writ Petition (C) No.3638 of 2015

Transcription

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) 1. Writ Petition (C) No.3638 of Bahari Reserve Gaon Min Samabai Samity Limited, Village & PO- Bahari, PS- Tarabari, District of Barpeta, Assam, represented by its Secretary, Shri Ram Prasad Malo Das. 2. Shri Ram Prasad Malo Das, Son of Suren Malo Das, Resident of Village & PO- Bahari, PS- Tarabari, District of Barpeta, Assam. -- VERSUS... Petitioners 1. The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati The Joint Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati The Deputy Commissioner, District- Kamrup (R), Amingaon, Assam.... Respondents Advocates for the petitioners Advocates for the respondents : Mr. B. Sinha, Advocate, Mr. S. Das, Advocate, Mr. T. Dewan, Advocates. : Mr. R.K. Bora, State Counsel. 2. Writ Petition (C) No.109 of 2016 Pijupara Haridoba Paharpara Jaljali Matchya Bebasay Samabai Samity Limited, Village, PO & PS- Nagarbera, District- Kamrup (Rural), Assam, represented by its Secretary, Shri Hari Prasad Das, Son of Late Rameswar Das, Resident of Village- Paharpara, PO & PS-Nagarbera, PIN , District- Kamrup (Rural), Assam.... Petitioner -- VERSUS The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati WP(C) No.3638/2015 & WP(C) No.109/2016 Page 1 of 10

2 2. The Joint Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati The Deputy Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati The Director of Fisheries, Assam, Meen Bhawan, Sarabbhatti, Guwahati The Deputy Commissioner, Kamrup (Rural), Amingaon. 6. Shri Ram Prasada Malo Das, Secretary, Bahari Reserve Gaon Min Samabai Samity Limited, Resident of Village & PO- Bahari, PS- Tarabari, District of Barpeta, Assam, PIN Shri Anil Das, Secretary, Nalirpar Fishery Samabai Samity Limited, Nalirpar, PO-Bhatkuchi, PS-Barpeta, Assam, District- Barpeta, PIN Respondents Advocates for the petitioner Advocates for the respondent Nos.1 to 5 Advocates for respondent No.6 Advocates for respondent No.7 : Mr. D.Das, Sr. Advocate, Mr. S. Khound, Advocate, Mr. H. Nath, Advocate. : Mr. R.K. Bora, State Counsel, : Mr. B. Sinha, Advocate, Mr. S. Das, Advocate, Mr. T. Dewan, Advocate. : Mr. K.N. Choudhury, Senior Advocate, Mr. D.K. Sarmah, Advocate. - B E F O R E - HON BLE MR. JUSTICE A.K. GOSWAMI Date of Hearing : 10 th March, Date of Judgment & Order : 28 th March, JUDGMENT & ORDER (CAV) On the prayer of the learned counsel appearing for the parties, the 2(two) writ petitions are taken up for final disposal at the admission stage and accordingly, by this common judgment & order, the writ petitions are disposed of. WP(C) No.3638/2015 & WP(C) No.109/2016 Page 2 of 10

3 [2] A tender notice was issued on 24 th January, 2014 inviting sealed tenders from interested Co-operative Societies, Self Help Groups and Non-Governmental Organizations, comprising of Schedule Caste Members belonging to Fishermen Community for settlement of No.3(B) Lower Part Bramaputra and 13-Rupnajaljali, Kholabondha Fishery (for short, the fishery ) of Kamrup (R) District. [3] The petitioner, respondent No.6, respondent No.7 of WP(C) No.109/2016 and some other tenderers participated in the tender process. The Bid of the petitioner was the highest and that of respondent No.6 was fifth highest. By an order dated 17 th May, 2014 issued by the Deputy Secretary to the Government of Assam, Fishery Department communicated the decision that the Governor of Assam, in exercise of the powers conferred upon him under Rule 12 of the Assam Fishery Rules, 1953, (for short, the Rules ) was pleased to settle the fishery with Bahari Reserve Gaon Min Samabai Samity Limited at the bid value of Rs.15,61,439/- for a period of 7(seven) years from the date of delivery of the possession of the fishery. [4] Against the aforesaid order dated 17 th May, 2014, 3(three) writ petitions were instituted by the aggrieved tenderers, which were numbered as WP(C) No.2790/2014, WP(C) No.2574/2014 and WP(C) No.2865/2014. The writ petition filed by the present petitioner in WP(C) No.109/2016 was registered as WP(C) No.2574/2014. [5] All the aforesaid 3(three) writ petitions were disposed of by an order dated 22 nd September, By the said order, amongst others, the settlement order dated 17 th May, 2014, was set aside and the settling authority was directed to re-do the settlement exercise. For better appreciation, it will be appropriate to quote herein below paragraphs 6, 7, 10 and 11 of the aforesaid order, which are as follows:- 6. The settlement records are produced by the Govt. advocate ad upon due scrutiny, I find that in their tender papers, the settlement holder i.e. the Bahari Reserve Gaon Min Samabay Samity Limited had not furnished the acknowledgement of I.T. return relating to the society. Instead the enclosed acknowledgement pertaining to one individual assesse i.e. Ram Prasad Malo Das, who is the Secretary of the Society. From this it can be easily gathered that the relevant I.T. return for the tendering society was not furnished and therefore in my considered opinion the I.T. return of the Secretary of the Society cannot be the basis for considering the Bahari Reserve Gaon Min Samabay Samity Limited to be responsive in their tender as they hadn t enclosed any I.T. clearance certificate with their tender. 7. On the neighbourhood aspect, the records indicate that this qualification criterion was being verified for all the tendering societies by WP(C) No.3638/2015 & WP(C) No.109/2016 Page 3 of 10

4 the settling authorities and in fact for the highest bidder, the Circle Officer, Nagarbera, in his report dated indicated that the members of the Pijupara, Haridowa, Paharpara, Jaljali Matshya Bebasaya S.S. Ltd. are in the neighbourhood of the fishery. 10. In the instant cases, one of the lowest bidder was selected for settlement and all the higher bidders were ignored for reasons which are not germane for considering their competence/eligibility. Therefore, I quash the settlement order dated , whereby settlement was undeservingly granted to the 5 th lowest bidder. Consequently the matter is remitted back to the settling authority to decide afresh by considering that the 3 higher bidders to have furnished valid tender. However the neighbourhood aspect of all the tenderers would be accounted for, as per the departmental verification exercise. 11. For the above reasoning and conclusion after quashing the settlement order dated , the matter is remitted back to re-do the settlement exercise after due verification and application of mind in accordance with law. The authorities are also at liberty to start a de-novo process if they are unable to make the settlement on the basis of the previous NIT. It is ordered accordingly. [6] Bahari Reserve Gaon Min Samabay Samittee Limited preferred an appeal against the said order dated 22 nd September, 2014, which was registered as Writ Appeal No.350/2014. After hearing the learned counsel for the appellant and the respondents, the writ appeal was dismissed by order dated 26 th November, It will be appropriate to quote the order in its entirety. The order reads as follows:- Heard the appellant and the respondents. The appellant and the contesting respondent both submitted their tenders. It appears that the contesting respondent did not furnish the neighbourhood certificate along with his tender, it was submitted belatedly but before finalization of the tender. The appellant quoted Rs.15 lakh-odd while the contesting respondent 47 lakh-odd. The tender of the contesting respondent was rejected. The contesting respondent filed the writ petition WP(C) No.2574/2014. The learned single Judge found that the belated submission of the neighbourhood certificate would not invalidate the claim of the contesting respondent for considering his tender. The order of settlement in favour of the appellant is set aside. The learned single Judge also observed that insistence of income tax clearance certificate is not necessary because the department has stopped issuing such certificates, therefore an impossible condition cannot be insisted by the tendering authority. The learned single Judge remanded the matter to the settling authority for reconsideration of the claims. We do not find any good reason to interfere in the order. The counsel for the appellant submitted that belated submission of neighbourhood certificate will not cure the defect in submission of the tender of the contesting respondent and when the neighbourhood certificate is not submitted along with the tender it would not be a valid tender for consideration. We do not find any good reason to agree with the contention of the counsel for the appellant. The view taken by the learned single Judge is sound and proper. No ground for interfering in the order is made by the learned single Judge. Accordingly the appeal is dismissed. WP(C) No.3638/2015 & WP(C) No.109/2016 Page 4 of 10

5 [7] At this stage, it will be appropriate to take note of a development that had taken place in relation to the settlement of the fishery. Making a reference to the order dated 22 nd September, 2014 in WP(C) No.2574/2014; WP(C) No.2865/2014 and WP(C) No.2790/2014, by an order dated 20 th December, 2014, the Joint Secretary to the Government of Assam, Fishery Department had decided to invite a fresh tender for settlement of the fishery and directed the Deputy Commissioner, Kamrup (R), Morigaon to invite fresh Notice Inviting Tender (NIT) for settlement of the fishery. [8] The petitioner in WP(C) No.109/2016 had challenged the said order dated 20 th December, 2014 by filing an application under Article 226 of the Constitution of India, which was registered and numbered as WP(C) No.1352/2015. The aforesaid writ petition was allowed by order dated 20 th March, 2015 by setting aside and quashing the order dated 20 th December, 2014 and directing the authorities to expeditiously comply with the order dated 22 nd September, 2014 passed in WP(C) No.2574/2014, WP(C) No.2865/2014 and WP(C) No.2790/2014, which was affirmed by the Division Bench of this Court in Writ Appeal No.350/2014. It was observed in the said order dated 20 th March, 2015 that by the said order dated 22 nd September, 2014, the authorities were given the liberty to start a de-novo process, if they are unable to make settlement on the basis of the previous NIT and, therefore, it was incumbent on the authorities to have first attempted to re-do the settlement exercise after due verification with application of mind and recourse to issuance of fresh NIT was permitted only if the authorities were unable to make the settlement on the basis of the previous NIT. This Court recorded the finding that no exercise was carried out as ordered by this Court in the order dated 22 nd September, 2014 and mechanically a direction was issued to invite a fresh NIT for settlement of the fishery. [9] The aforesaid order dated 20 th March, 2015 passed in WP(C) No.1352/2015, laid the stage for eventual consideration in terms of the order dated 22 nd September, 2015 of this Court in WP(C) No.2574/2014, WP(C) No.2865/2015 and WP(C) No.2790/2014 and such consideration had culminated in the issuance of an order dated 1 st June, 2015, by the Deputy Secretary to the Government of Assam, Fishery Department, whereby the Governor of Assam, in exercise of powers conferred under Rule 12 of the Rules, was pleased to settle the fishery with Nalirpar Fishery Samabai WP(C) No.3638/2015 & WP(C) No.109/2016 Page 5 of 10

6 Samittee Limited for a period of 7(seven) years from the date of delivery of the possession of the fishery at the offered bid value of Rs.27,33,333/-. [10] The order dated 1 st June, 2015 came to be challenged, first in point of time, in WP(C) No.3283/2015, filed by the present petitioner in WP(C) No.109/2016. On 5 th June, 2015, this Court, while directing the State respondents to produce the relevant records including tender documents on 12 th June, 2015, also directed maintenance of status-quo as on that date till then. The writ petition was listed on 12 th June, However, on the prayer of the learned counsel for the petitioner, case was directed to be listed on 25 th June, It is important to note that there was no order for maintenance of status quo till 25 th June, On 25 th June, 2015, however, earlier order of status quo passed on 5 th June, 2015 was directed to be continued and the case was directed to be posted on 3 rd August, In between 12 th June, 2015 and 25 th June, 2015, as there was no specific order of status quo, order dated 19 th June, 2015 was passed giving effect to the order of settlement dated 1 st June, 2015 and lease agreement was also executed. Subsequently, after the passing of the order of status quo on 25 th June, 2015, the aforesaid order dated 19 th June, 2015 came to be cancelled, which prompted institution of WP(C) No.4133/2015 by Nalirpar Fishery Samabai Samittee Limited. [11] On 28 th December, 2015, the Joint Secretary to the Government of Assam issued an order intimating that to prevent further loss of Government revenue, in exercise of power conferred under Rule 12 of the Rules, the fishery was settled with Bahari Reserve Gaon Min Samabay Samittee Limited, petitioner in WP(C) No.3638/2015 and respondent No.6 in WP(C) No.109/2016 increasing 10% of revenue on the previous daily basis lease value, issued vide order dated 28 th January, 2014 from the date of the issue of the order till the regular settlement is made. [12] This order dated 28 th December, 2015 is the subject matter of challenge in WP(C) No.109/2016. Prayer is also made to issue a direction to the respondent authorities to settle the fishery with the petitioner Society being the highest tenderer. This Court, while issuing notice of motion, had stayed the operation of the aforesaid order dated 28 th December, [13] Bahari Reserve Gaon Min Samabay Samittee Limited has filed WP(C) No.3638/2015 praying for a writ of mandamus directing the respondent authorities WP(C) No.3638/2015 & WP(C) No.109/2016 Page 6 of 10

7 either to refund the fishery revenue of Rs.3,33,408/-, Rs.56,172/- and Rs.56,172/- received from it on 5 th February, 2015, 3 rd March, 2015 and 9 th April, 2015 or to accommodate by means of adjustment on daily basis so as to operate and run the fishery. [14] WP(C) No.3638/2015 is listed with the records of a disposed of writ petition numbered as WP(C) No.1436/2015. From the records of WP(C) No.1436/2015, instituted by one Palarpam Fishery Co-operative Society Limited, it appears that by an order dated 9 th February, 2015 issued by the Joint Secretary to the Government of Assam, Fishery Department, Bahari Reserve Gaon Min Samabay Samittee Limited, was allowed as the present lessee to run the fishery on daily basis until fresh settlement is made. By an order dated 18 th March, 2015, while issuing notice of motion, the Court had directed that neither Bahari Reserve Gaon Min Samabay Samittee Limited nor anybody else would be allowed to run the fishery on daily basis. Subsequently, the said writ petition was dismissed as infructuous vide order dated 22 nd July, 2015, presumably because of order of settlement dated 1 st June, [15] While issuing notice of motion in WP(C) No.3638/2015 on 20 th June, 2015, this Court had made it very clear that the petitioners are only asking for refund of the revenue deposited. [16] Mr. D. Das, learned senior counsel for the writ petitioner in WP(C) No.109/2016 submits that undue favour is sought to be bestowed by the State respondents upon Bahari Reserve Gaon Min Samabay Samittee Limited as initially the said Society was illegally favoured with the settlement of the fishery, though it was the fifth highest tenderer, by an order dated 17 th May, 2014 and thereafter, by orders dated 9 th February, 2015 and 28 th December, 2015, by permitting it to run the fishery on a daily basis. It is submitted by him that order dated 28 th December, 2015 was issued when there was an order of status quo operating in WP(C) No.3283/2015 filed by the petitioner in WP(C) No.109/2016. He has also submitted that if at all the fishery was to be settled on a daily basis, the writ petitioner in WP(C) No.109/2016 ought to have been preferred. [17] Mr. B. Sinha, learned counsel appearing for respondent No.6 as well as Mr. R.K. Bora, learned State counsel submit that the settlement was made only on a daily WP(C) No.3638/2015 & WP(C) No.109/2016 Page 7 of 10

8 basis till regular settlement is made and, therefore, no interference with the order dated 28 th December, 2015 is called for. Mr. K.N. Choudhury, learned senior counsel for the respondent No.7, however, submits that in terms of the order dated 22 nd September, 2014 rendered in WP(C) No.4554/2015, WP(C) No.3283/2015 and WP(C) No.2865/2014, Bahari Reserve Gaon Min Samabay Samittee Limited was not even in the fray for getting settlement of the fishery and, therefore, the order dated 28 th December, 2015 is uncalled for. [18] As regards refund of revenue, which is the subject matter in WP(C) No.3638/2015, Mr. Sinha submits that as the petitioner therein could not operate the fishery due to the interim order passed by this Court, direction may be issued to the respondent authorities to refund the amount deposited. Mr. R.K. Bora, learned State counsel submits that respondent authorities may be directed to consider the case of the petitioner for refund of the revenue. [19] I have considered the submissions advanced by the learned counsel appearing for the parties. [20] It is relevant to note that this Court, by judgment & order dated 22 nd March, 2016, rendered in WP(C) No.4133/2015, WP(C) No.4554/2015, WP(C) No.3835/2015 and WP(C) No.3283/2015, while setting aside the order dated 1 st June, 2015 issued by the Deputy Secretary to the Government of Assam, Fishery Department, settling the fishery with Nalirpar Fishery Samabai Samittee Limited, had directed the State respondents to settle the fishery in terms of the directions contained therein within a period of 45(forty-five) days from the date of receipt of a copy of the judgment. [21] Order dated 28 th December, 2015 recites that the same had been passed in exercise of powers conferred under Rule 12 of the Rules. Proviso to Rule 12 of the Rules makes it very clear that a 60% category fishery, which undisputedly No.3(B) Lower Part Bramaputra and 13-Rupnajaljali, Kholabondha Fishery is, shall be settled by tender system. It is not the case of the Bahari Reserve Gaon Min Samabay Samittee Limited that the order dated 28 th December, 2015 was issued after following a tender process and on the contrary, it is very much an admitted position that Bahari Reserve Gaon Min Samabay Samittee Limited was permitted to operate the fishery on the basis of a prayer made by it. There was also an order of status quo in force in WP(C) No.3283/2015 with WP(C) No.3638/2015 & WP(C) No.109/2016 Page 8 of 10

9 regard to the fishery. The order dated 28 th December, 2015 is, ex-facie, arbitrary and discriminatory and issued in violation of the Rules. Therefore, the order dated 28 th December, 2015 is set aside and quashed. [22] So far as WP(C) No.3638/2015 is concerned, it is found that the petitioner had deposited a sum of Rs.3,33,408/- on 5 th February, 2015 for the period 29 th July, 2014 to 28 th January, 2015, i.e., for 184 Rs.1,812/-, Rs.56,172/- on 4 th March, 2015, for the period 29 th January, 2015 to 28 th February, 2015, i.e., for 31 Rs.1,812/-, and Rs.56,172/- on 17 th April, 2015 for the period 1 st March, 2015 to 31 st March, 2015, i.e., for 31 Rs.1,812/-. [23] The petitioner has brought on record only 1(one) order dated 9 th February, 2015, permitting it to operate the fishery on a daily basis. The writ petition was filed on 17 th June, Subsequent to the filing of the writ petition, another order dated 28 th December, 2015 was issued permitting the petitioner to fish on daily basis, which has already been taken note of. Petitioner has not brought on record any order permitting it to fish on a daily basis or otherwise for the period commencing from 29 th July, 2014 and, therefore, in absence of any explanation by the petitioner, the Court finds it to be incongruous the reason for which the petitioner deposited an amount of Rs.3,33,408/- (Annexure-7) on 5 th February, 2015, when the order of daily settlement was issued only on 9 th February, 2015/-. Similarly, it is also not understood why the amount of Rs.56,172/- for the period from 29 th January, 2015 to 28 th February, 2015 was deposited on 4 th March, All the more baffling is a deposit of Rs.56,172/- on 17 th April, 2015 for the period 1 st March, 2015 to 31 st March, 2015, when there was an order dated 18 th March, 2015 in WP(C) No.1436/2015 providing that neither Bahari Reserve Gaon Min Samabay Samittee Limited nor anybody else would be permitted to run the fishery on daily basis. The writ petition does not disclose that the petitioner had submitted any representation to the authorities to refund back the aforesaid amount deposited. [24] In that view of the matter, WP(C) No.3638/2015 is disposed of by giving liberty to the petitioner to approach the Government of Assam in the Fishery Department by filing a representation along with a copy of this order and in the event of the writ petitioner in WP(C) No.3638/2015 filing any such representation, the same shall be considered in accordance with law, bearing in mind the observations made hereinabove. WP(C) No.3638/2015 & WP(C) No.109/2016 Page 9 of 10

10 [25] Accordingly, WP(C) No.109/2016 is allowed. WP(C) No.3638/2015 is disposed of in terms of the directions and observations made in paragraphs 23 and 24. No cost. JUDGE M. Sharma WP(C) No.3638/2015 & WP(C) No.109/2016 Page 10 of 10