Gauhati High Court
M/S Palahartal Schedule Fishery ... vs The State Of Assam And 3 Ors on 9 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 210
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010162762018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5013/2018
1:M/S PALAHARTAL SCHEDULE FISHERY COOPERATIVE SOCIETY LTD.
A REGISTERED CO-OPERATIVE SOCIETY HAVING ITS REGISTERED
OFFICE AT VILLAGE- PALAHARTAL UNDER P.O. BORADI IN THE DIST. OF
BARPETA, ASSAM- REP. BY ITS SECRETARY VIZ. SRI DILIP DAS, AGED
ABOUT 51 YEARS, SON OF LT. JURORAM DAS, A RESIDENT OF VILL-
PALAHARTAL UNDER P.O. BORADI
IN THE DISTRICT OF BARPETA, ASSAM, PIN - 781314.
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
FISHERY DEPARTMENT,
DISPUR, GUWAHATI-6, KAMRUP (M), ASSAM.
2:THE ADDITIONAL SECRETARY
TO THE GOVT. OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-6
KAMRUP (M)
ASSAM.
3:THE DEPUTY COMMISSIONER
BARPETA DISTRICT
BARPETA
ASSAM
PIN - 781301.
4:M/S PATBAUCHI MEEN SAMABI SAMITEE LTD.
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VILL- PATBAUCHI UNDER P.O. PATBAUCHI
BARPETA- 781314 IN THE DIST.OF BARPETA
ASSAM
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the Petitioner : Mr. Sourav Kataki, Mr. A.N. Choudhury,
: Mr. R.M. Das, Ms. R. Dutta, Advocates.
For the State Respondents : Mr. T.C. Chutia, Addl. Senior Govt. Advocate.
For Respondent No.4 : Mr. N.C. Das, Senior Advocate,
: Ms. M. Devi, Advocate.
Date of hearing : 13.12.2018 & 17.01.2019.
Date of judgment : 09.04.2019.
JUDGMENT AND ORDER
(CAV)
The settlement of No. 15 Kaldia River Fishery in Barpeta District to the M/s. Patboushi Min Samabai Samitee Limited (respondent No.4) for a period of 7 (seven) years by order under Memo No. FISH-20013/52017-FISHERY/178(e-CF No. 37711) dated 23.07.2018 passed by the Additional Secretary to the Govt. of Assam, Fishery Department (respondent No.2), is in challenge in the present writ petition filed under Article 226 of the Constitution of India.
2) In this writ petition, it is projected that all the members of the petitioner herein, i.e. M/s. Pahartal Schedule Fishery Cooperative Society Ltd., are 100% actual fishermen and they all belong to Schedule Caste Committee. It is also claimed that all the members of the petitioner reside in Village- Pahartal and are in the neighbourhood of the fishery named herein before.
3) The Deputy Commissioner, Barpeta District (respondent No.3) had issued a notice inviting tender (NIT for short) under Memo No. BRF.2/2001/Part-2 dated 06.09.2017, Page No.# 3/12 for settlement of No. 15 Kaldia River Fishery for a period of 7 (seven) years at the minimum bid value of Rs.6,40,000/- and it was stated that the tenders would be accepted till 1.00 pm. on 21.09.2017 in the Office of the Addl. Deputy Commissioner of Barpeta District and the tenders would be opened at 2.00 pm. on the same day. As per the terms and conditions of tender, it was required that the intending tenderers shall submit, inter-alia, the following documents, viz., (Ka) Bakijai Certificate from the Deputy Commissioner; (Kha) Caste Certificate as to the members of Schedule Caste/ Maimal Community of Barak Valley and also Certificate of actual fishermen; (Ga) Neighbourhood certificate of fishery from concerned Circle Officer; (Gha) Fishing Experience Certificate. As per the Rules, individuals are required to submit tenders on behalf of their respective cooperative societies and accordingly, four tenderers had participated in the bidding and their respective tenders were for the following amount, viz., (1) Sri Ananda Ram Das - Rs.1,00,50,000/- (respondent No.4); (2) Sri Dilip Das
- Rs.77,11,151/- (petitioner) (3) Sri Abhiram Sarkar - Rs.64,50,000/-; (4) Sri Jaidev Das - Rs.48,25,000/-. It is projected that upon opening of the tenders, the respondent No.3 had prepared comparative statement (para-7). It is projected as per the comparative statement, the tenders submitted by the petitioner was valid and the tenders submitted by the other tenderers were deficient in requisite documents and, as such, the petitioner was the valid highest tenderer, yet the fishery in question was settled with the respondent No.4.
4) Heard the submissions advanced by Mr. S. Kataki, the learned counsel for the petitioner as well as Mr. T.C. Chutia, the learned Addl. Senior Govt. Advocate, appearing for State respondents No.1 to 3 and also Mr. N.C. Das, the learned senior counsel, assisted by Ms. M. Devi, the learned counsel for the respondent No.4. The pivotal point on which much emphasis was laid by the learned advocate for the petitioner was to project that caste certificate, which was a very vital and mandatory document was not available when the tenders were opened but the said document was subsequently inserted by removing fishing experience certificate and substituting the same with the caste certificate in the records and, if so, whether the said document can be accepted by the competent authority in the guise of public interest of earning a higher revenue. In support of his submissions, the learned advocate for the petitioner had relied on the following cases, viz., (i) W.B. State Electricity Page No.# 4/12 Board Vs. Patel Engineering Co. Ltd. & Ors., (2001) 2 SCC 451 (para-24, 31); (ii) Tata Cellular Vs. Union of India, (1994) 6 SCC 651 (para-69); (iii) M/s. Khoraghat Gulihara Fishery Co- operative Society Ltd. & Anr Vs. State of Assam & Ors., 2014 (2) GLT 811 (para-21); (iv) M/s. Barkana Beel Fishery Samabay Samitee Ltd. Vs. The State of Assam & Ors., decided on 21.02.2017 (para-5, 6, 7); (v) G.J. Fernandez Vs. State of Karnataka, (1990) 2 SCC 488 (para-15); (vi) S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. & Ors., (1994) 1 SCC 1 (para-5, 6), (vii) Bharat Singh & Ors. Vs. State of Haryana & Ors., (1988) 4 SCC 534 (para-13).
5) The learned Addl. Senior Govt. Advocate has submitted that the bid submitted by the respondent No.4 was almost 50% above the rate quoted by the petitioner and, as such, the acceptance of the highest bid cannot be faulted with. Moreover, it is submitted that if this Court took an adverse view of the matter, it would be appropriate to remit the matter back to the Govt. to re-consider the matter afresh and considering the scope of obtaining higher revenue, the fishery in question be put-up for re-tendering.
6) The manipulation of records was vehemently denied by the learned senior advocate for the respondent No.5 and it was submitted that the document submitted with the tender was a valid document as per order dated 04.09.2018 by this Court. Moreover, it is submitted that the alleged non- submission of the caste certificate can be said to be merely a curable defect, which was of no consequence because the competent authorities had accepted the caste certificate and other documents submitted by the respondent No.4. In this regard, the learned senior advocate for the respondent No.4 had placed reliance on the case of M/s. Ouguri Katahguri Bhurbanda MSS Ltd. Vs. The State of Assam & Ors., W.P.(C) 4848/2011, decided on 05.12.2013 (para-6) . It is also submitted that on comparison, it would be apparent that as against the bid amount of Rs.77,11,151/-, the bid of the respondent No.4 was Rs.1,00,50,000/-.
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7) The records relating to the settlement of the fishery in question had been called for. Perused the materials on record and considered the submissions made by the learned senior advocate and advocates for the parties.
8) It is seen from the comparative statement (Annexure-C) that the in the remarks column thereof, it has been mentioned that " Requisite documents not submitted as per NIT. Tender application submitted by the tenderer is found incomplete ." However, against the tender of the petitioner, although there is a mention that no Bakijai Clearance Certificate submitted, yet, in the remarks column it is recorded that "All requisite documents submitted as per NIT. Valid highest tenderer." In the impugned order dated 23.07.2018 (Annexure-D) that it has been recorded therein that the first highest bid of Rs.1,00,50,000/- was offered by the respondent No.4 and that the second highest bid of Rs.77,11,151/- was submitted by the petitioner. It is also recorded therein that the report/ documents submitted by the second and fourth highest bidders are not in order. However, in the interest of Govt. revenue, the No. 15 Kaldia River Fishery in Barpeta District was settled with the respondent No.4 for a period of 7 (seven) years.
9) By filing an affidavit on 05.09.2018, the petitioner has brought on record a RTI reply by the Public Information Officer, Office of the District Fishery Development Officer, Barpeta under Memo No. O.F.B. 420/RTI/Pt-II/15 dated 01.09.2018 wherein it has been stated that Sri Ananda Ram Das had taken two certificates from their office in the name of Patboushi Meen Samabai Samitee between 2015 to 31 st October, 2017. As per photocopies enclosed, one certificate bearing Issue No. AFB.572/2014-15/1138 dated 16.09.2015 was issued to certify that Sri Ananda Ram Das is an actual fisherman and that he has fishing experience in various rivers and beels of Barpeta district. The other certificate bearing Issue No. AFB.572/2014-15/492 dated 06.10.2017 was issued to certify that respondent No.4 is constituted by S/C Community and that all members have experience in fishing in beels and rivers. By filing another additional affidavit on 06.09.2018, the petitioner has brought on record another RTI reply under Memo No. AFB/RTI/410/ Pt-II/2015-16/16 dated 05.09.2018 Page No.# 6/12 wherein it is disclosed that according to their official record, no letter/ certificate was issued by their establishment to respondent No.4. It is seen that taking note of submission made by the learned advocate for the petitioner about the purported insertion of caste certificate in the records, by order dated 05.10.2018 passed in I.A. (C) No. 3290/18, this Court had directed the Deputy Commissioner to submit a report as to whether the Caste Certificate dated 07.09.2017 issued by the Fishery Development Officer, Barpeta in favour of respondent No.4 was a part of the tender documents submitted by the said report or the same was inserted in the record subsequently. A copy of the report submitted by the Deputy Commissioner, Barpeta under Memo No. BRF-5/2018/ H.C/5-6 dated 22.10.2018 to the learned Addl. Senior Govt. Advocate was obtained by the petitioner vide an RTI reply under Memo No. BRF-2/2010/R.T.I/203 dated 24.10.2018, inter-alia, disclosing that the respondent No.4 had not submitted any caste certificate dated 07.09.2017 with their tender application and that the respondent No.4 had only submitted only an individual fishing experience certificate with their tender application. It was also disclosed that the respondent No.4 did not submit with their tender application a Caste Certificate comprising 100% Actual Fishermen belongs to Schedule Caste Community from A.R.C.S., Barpeta and so, though respondent No.4 had submitted highest bid, but their tender application was found to be incomplete due to non submission of requisite documents as per NIT which was recorded in the comparative statement.
10) The stand of the respondent No.4 in the affidavit- in- opposition is that in order to participate in the tender, they hurriedly obtained fishing experience/ actual fishermen certificate on 07.09.2017 from the residence of District Fishery Development Officer under his seal and signature but without issue number as the said officer was not available in his office at that time and such certificate was submitted before the authority concerned for finalization of the tender process. Thereafter on 06.10.2017, the District Fishery Development Officer issued 100% actual fishermen certificate to the respondent No.4 and on receipt of the same, the said certificate was submitted to the authority for making settlement of the fishery concerned since the tender process was not finalized.
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11) From the document on record, it appears that Comparative Statement was prepared by the Deputy Commissioner, Barpeta on 25.09.2017, as such the Certificate dated 06.10.2017, by District Fishery Development Officer, Barpeta to the effect that the respondent No.4 Society is constituted by 100% actual fishermen of Schedule Caste Community having experience in fishing could not have been appreciated while preparing the Comparative Statement. Similarly, from the Report dated 22.10.2018, submitted by the Deputy Commissioner, Barpeta, consequent upon order dated 05.10.2018 in I.A.(C) 3290/2018 it is crystal clear that the respondent No.4 had not submitted any caste certificate dated 07.09.2017 with their tender application and that the respondent No.4 had only submitted only an individual fishing experience certificate with their tender application. It was also disclosed that the respondent No.4 did not submit with their tender application a Caste Certificate comprising 100% Actual Fishermen belongs to Schedule Caste Community from A.R.C.S., Barpeta and so, though respondent No.4 had submitted highest bid, but their tender application was found to be incomplete due to non submission of requisite documents as per NIT which was recorded in the comparative statement.
12) On a perusal of the records pertaining to Settlement of Group No. 15 Kaldia Fishery of Barpeta District, as contained in File No. FISH-20013/5/2017- FISHERY, produced by the learned Addl. Senior Govt. Advocate, the tender papers of the respondent No.4 appears at pages 153 to 165. However, the papers do not contain the copy of certificate under Issue No. AFB.572/2014-15/1138 dated 16.09.2015 certifying that Sri Ananda Ram Das is an actual fisherman and that he has fishing experience in various rivers and beels of Barpeta district and in this regard, it may be mentioned that as per enclosure to the report dated 22.10.2018 by the Deputy Commissioner, the said certificate dated 16.09.2015 was enclosed with the tender submitted by the respondent No.4. Moreover, the record produced contains a certificate bearing Issue No. AFB.572/2014-15/492 dated 06.10.2017, certifying that respondent No.4 is constituted by Schedule Caste Community and that all members have experience in fishing in beels and rivers, however, the said certificate is found stapled with papers and outside the thread-tag fixed to hold/bind the papers in file. Therefore, the inevitable conclusion of this Court is that this is a case where subsequent to preparation of Page No.# 8/12 comparative statement, the individual fishing experience certificate was substituted by subsequently issued Certificate dated 06.10.2017, certifying that respondent No.4 is constituted by Schedule Caste Community and that all members have experience in fishing in beels and rivers.
13) In the case of M/s. Ouguri Katahguri Bhurbanda Mss Ltd. Vs. The State of Assam & Ors., W.P.(C) 4848/2011, decided on 05.12.2013 , non submission of PAN Card was held to be curable. But this is not a case where requirement of PAN Card is the subject matter in controversy, but the case relates to settlement of fishery. The tender condition (Kha) indicates that Caste Certificate as to the members of Schedule Caste/ Maimal Community of Barak Valley and also Certificate of actual fishermen was required to be annexed. The Deputy Commissioner, Barpeta who had issued the tender and had prepared the comparative statement did not find the tender papers of the petitioner to be deficient, but the said authority made remarks in the comparative statement against the respondent No.4 to the effect that "Requisite documents not submitted as per NIT. Tender application submitted by the tenderer is found incomplete."
14) It appears that the settling authority i.e. the Addl. Secretary to the Govt. of Assam, Fishery Department in his impugned order dated 23.07.2018, had held that " From scrutiny of documents, it appears that report/ documents submitted by the 2 nd and 4th highest bidders are not in order" without recording that for absence of which particular document, the bid submitted by the petitioner, who was the second highest bidder was not in order. Moreover, the said authority having examined the tender papers, did not record that there was a mistake in remarks contained in the comparative statement. Therefore, the inevitable conclusion of this Court is that the Addl. Secretary to the Govt. of Assam, Fishery Department had was apparently been mislead to believe that certificate dated 06.10.2017 was a part of tender papers of the respondent and thereby, the said authority had erred in appreciating additional documents which did not form part of the tender papers submitted by the respondent on the date when comparative statement was prepared by the Deputy Page No.# 9/12 Commissioner, Barpeta.
15) It appears to be appropriate to quote paragraphs 69 and 70 of the case of Tata Cellular (supra) :-
"69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender:
1. It must be unconditional.
2. Must be made at the proper place.
3. Must conform to the terms of obligation.
4. Must be made at the proper time.
5. Must be made in the proper form.
6. The person by whom the tender is made must be able and willing to perform his obligations.
7. There must be reasonable opportunity for inspection.
8. Tender must be made to the proper person.
9. It must be of full amount.
70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down."
16) In this case, from the impugned order dated 23.07.2018, that the Addl. Secretary to the Govt. of Assam, Fishery Department did not apply its mind to appreciate the reasons assigned by the Deputy Commissioner, Barpeta in the remarks column of the comparative statement, wherein the said authority had reported that the requisite documents were not appended to the tender submitted by the respondent No.4. Therefore, in the considered opinion of this Court, the said impugned order was passed mechanically, by reversing the remarks contained in the comparative report where the tender submitted by the petitioner was found to be valid and that the requisite documents were not found submitted with the tender submitted by the respondent No.4. No doubt that the settling authority had the power to relax, but the said power was not exercised. The remark made herein before that the Addl. Secretary to the Govt. of Assam, Fishery Department had passed the impugned settlement order mechanically, has been made because the said authority, who is at the helm Page No.# 10/12 of the matter failed to appreciate how a document dated 06.10.2017 could form part of tender papers of respondent No.4, where comparative statement was prepared on 25.09.2017. Thus, there is no doubt that the said authority was misled by documents subsequently inserted on the record after comparative statement was prepared on 25.09.2017.
17) In the case of Tata Cellular (supra), it has been held as under:-
"77. The duty of the Court is to confine itself to the question of legality. Its concern should be;
1. whether a decision-making authority exceeded its powers?
2. committed an error of law.
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable Tribunals would have reached or.
5. abused its powers.
Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department ex parte Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, 'consider whether something has gone wrong of a, nature and degree which requires its intervention".
81. Two other facets of irrationality may be mentioned.
(1) It is open to the Court to review the decision-maker's evaluation of the facts. The Court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of the State of Environment, (1980) 41 P & CR 255, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson LJ said that he could not see on what basis the Secretary of State had reached his conclusion.
18) Accordingly, on the above mentioned tests, in this case, the decision taken vide impugned order dated 23.07.2018 taken by the respondent No.2 appears to be vitiated Page No.# 11/12 by (i) Illegality, because the decision-maker did not assign any reason to reverse the finding recorded by the Deputy Commissioner, Barpeta in the Comparative Statement by recording that the tender papers of the petitioner were deficient and for assigning no reason why he held that the tender papers of the respondent No.4 were in order; (ii) Irrationality, because the said authority could not appreciate that the document which was issued on 06.10.2017 could not have formed a part of the tender documents in respect of which the comparative statement was prepared on 25.09.2017 and thereby entertaining a document which surreptitiously found its place in the record, and (iii) Procedural impropriety, because if the documents contained in tender papers submitted by the respondent No.4 was deficient, without relaxing rules by holding caste certificate to be not mandatory, the tender submitted by the respondent No.4 could not have been accepted merely in the interest of high revenue. Had higher revenue been the sole intention of floating a tender, then there would have been no requirement of submission of any other documents as the terms and conditions of tender. Thus, in the considered opinion of this Court, as the tender papers submitted by the respondent No.4 were not complete and there were deficiencies therein, and having seen that the competent authority had not relaxed the Rules, the deficiencies in the tender papers cannot be wished away merely because the respondent No.4 had quoted a higher bid and, as such, the impugned order is liable to be interfered with.
19) In this regard, it would be relevant to mention herein that the Division Bench of this Court in the case of M/s. Khoraghat Gulihara Fishery Co-operative Society (supra) , had held that "... Membership List, 100% Schedule Caste Actual Fishermen Certificate and Fishing Experience Certificate undoubtedly fall within essential qualification criteria. Non-submission of such documents, therefore, rendered the tender of the appellant society invalid . ..."
20) Thus, having found that the impugned order dated 23.07.2018 is not sustainable on facts and in law, this Court has no hesitation to set aside the impugned settlement order under Memo No. FISH-20013/52017-FISHERY/178(e-CF No. 37711) dated 23.07.2018 passed by the Additional Secretary to the Govt. of Assam, Fishery Department (respondent No.2), by which the No. 15 Kaldia River Fishery in Barpeta District was settled in Page No.# 12/12 favour the M/s. Patboushi Min Samabai Samitee Limited (respondent No.4) for a period of 7 (seven) years. The Additional Secretary to the Govt. of Assam, Fishery Department (respondent No.2) shall pass consequential orders to give effect to this order.
21) The matter is remanded back the Addl. Secretary to the Govt. of Assam, Fishery Department for a fresh decision in accordance with law. The petitioner is directed to produce a certified copy of this order before the Additional Secretary to the Govt. of Assam, Fishery Department (respondent No.2). Upon receipt of the said the said authority is directed to pass necessary orders in connection with No. 15 Kaldia River Fishery in Barpeta District in accordance with law within a period of 4 (four) weeks from the date of receipt of the certified copy.
22) It is provided that during the interregnum period, i.e. till a fresh order is passed by the said authority, the No. 15 Kaldia River Fishery in Barpeta District may be run departmentally without making any ad-hoc arrangement.
23) The learned Additional Senior Govt. Advocate shall collect the original records produced by him from the Court Master.
24) The parties shall bear their own cost.
JUDGE
Comparing Assistant