Gauhati High Court
Dilip Bora (Kuch) vs The State Of Assam And 5 Ors on 5 October, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010114662020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3438/2020
1:DILIP BORA (KUCH)
S/O JABONTO BORA (KUCH), VILL. DIFFLUPATHAR (ROJA GAON), P.O
BORJURI, P.S. BOKAKHAT, DIST. GOLAGHAT, ASSAM, PIN-785612
VERSUS
1:THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
FISHERY DEPTT. DISPUR GUWAHATI-6
2:THE DEPUTY COMMISSIONER
GOLAGHAT
DIST. GOLAGHAT
ASSAM
3:THE CHIEF EXECUTIVE OFFICER
GOLAGHAT ZILLA PARISHAD
DIST. GOLAGHAT
ASSAM
4:THE PRESIDENT OF ANCHALIK PANCHAYAT OF GOLAGHAT PACHIM
ACHALIK PACHAYAT
BOKAKHAT
DIST. GOLAGHAT
ASSAM
5:THE EXECUTIVE OFFICER CUM SECRETARY
GOLAGHAT PACHIM ANCHALIK PANCHAYAT
BOKAGHAT
DIST. GOLAGHAT
ASSAM
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6:DHARMESHWAR SAIKIA
S/O SRI LOKESWAR SAIKIA
VILL. DIFOLUPATHAR
P.O BORJURI P.S. BOKAKHAT
DIST. GOLAGHAT
ASSAM
PIN-78561
Advocate for the Petitioner : MR H R CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 05-10-2020 Heard Mr. H.R. Choudhury, learned counsel for the petitioner as well as Mr. D. Doley, learned Government Advocate for the State respondents no.1 and 2. Also heard Mr. A. Roy, learned Standing counsel, P & RD Department, respondents no.3 and 5 and Mr. P.P. Dutta, learned counsel for the respondent no.6. None appears on call for the respondent no.4 although notice is stated to be duly served by way of dasti as per the affidavit filed by the petitioner on 28.09.2020.
2. By this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that the settlement of Maridhansiri Part-V Min Mahal was tendered on 29.05.2019 and that the tender submitted by the first and second highest bidder was rejected. Therefore, the petitioner being the third highest eligible bidder was expecting settlement of the said fishery with him. However, the settlement of the said fishery was granted to the respondent no.6 who was the fourth highest bidder. Accordingly, challenging the order of settlement, the petitioner approached this Court by filing WP(C) 5011/2019. During the pendency of the said case, this writ petition has been filed to assail the order dated 29.06.2020 by virtue of which the respondent no.3 had extended the settlement period of the said fishery in favour of the respondent no.6 by period of one year by citing the reason of Government order no.PDA-403/2018-30 dated 29.05.2020 in view of Covid-19 pandemic.
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3. With the consent of the learned counsel for all sides, the matter has been heard.
4. The learned counsel for the petitioner has referred to the statement made in the writ petition to project that the impugned order dated 29.06.2020 was issued pursuant to an office order dated 29.05.2020 by the P & RD Department and at the relevant time when the writ petition was filed, the petitioner did not have a copy of the same and, as such the said document has now been produced before the Court by filing an affidavit on 28.09.2020. It is submitted that at the present stage when the lockdown was lifted and unlocking process has been initiated, and everything has opened up, there is no necessity of the State to extend the settlement of the fishery for further one year and it is submitted that while initial settlement order is under challenge in WP(C) 5011/2019, further extension of settlement period by one year is prejudicial to the interest of the petitioner. Hence, terming extension of one year by impugned order as illegal, the learned counsel for the petitioner seeks quashing of the impugned order dated 29.06.2020 with a direction to the respondent to put up the said fishery to public auction.
5. The learned Standing counsel for the P & RD Department has raised a preliminary issue regarding maintainability of the writ petition. It is submitted that in this case, the State is being represented by the Fishery Department whereas the fishery in question is under the disposal of the P & RD Department and the impugned order was passed by respondent no.3, who is under the P & RD Department. Hence, non-joinder of the necessary parties is taken up as a ground to assail this writ petition. It is also submitted that the impugned order dated 29.05.2020 was passed pursuant to the office order bearing memo no.PDA-403/2018/30 dated 29.05.2020. Hence, it is submitted that as the said order dated 29.05.2020 is not under challenge, the consequential order dated 29.06.2020 is not liable to be interfered with by this Court.
6. The learned Government Advocate appearing for the respondent no.1 as well as the learned counsel for the respondent no.6 have both supported the submissions made by Page No.# 4/5 the learned Standing counsel, for the P & RD department.
7. In reply, the learned counsel for the petitioner has submitted that by way of an additional affidavit filed on 28.09.2020, it has been mentioned in para-1 thereof that the petitioner may be permitted to rectify the name of the respondent no.1 by replacing P & RD Department instead of Fishery Department. In this connection the Court is of the opinion that for amending the cause-title of the writ petition, one is required to file a proper application and such amendment cannot be allowed on the basis of averment made in an affidavit.
8. It may be mentioned that the learned counsel for the petitioner had referred to the documents annexed to this writ petition to project that his bid that was submitted pursuant to the NIT dated 29.05.2020 was complete in all respects and accordingly, it was submitted that the selection of respondent no.6 as a valid tenderer was illegal. However, as challenge made to settlement of the respondent no.6 is the subject matter of WP(C) 5011/2019, this Court has no material to arrive at a prima-facie finding that the settlement made in favour of the respondent no.6 which is the subject matter of the writ petition was illegal as such that matter has not been gone into. The challenge made in the writ petition appears to be confined to the order of extension of the fishery by period of one year with effect to 29.06.2020.
9. On a perusal of the said order dated 29.06.2020 (Anneuxre-10), it is seen that the said order contains reference to the government order no.PDA.403/2018-13 dated 29.05.2020. On a perusal said order dated 29.05.2020, which is annexed as Annexure-1 to the affidavit filed by the petitioner on 28.09.2020, it is seen that the P & RD Department has passed a blanket order for extension of hat/ ghat/ fishery/ pond for one year on conditions attached thereto. Having perused the same, the Court does not find that the impugned order dated 29.06.2020 extending the settlement period of the respondent no.6 by one year to be contradictory to the said office order dated 29.05.2020. The office order dated 29.05.2020 is not the subject matter of challenge in the writ petition. Moreover, it is observed that although reference is made to the said order dated 29.05.2020 in the writ petition but in the prayer Page No.# 5/5 made in the writ petition, there is no challenge to the said order dated 29.05.2020.
10. Accordingly, as the impugned order dated 29.06.2020 is not found contradictory to the office order dated 29.05.2020, as such, the challenge made in the present writ petition fails and the same is dismissed.
11. The dismissal of the writ petition shall not prejudice the parties in course of hearing of WP(C) 5011/2019.
JUDGE Comparing Assistant