Gauhati High Court
Ratan Kumar Sarkar vs The State Of Assam And 5 Ors on 7 April, 2017
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) NO.2069 OF 2014
Shri Ratan Kumar Sarkar,
Son of Late Rotikanta Sarkar,
Resident of Village No.2 Botalimari,
Post Office: Sonduba, Police Station: Bhuragaon,
PIN - 782121, District: Morigaon, Assam.
........Petitioner
-Versus-
1. The State of Assam, represented by the Secretary to the
Government of Assam, Fisheries Department, Dispur,
Guwahati, PIN - 781006, Kamrup Metropolitan District,
Assam.
2. The Assam Fisheries Development Corporation (AFDC)
Limited, VIP Road, Chachol, Guwahati, PIN - 781036,
Kamrup Metropolitan District, Assam, represented by the
Managing Director.
3. The Managing Director, Assam Fisheries Development
Corporation (AFDC) Limited, VIP Road, Chachol, Guwahati,
PIN - 781036, Kamrup Metropolitan District, Assam.
4. Shri K.C. Sarma, Secretary, Assam Public Service
Commission, Jawahar Nagar, Khanapara, Guwahati -
781022, Government of Assam.
5. Shri Jyoti Prasad Biswas,
Resident of Village: Satgaon, Post Office: Jaluguti,
PIN - 782105, District: Morigaon, Assam.
6. Shri Birendra Chandra Sarkar,
Son of Late Phatik Chandra Sarkar,
Resident of Boramari Pam, PO: Bhuragaon,
PIN - 782121, District: Morigaon, Assam.
........Respondents
For the petitioner : Mr. M. Choudhury, Advocate.
For respondent Nos.1 to 3 : Mr. S.B. Sarma, Standing Counsel, AFDC.
For respondent No.4 : Mr. S.K. Goswami, Advocate.
For respondent No.5 : Mr. A. Sarma, Advocate.
WP(C) No.2069/2014 Page 1 of 11
B E F O R E
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Date of hearing : 24th January, 2017; 16th February, 2017 and
28th February, 2017.
Date of Judgment & Order : 07.04.2017
JUDGMENT & ORDER
Heard Mr. M. Choudhury, learned counsel for the petitioner. Also heard Mr. S.B. Sarma, learned standing counsel, AFDC, appearing for the respondents Nos.1 to 3, Mr. S.K. Goswami, learned counsel, appearing for the respondent No.4 and Mr. A. Sarma, learned counsel, appearing for the respondent No.5.
2. By filing this writ application under Article 226 of the Constitution of India, the petitioner has prayed for a writ of Certiorari to set aside and quash the order purported to have passed by the Managing Director of Assam Fisheries Development Corporation (AFDC), respondent No.3 on 18.12.2013 (Annexure-13), whereby settlement order dated 16.09.2013 (Annexure-4), in respect of No.35 Pakaria Fishery (hereinafter 'Fishery') of Morigaon district made in favour of the respondent No.5 for a period of seven years up to 31.03.2020, at Rs.1,30,55,000/-, was reiterated. Prayer is also made for a writ of Certiorari to set aside and quash the order dated 16.09.2013 (Annexure-4), along with prayer for a writ of mandamus to settle the Fishery with the writ petitioner at his bid value of Rs.1,56,21,263/-.
3. The relevant facts, as projected in the writ petition, may be noticed at the outset. It is pleaded, inter alia, that the petitioner is an actual fisherman belonging to Namasudra community. A Tender Notice No.1/2013 dated 22.03.2013 was issued by the respondent No.3, who is also impleaded by name as respondent No.4, inviting sealed tenders from actual fishermen or registered cooperative societies for leasing out 32 numbers of fisheries including the Fishery in question for a period of seven years commencing from the financial year 2013-2014. The last date of receipt of tender papers was fixed on 10.04.2013. The petitioner submitted his valid tender before the due date. However, instead of finalizing the aforesaid tender process, another Tender Notice being No.3/2013 WP(C) No.2069/2014 Page 2 of 11 dated 25.06.2013 was issued by the respondent No.3 in respect of 14 numbers of fisheries including the Fishery in question by cancelling the earlier settlement process in respect of the Fishery in question and five numbers of other fisheries for settlement of which Tender Notice dated 22.03.2013 was issued, fixing the last date of receipt of tenders on 12.07.2013. The petitioner again participated in the settlement process by submitting tender. The tenders were opened on 12.07.2013 as notified and 9 tenderers had submitted their tenders. At the time of preparation of the comparative statement, the bid of the petitioner was found to be valid. The petitioner was the third highest tenderer at his bid value of Rs.22,31,609/- per annum. As the tenders of two higher bidders were found to be invalid, the petitioner emerged as the highest valid tenderer. The bid of the respondent No.5 was the fifth highest bid at his bid value of Rs.18,65,000/- per annum. However, most arbitrarily and illegally, the respondent Nos.3 settled the Fishery with the respondent Nos.5 by his order dated 16.09.2013 (Annexure-4), observing that tender of the petitioner, though found to be valid, was not considered because of his swearing of an affidavit to hand over responsibility of operating the Fishery to other persons.
4. The petitioner challenged the aforesaid order of settlement dated 16.09.2013 by filing a writ application which was registered as WP(C) No.5648/2013. Initially, while issuing notice by an order dated 05.10.2013, the order of settlement dated 16.09.2013 was stayed as against which the respondent No.5 preferred a writ appeal being WA No.328/2013. The aforesaid writ appeal was disposed of by order dated 09.10.2013 by modifying the order dated 05.10.2013 passed in WP(C) No.5648/2013 to the effect that the appellant/respondent No.5 be allowed to run the Fishery subject to furnishing an undertaking that he would not claim any equity merely on the ground of such an interim arrangement pending further consideration of the writ petition.
5. WP(C) No.5648/2013 was disposed of by an order 02.12.2013 directing the settling authority to revisit the settlement decision of the Fishery in question on or before 16.12.2013 by affording hearing to the writ petitioner as well as to complainant Birendra Ch. Sarkar and also providing the writ petitioner with all opportunities to disprove the affidavit dated 28.05.2013, alleged swearing of which by the petitioner led to non- consideration of his tender.
6. Thereafter, the respondent No.3 issued a notice dated 06.12.2013 to the petitioner and Shri Birendra Ch. Sarkar to appear at 11:00 A.M. on 09.12.2013 for hearing WP(C) No.2069/2014 Page 3 of 11 and accordingly, petitioner appeared on that day and also submitted a representation. Hearing was again fixed on 12.12.2013 and it appeared that the respondent No.3 had issued notice to one Madan Das (one of the persons mentioned in the affidavit with whom the petitioner was alleged to have entered into an agreement) and Shri Dilip Sarma (petition writer) and their statements were also recorded. Petitioner states in the writ petition that they made all false statements and the prayer of the petitioner to cross- examine them was not allowed. Original of the affidavit was not produced despite demand being made by the petitioner and the petitioner was given to understand that the same would be produced at a later date. Being aggrieved, the petitioner lodged a written complaint during the course of hearing and on 13.12.2013, applied for the certified copies of the statements of Madan Das and Dilip Sarma which, however, were not supplied to the petitioner.
7. The petitioner was again called for hearing on 16.12.2013. On appearance, the petitioner found that the respondent No.3 had issued notices to Indreswar Rajbonghsi (Notary before whom the petitioner was alleged to have sworn the affidavit), Bipur Sarkar (Advocate who allegedly identified the petitioner) and Antaz Ali (another person mentioned in the affidavit with whom the petitioner was alleged to have entered into an agreement). Antaz Ali categorically denied about execution of any agreement in the form of an affidavit.
8. The second highest bidder had also filed a writ petition challenging rejection of his tender which was registered as WP(C) No.6114/2013. The said writ petition was disposed of on 06.12.2013 directing the respondent No.3 to provide the petitioner therein opportunity of hearing and to take a fresh decision. The hearing accordingly in terms of the aforesaid order took place on 17.12.2013.
9. It is pleaded in the writ petition that the petitioner constantly enquired about the outcome of the hearing and until the last week of February, 2014, he was informed by the respondent No.3 that the order was yet to be passed and as soon as the order is passed the same would be communicated to him. Only in the last week of February, 2014, the petitioner came to learn that some order had been passed and accordingly, visited the Office of AFDC at its new location at VIP Road, Chachal, where the Office was shifted on 06.01.2014 from its earlier location of the Office at Mother Teresa Road. After persistent requests and approaches were made, the petitioner was furnished with a copy of the WP(C) No.2069/2014 Page 4 of 11 order dated 18.12.2013 in a letter head showing address at VIP Road, Chachal. It is pleaded that the order was deliberately, dishonestly and fraudulently ante-dated.
10. Affidavit-in-opposition was filed by the respondent Nos.2 and 3, to which an affidavit-in-reply was filed by the writ petitioner. Affidavit-in-opposition was also filed by the respondent No.4. The petitioner had filed affidavit-in-reply to the said affidavit also. No affidavit was filed by the respondent No.5. Birender Chandra Sarkar, respondent No.6, on the basis of whose complaint settlement was not offered to the writ petitioner, had refused to accept the notice issued by the Court as demonstrated vide office note dated 27.03.2015.
11. Mr. M. Choudhury, learned counsel for the petitioner has submitted that the original of the alleged affidavit was not produced at the time of hearing before the respondent No.3 and has also not been produced before this Court. He submits that the petitioner had not executed any such affidavit as alleged and photocopy of an affidavit could be produced by anybody by way of forgery and manipulation. It is on this ground that this Court had also observed in the order dated 05.10.2013 passed in WP(C) No.5648/2013 that the agreement dated 28.05.2013, prima facie, did not appear to be genuine document, he submits. He has submitted that the execution of the alleged affidavit is introduced only to subserve the interest of the respondent No.5 through another bidder, namely, Birendra Ch. Sarkar, who had quoted very low amount in his tender and was thus not even in the fray for getting settlement. It is submitted that apart from Antaz Ali, all others whose statements were recorded by respondent No.3, were in collusion to further the interest of respondent No.5 with whom they were close. In absence of the original of the affidavit, even otherwise, no credence can be placed on their statements. He reiterates the assertion made in the writ petition that the impugned order dated 18.12.2013 is a back-dated order. Drawing the attention of the Court to Clauses 11.7.3 and 11.7.7 of the Notice Inviting Tender (NIT) and Terms and Conditions/Guidelines thereof, it is contended by him that a settlement holder cannot transfer the lease of the fishery to any other person and in the event of such transfer or violation of any other terms and conditions, the AFDC has a right to cancel the settlement. It is contended by him that in the instance case, on the basis of a fictitious affidavit, the petitioner had been denied settlement of the Fishery on the assumption that he would sub-let or transfer the Fishery and settlement had been offered to respondent No.5 causing a colossal loss of more than Rs.25 Lakhs.
WP(C) No.2069/2014 Page 5 of 1112. Mr. S.B. Sarma, learned standing counsel, AFDC has submitted that though it is correct that the tender of the writ petitioner was valid, a complaint was received from Birendra Ch. Sarkar along with a photocopy of an affidavit demonstrating an agreement to sub-let the Fishery. In absence of the original affidavit, in order to test the genuineness of the photocopy of the affidavit, the respondent No.3 had required the Notary, the Advocate and the persons whose names were mentioned in the affidavit to appear during the course of hearing and there was nothing wrong in adopting such a course of action. It is submitted that the affidavit displays a clear intention on the part of the petitioner to sub-let the Fishery which is not permissible. Refuting the contention that the order dated 18.12.2013 is a back-dated order, it is submitted that after the petitioner had applied for a copy of the order on 10.02.2014, the same was issued on the very same day. As by that time, the Office had shifted to VIP Road, Chachal, the copy of the order was given in the stationary of the new office address.
13. Mr. S.K. Goswami, learned counsel for the respondent No.4 has submitted that the respondent No.4 was transferred from the post of Managing Director, AFDC on 16.09.2015. He has submitted that sub-leasing of the Fishery is strictly prohibited as per Clause 11.7.3. Mr. Goswami has submitted on the basis of the averments made in the affidavit, that the order was passed on 18.12.2013 and the same is not ante-dated as alleged.
14. Mr. A. Sarma, learned counsel for the respondent No.5 submits that the petitioner had executed the affidavit on 26.05.2013, when the tender process initiated vide Tender Notice dated 22.03.2013 had not been cancelled, which, however, came to be cancelled on 25.06.2013. Therefore, it cannot be said that even before the tendering process was initiated, the petitioner had entered into an agreement by swearing an affidavit for the purpose of sub-letting the Fishery in the event of grant of settlement. Absence of the original of the affidavit will not be of any consequence in view of the statements of the persons connected with the execution of the said affidavit, he submits. When the intention of the petitioner was clear that he was going to sub-let the Fishery, the respondent authorities rightly did not consider the tender of the petitioner and settled the Fishery with the next highest valid tenderer, i.e. respondent No.5. Accordingly, he submits that no interference with the impugned orders is called for.
15. I have considered the submissions of the learned counsel for the parties and have perused the materials on record and also the records produced by Mr. S.B. Sarma.
WP(C) No.2069/2014 Page 6 of 1116. The records produced by Mr. Sarma contain note-sheet starting from 18.12.2013. There is a note dated 18.12.2013 suggesting that order at serial Nos.1-3 was passed with an observation that copy of the order be sent to the Chairman, AFDC Ltd. and the standing counsel. It is also recorded that if the persons connected with WP(C) No.5648/2013 and WP(C) No.6114/2013 applied for copy, the same be given. The stationary of the original copy of the order goes to show that the order was passed when the Office of AFDC was at its old location at Mother Teresa Road. But it is significant that both the petitioner and the respondent No.5 had applied for certified copy of the order more or less at the same time on 10.02.2014 and 12.02.2014, respectively. The application of respondent No.5, though later in point of time, is paginated as page No.4 and the application of the petitioner, though earlier in point of time, is placed after page No.4 and the page number assigned to it cannot be deciphered. The order was not passed in File No.AFDC.372/2013 where the original settlement order was passed but a part file was opened while passing the present order. Notices to petitioner and the respondent No.5 were issued apparently in File No.AFDC.372/2013. Why a part file had to be opened for the sole purpose of passing the order on 18.12.2013 is not explained by the respondent No.4. In view of categorical assertions of the writ petitioner that the order dated 18.12.2013 is a back-dated order and the copy of the order was given in the stationary of AFDC showing address at VIP Road, Chachal, it was necessary for the respondent No.4 to have explained the necessity of opening a part file for the sole purpose of passing the order. If a copy is to be given to the applicant, it is not explained why a photocopy of the order in file stated to be at serial Nos.1 to 3 was not given or why it was necessary to print out the contents of the order dated 18.12.2013 in new stationary showing address at VIP Road, Chachal to be signed by the Managing Director, respondent No.4 again. It defies logic and lends some credence to the allegation made by the petitioner that the order is a back-dated order. This Court will not, however, record any categorical finding in this regard as the decision in the case is not dependent on such finding and to record a finding with regard to the aforesaid allegation, it will be necessary to make further probe.
17. At the first instance, it will be appropriate to take note of the complaint dated 24.07.2013 addressed to the Chairman of AFDC, filed by Birendra Ch. Sarkar. The relevant portion (translated) reads as follows:
WP(C) No.2069/2014 Page 7 of 11"Sub: Regarding advance agreement between 3rd highest tenderer Sri Ratan Sarkar and Sri Madan Das, Md. Antaz Ali in respect of No. 35 Pakaria Fishery.
Sir, It is humbly submitted that I am one of the participants of the tender process held on 12-07-2013 in respect of No.35 Pakaria fishery. As per my information, although no final decision has been taken on the tenders, the aforesaid tenderer Mr. Ratan Sarkar had executed an agreement on 26-05-2013 with Sri Madan Das and Md. Antaz Ali for management of the fishery by which it is established that the fishery is sought to be transferred to other persons even before obtaining settlement of the fishery. Photocopy of the said agreement is enclosed herewith. As per provision of the terms and conditions of the tender notice, no lessee can transfer fishery to any other person. Therefore, I request your honour to consider the matter in the right perspective and settle the fishery in favour of the applicant."
18. It is most important to note that the respondent No.6, who was the catalyst and the architect of the events that unfolded including filing of two writ petitions, has not appeared before this Court and rather had refused to accept notice of the writ petition. It is also to be noted that in the writ petition, allegation was made that photocopy of the alleged affidavit was planted through him.
19. The affidavit, which is in the centre of controversy, goes to show that the deponent therein had declared himself to be the settlement holder of No.35 Pakaria Fishery. By the said affidavit, the deponent had entrusted the management of the fishery with (i) Shri Madan Das and (ii) Md. Antaz Ali and that they would have to deposit revenue of the fishery within 31st March of every year, failing which the affidavit would stand cancelled. The affidavit bears the signature of the Notary on 2(two) different dates:
one on 28.05.2013 and the other on 30.05.2013. Above the signatures of the date 30.05.2013, the word "attested" is written in all the 3(three) pages of the affidavit.
20. Clause 11.7.3 of the Tender Notice provides that the lessee will not be entitled to transfer the fishery in any Firm including by way of sale to any other person for the purpose of fishing. Clause 11.7.7 provides that the AFDC has the right to cancel the lease in the event of any violation of the terms and conditions as enumerated in the Tender Notice.
WP(C) No.2069/2014 Page 8 of 1121. Clauses 11.7.3 and 11.7.7 find place under the heading "Others". The aforesaid Clauses are applicable to the selected tenderer or in other words, to the person in whose favour settlement is granted. In fact, the terms and conditions of the lease of the fishery begin with Clause 10. In the instant case, although the tender of the petitioner was valid in all respects and was otherwise the highest valid tenderer, he was not granted settlement only on consideration of the fact that one of the tenderers had produced before the Managing Director of the AFDC a photocopy of the affidavit allegedly sworn by the present petitioner purporting to transfer the lease of the fishery.
22. From the impugned order dated 18.12.2013 it appears that the complainant Birendra Ch. Sarkar was heard on 12.12.2013. There is an application dated 12.12.2013 by him praying for allowing him to bring Bubul Ch. Das (later on struck off to read as Bipul Sarkar), Dilip Sarma (the Advocate's Clerk) and Madan Das (one of the persons mentioned in the affidavit to whom the Fishery was sought to be sub-let) to be examined. Birendra Ch. Sarkar did not pray for examination of Antaz Ali, the other person named in the affidavit to whom the Fishery was sought to be sub-let. This application is marked as Page No.317. The first document of the file is a letter No. AFDC 372/2013/3806-07 dated 06.12.2013. The next page is 311. The page next to that is marked as Page No.316. There is continuation up to Page Nos.319, 320 and 321. The statement of Ratan Sarkar is at Page No.320 and his signature is there at Page No.321. Thereafter, there are 2(two) blank pages before Page No. 322, which is the statement of Dilip Sarma. Page No.323 is the statement of Madan Das. Statement of Indreswar Rajbonghsi, Notary, is marked as Page "No.3". It is followed by one blank page then there is statement of Antaz Ali without any pagination. Page No.324 is an application given by the petitioner for summoning Md. Antaz Ali and Page Nos.325, 326 and 327 are the photocopy of the affidavit. However, unlike that of notary, scribe, etc., whose statements were recorded, no statement of Birendra Ch. Sarkar is available in the record.
23. The Notary, Indreswar Rajbonghsi, stated that he had notarized the affidavit when Ratan Sarkar (writ petitioner) put his signature and was identified by the Advocate. The Scribe, Dilip Sarma, on the other hand, had stated that Ratan Sarkar had put his signature in his presence. Contrast this with the statement of Madan Das: he stated that Ratan Sarkar signed in his presence and then all of them went to the house of Ratan Sarkar to have tea and, thereafter, one Jatin Das obtained the signatures of the Notary in the affidavit and gave him the photocopy. If that be so, when the Notary had notarized the document, Ratan Sarkar was not present. Madan Das, who was also one of the WP(C) No.2069/2014 Page 9 of 11 persons to whom entrustment of the fishery was allegedly made, had stated that there was a possibility of the petitioner getting settlement and, therefore, he and Md. Antaz Ali had entered into an agreement with the petitioner that he and Antaz Ali would share the profits of the bill to the extent of 50% and they would give Rs.20,000/- to the petitioner. Significantly, in the affidavit, there is no such indication about any such agreement. Madan Das had also stated that he was not aware who was in possession of the affidavit. The complainant did not even make any statement, save and except, making a prayer for recording the statements of persons, who allegedly were associated in connection with execution of the affidavit. It is not his case that the original affidavit was in possession of the petitioner. Antaz Ali had denounced such affidavit and categorically asserted that he was not entrusted with management of the fishery. In view of the diametrical opposite stand of Antaz Ali, the very basis of the agreement as stated by Madan Das has become suspect. Significantly, at the time when allegedly the signature was put by the deponent in the affidavit, as stated by Dilip Sarma (Scribe), the photograph of the deponent was not pasted in the affidavit.
24. A perusal of the order dated 18.12.2016 goes to show that the Managing Director of AFDC had not considered any of the statements made by persons summoned by him, which he had reduced into writing, though ostensibly he had secured their presence to find out the legitimacy of the affidavit. It is to be noted that the High Court in the order dated 05.10.2013 had only directed that the hearing be confined to the petitioner and the complainant. Even if it is held that no exception can be taken to the course of action adopted by him, it was incumbent on his part to have adverted and considered such statements. Without considering any of the statements, in the order dated 18.12.2013, the Managing Director, AFDC, made an omnibus observation that the other persons involved had in one voice admitted execution of the affidavit. It is to be noted that when the affidavit was allegedly sworn, settlement of the Fishery was not awarded to the petitioner and, thus, he was not the settlement holder of the Fishery though he was recorded as such in the affidavit. The Managing Director, on the basis of surmises and conjectures, went on to hold that it was not unnatural on the part of the indenting tenderer to make a plan to run the Fishery by letting it out and that the petitioner's thought of handing over of the Fishery to 2(two) persons named in the affidavit was illegitimate. It further appears that without any statement of Bipul Sarkar being recorded (at least that is what the record indicates), it is observed therein that the statement of Advocate, Bipul Sarkar, was recorded on 16.12.2013.
WP(C) No.2069/2014 Page 10 of 1125. Before acting upon a photocopy of an affidavit, produced by one of the tenderers in the very same tender process, the settlement authority ought to have enquired from the tenderer, who submitted and produced the said affidavit, with regard to the original of the said affidavit. Such enquiry was not done at the time when the settlement was denied to the petitioner. Even after the matter was remanded for fresh consideration by this Court, neither the complainant nor the persons, whose statements were recorded, stated anything about the original of the affidavit. By relying on a photocopy of an affidavit in the first place, the Managing Director, AFDC, offered settlement to the respondent No.5, whose bid value was almost Rs. 25 Lakhs less than that of the petitioner, thus, causing loss of Government revenue. Photocopy of a document, because of the very nature of it, is unsafe to be acted upon and, more so, when there is fundamental dichotomy going to the root of the very affidavit.
26. In view of the above discussion, the impugned order dated 18.12.2013 passed by the Managing Director, AFDC is set aside and quashed and the authorities of the AFDC are directed to pass a fresh order of settlement in the light of the observations made hereinabove within a period of 7(seven) days from today. The respondent No.5 shall not operate the fishery after seven days from today.
27. The way the file was kept gives the Court a shocking experience. The Managing Director, AFDC will make an enquiry and take such steps as may be considered appropriate by him for such shoddy maintenance of official files.
JUDGE /M. Sharma/RK WP(C) No.2069/2014 Page 11 of 11