Gauhati High Court
Page No.# 1/16 vs The State Of Assam And 5 Ors on 26 June, 2025
Page No.# 1/16
GAHC010085402022
2025:GAU-AS:8707
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3079/2022
M/S PARGHAT KAIBARTA MIN SILPA SAMABAI SAMITI LTD.
P.O.- GHILAMARA, DIST.- LAKHIMPUR, REPRESENTED BY ITS
SECRETARY, SRI HARENDRA HAZARIKA.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, FISHERY DEPARTMENT, DISPUR, GUWAHATI-
781006.
2:JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI- 781006.
4:THE DEPUTY COMMISSIONER
LAKHIMPUR.
5:THE DISTRICT FISHERY DEVELOPMENT OFFICER
LAKHIMPUR.
6:M/S KARHA FISHERY SAMABAI SAMITTEE LTD.
VILL. PUTHIKATHI
PO- BATMARI
DIST.- LAKHIMPUR- 782122
Advocate for the Petitioner : MR. I CHOWDHURY SR ADV, MS G DAS,MR T DAS,MR. S
BISWAKARMA
Page No.# 2/16
Advocate for the Respondent : GA, ASSAM, MS M BORAH(r-6),MS. M DEVI (r-6),MR. A DAS (r-
6),MR. N C DAS (r-6)
Linked Case : WP(C)/2744/2022
CHITRA DAS
SECRETARY OF KARHAPARIYA ANCHALIK KOIBARTA SURAKHYA SAMITY
SON OF CHANDA DAS
BATAMARI
GHILAMARA
P.O. AND P.S. GHILAMARA
SUB-DIVN- DHAKUWAKHANA
DIST. LAKHIMPUR
PIN- 787053
ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REPRESENTED HEREIN BY THE COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM
FISHERY DEPARTMENT
JANATA BHAWAN
DISPUR
GUWAHATI-06
ASSAM
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-06
ASSAM
3:THE DISTRICT FISHERY DEVELOPMENT OFFICER
LAKHIMPUR
ASSAM
PIN- 787001.
4:THE DEPUTY COMMISSIONER
NORTH LAKHIMPUR
PIN- 787001
ASSAM
5:THE ADDITIONAL DEPUTY COMMISSIONER (I/C)
DHAKUAKHANA
PIN- 787053
Page No.# 3/16
NORTH LAKHIMPUR
ASSAM
6:THE SUB-DIVISIONAL OFFICER (SDO)
DHAKUWAKHANA SUB-DIVISION
DIST. NORTH LAKHIMPUR
ASSAM
7:THE ADVISORY COMMITTEE
(FOR SETTLEMENT OF KORHA FISHERY PART-II)
DHAKUAKHANA
DIST. NORTH LAKHIMPUR
ASSAM
8:M/S. KARHA FISHERY SAMABAI SAMITY LTD.
BATAMARI
DHAKUAKHANA
DIST. LAKHIMPUR
ASSAM
------------
Advocate for : MR DEBA SARMAH
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 7 ORS.
Linked Case : WP(C)/6026/2022
M/S PARGHAT KAIBARTA MIN SILPA SAMABAI SAMITI LTD.
P.O.-GHILAMARA
DIST- LAKHIMPUR
REPRESENTED BY ITS SECRETARY
SRI HARENDRA HAZARIKA
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE GOVERNMENT OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-781006
2:JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-781006
3:DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
Page No.# 4/16
FISHERY DEPARTMENT
DISPUR
GUWAHATI-781006
4:THE DEPUTY COMMISSIONER
LAKHIMPUR
ASSAM
5:THE DISTRICT FISHERY DEVELOPMENT OFFICER
LAKHIMPUR
ASSAM
6:THE ADDITIONAL DEPUTY COMMISSIONER
DHAKUAKHANA
DIST-LAKHIMPUR
ASSAM
7:M/S KARHA FISHERY SAMABAI SAMITEE LTD.
VILL-PUTHIKATHI
P.O.-BATMARI
DIST-LAKHIMPUR-782122
------------
Advocate for : MR. I CHOWDHURY SR ADV
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 6 ORS.
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT
Date : 26-06-2025
1. Heard Mr. I. Chowdhury, learned Senior Counsel assisted by Mr. S. Biswakarma, learned counsel for the petitioner in WP(C) No. 3079/2022 and in WP(C) No. 6026/2022, and Mr. A. K. Gupta, learned counsel for the petitioner in WP(C) No. 2744/2022. Also heard Ms. U. Das, learned State counsel representing the State respondents and Ms. M. Devi, learned counsel for the private respondentin all the writ petitions, in whose favour, the settlement dated 07.04.2022 was Page No.# 5/16 made, pursuant to an NIT.
2. These three writ petitions are taken up together for final disposal, as agreed by the contesting parties, more particularly, for the reason that the subject matters of these three writ petitions relate to challenge to the order of settlementdated 07.04.2022,whereby, Karha Part-II Fishery in Dhakuakhana Sub-Division in the district of Lakhimpur was settled in favour of the private respondent i.e. M/s Karha Fishery Samabai Samity Ltd. (hereinafter referred to as M/s Karha). Such settlement order was issued under the signature of the Joint Secretary to the Government of Assam, Fishery Department.
3. The offer of the petitioner in WP(C) No. 3079/2022, i.e. M/s ParghatKaibarta Min Silpa Samabai Samity Ltd, (hereinafter referred to as M/s Parghat) was rejected, primarily on the ground that the Experience Certificate submitted by M/s Parghat in terms of the NIT dated 20.11.2021 is not acceptable, as the said certificate does not disclose the experience of the society in fishing.
4. The said settlement order dated 07.04.2022 is challenged by Karhapariya Anchalik Koibarta Surakhya Samity (hereinafter referred to as M/s Karhapariya), in WP(C)/2744/2022.The bid of M/s Karhapariya was rejected, primarily on the ground that the society did not submit 100% actual fisherman certificate from the competent authority andit submitted audited accounts only for the year 2021, but not for 3 years as required under the condition of the NIT dated 20.11.2021 and also that the security deposit has been made in the name of an individual not in the name of the society.
Page No.# 6/16
5. WP(C) No. 6026/2022 is filed by M/s Parghatassailing an order dated 28.07.2022, whereby the Additional Deputy Commissioner, Dhakuakhana, submitted a report as per the direction of the Deputy Commissioner, Lakhimpur, as regards the genuineness of the Neighbourhood Certificate of M/s Karha, such an enquiry was conducted based on the complaints lodged by M/s Karhapariya and M/s Parghat before the Minister of Fisheries, raising dispute that M/s Karha is not situated within the neighbourhood of Karha Part-II Fishery.
6. The brief facts, which are necessary for the determination of the present writ petitions,are recorded hereinbelow as under:
I. There was a dispute regarding the cancellation of certificate of M/S Karha fishery and the amalgamation of said fishery with M/s Parghat. The dispute went upto the Hon'ble Apex Court and the Hon'ble Apex Court in Civil Appeal Nos. 1674-75 of 1999,while deciding the issue, recorded the following decisions and issued certain directions:-
A. M/s Parghat was registered in the year 1971, and pursuant to a Government policy decision, said M/s Parghat was amalgamated with M/s KarhaSociety, being a new society, which was formed out of PuttikhatiSociety. Thus, the new society, namely, M/s Karha society, came to be registered in the year 1978.
B. At that relevant point of time, the Karha society was having a lease in its favour in respect of certain areas, which were formerly Page No.# 7/16 within the areas of operation of M/s Parghat.
C. An order dated 24.10.1996 was passed by the authorities in the State, by which the registration of M/S Karha society was cancelled. The Hon'ble Apex Court was pleased to set asidethe aforesaid order of cancellation, with a further direction to the Registrar of Co- operative Societies or other competent authorities under the Assam Co-operative Societies Act, 1953 to issue notice to both the societies i.e. M/s Parghat and M/s Karha and to divide what should be the equitable areasof operation of each of these two societies.
D. It was further directed that such exercise be carried out based on the existence of the societies. It was also observed by the Hon'ble Apex Courtthat once the area of operation is equitably distributed between the two societies, the Government may proceed for grant of lease separately as regards each of the societies equitably to the extent of the area of operation of these societies.
ii. In terms of the aforesaid decision of the Hon'ble Apex Court, the society was divided into two parts, a map of which is also part of the record of these writ petitions. It was divided into two areas, i.e. Karha Part-I Fishery, which is the upper portion of the river and Karha Part-II Fishery, which is the lower portion of the river.
iii. Thereafter, in the year 2011, Karha Part-II fishery,was settled with M/s Karha for 7 (seven) years through an NIT, in which process,M/s Parghat did not participate. Though, the same was challenged by other bidders before this Court in WP(C) No. Page No.# 8/16 1586/2013 and the matter was remanded back by this Court for a fresh decision under its order dated 19.11.2013, on the ground that the rejection of the bid of the petitioner therein was not justified, however, it was again settled with M/s Karha. Thereafter, the present NIT was issued on 20.11.2021, inviting bids for the settlement of Karha Part-II Fishery by the authorities in which the petitioners,M/s Parghat and M/s Karhapariya, and the respondent, M/s Karha participated.
iv. M/sKarhapariya offered a bid price of Rs. 15,52,000/- and stood asthe highest bidder.M/s Karha with an offer price of Rs. 11,31,101/- stood at second position, and M/s Parghat with an offer price of Rs. 5,32,696/- stood at fourth position. As recorded hereinabove, the bids of the first, third and fourth bidders were rejected. The first and fourth bidders are before this Court; however, the third bidder has not challenged the settlement made on behalf of M/s Karha.
v. After evaluation of the bids and preparation of the comparative statements, the impugned order dated 07.04.2022 was passed settling the fishery in question in favour of M/sKarha and these writ petitions are filed, accordingly.
7. Mr. Chowdhury, learned Senior Counsel assisted by Mr. Biswakarma, learned counsel for the petitioner in WP(C) No. 3079/2022 and in WP(C) No. 6026/2022, argues that, the area of operation of M/s Karha is within Karha Part-II Fishery. Such is an admitted position, more particularly, for the reason that pursuant to a Page No.# 9/16 determination made by the Hon'ble Apex Court in Civil Appeal Nos. 1674-75 of 1999, the authority itself divided the fishery into two parts, i.e. Karha Part-I Fishery, earmarking it as the area of operation of M/s Karha and Karha Part-II Fishery, earmarking the same to be the area of operation ofM/s Parghatand therefore, the bid of M/s Karha in respect of Karha Part-II Fishery,ought not to have been even entertained.
8. According to Mr. Chowdhury, learned Senior Counsel, the enquiry based on which, the area of operation of M/s Karha was treated to be within Karha Part-II Fishery, is not sustainable on the face of the determination made by the Hon'ble Apex Court in Civil Appeal Nos. 1674-75 of 1999and therefore, according to him, findings of such an enquiry arealso liable to be interfered with as prayed in WP(C) No. 6026/2022.
9. So far, relating to the rejection of the bid of M/sParghat, on the ground of want of fishing Experience Certificate, according to the learned senior Counsel, is not sustainable, more particularly, for the determination made by the Hon'ble Apex Court in Civil Appeal Nos. 1674-75 of 1999 and the subsequent action of the respondent authorities in equally dividing the fishery into two parts i.e. Karha Part-I Fishery and Karha Part-II Fishery, earmarking the area of operation to be of M/s Karha in respect of Karha Part-I Fishery and of M/sParghat in respect of Karha Part-II Fishery. Therefore, the authority could not have rejected the tender of M/s Parghat for the reason that the society does not have the fishing Experience Page No.# 10/16 Certificate.
10. Mr. Chowdhury, learned Senior Counsel, further contends that so far, relating to acceptance of the bid of M/s Karha, from the face of it, such bid value is nothing but a predatory pricing. Referring to a communication dated 09.11.2017, whereby remission was granted to M/s Karha in respect of the earlier settlement of Karha Part-II Fishery, it is contended that at that relevant point of time, the fishery was settled at Rs. 4,21,000/-.However, M/s Karha could not even deposit such a genuine price and had to seek remission and accordingly, remission of 30% was granted. Referring to another communication dated 08.11.2019, Mr. Chowdhury, learned Senior Counsel further contends that on the failure of M/s Karha to run the settled fishery and for the reason that it sustained loses, extension was also granted and therefore, the present price offered by M/s Karha at Rs. 11,31,101/- is nothing but a predatory pricing and therefore, the authority ought not to have accepted such a price.
11. Mr. Chowdhury, learned Senior Counsel further contends that the authority has failed to apply the principle of distributive justice, in the given facts of the present cases, inasmuch as, the authority has given undue importance to M/s Karha, who has not only been a defaulter, but also sought for extension, citing loses.The authority has also notfollowed the determination made by the Hon'ble Apex Court, wherein the direction was issued to equally distribute the areas amongst these two societies, so far as it relates to the earlier united fishery. Accordingly, Mr. Chowdhury, learned Senior Counsel, submits Page No.# 11/16 that the impugned order dated 07.04.2022 is liable to be interfered with and the respondent authorities should be directedto consider the case of the petitioner afresh.
12. In support of the aforesaid contentions, Mr. Chowdhury, learned Senior Counsel,places reliance on the decisions of the Hon'ble Apex Court, rendered in M/s Jahnobi Matchyajibi Samabai Samity Ltd -Vs- State of Assam & Ors reported in 1997 (1) GLT 124, Akaddas Ali -Vs- State of Assam and Ors reported in 2014 4 GLR 3 and M/s Luhit Erasuti Mach Mahal Samabaya Samity Ltd. -Vs- State of Assam & Ors reported in 1997(1) GLT 276.
13. On the other hand, Mr. A. K. Gupta, learned counsel for M/s Karhapariyain WP(C) No. 2744/2022, argues that its bid has been illegally rejected, more particularly, for want of having three years of audited balance sheets. According to the learned counsel, three years of experience is not mandated in terms of the tender condition, and M/s Karhapariya, admittedly being a new society, could not have audited balance sheets of three years and therefore, such rejection is bad in the face of it.
14. Ms. U. Das, learned State counsel representing the State respondents, argues that there is no illegality in passing the impugned order, inasmuch as a specific condition was there in the NIT requiringa certificate disclosing the experience of the society in fishing. Such tender condition not being under challenge, the petitioner, M/s Parghat was under a bounden duty to submit such a Page No.# 12/16 certificate, and the authorities, not being satisfied with such a certificate, have rightly cancelled such defective bid.
15. Ms. U. Das, learned State counsel further contends that the relevant factor to be taken into consideration is the neighbourhood of the fishery and not area of operation, therefore, the area of operation determined earlier shall not disentitleM/s Karha to participate in the tender process and get the settlement, if the said society is within the neighbourhood of the fishery in question.
16. While adopting the argument of Ms. Das, learned State Counsel, Ms. M. Devi, learned counsel for the private respondent, also contends that there is no illegality in the impugned order, inasmuch as,M/s Parghat has failed to submit its bid in terms of the tender condition and the authorities cannot be faulted with for the rejection of itsbid. She further contends that the price offered by M/s Karha society cannot be said to be predatory pricing, inasmuch as, for the last five years, since the date of settlement, the society has not defaulted in any payment. It is her further contention that the issues raised as regards the determination made by the Hon'ble Apex Court is relatable to the area of operation only and it no way deals with the neighbourhood of M/s Karha to the fishery in question.
17. I have given anxious consideration to the arguments advanced by the learned counsels for the parties.
18. Let this Court first deal with the argument of Mr. Chowdhury, as regards the area of operation/neighbourhood of M/s Karha. Clause Page No.# 13/16 2 of the terms and conditions of the NIT,being relevant, is translated and extracted below:
That all the tenderers, i.e., fisherman co-operative society/self help group/NGO will have to submit a Neighbourhood Certificate from the Circle Officer. In case, the Min Mahal falls under two Revenue Circles, then the certificates have to be obtained from the Circle Officers of both the Revenue Circles and submit the same.
19. The issue of neighbourhood in the context of proviso to Rule 12 of the Assam Fishery Rules, 1953, was settled in Brahmaputra Par-II Mach Mahal Samabai Samity Ltd. Vs. the State of Assam and Ors. reported in (2003) 1 GLR 528 and it was held that it is a provision to ameliorate the socio economic conditions of the fishing population residing in theneighbourhood of the fishery concerned. It was also held that neighbourhood should not be interpreted in terms of inches, feet and yards and a more pragmatic and purposive interpretation is to be given. It was clarified that neighbourhood does not express any definite idea of distance.
20. By now, it is well settled that 'neighbourhood', and "area of operation" are distinctive concepts. In the considered opinion of this Court, 'neighbourhood' shall mean the area, where the eligible individuals or groups, i.e., fisherman or fishing societies reside and are eligible to participate in the settlement of a fishery and the "area of operation", shall mean the specific location, where the fishery is physically situated and where the fishing activities are conducted.
Page No.# 14/16
21. Having said so, this Court is having no hesitation in its mind that what was decided by the Hon'ble Apex Court is equitable division of area of operation of the earlier fishery and accordingly, two areas of operation of the earlier fishery were created, i.e., Karha Part-I fishery and Karha Part-II fishery and therefore, such creation of area of operation, shall not necessarily mean determination neighbourhood. The neighbourhood is to be determined and accepted as per Clause 2 of the NIT in question and not on the basis of the determination of the area of operation of the two fisheries made in terms of the determination made by the Hon'ble Apex Court. For the same reason, the Experience Certificate shall also be in terms of the certificate required under the terms of the NIT and there cannot be a perpetual presumption that all the members of the society are actual fishermen and having fishing experience,only for the reason that in terms of the determination made by the Hon'ble Civil Appeal Nos. 1674-75 of 1999,the area of operation was defined. As held in RaidakBurarchora Fishery Co-operative Society Ltd. Vs. State of Assam & others reported in (2018) 2 GLR 19, it is incumbent upon the respondent authority to make such enquiry to reach the satisfaction that not only the most deserving group is given the settlement, but also to ensure that the government revenue is adequately protected Therefore, the arguments advanced by Mr. Chowdhury, in this regard, stand negated.
22. It is an admitted position that under Clause 3 of the NIT, a certificate from the District Fishery Development Officer is required to be submitted, having a certification that all the members of the Page No.# 15/16 society are actual fishermen and that they have fishing experience. Admittedly, the certificate submitted by M/s Parghat, lacks the certification that all the members have fishing experience. It is by now well settled that the tenderer having authored the tender document is the best authority to understand and appreciate its requirement and interpretate its documents and the constitutionalCourt must defer to such understanding and appreciation of tender documents, except where there is malafide and perversity in the understanding or appreciation and application of the terms and conditions. In the case in hand, the requirement of Clause 3 also is in conformity and as per the prescription of the Assam Fishery Act, 1953. When admittedly, such a certificate submitted by M/s Parghat, does not fulfil the requirement of such tender condition, this Court should not find fault with the authorities in rejecting the tender of M/s Parghat; it cannot be said that the rejection of the tender of M/s Parghatis unjustified. Similarly, the rejection of tender of M/s Karhapariya, more particularly, for not having last three years of audited balance sheets, cannot also be faulted with, more particularly, when admittedly, the society did not fulfill such condition.
23. As held in RaidakBurarchora(supra), it is the responsibility of the authority to make an enquiry as regards the neighbourhood. That being the position, the challenge made to the order dated 28.07.2022, in WP(C) No. 6026/2022, in the absence of any perversity or arbitrariness,cannot be lightly interfered with only on the ground that the area of operation was already determined.
Page No.# 16/16
24. In view of the determination made hereinabove, the arguments on the predatory pricing and the distributive justice, remain no more relevant, inasmuch as, it is not disputed by the learned Senior counsel for the petitioner Mr. Chowdhury, that there is no default on the part of M/s Karha during the pendency of this writ petition, though he argues that it is only for the reason of pendency of this writ petition, M/s Karha paid the Kistsin time.
25. The judgments placed by Mr. Chowdhury, in the considered opinion of this Court, are not relevant for the determination.
26. Accordingly, for the discussions made hereinabove and the reasons recorded, this Court finds no merit in these writ petitions. The writ petitions stand dismissed. Parties to bear their own costs.
JUDGE Comparing Assistant