Gauhati High Court
WP(C)/1441/2021 on 30 September, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/41
GAHC010041312021
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) No. 1441/2021
M/s Gauripur Co-operative Fishery Society Limited,
Gauripur, P.O. Gauripur, District-Dhubri, Assam,
Pin. 78331, represented by its President,
Sri Shiben Namasudra.
.................. Petitioner
-Versus-
1. The State of Assam, represented by the Commissioner & Secretary
to the Government of Assam, Fishery Department, Dispur,
Guwahati-781006.
2. The Commissioner & Secretary to the Government of Assam,
Fishery Department, Dispur, Guwahati-781006.
3. The Deputy Secretary to the Government of Assam, Fishery
Department, Dispur, Guwahati-781006.
4. The Deputy Commissioner, Dhubri, District- Dhubri, Assam,
Pin. 783301. M/s BVishal Oil & Energy Ltd.
5. The Additional Deputy Commissioner [Fishery], Dhubri,
District-Dhubri, Assam, Pin. 783301.
6. The Circle Officer, Gauripur Revenue Circle,
District-Dhubri, Pin. 783331, Assam.
7. M/s Gemari Gaon Panchayat Min Samabay Samity Limited,
Village-Bagurapara, P.O. Asharikandi,
District-Dhubri, Assam, Pin. 783331.
8. Sri Parimal Suklabaidya,
Hon'ble Minister of Fisheries, Government of Assam,
Dispur, Guwahati-781006.
.................. Respondents
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Advocates :
Petitioner : Mr. M.K. Choudhury, Senior Advocate
Mr. S. Khound, Advocate
Respondent nos. 1 - 6 : Mr. D. Nath, Senior Govt. Advocate
Respondent no. 7 : Mr. K.N. Choudhury, Senior Advocate
Ms. A. Talukdar, Advocate
Dates of Hearing : 14.06.2022 & 16.06.2022
Date of Judgment & Order : 30.09.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
The fishery named Group no. 1/87 Dharnad Brahmaputra Part I & Satakuri Nadi
Fishery in Dhubri District [hereinafter referred to as 'the Fishery', in short, for the sake of
brevity] is a 60% category fishery and it is required to be settled as per the provisions
contained in Rule 12 of the Assam Fishery Rules, 1953. Just before expiry of the tenure of the
earlier settlement of the Fishery, the Deputy Commissioner, Dhubri [the respondent no. 4] as
the Tender Inviting Authority published a Tender Notice on 27.02.2020 inviting bids for
settlement of the Fishery for a period of 7 [seven] years. The Fishery was earlier settled for a
period of 7 [seven] years from 04.03.2013 to 03.03.2020 at an annual amount of Rs.
8,57,750/- per annum. In the Tender Notice dated 27.02.2020, the minimum Government
value of the Fishery was fixed at Rs. 8,10,000/- per annum and the last time and date of
submission of bids were fixed at 2-00 p.m. on 16.03.2020. The Tender Notice had, inter alia,
stated that the Fishery would be settled with co-operative societies / self-help groups
[SHGs] / non-governmental organizations [NGOs] formed with fishermen and the bidder
should belong to the concerned district and be in the neibourhood of the Fishery.
2. In response to the Tender Notice dated 27.02.2020, 5 [five] nos. of bidders including
M/s Gauripur Fishery Co-operative Society Ltd. [hereinafter referred to as 'the petitioner
society', for short] and M/s Geramari Gaon Panchayat Meen Samabai Samity Ltd. [hereinafter
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referred as 'the respondent no. 7 society', for short], submitted their bids quoting different bid
values. The Settling Authority in the Fishery Department, Government of Assam after receipt
of the tender documents of the 5 [five] participant bidders, on being forwarded by the Tender
Inviting Authority, had found the bid of the respondent no. 7 society as the highest valid bid
and the Fishery had been settled in favour of the respondent no. 7 society at a total
settlement value of Rs. 1,90,05,000/- for the period of 7 [seven] years @ Rs. 27,15,000/- per
annum by an order of settlement dated 26.02.2021.
3. The order of settlement dated 26.02.2021 has been made the subject-matter of
challenge by the petitioner society in this writ petition instituted under Article 226 of the
Constitution of India. The petitioner society has also made subject-matters of challenge, [i] a
Report bearing no. GRP[S].3/2019/339 dated 28.08.2020 submitted by the Circle Officer,
Gauripur Reveneue Circle, District - Dhubri i.e. the respondent no. 6; [ii] a Speaking Order
bearing no. DRFS/2020 dated 14.09.2020 passed by the Additional Deputy Commissioner,
Dhubri i.e. the respondent no. 5; and [iii] a Report bearing no. DRF.5/2020/441-42 dated
29.09.2020 of the Deputy Commissioner, Dhubri i.e. the respondent no. 4; in the writ petition
with a further prayer for a writ in the nature of mandamus for a direction to settle the Fishery
in favour of the petitioner society contending that it is the petitioner society who is the
highest valid bidder and the respondent no. 7 society is not the highest valid bidder.
4. After expiry of the bid submission time at 2-00 p.m. on 16.03.2020, the bids were
opened at 3-00 p.m. on 16.03.2020 itself in presence of the authorized representatives of the
participant bidders and the members of the Committee, headed by the Additional Deputy
Commissioner, Dhubri, which was constituted for the purpose of scrutiny of the bids. The
Committee after scrutiny of the tender documents, prepared a Comparative Statement [CS]
making its remarks with regard to each of the documents/certificates required to be
submitted with the tender documents against the respective heads in the CS. As the two
contesting societies herein had started litigating immediately thereafter, it appears necessary,
at first, to look into the events that happened during the period of one year from the date of
publication of the Tender Notice on 27.02.2020 till the date of passing of the impugned order
of settlement on 26.02.2021.
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5. As has been mentioned earlier, 5 [five] nos. of bidders including the petitioner society
and the respondent no. 7 society, responded to the Tender Notice dated 27.02.2020 by
submitting their bids purportedly enclosing therein the documents/certificates, mentioned by
the Tender Notice. The names of the bidders and their respective bid values, in descending
order, were as under :-
Sr. Name of the Bidder Annual Bid Value Total Bid Value
1 M/s Geramari Gaon Panchayat Meen Samabai Samity Ltd. Rs. 27,15,000/- Rs. 1,90,05,000/-
2 M/s Milanpur Anuchusita Jati Kalyan Fishery Co-operative Society Ltd. Rs. 24,30,101/- Rs. 1,70,10,707/-
3 M/s Gauripur Fishery Co-operative Society Ltd. Rs. 15,57,757/- Rs. 1,09,04,299/-
4 M/s Dharnad Brahmaputra Fishery Co-operative Society Ltd. Rs. 15,35,501/- Rs. 1,07,48,507/-
5 M/s Hareswar Meen Samabai Samity Ltd. Rs. 14,50,501/- Rs. 1,01,53,507/-
6. On the basis of the bid values, the respondent no. 7 society emerged as the 1 st highest
bidder whereas the petitioner society emerged as the 3 rd highest bidder.
7. In the Comparative Statement [CS], the Committee remarked the bids of 3 [three]
bidders viz. [i] M/s Geramari Gaon Panchayat Meen Samabai Samity Ltd. [the respondent no.
7 society]; [ii] M/s Gauripur Fishery Co-operative Society Ltd. [the petitioner society]; and [iii]
M/s Dharnad Brahmaputra Fishery Co-operative Society Ltd. as compliant ones. The
Committee remarked the bids of the other 2 [two] bidders, namely, [i] M/s Milanpur
Anuchusita Jati Kalyan Fishery Co-operative Society Ltd.; and [ii] M/s Hareswar Meen
Samabai Samity Ltd. as invalid bids in the Comparative Statement [CS] for non-submission of
proper documents/certificates in terms of the Tender Notice.
8. The petitioner society immediately after opening of the bids on 16.03.2020, submitted
a representation before the respondent no. 5 on 16.03.2020 stating that the
anomalies/illegalities were committed by the respondent no. 7 society in connection with its
list of members and the certificate of distance and sought for rejection of the bid of the
respondent no. 7 society.
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8.1. The petitioner society contended that it had found that the respondent no. 7 society in
its list of 57 nos. of members dated 04.04.2019, included members from the revenue villages
of Madaikhali, Asharikandi and South Geramari, which villages, according to the petitioner
society, were illegally incorporated in the Bye-Laws and area of operation of the respondent
no. 7 society whereas those villages fell within the area of operation of the petitioner society
since the formation of the petitioner society in the year 1947. Though the respondent no. 7
society had been originally registered with 27 nos. of villages it does not have any member
from those 27 nos. of villages. According to the petitioner society, the Assistant Registrar of
Co-operative Societies, Dhubri [non-party] had mechanically approved the list of members
dated 04.04.2019 without due application of mind. The 3 [three] villages - Madaikhali,
Asharikandi and South Geramari - were also included illegally in the certificate of distance
bearing no. GRP[S]3/2019/168 dated 12.03.2020 issued in favour of the respondent no. 7
society by the respondent no. 6 i.e. the Circle Officer, Gauripur Revenue Circle whereas those
3 [three] villages were already included within the area of operation of the petitioner society.
The petitioner society had projected that the aforesaid information was not within its
knowledge prior to submission of the bid for settlement of the Fishery in its favour and the
same came to its knowledge only from the information obtained from the office of the
Assistant Registrar of Co-operative Societies, Dhubri who is not a respondent herein ['non-
party', for short], under the Right to Information Act, 2005.
8.2. After opening of the bids submitted for the Fishery, the petitioner society had found
that the Bakijai Clearance Certificate dated 12.03.2020, submitted by the respondent no. 7
society, was in the name of the Secretary of the respondent no. 7 society only and, thus, the
same did not fulfill the terms and conditions of the Tender Notice and a notification bearing
no. FISH-19/65/2017-FISHERY/1[eCF no. 50022] dated 18.01.2018 of the Fishery
Department, Government of Assam.
9. On 17.03.2020, the petitioner society submitted another representation before the
Assistant Registrar of Co-operative Societies, Dhubri [non-party] with the prayer for
cancellation of the registration of the respondent no. 7 society. It was contended that the
respondent no. 7 society had resorted to misrepresentation/suppression of facts before the
Page No. 6/41
said authority in enrolling its members from outside their area of operation.
10. It may be stated that on 27.02.2020, that is, on the date of publication of the Tender
Notice, another order of even date was passed by the respondent authorities, whereby, the
sitting lessee of the Fishery viz. M/s Gauripur Co-operative Fishery Society Limited [the
petitioner society] was allowed to operate the Fishery on daily basis until the regular
settlement of the Fishery. When even after opening of the tender box on 16.03.2020 and
preparation of the Comparative Statement [CS] the process of settlement of the Fishery was
not finalized till 03.06.2020 the respondent no. 7 society approached this Court, on
03.06.2020, by way of a writ petition, W.P.[C] no. 2343/2020 seeking inter alia a direction to
the respondent authorities to finalize the process of settlement of the Fishery.
11. On the other hand, aggrieved by non-disposal of the representation dated 16.03.2020
and the representation dated 17.03.2020, the petitioner society had also approached this
Court, on 12.06.2020, by way of a writ petition, W.P.[C] no. 2562/2020.
11.1. It needs a mention that the respondent no. 6 i.e. the Circle Officer, Gauripur Revenue
Circle had issued the certificate of distance bearing no. GRP[S]3/2019/168 on 12.03.2020
stating inter alia that the respondent no. 7 society had 34 nos. of villages, mentioned therein,
including Madaikhali, Asharikandi, and South Geramari, under its registered area of operation
within the Gauripur Revenue Circle. In the said certificate of distance, the distances of the
Fishery from the Villages - Asharikandi, Madaikhali and Geramari were inter alia reported.
The respondent no. 7 society had submitted the said certificate of distance dated 12.03.2020
in purported compliance of the condition incorporated in Clause 4 [Ta] of the Tender Notice.
12. In the following period, the respondent no. 5 acted on the representation dated
16.03.2020 and by his letter dated 19.06.2020 requested the respondent no. 6 i.e. the Circle
Officer, Gauripur Revenue Circle to cause an enquiry and the respondent no. 6 after making
an enquiry, submitted a Report on 23.06.2020 stating that while making the application for
the certificate of distance, the respondent no. 7 society had suppressed the facts about its
registered area of operation and they had drawn members from 3 [three] Villages -
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Madaikhali, Asharikandi and Geramari, which were outside the respondent no. 7 society's area
of operation and were already under the area of operation of the petitioner society. The
respondent no. 7 society had drawn 48 out of its stated 57 members from Village -
Madaikhali. With the said Report, the respondent no. 7 had treated the certificate of distance
bearing no. GRP[S]3/2019/168 dated 12.03.2020 issued by him earlier as cancelled.
13. Both the writ petitions, W.P.[C] no. 2343/2020 and W.P.[C] no. 2562/2020 came up for
consideration on 25.06.2020. By an order dated 25.06.2020, the Court directed the
respondent Fishery Department to take all steps for finalization of the tender process for
settlement of the Fishery but not to allot the Fishery without the leave of the Court. The
Court had further directed to consider the grievances raised by the petitioner society by
passing a speaking order. The two writ petitions were directed to be listed again on
20.07.2020.
14. The Assistant Registrar of Co-operative Societies, Dhubri [non-party] who had started
and completed an enquiry as per the instruction of the office of the Deputy Commissioner,
Dhubri and also on the basis of the representation dated 17.03.2020 of the petitioner society,
submitted a Report to the respondent no. 5 on 26.06.2020 mentioning that overlapping had
occurred in respect of the areas of operation between the petitioner society and the
respondent no. 7 society. Having learnt about the enquiry and the Report dated 23.06.2020
[supra] of the respondent no. 6, the respondent no. 7 society approached the respondent no.
5 by submitting a representation dated 23.06.2020 to cause further enquiry into the matter.
The respondent no. 5 had, in turn, requested the respondent no. 6 and the Assistant
Registrar of Co-operative Societies, Dhubri [non-party] to cause further enquiry into the
matter by his letter bearing no. DRF.5/2020/244 dated 29.06.2020. In response, the
respondent no. 6 wrote back to the respondent no. 5 by a letter bearing no.
GRP[S]3/2019/261 dated 01.07.2020 stating that since a detail enquiry had already been
made by him there was no necessity to make any further enquiry.
15. Thereafter on 07.07.2020, the Assistant Registrar of Co-operative Societies, Dhubri
[non-party] submitted a Report to the respondent no. 5 stating inter alia that the respondent
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no. 7 society had been operating with Bagurapara and Chikasipara [Baganpara] as its area of
operation since its registration in the year 1982 and with Bagurapara as its registered office.
It was reported that the two paras/areas - Bagurapara and Chikasipara [Baganpara] - were
the core and constituent parts of Revenue Village - Madaikhali and the inhabitants of these
two areas had no alternative way to say the name of their village other than as Madaikhali. It
was further reported that the petitioner society had included Madaikhali within its area of
operation by amending its Bye-Laws in the year 2013. The Assistant Registrar of Co-operative
Societies, Dhubri [non-party] gave his findings and decision on the representation dated
17.3.2020 submitted by the petitioner society and the representation dated 23.06.2020
submitted by the respondent no. 7 society on the extent of their respective area of operation.
16. The respondent no. 7 society had approached the Court for the second occasion this
Court in relation to the matter of settlement of the Fishery by way of a writ petition, W.P.[C]
no. 3379/2020 assailing the cancellation of the certificate of distance by the respondent no. 6
vide his letter dated 23.06.2020, which certificate of distance was issued by the same
authority on 12.03.2020. The main grounds of assailment were that such cancellation was
done behind the back of the respondent no. 7 society and moreover, such decision regarding
cancellation was never communicated by the said authority to the respondent no. 7 society,
thereby, making it violative of the principles of natural justice.
17. The respondent no. 6 i.e. the Circle Officer, Gauripur Revenue Circle had submitted
another Report bearing no. GRP[S].3/2019/339 dated 28.08.2020, impugned herein, to the
respondent no. 5 on the aspect of distance of the area of operation in respect of the
respondent no. 7 society after visiting the site. It was reported therein that Asharikandi
[Bagurapara] and Asharikandi [Chikasipara] were the local areas [chuburis/paras] existing
within the jurisdictional area of Revenue Village - Madaikhali. It was also reported after
verification of the addresses of the members of the respondent no. 7 society that the
members of the respondent no. 7 society were found to have belonged to Asharikandi
[Bagurapara] and Asharikandi [Chikasipara], which were within the territorial jurisdiction of
Revenue Village - Madaikhali. The respondent no. 6 had further reported that during his field
verification, he had physically identified the details of 49 out of 57 members of the
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respondent no. 7 society. He had also reported that the remaining 8 nos. of members were
also local inhabitants of the aforesaid areas. The distances of different areas coming within
the area of operation of the respondent no. 7 society from the Fishery were also mentioned
therein.
18. The respondent no. 5 took note of the contents stated in the Report submitted by the
Assistant Registrar of Co-operative Societies, Dhubri [non-party] dated 07.07.2020 and the
Report dated 28.08.2020 submitted by the respondent no. 6 to him. The respondent no. 5
took notice of the fact that the two areas - Asharikandi [Bagurapara] and Asharikandi
[Chikasipara] were clearly mentioned in the registration certificate of the respondent no. 7
society. By passing a Speaking Order bearing no. DRF5/2020 dated 14.09.2020, the
respondent no. 5 rejected the contentions raised by the petitioner society by holding that the
issues/objections raised by the petitioner society in its representations dated 16.03.2020 and
17.03.2020 were not based on actual facts. A copy of the Speaking Order bearing no.
DRF5/2020 dated 14.09.2020 was forwarded to the respondent no. 4 i.e. the Deputy
Commissioner, Dhubri for information and necessary action.
19. The Report dated 07.07.2020 of the Assistant Registrar of Co-operative Societies,
Dhubri [non-party] containing his findings and decision was put to challenge by the petitioner
society in an appeal, filed on 14.09.2020, preferred under Section 111 of the Assam Co-
operative Societies Act, 2007 before the Registrar of Co-operative Societies, Assam [non-
party] with the prayers to set aside the same and for cancellation of the registration of the
respondent no. 7 society. On being put to notice, the respondent no. 7 society filed its written
statement in the appeal and the petitioner society had also filed a rejoinder. Both the parties
were heard by the Additional Registrar of Co-operative Societies, Assam [non-party] on
30.09.2020. Thereafter when the appeal was not disposed of within a reasonable time period,
the petitioner society had filed a representation before the Registrar of Co-operative Societies,
Assam [non-party] on 12.11.2020 praying for expeditious disposal of the appeal.
20. Subsequently, the Deputy Commissioner, Dhubri i.e. the Tender Inviting Authority after
scrutiny of the bids, forwarded his observations on the bids of the participant bidders to the
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Government in the Fishery Department vide a Report dated 29.09.2020 recommending
settlement of the Fishery in favour of the respondent no. 7 society by observing the
respondent no. 7 society as the highest bidder. While so recommending, the Deputy
Commissioner, Dhubri had considered the Report dated 07.07.2020 submitted by the Assistant
Registrar of Co-operative Societies, Dhubri [non-party]; the Report dated 28.08.2020
submitted by the respondent no. 6; and the Speaking Order dated 14.09.2020 passed by the
respondent no. 5.
21. The petitioner society had also, on 12.08.2020, preferred a writ petition, W.P.[C] no.
3051/2020 seeking for a direction to the respondent authorities to take a final decision in the
matter of settlement of the Fishery by taking into account the cancellation of the certificate of
distance of the respondent no. 7 society by the Report dated 23.06.2020.
22. The recommendation made by the Deputy Commissioner, Dhubri in the Report dated
29.09.2020 was assailed by the petitioner society in a writ petition, W.P.[C] no. 4434/2020.
23. The petitioner society had approached the Court once again by a writ petition, W.P.[C]
no. 5216/2020 inter alia with a grievance that there was delay in disposal of the appeal,
preferred by the petitioner society on 14.09.2020 under Section 111 of the Assam Co-
operative Societies Act, 2007, by the office of the Registrar of the Co-operative Societies,
Assam [non-party] despite hearing the appeal and with the prayer for a direction for early
disposal of the appeal.
24. The writ petitions - W.P.[C] no. 2343/2020, W.P.[C] no. 2562/2020, W.P.[C] no.
3051/2020, W.P.[C] no. 3379/2020, W.P.[C] no. 4434/2020 & W.P.[C] no. 5216/2020 - came
up for consideration before the Court on 11.02.2021 and the Court after hearing all the
parties, disposed of all the said writ petitions by a common order dated 11.02.2021 by
granting leave to the Government of Assam in the Fishery Department to examine the
recommendation made in the Report dated 29.09.2020, submitted by the Deputy
Commissioner, Dhubri and thereafter, to approve the settlement of the Fishery in favour of
'the highest valid bidder' after taking into account all the relevant facts and circumstances of
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the case pertaining to eligibility of the bidders. Direction was made to carry out and complete
the exercise within a period of 2 [two] weeks. In so far as the appeal filed by the petitioner
society before the Registrar of Co-operative Societies, Assam [non-party] was concerned, it
was observed that the said authority would be at liberty to dispose of the appeal by passing
appropriate order within a period of 10 [ten] days. It was observed that the interim order
passed by the Court earlier on 25.06.2020 in the writ petition, W.P.[C] no. 2343/2020 would
stand modified accordingly. While so disposing of, it was observed that the Settling Authority
in the Fishery Department, Government of Assam would have a duty to verify the eligibility of
each of the bidders and to take a final decision in the matter thereafter, in favour of the
highest valid bidder.
25. The Registrar of Co-operative Societies, Assam [non-party] disposed of the appeal
preferred by the petitioner society under Section 111 of the Assam Co-operative Societies Act,
2007 by passing an order dated 20.02.2021, whereby, the Registrar of Co-operative Societies,
Assam had rejected the appeal preferred by the petitioner society. While rejecting the appeal,
the petitioner society and the respondent no. 7 society had been allowed to operate in
Bagurapara and Chikasipara, paras/localities of Village - Madaikhali with a direction to both
the societies to maintain status quo in the matter of their respective area of operation as on
20.02.2021.
26. It was in the aforesaid backdrop of events, the order of settlement dated 26.10.2021
has been passed by the Settling Authority in the Fishery Department, Government of Assam,
whereby, the Fishery had been settled in favour of the respondent no. 7 society for a period
of 7 [seven] years at the total settlement value of Rs. 10,90,05,000/- @ Rs. 27,15,000/- per
annum.
27. I have heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. S. Khound,
learned counsel for the petitioner; Mr. D. Nath, learned Senior Government Advocate, Assam
for the respondent nos. 1 - 6; and Mr. K.N. Choudhury, learned Senior Counsel assisted by
Mr. N. Gautam, learned counsel for the respondent no. 7.
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28. The pleaded and argued case of the petitioner society :- The petitioner society is a
fishery co-operative society, registered in the year 1947. The petitioner society was registered
with Bye-Laws with its area of operation consisting of 7 nos. of villages including Village -
Asharikandi. When the petitioner society was originally registered in the year 1947, Village -
Madaikhali was not a separate village, but was an integral part of the undivided Asharikandi
Revenue Village. The petitioner society when it was originally registered with its Bye-Laws
had its area of operation within the 7 [seven] nos. of villages viz. [i] Gauripur, [ii] Asharikandi,
[iii] Geramari, [iv] Dalsingeralga, [v] Raipur, [vi] Rupshi, and [vii] Daobangi. At the time of
initial registration, Village - Madaikhali was not a separate village but it was a part of
undivided Asharikandi Revenue Village.
28.1. After creation of Village - Madaikhali, the Assistant Registrar of Co-operative Societies,
Dhubri [non-party] vide his letter bearing no. CGDVF.6/53/Pt-II/72 dated 20.12.2012
instructed the petitioner society to take necessary steps to amend the Bye-Laws of the
petitioner society for inclusion of Village - Madaikhali within its area of operation as per the
provisions of the Assam Co-operative Societies Act, 2007. The reason cited in the said letter
was that the members who were then residing in Village - Madaikhali became members of
the petitioner society in place of their deceased predecessors as their nominees from the
original members drawn from the original Village - Asharikandi. On an application being
made, the Assistant Registrar of Co-operative Societies, Dhubri [non-party] registered the
amended Bye-Laws on 17.01.2013 with amended area of operation of the petitioner society
with the following villages :- [i] Gauripur, [ii] Asharikandi, [iii] Geramari, [iv] Dalsingeralga,
[v] Raipur and [vi] Madaikhali.
28.2. It has been asserted that all the members of the petitioner society are actual
fishermen and belong to the Scheduled Caste [SC] community. The members of the petitioner
society are inhabitants of the villages within its area of operation, which are in the
neighbourhood of the Fishery.
28.3. According to the petitioner society, the respondent no. 7 society had inter alia
proposed inclusion of 3 [three] villages - Madaikhali, Asharikandi Bagurapara & Asharikandi
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Chikashipara - within the area of operation of the respondent no. 7 society comprising of 28
nos. of villages but the authorized representative of the Assistant Registrar of Co-operative
Societies, Dhubri [non-party] deleted the name of Village - Madaikhali from the area of
operation of the respondent no. 7 society by putting his initial on 06.02.1982 and resultantly,
the respondent no. 7 society was registered on 19.02.1982 with 27 nos. of villages as its area
of operation.
28.4. It has been contended by referring to various provisions of the Assam Co-operative
Societies Act, 1949/2007 that in relation to the area of operation and inclusion of areas within
the area of operation of the respondent no. 7 society, the authorities had acted contrary to
those statutory provisions. As a result of such action, the areas falling within Village -
Asharikandi of which the subsequently created Village - Madaikhali was previously a part, got
included in the area of operation of the respondent no. 7 society. As the entire area
indubitably fell within the area of operation of the petitioner society and they were also
included in the area of operation of the respondent no. 7 society at the instance of the
respondent no. 7 society, the same calls for interference with the cancellation of registration
of the respondent no. 7 society.
28.5. It has been contended that the Bakijai Clearance Certificate issued from the
jurisdictional Deputy Commissioner which was a requirement of Clause 4 [Kha] of the Tender
Notice and which certificate was submitted by the respondent no. 7 society along with its bid
is not acceptable as the same is not in the name of the respondent no. 7 society. The list of
members with their ages and addresses, submitted by the respondent no. 7 society, also
entails rejection as it shows that the respondent no. 7 society has drawn its members only
from the revenue villages of Madaikhali, Asharikandi and South Geramari and has no
members from 27 nos. of villages included in the area of operation of the respondent no. 7
society. The Assistant Registrar of Co-operative Society, Dhubri [non-party] had faultily issued
the list of members on 04.04.2019 without any application of mind. In the absence of
members from any of the 27 nos. of villages of its area of operation, the respondent no. 7
society is clearly not entitled to participate in the tender process initiated by the Tender
Notice dated 27.02.2020 in view of Clause 4 [Nya] of the Tender Notice.
Page No. 14/41
28.6. With the certificate of distance dated 12.3.2020 issued by the respondent no. 6 being
cancelled subsequently by the very same authority on 23.06.2020 and the said position
remaining unaltered, the respondent no. 7 society is clearly disentitled to participate in the
tender process for its failure to adhere to the condition incorporated in Clause 4 [Ta] of the
Tender Notice. With the position regarding cancellation of the certificate of distance dated
12.03.2020 by the respondent no. 6 remaining unaltered, the observations made in the
Report dated 28.08.2020 of the respondent no. 6, the Speaking Order dated 14.09.2020 of
the respondent no. 5 and the Report dated 29.09.2020 of the respondent no. 4 have become
inconsequential and the same are not required to be taken into consideration as the same are
not based on facts and law. On that count, the Report dated 28.08.2020, the Speaking Order
dated 14.09.2020 and the Report dated 29.09.2020 entail obliteration and consequently, the
order of settlement dated 26.02.2021 is liable to be set aside declaring the petitioner society
as the highest valid bidder.
29. The pleaded and argued case of the respondent no. 7 society :- The areas -
Bagurapara and Asharikandi-Chikasipara - were included in the area of operation of the
respondent no. 7 society since its original registration in the year 1982 and as per the various
reports, Bagurapara and Chikasipara are also known as Village - Madaikhali. As such, the
overlapping of the areas of operation of the petitioner society and the respondent no. 7
society had occurred only when Village - Madaikhali had been incorporated within the area of
operation of the petitioner society by amending the Bye-Laws of the petitioner society on
17.01.2013.
29.1. According to the respondent no. 7 society, the petitioner society has resorted to
unfairness while giving the details of the residential addresses of its members. A number of
instances of members of the petitioner society have been cited by the respondent no. 7
society to project that they are not residents of Village - Asharikandi. According to the
respondent no. 7 society, after curving out of Village - Madaikhali from Village - Asharikandi
in the year 1961, Village - Madaikhali became an independent village. The areas -
Bagurapara and Chikasipara - are parts and parcels of Village - Madaikhali as its
Page No. 15/41
paras/chuburis and the said two areas had been included in the area of operation of the
respondent no. 7 society since its registration in the year 1982. As the said two
paras/chuburis denote Village - Madaikhali fully there is nothing left within Village -
Madaikhali. Had Village - Madaikhali been written in the Bye-Laws of the respondent no. 7
society at serial no. 28, it would have been repetition of Village - Madaikhali in the list of
villages. Hence, there is no necessity of incorporating Madaikhali as a separate village at
serial no. 28 for the respondent no. 7 society and it was, therefore, struck off.
29.2. Assertion is made to the effect that Bagurapara and Chikasipara [also known as
Baganpara] are two greater habitations of Madaikhali Revenue Village under Asharikandi
Gaon Panchayat. Bagurapara and Chikasipara are projected to be two nicknames of
Madaikhali Village and hence, Bagurapara, Chikasipara [Baganpara] and Madaikhali are one
and the same village. Since Asharikandi - Bagurapara and Asharikandi - Chikasipara are
included in the area of operation of the respondent no. 7 society since its inception in 1982
there is no question of incorporating members from outside the area of operation.
29.3. Since there are documentary evidence in the form of Electoral Identity Cards [EICs] of
its members residing in Village - Madaikhali, the respondent no. 7 society has fulfilled the
conditions incorporated in Clause 4 [Nya] and Clause 4 [Ta] of the Tender Notice. The
respondent no. 7 society has sought to draw support from a letter bearing no. AGP-27/2019-
20/2 dated 17.06.2020 issued by the Asharikandi Gaon Panchayat, in response to its
application dated 16.06.2020 wherein it is clarified that the persons named therein who were
projected by the petitioner society as its members, never resided for any moment at Village -
Asharikandi nor they had any dwelling houses nor they had rented houses in any area of
Asharikandi Gaon Panchayat and the residential addresses shown by the petitioner society for
those persons as its members were fictitious and false. It is further contended that
submission of the Bakijai Clearance Certificate is not a mandatory requirement.
29.4. The Assistant Registrar of Co-operative Societies, Dhubri [non-party] had allowed the
petitioner society to amend its Bye-Laws on 17.01.2013 to include Village - Madaikhali within
its area of operation without proper application of mind and without giving any opportunity of
Page No. 16/41
hearing to the respondent no. 7 society despite the fact that Asharikandi - Barurapara and
Asharikandi - Chikasipara which are areas/ paras of Village - Madaikhali, have been stood
included in its area of operation since 1982 and the said action has resulted into illegal
overlapping into the area of operation of the respondent no. 7 society in an adverse manner.
29.5. Though the amendment of the Bye-Laws of the petitioner society, carried out in the
year 2013, was liable to be interfered with, the Registrar of Co-operative Societies, Assam
while passing the order dated 20.02.2021, appeared to have taken a sympathetic view in
favour of the petitioner society so that the petitioner society could also enjoy the benefit of
Village - Madaikhali as their area of operation in spite of overlapping.
30. The pleaded and argued case of the State respondents :- It has been projected on
behalf of the State respondents that the status of the petitioner society and the respondent
no. 7 society with regard to their respective area of operation had been made clear by the
Speaking Order passed by the Registrar of Co-operative Societies, Assam [non-party] on
20.02.2021 in the appeal preferred by the petitioner society. The issue regarding
memberships of the respondent no. 7 society had also been finally resolved by the Speaking
Order dated 20.02.2021.
30.1. After Village - Madaikhali was curved out of Village - Asharikandi in the year 1961, the
respondent no. 7 society came into existence in the year 1982 with 27 nos. of villages
including Asharikandi - Bagurapara and Asharikandi - Chikasipara within its area of operation.
The petitioner society had included Village - Madaikhali in their area of operation by an
amendment only in the year 2013. The Registrar of Co-operative Societies, Assam [non-party]
in its order dated 20.02.2021 had directed the petitioner society and the respondent no. 7
society to maintain status quo in the matter of their areas of operation as on that date as per
areas included in the respective registration certificates and as a result, both the societies
were allowed to operate in Asharikandi - Bagurapara and Asharikandi - Chikasipara.
30.2. It is relevant to mention that the affidavit-in-opposition on behalf of the respondent
nos. 1 & 2 was filed on 03.09.2021. In between 26.02.2021 and 03.09.2021 a number of
Page No. 17/41
significant events had occurred touching upon the order of settlement dated 26.02.2021,
about which reference would be made in the subsequent part of this order.
30.3. A stand has been taken in the affidavit-in-opposition to the effect that the fact of
cancellation of the certificate of distance dated 12.03.2020 by the Report dated 23.06.2020
was taken into consideration while revisiting the order of settlement dated 26.02.2021 by the
subsequent order of settlement dated 23.03.2021 after the order of settlement was set aside
by an Order dated 10.03.2021 passed in this writ petition. The State respondents are found
to have taken a stand in the affidavit-in-opposition on the Bakijai Clearance Certificate
submitted by the respondent no. 7 society along with its bid, which is contrary to its earlier
stand.
30.4. It has been stated that the power to settle the Fishery lies with the Government in the
Fishery Department under Rule 12 of the Assam Fishery Rules, 1953 on the basis of the
tender documents received from and forwarded by the concerned Deputy Commissioner with
observations in the comparative statement. The final decision as regards settlement of a
Government fishery with the highest valid bidder lies with the Government.
31. I have given due consideration to the rival submissions advanced by the learned
counsel for the parties and have also perused the materials brought on record by the parties
through their pleadings.
31.1. The contesting parties have submitted pleadings in various forms and they are :- [i]
the writ petition filed on 01.03.2021; [ii] an affidavit-in-opposition, filed on 24.08.2021, by
the respondent no. 7 society; [iii] an affidavit-in-reply, filed on 01.09.2021, by the petitioner
society to the affidavit-in-opposition filed by the respondent no. 7 society; [iv] an affidavit-in-
opposition, filed on 03.09.2021, by the respondent nos. 1 & 2; [v] an affidavit-in-reply, filed
on 24.09.2021, by the respondent no. 7 society against the affidavit-in-opposition filed by the
respondent nos. 1 & 2; [vi] a rejoinder, filed on 29.10.2021, by the respondent nos. 1 & 2 to
the affidavit-in-reply filed by the respondent no. 7 society; and [vii] an objection/rejoinder,
filed on 28.09.2021, by the petitioner society to the affidavit-in-reply filed on behalf of the
Page No. 18/41
respondent no. 7 society against the affidavit-in-opposition filed by the respondent nos. 1 &
2.
31.2. The learned counsel for the parties have referred to the decisions in [i] Majorati
Minsamabai Samity Limited [M/s.] vs. Sukhraj Samabai Samity Limited and others, reported in
1998 [1] GLT 405; [ii] Brahmaputra Part II Mach Mahal Samabai Samity Limited vs. State of
Assam and others, reported in 2003 [1] GLT 155; [iii] Dakhin Salmara Matsyajibi Fishery Co-
operative Society Limited and another vs. State of Assam and other, reported in 2009 [2] GLT
484; [iv] Raidak Burarchora Fishery Co-operative Society Limited vs. State of Assam and
others, reported in 2018 [1] GLT 274; [v] Central Coalfields Limited and another vs. SLL-SML
[Joint Venture Consortium] and others, reported in [2016] 8 SCC 622; [vi] Kayakuchi Gaon
Meen Samabai Samitee Limited vs. State of Assam and others, reported in [2020] GLR 413;
[vii] Arabinda Das vs. State of Assam and others, reported in [1982] 1 GLR 280; [viii]
Dangarkuchi Paka Betbari Meen Samabai Samittee Ltd. vs. State of Assam and others,
reported in [2018] 4 GLR 593; and [ix] Order dated 29.09.2021 passed in Writ Appeal no.
294/2011 [Abu Talib vs. the Assam Fisheries Development Corporation Ltd. and others].
32. It is pertinent to mention that the instant writ petition came up for consideration on
10.03.2021 and the Court on that date after hearing the learned counsel for the parties
allowed the writ petition by setting aside and quashing the order of settlement dated
26.02.2021 by making certain observations. One of the directions was made to the
respondent no. 1 to take appropriate decision in order to bring the Tender Notice to its logical
conclusion as per the terms of the Order dated 11.02.2021 passed by the Court in the batch
of writ petitions at the earliest.
32.1. The afore-mentioned order dated 10.03.2021 passed in the instant writ petition was
carried to the Hon'ble Division Bench by the respondent no. 7 society as the writ appellant in
an intra-court appeal, Writ Appeal no. 118/2021, filed on 26.03.2021. The Hon'ble Division
Bench after going through the order dated 10.03.2021 [supra] and after hearing the learned
counsel for the parties, decided the writ appeal by an order dated 27.07.2021 with certain
observations and directions. The relevant excerpts of the order dated 27.07.2021 are as under
Page No. 19/41
:-
"After going through the order of the learned Single Judge and having heard the
learned counsel for the parties, we are of the view that whether the orders dated
28.08.2020 and the order dated 20.02.2021 would make the present writ appellant a
valid bidder for the present bid is a question which has not been examined by the
learned Single Judge.
In view of the above, we set aside the order dated 10.03.2021 passed by the learned
Single Judge and remand the matter to the learned Single Judge with a request to re-
examine the matter in light of the aforesaid two orders. However, we make it very
clear that meanwhile the arrangement by which the private respondent no. 7 has been
allowed to operate the fishery shall be allowed to do so only as a temporary and ad-
hoc basis until a finality is reached in the matter."
32.2. With the setting aside of the Order dated 10.03.2021 passed earlier in the instant writ
petition, by the Order dated 27.07.2021 of the Hon'ble Division Bench, all the observations
made earlier in the order dated 10.03.2021 have stood obliterated.
32.3. It has also been brought to the notice of the Court that subsequent to the Order dated
10.03.2021, the Settling Authority in the Fishery Department, Government of Assam passed a
fresh order of settlement on 23.03.2021. In the said order of settlement dated 23.03.2021,
the petitioner society was termed as the highest valid bidder and the Fishery was settled with
the petitioner society at a total settlement amount of Rs. 1,09,04,299/- for a period of 7
[seven] years @ Rs. 15,57,757/- per annum from the date of handing over the Fishery. While
passing the order of settlement the Settling Authority appeared to have made certain
observations regarding validity or otherwise of the bids of the 5 [five] participant bidders.
Assailing the said order of settlement, the respondent no. 7 society as the writ petitioner,
preferred a writ petition, which was registered and numbered as W.P.[C] no. 3992/2021. As
the Order dated 10.03.2021 passed in this writ petition stood interfered by the Order dated
27.07.2021 of the Hon'ble Division Bench, the subsequent order of settlement dated
23.03.2021, as a natural consequence, has stood effaced. As a natural corollary, the
Page No. 20/41
observations made in the order of settlement dated 23.03.2021 with regard to validity or
otherwise of the participant bidders have also stood obliterated. The writ petition, W.P.[C] no.
3992/2021 came to be disposed of on withdrawal on 23.08.2021 at the instance of the writ
petitioner therein i.e. the respondent no. 7 society herein on its submission that the subject-
matter of the writ petition had become infructuous.
32.4. When the Tender Notice dated 27.02.2020 was published for settlement of the Fishery,
the Tender Notice required inter alia submission of the following documents : - firstly, Bakijai
Clearance Certificate distinctly in the name of the bidder society/group from the office of the
concerned Deputy Commissioner [Clause 4 (Kha)]; secondly, list of member of the bidder
society/group by mentioning the names of the members, their ages and addresses [Clause 4
(Nya)]; and thirdly, certificate of distance of the bidder society/group from the Fishery from
the concerned Circle Officer showing exact distance of each of the villages [Clause 4 (Ta)].
33. At this stage, a survey of the relevant provisions of the Assam Co-operative Societies
Act, 2007 ['the 2007 Act' and/or 'the Act, 2007', for short] appears necessary to have a
proper comprehension of the issues involved in the case in hand.
33.1. 'Co-operative Society' or 'Society' means a co-operative society registered under the
2007 Act and includes a society formed after amalgamation of such two or more societies or
by division of an existing society [Section 2(j)]. 'Registered Society' means a co-operative
society registered under the 2007 Act and includes a society formed after amalgamation of
such two or more societies or by division of such an existing society [Section 2(bb)]. 'Primary
Co-operative Society' means a co-operative society whose membership is available only to
individual and self-help groups and voluntary institutions other than co-operative societies
[Section 2(y)].
33.2. The Registrar of Co-operative Societies for the State or any portion of it is appointed by
the State Government under Section 3 [1] of the Act, 2007 for the purposes of registration,
supervision, assistance, counsel and for the all-round development of the co-operative
movement in the State with such other powers and responsibilities as may be provided under
Page No. 21/41
the Act, 2007 or Rules or Bye-Laws framed thereunder. As per Section 3 [2] of the Act, 2007,
the State Government may also appoint any other person or persons to assist the Registrar
and may by general or special order in writing delegate to any such person or persons all or
any of the powers and responsibilities of the Registrar under the 2007 Act.
33.3. Section 4 of the Act, 2007 has provided for societies which may be registered. It is
stated in Section 4 [1] that subject to the provisions thereinafter contained, a society which
has as its chief object the promotion of the economic interest and general welfare of its
members in accordance with the co-operative principles laid down in Schedule 'A' may be
registered. Section 10 has provided for application for registration of a co-operative society.
As per Section 10 [1], an application for the purpose of registration is to be submitted to the
Registrar in the prescribed form by at least 10 persons or such number of persons as may be
fixed by the Registrar, qualified under Section 5 read with sub-section [5] of Section 4 of the
Act, who are to form a primary co-operative society. Such an application is to be accompanied
inter alia by copies of the proposed Bye-Laws of the proposed co-operative society and a list
of the names of the applicants with their complete addresses, occupations, etc. As per
Section 2 [f] of the 2007 Act, Bye-Laws refers to the registered Bye-Laws of a society for the
time being in force and includes a registered amendment of the Bye-Laws of a society. The
mandate of Section 9 of the 2007 Act is that a co-operative society shall frame their own Bye-
Laws and the affairs of the co-operative society shall be managed in accordance with the
terms, conditions and procedures specified in the Bye-Laws, subject to the other provisions of
the 2007 Act.
33.4. Section 6 [3] of the Act 2007 has prescribed that no society shall be registered under
the Act in an area where there already exist another co-operative society with similar
objectives, provided that the Registrar may allow registration of more than one co-operative
societies in a same area of operation in case of need or necessity, demand for organization of
such types of societies requires registration of more such types of societies in the same area
of operation. As per Section 2 [e] of the 2007 Act, 'area of operation' means the area from
which the membership is drawn. It is laid down in Section 10 [2] of the 2007 Act that on
receipt of the application for registration and after due consideration, the Registrar may
Page No. 22/41
register the Bye-Laws with such modification as he thinks necessary to bring about
conformity with the provisions of the Bye-Laws of any society having similar objects and
functions or for any other grounds he deems necessary for the interest of the co-operative
societies in particular and the co-operative movement in general. If the conditions laid down
in Section 4 and Section 6 are not fulfilled, the Registrar is to communicate an order of
refusal for registration together with the reasons thereof to the applicants by following the
procedure mentioned therein. Section 4 [5] of the Act, 2007 has stipulated that no society
shall be registered if in the opinion of the Registrar its declared objects are not likely to be
achieved or if it is economically unviable, technically and co-operatively unsound or it may
have an adverse effect upon any registered co-operative society or the co-operative
movement as a whole or if the members or the applicants do not need the services or are not
in a position to use the services of the co-operative societies.
33.5. The issuance of a certificate of registration under Section 11 of the Act 2007 by the
Registrar is after fulfillment of the following conditions, namely : - [a] the application is in
conformity with the requirements laid down under this Act; [b] the object of the proposed
cooperative society is the economic and social betterment of its members through the
provision of services to fulfill such common need as specified in the proposed bye-laws; and
[c] the proposed bye-laws are not inconsistent with the provisions of the Act and are not
against the aims and objects of the cooperative society.
33.6. The procedure for amendment of the Bye-Laws of a registered society has been laid
down in Section 12 of the Act, 2007. The Registrar is to consider the amendment of the Bye-
Laws upon fulfillment of the following conditions, namely, [a] the amendment is not
inconsistent with the provisions of the Act or any of the existing societies with similar
objectives or is not against the aims and objects of the co-operative society; and [b] the
amendment is in conformity with the cooperative principles specified in Schedule-A.
33.7. The proviso to Section 10 [2] has stated that the certificate of registration signed and
sealed by the Registrar shall be conclusive evidence that the society mentioned therein is a
co-operative society duly registered under the 2007 Act, unless it is proved that the
Page No. 23/41
registration of the society has been subsequently cancelled. Section 12 [3] has prescribed
that when the Registrar registers an amendment of a registered society, he has to issue a
certified copy of the amendment, which shall be conclusive evidence that the same has been
duly registered, unless it is proved otherwise and the amendment shall be binding upon the
society with effect from the date of registration.
33.8. Section 8 of the Act 2007 contains a mandate that all issues regarding formation,
registration or continuance of a society under the Act shall be decided by the Registrar.
34. The petitioner society is found to have been registered as a fishery co-operative society
on 13.01.1947 under the provisions of the then Assam Co-operative Societies Act, 1912 [II of
1912] [since repealed] vide Registration no. D/475/1946-47 with its registered office at
Dhubri, Assam. The petitioner society when it was initially registered with its Bye-Laws, had
its area of operation within 7 [seven] nos. of villages viz. [i] Gauripur, [ii] Asharikandi, [iii]
Geramari, [iv] Dalsingeralga, [v] Raipur, [vi] Rupshi, and [vii] Daobangi.
35. The respondent no. 7 society is found to have been registered as a co-operative
society under the provisions of the Assam Co-operative Societies Act, 1949 [since repealed]
on 18.02.1982 and the registration was effected with 27 nos. of villages within its area of
operation and with its registered office at Village - Bagurapara, Post Office - Asharikandi,
District - Goalpara. Later on, the area of operation increased to 34 nos. of villages. The
respondent no. 7 society was registered on the basis of an application made by 52 nos. of
persons. When the respondent no. 7 society was registered as a co-operative society on
18.02.1982, the area of operation of the society was registered to include the following
villages / areas / paras [1] Jhaleralga 1 st Part, [2] Jhaleralga 2nd Part, [3] Dalsingeralga 2nd
Part, [4] Balgontoll, [5] Fallmari 1st Part, [6] Fallmari 2nd Part, [7] Duberchar, [8]
Chalakurarchar, [9] Geramari Part VI, [10] Majherchar, [11] Baghmara, [12] Lalmoneralga,
[13] Sataralga, [14] River Block No. 11 N.C., [15] Brahmaputra Nadi N.C., [16] Dangerchar,
[17] Kuntherchar 1st Part, [18] Salakura Payestichar, [19] Majherchar Chalakura, [20]
Chalakurarchar Reserve Block, [21] Tang Bhita, [22] Payesti Chalakura, [23] Reserve Block -
Page No. 24/41
9, [24] Reserve Block - 10, [25] Asharikandi - Bogurapara, [26] Asharikandi - Chikasipara,
and [27] Kuntherchar Part II.
36. The Bye-Laws and the area of operation of the petitioner society came to be amended
in the year 2013. The Assistant Registrar of Co-operative Societies, Dhubri [non-party] in
pursuance of power delegated to him by the State Government vide notification dated
23.05.2012 and in exercise of the powers conferred under Section 12 [2] of the 2007 Act
registered the amended the Bye-Law no. 3 of the petitioner society on 17.01.2013 with the
following amended area of operation [1] Gauripur, [2] Asharikandi, [3] Geramari, [4]
Dalsingeralga, [5] Raipur, & [6] Madaikhali.
37. The parties are not in dispute on the issue that due to administrative exigency, the
erstwhile Asharikandi Revenue Village was bifurcated in and around the year 1961 and Village
- Madaikhali was created with a part of the erstwhile Asharkandi Revenue Village. The term,
'Village' has not been defined either in the Assam Co-operative Societies Act, 1949/2007 or in
the Assam Fishery Rules, 1953. In common parlance, 'Village' means a defined area surveyed
and recorded by or under the authority of the Government as a distinct and separate village.
The contestation between the parties herein is in relation to Village - Madaikhali with each of
the two contesting societies claiming that the said village and/or parts of the said village is
included in its respective area of operation.
38. Another pertinent aspect in the lis is the Order bearing no. CP.2/95/Pt-I/36 dated
20.02.2021 passed by the Registrar of Co-operative Society, Assam [non-party], which has
also got reflected in the Order dated 27.07.2021 of the Hon'ble Division Bench passed in Writ
Appeal no. 118/2021. The Order dated 20.02.2021 was passed by the Registrar of Co-
operative Societies, Assam [non-party] in an appeal preferred under Section 111 of the Co-
operative Societies Act, 2007. Section 111 [1] of the Assam Co-operative Societies Act has
provided that except where otherwise expressly provided to the contrary, an appeal shall lie
to the Registrar from the decisions made under the said Act and the Rules framed thereunder
by any Government Officer or by a Liquidator appointed under Section 95 of the Act. The
appeal where the Order dated 20.02.2021 was passed, was preferred by the petitioner
Page No. 25/41
society on 14.09.2020 against the decision and order contained in the Report dated
07.07.2020 submitted by the Assistant Registrar of Co-operative Societies, Dhubri [non-party].
38.1. It has emerged from the pleadings that the Order dated 20.02.2021 has been put to
challenge by the petitioner society in a writ petition, W.P.[C] no. 1555/2021. The writ petition,
W.P.[C] no. 1555/2021 came up for consideration before a coordinate bench on 23.09.2021.
After hearing the parties, the Hon'ble Court found the Order dated 20.02.2021 passed in
appeal by the Registrar of Co-operative Societies, Assam [non-party] unsustainable in law and
the Order dated 20.02.2021 was accordingly set aside. By the Order dated 23.09.2021, the
writ petition was disposed of by remanding the matter back to the Registrar of Co-operative
Societies, Assam [non-party] with a direction to the said authority to take the appeal of the
petitioner society again on board and thereafter, to decide the same by giving opportunities
to all the affected parties strictly by adhering to the due process of law. In the Order dated
23.09.2021, the Hon'ble Court has further observed that the decision to be taken in the
appeal should be an independent one without being influenced by the earlier Order dated
20.02.2021 and without being influenced by any observation made by the Hon'ble Court in its
Order dated 23.09.2021 passed in the writ petition, W.P.[C] no. 1555/2021. The Order dated
23.09.2021 passed in the writ petition, W.P.[C] no. 1555/2021 has been brought on record by
the petitioner society in an Objection/Rejoinder to the affidavit-in-reply filed on behalf of the
respondent no. 7 society, W.P.[C] no. 1555/2021. It was further directed that the entire
exercise of disposal of the appeal should be completed within a period of 2 [two] months
from the date of receipt of a certified copy of the Order dated 23.09.2021.
38.2. However, the outcome of the appeal after the same stood remanded back to the
Registrar of Co-operative Societies, Assam [non-party] by the Order dated 23.09.2021 has
not been brought on record in the present writ petition. One of the considerations to be given
by this Court while deciding the writ petition, in deference to the Order dated 27.07.2021 of
the Hon'ble Division Bench passed in Writ Appeal no. 118/2021, is whether in the context of
the Order dated 20.02.2021 passed by the Registrar of Co-operative Societies, Assam [non-
party], the respondent no. 7 society would become a valid bidder.
Page No. 26/41
38.3. One of the vital factors which went into consideration while passing the order of
settlement dated 26.02.2021 was the Order dated 20.02.2021 of the Registrar of Co-
operative Societies, Assam [non-party]. With the setting aside of the Order dated 20.02.2021
of the Registrar of Co-operative Societies, Assam [non-party] by the Order dated 23.09.2021
passed in the writ petition, W.P.[C] no. 1555/2021, one of the issues which is to be given
consideration in this writ petition, has stood removed. The Settling Authority took into
consideration the Order dated 20.02.2021 for the purpose of neighbourhood. By the time the
instant writ petition has come up for consideration after the previous Order dated 10.03.2021
passed in this writ petition, the Order dated 27.07.2021 passed in Writ Appeal no. 118/2021
and the Order dated 23.09.2021 passed in the writ petition, W.P.[C] no. 1555/2021, what is
available to be taken into account is the decision and order contained in the Report dated
07.07.2020 of the Assistant Registrar of Co-operative Societies, Dhubri [non-party], until the
same is unsettled in the appeal, against which the appeal under Section 111 of the Assam
Co-operative Societies Act, 2007 has been preferred by the petitioner society.
38.4. The certificate of registration in favour of the petitioner society came to be issued
when the Co-operative Societies Act, 1912 [since repealed] was in force. The certificate of
registration in favour of the respondent no. 7 society came to be issued when the Assam Co-
operative Societies Act, 1949 [since repealed] and the Assam Co-operative Societies Rules,
1953 were in force. It is under the provisions of the Assam Co-operative Societies Act, 2007,
the Assistant Registrar of Co-operative Societies, Dhubri [non-party] registered the amended
Bye-Laws on 17.01.2013 with amended area of operation of the petitioner society whereby
the Revenue Village - Madaikhali was incorporated in its area of operation. The above
certificates of registration and/or amendments were issued/made either by the Registrar of
Co-operative Societies, Assam [non-party] or by the Assistant Registrar of Co-operative
Societies, Dhubri [non-party]. Both the said two authorities were/are statutory authorities
under the Co-operative Societies Act, 1912 [since repealed], the Assam Co-operative Societies
Act, 1949 [since repealed] and the Assam Co-operative Societies Act, 2007 and such issuance
of certificates of registration and amendments of Bye-Laws were done by the said two
authorities purportedly in exercise of the statutory powers vested in them. The prescription
contained in those statutes says that a certificate of registration duly signed and sealed shall
Page No. 27/41
be conclusive evidence that the society mentioned therein is a co-operative society duly
registered under the statute, unless it is proved that the registration of the society has been
subsequently cancelled.
38.5. The Assistant Registrar of Co-operative Societies, Dhubri [non-party] when it was
asked to inquire into the representation dated 17.03.2020 submitted by the petitioner society;
and the representation dated 23.06.2020 of the respondent no. 7 society, submitted the
Report of Inquiry on 07.07.2020. In the Report dated 07.07.2020 submitted by the
respondent no. 7 society, the Assistant Registrar of Co-operative Societies, Dhubri [non-party]
being an authority under the Assam Co-operative Societies Act, 2007, had stated that he had
the authority and jurisdiction to resolve any issues related to the co-operative societies. It is
in such exercise of power, he had made the following decision in the Report of Inquiry dated
07.07.2020 :-
"[ix] At this point, with a view of resolving the dispute, after careful and prudent
consideration, the undersigned has arrived at the following decision.
[a] Both Gauripur Cooperative Fishery Society Ltd. and Geramari Gaon Panchayat
Min Samabay Samity Ltd. shall have the right to use the name of Village -
Madaikhali as address and their Members residing in the area mentioned below
in serial no. [b].
[b] Geramari Gaon Panchayat Min Samabay Samity Ltd. will operate in Bagurapara
and Chikasipara as their operational jurisdiction and area of operation while
Gauripur Cooperative Fishery Society Ltd. will operate in the area under
Madaikahli Village other than Baguapara and Chikasipara, if any left.
[c] Both the societies shall draw members from the area mentioned in serial no. [b]
among the people those who belong to SC Fishermen community.
* * * * * * *
Thus in combination of the findings and decision of the earlier report dated
26.06.2020 and today's report dated 07.07.2020, I dispose of the prayer petition dated
23.06.2020 submitted by Geramari Gaon Panchayat Min Samabay Samity Ltd. and the
allegation petition dated 16.03.2020, 17.03.2020 lodged by Gauripur Cooperative
Fishery Society Ltd. up to the extent of the jurisdiction of the undersigned."
Page No. 28/41
38.6. A provision is available in Section 6 of the Assam Co-operative Societies Act, 2007
empowering the Registrar to allow registration of more than one co-operative societies in the
same area of operation in case the need or necessity, demand for organization of such type
of societies requires registration of more such type of societies in the same area of operation.
Any other authority, if such power is delegated by any general or special order by the State
Government under Section 3[2] thereof may also exercise such power. The Assistant Registrar
of Co-operative Societies, Dhubri [non-party] had passed the decision in the Report of Inquiry
dated 07.07.2020 on the area of operation of the two contesting societies in purported
exercise of statutory power vested in the said authority and the said decision is the subject-
matter of challenge in the appeal under Section 111 before the Registrar of Co-operative
Societies, Assam [non-party]. In the above facts and circumstances, this Court is of the view
that the Settling Authority has to proceed for settlement of the Fishery on the above aspect,
by taking into account the fact situation obtaining on the date of its decision, unless the
position is unsettled by any decision of the Registrar of Co-operative Societies, Assam [non-
party] rendered in the appeal, which is stated to be pending on the date of delivery of this
order.
39. As has been mentioned above, the respondent no. 7 society submitted a certificate of
distance dated 12.03.2020 issued by the respondent no. 6 for the purpose of satisfying the
condition in Clause 4 [Ta] of the Tender Notice dated 27.02.2020 and the said authority i.e.
the respondent no. 6 had, at a later date on 23.06.2020, observed that the certificate of
distance dated 12.03.2020, issued by him earlier, should be treated as cancelled. It was
acting on the representation dated 16.03.2020 of the petitioner society the respondent no. 5
directed the respondent no. 6 to cause necessary enquiry. After such enquiry, the respondent
no. 6 had initially submitted the Report dated 23.06.2020 cancelling the certificate of distance
dated 12.03.2020. Not satisfied with the said enquiry report, the respondent no. 5 had once
again asked the respondent no. 6 to make further enquiry after receipt of a representation
dated 23.06.2020 from the respondent no. 7 society where it complained about causing the
earlier enquiry behind its back and without its knowledge. On the next occasion, the
respondent no. 6 had stated in his Report that he himself had made the enquiry by making
Page No. 29/41
site inspection and the respondent no. 6 in his Report dated 28.08.2020 had mentioned that
Asharikandi [Bagurapara] and Asharikandi [Chikasipara] are the local areas [Chuburi/Para]
which exist within the jurisdictional area of Revenue Village - Madaikhali under the Gauripur
Revenue Circle. In so far as the area of operation of a registered co-operative society is
concerned, it is the Registrar of Co-operative Societies/the Assistant Registrar of Co-operative
Societies, if such authority is delegated with such authority, who are statutorily vested with
the power and authority under the Assam Co-operative Societies Act, 2007 to decide on the
issues related to the area of operation of a registered co-operative society. In the Report
dated 28.08.2020, the respondent no. 6 had also mentioned about the distances of the
Fishery from Asharikandi [Bagurapara] and Asharikandi [Chikasipara] apart from the other
villages. With the findings and decision of the Assistant Registrar of Co-operative Societies,
Dhubri [non-party] recorded in its Report dated 07.07.2020 being prevalent at that time, the
Report dated 28.08.2020 is found to be in conformity with the Report dated 07.07.2020. Since
the Report dated 28.08.2020 was submitted pursuant to the direction of the respondent no.
5, an authority to whom the representation dated 16.03.2020 was submitted by the petitioner
society and the authority who had been asked to pass the Speaking Order by this Court, it
cannot be said that the earlier Report dated 23.06.2020 of the respondent no. 6 was not
superseded by the subsequent Report dated 28.08.2020. The respondent no. 6 being the
Circle Officer of the Gauripur Revenue Circle where the concerned villages/chuburis/paras are
situated and he being the concerned revenue authority, was competent and was the best
positioned authority to verify and certify on such factual aspects. The grounds of challenge to
the Report dated 28.08.2020 have not been found laid in any specific line by the petitioner
society in the writ petition. If it is assumed that the petitioner society is disputing issues as to
whether Asharikandi [Bagurapara] and Asharikandi [Chikasipara] are parts of Madaikhali or
about the residential status of the members of the respondent no. 7 society indicated in the
Report dated 28.08.2020, it is also pertinent to state that this Court while exercising its extra-
ordinary jurisdiction under Article 226 of the Constitution of India does not embark into
determination of such questions of fact in the presence of such a Report dated 28.08.2020
which is in the nature of a fact-finding report, that too, when such report was submitted by
an authority who was the proper and best positioned authority.
Page No. 30/41
39.1. This Court in its Order dated 25.06.2020 passed in the two writ petitions - W.P.[C] no.
2343/2020 and W.P.[C] no. 2562/2020 - had observed that the grievances raised by the
petitioner society in the writ petition, W.P.[C] no. 2562/2020 may also be considered by
passing a speaking order. It is in consequence of the said observation the Speaking Order
dated 14.09.2020 came to be passed by the respondent no. 5 in relation to the
representation dated 16.03.2020 submitted by the petitioner society. Based on the Report
dated 28.08.2020 submitted by the respondent no. 6 and the Report dated 07.07.2020
submitted by the Assistant Registrar of Co-operative Societies, Dhubri [non-party], the
respondent no. 5 had passed the Speaking Order dated 14.09.2020 inter alia holding that the
respondent no. 6 in his Report dated 28.08.2020 had clarified the position regarding the
certificate of distance dated 12.03.2020 and held the view that the issues/objections raised
by the petitioner society in its representations, dated 16.03.2020 and dated 17.03.2020, were
not based on actual facts, thus, entailing rejection. The Order dated 25.06.2020 was passed
in connection with the writ petition, W.P.[C] no. 2562/2020, which was preferred by the
petitioner society itself and the Order dated 25.06.2020 was not assailed by the petitioner
society at any later point of time.
39.2. The Speaking Order dated 14.09.2020 was passed after taking into consideration the
findings in the Report dated 28.08.2020. In so far as the contention raised by the petitioner
society in the Representation dated 16.03.2020 with regard to inclusion of members by the
respondent no. 7 society from Village - Madaikhali, Asharikandi and South Geramari in its list
of members and the challenge to the list of members issued in favour of the respondent no. 7
society by the Assistant Registrar of Co-operative Societies, Dhubri [non-party] are
concerned, such subject-matters are within the authority and jurisdiction of the competent
authority under the Assam Co-operative Societies Act, 2007. The respondent no. 5 and the
respondent no. 6 cannot be said to have authority and jurisdiction on such subject-matters.
In such view of the matter and in the absence of any specific ground of challenge by the
petitioner society in respect of the Speaking Order dated 14.09.2020 in the whole body of the
writ petition, this Court has found no basis in the challenges made to the Report dated
28.08.2020 and the Speaking Order dated 14.09.2020 and as a consequence, has found no
good and sufficient reasons to interfere with the Report dated 28.08.2020 and the Speaking
Page No. 31/41
Order dated 14.09.2020. Thus, the assailments made in this regard in the prayer part of the
writ petition fail.
40. Taking into consideration the aforesaid Reports, Speaking Order, etc., the jurisdictional
Deputy Commissioner [the respondent no. 4] as the Tender Inviting Authority by his Report
dated 29.09.2020 had forwarded the necessary materials relating to the tender process for
settlement of the fishery to the Settling Authority i.e. the Government in the Fishery
Department for taking necessary action from its end. While forwarding the same, the Tender
Inviting Authority had expressed to the effect that as per the Comparative Statement [CS]
prepared in respect of the tender process the respondent no. 7 society was the highest
eligible bidder and settlement of the fishery might be considered for settlement in favour of
the respondent no. 7 society.
40.1. In the Tender Notice dated 27.02.2020, it was notified that the Fishery, a 60%
category fishery, would be settled for a period of 7 [seven] years. The settlement of a 60%
category fishery, at the cost of repetition, is to be made as per Rule 12 of the Assam Fishery
Rules, 1953. As per Rule 12, except those referred to in Rule 8[b] of the Assam Fishery Rules,
1953, all registered fisheries shall be settled under the tender system of sale in place of sale
by auction. The proviso to Rule 12 has provided that the Government shall settle a 60%
category fishery with special category of co-operative societies, non-governmental
organisations and self help groups consisting of 100% actual fishermen in the neighbourhood
of the fishery concerned by the tender system. The definition of 'special category' has been
provided in Explanation - 1 thereto. Explanation - 2 has provided that 'a 60% category
fishery' means 60% of registered fisheries available in a Civil Sub-Division eligible for
settlement in a particular year. The Assam Fishery Rules, 1953 has been made in exercise of
the powers conferred by Section 155 and Section 156 of the Assam Land and Revenue
Regulation, 1886 and by Section 6 of the Indian Fisheries Act, 1897. Thus, the Assam Fishery
Rules, 1953 is a set of statutory rules and by virtue of Rule 12 and other provisions contained
therein, the Government is obligated to settle a 60% category fishery as per the statutory
prescription contained in the Assam Fishery Rules, 1953.
Page No. 32/41
40.2. The Deputy Commissioner of the concerned district is a Tender Inviting Authority and
he is not the Tender Settling Authority in respect of a 60% category fishery. It is the
Government who is the Tender Settling Authority in respect of a 60% category fishery. In
terms of the Tender Notice dated 27.02.2020, the bidders were required to submit a number
of certificates/documents along with their bids. The purpose of the Committee, constituted by
the respondent no. 4 and headed by the respondent no. 5, was to scrutinise the
certificates/documents, etc. submitted by the participant bidders and prepare a Comparative
Statement [CS] for the purpose of facilitating the jurisdictional Deputy Commissioner as the
Tender Inviting Authority to forward the matter of settlement to the Tender Settling Authority
in the Government. As the Committee for scrutiny of the tender documents was constituted
by the Tender Inviting Authority, it cannot be comprehended that it can make any
recommendation for settlement of a 60% category fishery by terming the bid of one
particular bidder as a valid one and by declaring the bid of another particular bidder as an
invalid one when the jurisdictional Deputy Commissioner forwards the tender document to
the Tender Settling Authority in respect of a 60% category fishery, which is the State
Government in the Fishery Department. The same proposition is also applicable for the
jurisdictional Deputy Commissioner as the Tender Inviting Authority. Even if any
recommendation is made by the Tender Inviting Authority or the Committee constituted by
the Tender Inviting Authority, it is the Tender Settling Authority i.e. the State Government in
the Fishery Department who has to consider the bids of the participant bidders individually
and with independent application of mind by taking also into account the
certificates/documents submitted in support of such bids and take the final decision in
relation to settlement of a 60% category fishery, without being influenced by any observation
made in any report by the jurisdictional Deputy Commissioner as the Tender Inviting
Authority. Therefore, the Report bearing no. DRF.5/2020/441-42 dated 29.09.2020 of the
respondent no. 4 is to be considered from the perspectives discussed above. Such a view has
also been expressed in the common Order dated 11.02.2021. Therefore, there is no reason
and occasion for interference with the Report no. DRF.5/2020/441-42 dated 29.09.2020.
41. In the instant writ petition, the petitioner society has assailed the decision of the
Settling Authority to settle the Fishery in favour of the respondent no. 7 society by the order
Page No. 33/41
of settlement dated 26.02.2021 on the grounds that the Settling Authority did not take into
account the terms and conditions incorporated in Tender Notice dated 27.02.2020, more
particularly, Clause 4 [Kha], Clause 4 [Nya] and Clause 4 [Ta] of the terms and conditions of
the Tender Notice vis-à-vis non-responsiveness of the bid of the respondent no. 7 society on
the said counts.
42. In view of such challenge to the order of settlement dated 26.02.2021, it becomes
imperative to have a look at the contents of the impugned order of settlement itself. For
ready reference, the order of settlement is quoted in verbatim hereinbelow :-
" GOVT OF ASSAM
FISHERY DEPARTMENT : DISPUR : GUWAHATI : 781006
No FISH 58/2020/310 Dated Dispur the 26th February 2021
ORDER
Perused : Order dated 11.02.2021 of Hon'ble High Court in W.P.[C] no. 3379/2020, W.P. [C] no. 5216/2020, W.P.[C] no. 3051/2020, W.P.[C] no. 2562/2020, W.P.[C] no. 2343/2020 & W.P.[C] no. 4434/2020 Examined : The proposal for settlement of Gr No 1/87 Dharnad Brahmaputra Part I and Satakari Nadi Fishery from DC, Dhubri vide letter No DRF 5/2020/441-42 dated 29.09.2020 Examined : Order of Registrar of Cooperative Societies, Assam vide No CP/95/Pt-I/36 dated 20.02.2021 This is regarding settlement of Gr No 1/87 Dharnad Brahmaputra Part I & Satakuri Nadi Fishery in Dhubri district. On completion of tenure of earlier settlement of the fishery, DC, Dhubri invited tenders with issue of NIT vide No DRF 5/2020/3-6 dated 27.02.2020 for fresh settlement of the fishery. In response to said NIT, all together 5 [five] tenders were submitted and status of each bid is shown below :
1. M/s Milanpur Anuchusita Jati Kalyan FCS Ltd has offered Rs. 1,70,707.00 for 7 years Page No. 34/41 which is the 2nd highest bid @ Rs. 24,30,101.00 PA.
2. M/s Gauripur FCS Ltd : The society has offered Rs. 1,09,04,299.00 for 7 years @ Rs.
15,57,757.00 PA which is 3rd highest bid.
3. M/s Geramari G.P. Meen Samabai Samity Ltd has offered Rs. 1,90,05,000.00 for 7 years @ Rs. 27,15,000.00 PA which is the 1st highest.
4. M/s Dharnad Brahmaputra FCS Ltd has offered Rs. 1,07,48,507.00 for 7 years @ Rs.
15,35,501.00 PA which is 4th highest
5. M/s Sareswar MSS Ltd has offered Rs. 1,01,53,507.00 for 7 years @ Rs. 14,50,501.00 PA which is the 5th highest After scrutiny of documents as per proposal submitted by DC, Dhubri bids offered by M/s Gauripur FCS Ltd at Rs. 1,09,04,299.00 for 7 years @ Rs. 15,57,757.00 PA, M/s Geramari G.P. Meen Samabai Samity Ltd at Rs. 1,90,05,000.00 for 7 years @ Rs. 27,15,000.00 PA & M/s Dharnad Brahmaputra FCS Ltd at Rs. 1,07,48,507.00 for 7 years @ Rs. 15,35,501.00 PA were found valid.
The other 2 [two] bids were found invalid for non submission of proper documents in terms of NIT.
For deciding on the neighbourhood issue, Settlement authority took into consideration the order of Registrar of Cooperative Societies vide No CP/95/Pt-I/36 dated 20.02.2021 as well Neighbourhood Certificate issued by Revenue Circle Officers regarding the Geramari & Gauripur Societies.
Thus, after consideration of all materials in hand as per direction/order of the Hon'ble Court quoted above, Govt. is of the view that the bid offered by M/s Geramari G.P. Meen Samabai Samity Ltd at Rs. 1,90,05,000.00 for 7 years @ Rs. 27,15,000.00 PA is the highest valid bid.
Accordingly Govt. in Fishery Department is pleased to settle Gr No. 1/87 Dharnad Brahmaputra Part I & Satakuri Nadi Fishery in Dhubri district to M/s Geramari Gaon Panchayat Meen Samabai Ltd at Rs. 90,05,000.00 for 7 years @ Rs. 27,15,000.00 PA from the date of handing over possession after taking over possession from the temporary lessee M/s Gauripur FCS Ltd vide Govt. order No FISH 58/2020/11 dated 27.02.2020.
This has approval of the highest competent authority of Govt. in Fishery Department as well as in compliance of the order dated Hon'ble High Court quoted above.
Inform all concerned accordingly including the Hon'ble High Court as well as Writ Petitioner/Respondent Societies in the cases under reference.
Page No. 35/41Commissioner & Secretary to the Govt. of Assam Fishery Department"
43. It is in the light of the authority vested in the Settling Authority under the provisions of the Assam Fishery Rules, 1953 and the directions given by this Court in the common order dated 11.02.2021, the impugned order of settlement dated 26.02.2021 needs to be examined. The authorities like the respondent no. 4, the respondent no. 5 and the respondent no. 6 are authorities which are subordinate authorities to the Settling Authority in a matter relating to settlement of a 60% category fishery under the Assam Fishery Rules, 1953. The respondent no. 4 is the Tender Inviting Authority. The scrutiny of the bids of the participant bidders at the levels of the Tender Inviting Authority and the other sub-ordinate authorities are only steps in the midway of the process of settlement of the Fishery where the final decision on the settlement of the Fishery is yet to be taken by the Tender Settling Authority. Any view taken in the process by any of said authorities, not statutorily vested with the power of settlement, cannot be deemed to be the final view taken in the matter of settlement. Thus, it is the State Government which has been vested with the statutory power to examine and decide as to whether the terms and conditions of the Tender Notice dated 27.02.2020 are complied with or not by the bidders by keeping the provisions contained in Rule 12 of the Assam Fishery Rules, 1953 into consideration. Any view taken by such other authorities in the interim stage does not relieve the Settling Authority in any manner from the mandate given by the statute and it is obligated under law to apply its own independent mind to examine the validity or otherwise of the bids of the participant bidders and in doing so, it has to record its reasons disclosing about due and proper application on mind on its part to allay any notion of unfairness, arbitrariness and non-transparency on the touchtone of Article 14 of the Constitution of India. It is ex-facie apparent from the impugned order of settlement that there was absence of reasons therein. It is not demonstrated from the order of settlement dated 26.02.2021 that the Settling Authority had exercised its mind independently and separately without any pre-conceived view on the validity or invalidity of the bids of each of the 5 [five] participant bidders. In the common order dated 11.02.2021, it was specifically observed that there were claims and counter claims regarding the validity of the bid Page No. 36/41 submitted by the respondent no. 7 society and there would be no need for the Court to embark on a process of adjudication of such claims when those were based on factual realities existing at the ground level and the departmental authorities would figure out as to whether the bids submitted by the participant bidders were technically valid or not. Direction was made to the Settling Authority to examine the recommendation made by the Tender Inviting Authority in the Report dated 29.09.2020 and thereafter, to approve the settlement of the Fishery in favour of highest valid bidder after taking into account all the relevant facts and circumstances of the case pertaining to the eligibility of the bidders.
44. In matters relating to distribution of State largesses and, more particularly, grant of settlement, the State or its instrumentalities/agencies are bound to adhere to the norms, standards and procedures laid down by them and it is not permissible for them to make a departure in an arbitrary manner. Though the decision is not amenable to judicial review, but the Court while exercising its power of judicial review can examine the decision making process and interfere if it is found vitiated on the grounds of unreasonableness, arbitrariness or mala fides. The law is settled that in considering challenge to administrative decision the Court does not ordinarily interfere as if it is sitting in appeal over the decision. It is a settled position of law, as expounded in Tata Cellular vs. Union of India, [1994] 6 SCC 651, the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. The test for the Court is to see whether there is any infirmity or arbitrariness in the decision making process. The power of judicial review is also applicable in the matters of distribution of State largesses in order to prevent arbitrariness. The purpose of judicial review in contractual matters is to examine as to whether the principles laid down in Article 14 of the Constitution of India have been kept in view while accepting and refusing a tender and is to ensure that all the participant bidders receive fair treatment at the hand of the administrative authority. The Court while exercising its power of judicial review can examine a matter of grant of distribution of State largesses to satisfy itself as to whether the authority which has been vested with the power to take the decision has adopted a procedure satisfying the test of Article 14 of the Constitution of India or in conformity with the statutory provisions governing the matter which is the Assam Fishery Rules, 1953 in the case in hand or has discharged its function by examining each claim on its own merits on relevant factors and by Page No. 37/41 keeping aside irrelevant factors. An authority who has been vested with the statutory power to take a decision in a particular matter like the State Government in matters relating to settlement of a 60% category fishery, has to make its decision after due and proper application of mind and by taking into consideration the norms, standards and procedures laid down in respect of the subject-matter. In a case of the present nature, that is, a competitive bidding process for settlement of a 60% category fishery amongst the participant bidders, application of mind to the terms and conditions of the Tender Notice qua the tender documents and thereafter, to record its findings regarding the validity or otherwise of the bids of each of the bidders by the Settling Authority are essential pre-requisites of an order of settlement. An order passed by such an authority with statutorily vested power, must demonstrate that there was application of mind which can be done only by recording the reasons which have led the said authority to pass the order in question. Absence of reasons in the order passed by such an authority is clearly suggestive of the order being arbitrary and therefore, not sustainable in law. Non-recording of reasons in an order of settlement not only results in hindrances for the Court to exercise its power of judicial review under Article 226 of the Constitution of India but also gives rise to a situation of vulnerability about the decision making process which must not only to be done, but should also to be seen free from the elements of arbitrariness, fairness and transparency. If any decision is taken by a statutory authority at the instance or suggestion of an authority who has no role to play in the decision making process, the same would be illegal.
45. It is a settled legal proposition that an administrative order must be supported by reasons recorded in it and while deciding an issue, the authority is bound to give reasons for its conclusion. The absence of reasons makes an order unsustainable, more particularly, when the order is subject to further challenge. When by keeping in mind the above aspects, as discussed above, the order of settlement dated 26.02.2021 is looked at, it is found that the order has fallen short on the above aspects. The Settling Authority had expressed therein that it has found the bids of three bidders, already indicated in paragraph 7 above, as valid ones and it had reached such opinion after scrutiny of the documents as per proposal submitted by the respondent no. 4, who is only the Tender Inviting Authority. Similarly, the Settling Authority had found the bids of the remaining two bidders, also already indicated in Page No. 38/41 paragraph 7 above, as invalid bids. The order of settlement is also found not in conformity with the direction made in the common order dated 11.02.2021 whereby the mandate given was to pass the order of settlement in favour of 'the highest valid bidder' after taking into account all the relevant facts and circumstances of the case. The Settling Authority as the statutory authority for settlement of the 60% category fishery is found to have gone ahead to pass its decision on the basis of the proposal received from the respondent no. 4. As the decision is found to have been taken by the statutory authority as per the suggestion of another authority who has no statutory role to play and in the absence of any reason assigned by the authorities demonstrating its independent and due application of mind, the order of settlement dated 26.02.2021 is found vulnerable and unsustainable in law. As a result, the said order of settlement dated 26.02.2021 is set aside.
46. One of the grounds of challenge made in the writ petition is that as per Clause 4 [Kha] of the Tender Notice dated 27.02.2020, a bidder was required to submit a Bakijai Clearance Certificate from the office of the jurisdictional Deputy Commissioner clearly in the name of the society or the group, as the case may be. According to the petitioner society, the bid of the respondent no. 7 society ought not to have been accepted for non-compliance of Clause 4 [Kha] of the Tender Notice for the reason that the Bakijai Clearance Certificate dated 12.03.2020 issued from the office of the Deputy Commissioner, Dhubri was in the name of the Secretary of the respondent no. 7 society and not in the name of the respondent no. 7 society. The petitioner society in this connection has referred to a Notification bearing no. FISH-19/65/2017-FISHERY/1 [eCF No. 50022] dated 18.01.2018 issued under the hand of the Additional Chief Secretary to the Government of Assam, Fishery Department, which has been issued under the order of the Governor. In the said Notification, it has been stipulated that the Bakijai Clearance Certificate is to be furnished by the Bakijai Authority under the concerned Deputy Commissioner where the Society/NGO is registered and the same shall invariably be in the name of the Society/NGO/SHG and not in the name of the office bearers of the Society/NGO/SHG. It is mentioned therein that the objects behind issuance of the Notification is to streamline the procedure for submission of information/documents with the tender so that there is uniformity in all such tenders through Notice Inviting Tenders [NITs] floated by the Deputy Commissioners/Sub-Divisional Officers [SDO] in respect of settlement Page No. 39/41 of 60% Government Fisheries by the Government in the Fishery Department; and to maintain transparency and to avoid legal complications. The copy of the Notification dated 18.01.2018 was forwarded to the Director, Printing & Stationary Department, Assam Government Press for publication of the Notification in the Assam Gazette. It is not placed on record as to whether the Notification dated 18.01.2018 has been published in the Assam Gazette at any point of time. It has been held as a settled law in State of Uttaranchal vs. Sunil Kumar Vaish, reported in [2011] 8 SCC 670, that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(2) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of the State, as the case may be, are required to be authenticated in the manner specified in the Rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the Rules, the same cannot be treated as an order on behalf of the Government. In Gulf Goans Hotels Company Limited & another vs. Union of India & others, reported in [2014] 10 SCC 673 the Hon'ble Supreme Court of India has considered the question, "what is 'Law'?" and in that context, it is observed that it may be understood that a Government policy may acquire the 'force of law' if it conforms to certain form. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In so far as the mode of publication is concerned, it has been held that if there is no prescription laid down about the mode of publication, the law will take effect only when it is published through the customarily recognized official channel, namely, the Official Gazette. In that case, the Hon'ble Supreme Court has considered about publication of a set of Guidelines and has found that the Guidelines were admittedly not gazetted. In that context, it is held that since the Guidelines failed to satisfy the essential and vital parameters/requirement of law in view of its non-publication in the official gazette, the same cannot be enforced to the prejudice of the appellants therein. On the said ground of challenge, the respondent no. 7 society has, in rebuttal, contended that the Bakijai Clearance Certificate, submitted by it, was issued pursuant to an application wherein it had specifically requested to issue a Bakijai Clearance Certificate in the name of the respondent no. 7 society. It has further been asserted that no Bakijai proceedings was pending against the respondent no. 7 society at the Page No. 40/41 relevant time and therefore, there could not be any question of non-compliance of Clause 4 [Kha] of the Tender Notice. It has further referred to a decision of a Division Bench of this Court rendered in Writ Appeal no. 294/2011 [Abu Talib vs. the Assam Fisheries Development Corporation Ltd.] wherein the Division Bench had held that the requirement of submitting Bakijai Clearance Certificate could not be taken as a rigid requirement. In view of lack of necessary details as regards publication or non-publication of the Notification dated 18.01.2018 in the Official Gazette, this Court is not in a position to give any view as regards the enforceability of the Notification dated 18.01.2018 and it is for the Settling Authority in the Fishery Department, Government of Assam to examine the enforceability of the Notification dated 18.01.2022 in the context of its publication or non-publication in the Official Gazette to bind the participant bidders. Therefore, in view of the above backdrop, this Court is of the considered view that the Settling Authority while considering the matter of settlement of the Fishery shall take into consideration the above aspects with regard to compliance of Clause 4 [Kha] of the Tender Notice wherein mention was made for submission of Bakijai Clearance Certificate vis-à-vis the validity of the bid of the respondent no. 7 society and all other participant bidders.
47. With the conclusion reached and with the setting aside of the order of settlement dated 26.02.2021 for the reasons assigned hereinabove, the matter is remanded back to the Settling Authority with a direction to revisit the matter of settlement of the Fishery viz. Group no. 1/87 Dharnad Brahmaputra Part I & Satakuri Nadi Fishery in Dhubri District for passing a fresh settlement order in terms of the observations and directions made in the common order dated 11.02.2021 and in this order. The Settling Authority in the Fishery Department, Government of Assam is directed to complete the exercise within a period of 1 [one] month from the date of passing of this order, by taking into account the fact situation obtaining in relation to the appeal under Section 111 before the Registrar of Co-operative Societies, Assam on the date of its decision, as indicated in paragraph 38.6 above. This observation is made for the sole reason that the Settling Authority has to proceed with the matter of settlement of the 60% category Fishery at the earliest and it cannot wait indefinitely for the final outcome of the appeal, as the matter of settlement of a 60% category fishery serves two prime objectives, firstly, it earns revenue to the State Exchequer, and secondly, it serves Page No. 41/41 the interest of the weaker sections in the society namely the fishermen community.
48. For the purpose of clarity, it is made clear that whatever observations that are made here are only in deference to the order dated 27.07.2021 passed by the writ appellate court to consider and in relation to the challenges made in the writ petition. Any further observation on the validity or otherwise of the respective bids of the participant bidders would amount to observations made on their respective claims at an anterior point of time when the Settling Authority has already been directed to examine validity or invalidity of the bids of each of the participant bidders in relation to the terms and conditions of the Tender Notice dated 27.02.2020 by verifying about submission of the document/certificates, etc. asked for to be annexed with the bid.
49. For the findings arrived at, the observations made, directions given and the matter being remanded back already, a discussion on the decisions referred to by the parties appears not necessary as the same would add further weight to the order.
50. In continuation of the direction made by the writ appellate court in its Order dated 27.07.2021, it is provided that the petitioner society will operate the Fishery only as a temporary and on ad-hoc basis till the decision on settlement of the Fishery is passed by the Settlement Authority in the terms mentioned hereinabove.
51. With the findings arrived at, the observations made and directions given above, the writ petition assailing the order of settlement dated 26.02.2021 is partly allowed to the extent indicated. There shall, however, be no order as to cost.
JUDGE Comparing Assistant