Gauhati High Court
Ananta Das vs The Assam Fisheries Development Corpn. ... on 21 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 9
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/7
GAHC010191842019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5954/2019
1:ANANTA DAS
S/O. LT. MOHAN DAS, VILL. BAMPARA, P.O. DHENGA, DIST. BARPETA,
ASSAM, PIN-781305.
VERSUS
1:THE ASSAM FISHERIES DEVELOPMENT CORPN. AND 2 ORS.
TO BE REP. BY ITS MANAGING DIRECTOR, VIP ROAD,
CHACHAL, GUWAHATI-36.
2:THE MANAGING DIRECTOR
ASSAM FISHERIES DEVELOPMENT CORPORATION
VIP ROAD, CHACHAL,
GUWAHATI-36.
3:LABA KUMAR DAS
S/O. LT. SHANKAR DAS
VILL. GANAKPARA, P.O. MAKRIKUCHI (CHENGA)
P.S. TARABARI,
DIST. BARPETA, ASSAM,
PIN-781305
Advocate for the Petitioner : DR. B U AHMED
Advocate for the Respondent : MS. B GOGOI (SC, AFDC)
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 21-01-2020 Heard N. Haque, learned counsel for the petitioner. Also heard Mr. S. Kataki, Page No.# 2/7 learned Counsel for the Caveator/respondent No.3 and Ms. M. Das, learned counsel for the respondent nos 1 and 2.
The respondent, Assam Fisheries Development Corporation (AFDC) floated tender notice No. 1/1991 dated 21.2.2019 inviting tender for settlement amongst others the Kukarjan beel under Barpeta district for seven years with effect from the financial year 2019-
20. The minimum Government value for the said particular fishery was fixed at Rs.3,65,000/-.The petitioner participated alongwith other bidders including the respondent No. 3. After being successful in the technical bid the financial bid was opened and the petitioner was the highest bidder of Rs.48,59,042/- and respondent No.3 offered Rs.37,57,031/- for 7 years . Vide impugned order dated 3.8.2019 the said fishery was settled with the respondent No. 3, however at the rate of the bid of the petitioner. The impugned order is reproduced hereinbelow:
"ASSAM FISHERIES DEVELOPMENT CORPORATION LTD (A GOVT OF ASSAM UNDERTAKING) V.I.P ROAD CHACHAL, GUWAHATI-36 ORDER This the order of settlement of Kukarjan beel of Barpeta district. There are 2 Nos of contenders Shri Ananta Das who is H1, Shri Laba Das is H2 and Shri Pranab Kr. Das is H3 Sri Ananta Das is the office beare of M/s Bampara Fishery Co-op Society and Ananta Das being office bearer is running Barkana Beel Fishery of Barpeta district under AFDC Ltd. From records it is found that his practices of paying revenue are irregular and not found to be satisfactory. He has to pay Rs. 13.00 lakh of the lease value of Barkana beel for 2018-19 and 2019-20. Hence his tender as H1 cannot be accepted. Moreover his financial bid tender is found to be defective.
Sri Laba Kr.Das who is genuine and worthy of selection for settlement. Though he is H2 yet he may be offered H1 rate for getting settlement of the beel.
Hence Kukarjan beel is settled with Shri Laba Kr. Das at H1 rate @ Rs. 7,01,007/- per year for 6 years and Rs. 6,53,000/- for Shri Laba Kr. Das is directed to deposit the 1 st installment of the 1st year revenue of Rs 1,73,538/- with additional security money of Rs 91,250 as per norms within 7 days from receipt letter and entered into agreement as per norms failing which his order will be treated as cancelled.
This has the approval of Hon'ble Chairperson.
Sd/-Illegible Managing Director Assam Fisheries Development Corporation ltd."
Page No.# 3/7 Mr. Haque submits that the petitioner is aggrieved insofar as the decision making process of the respondent corporation inasmuch as holding the petitioner as incapable on the ground of default by M/s Bampara Fishery Co-Operative Society Ltd in which the petitioner is one of the office bearers is not proper. The default of the said society in paying the revenue is its internal matter. The petitioner on his own volition individually participated in the tender process but not representing the Bampara Fishery Co-Operative Society Ltd. The action of the said society wherein the petitioner is one of the office bearers depends on the collective decision of the other office bearers of the said society and as such only because of the fact that the petitioner is one of the office bearers of said society, the respondent No.2, Managing Director of said Corporation had made an error in such assessment of the credentials of the petitioner in his individual capacity . He further submits that the Bampara Fishery Co-Operative Society Ltd approached this court by filing WP(C) No. 4684/2017 which was disposed of directing the said society to act as per the terms set out by the court. In the said WP(C) No. 4684/2017 vide order dated 21.5.2019 it directed the petitioner to deposit Rs 9 lacs for the year 2017-18 and 2018-19 and a specific direction was given to the corporation not to take coercive measures . However on its failure to deposit the amount the Corporation was granted the liberty to take any coercive measure. As such the assessment of the credential of the petitioner as apparent in the impugned order is totally unacceptable. In support of his contention that the participation in the tender process by the petitioner as one of the office bearers of said Bampara Fishery Co-Operative Society Ltd for the Barkana Beel (fishery) and the subsequent participation of the petitioner in his individual capacity in a separate tender cannot be equated to be the same and only in support of said contention Mr.Haque relied Surjya Das Vs Assam Stae Fisheries Devbelopment Corporation ltd and three others reported in 1995 1 GLR 408. Accordingly it is the submission of learned counsel for the petitioner to set aside the impugned order.
Mr. Kataki countering the submission of Mr. Haque submits that the respondent Corporation while finalizing the tender has to assess the capability both in respect of the performance of the contractual obligation and the financial standing of the successful tenderer. There should not be any interference in such decision making process. In the Page No.# 4/7 impugned order it is found that the respondent Corporation has come to the conclusion in respect of the capability of the petitioner to perform the settlement terms on the basis of records as the said Bampara Fishery Co-Operative Society Ltd in which petitioner is one of the office bearers is the settlement holder of a separate fishery under the respondent Corporation . In support of his contention Mr. Kataki relying New Horizons Limited and another Vs Union of India and other s reported in (1995) 1 SCC 478 submitted that every employer in a contractual obligation has a right to assure himself about the credentials of the person to whom the performance of the contractual obligations are entrusted. The said credentials are examined from the commercial point of view. Accordingly it is his contention that there is no flaw in the decision making process of the respondent Corporation while passing the impugned order, settling the fishery to the respondent No.3.The Corporation had taken note of its financial earnings and as such, the respondent No. 3 was settled with the fishery at the rate quoted by the petitioner. The financial angle which the Corporation had looked into cannot be interfered by this court. Referring to the decision relied by Mr. Haque it is his contention that the said finding was not consciously arrived at by the court and the same cannot be looked into inasmuch as the observation relied by Mr. Haque was neither an issue in the said writ petition nor there was any argument to decide the issue. In support of his contention Mr. Kataki relied the case of State of U.P and another Vs Synthetics and chemicals ltd and another reported in (1991) 4 SCC 139. Accordingly as per Mr. Kataki there is no merit in this writ petition and the same is liable to be dismissed.
Ms. M. Das, learned counsel on behalf of AFDC submits before this court that the records as called for by the court has not yet been received. However upon a specific query made to the learned counsel for the parties in this writ petition, they agreed to submit their argument for disposal of the writ petition without the records. Ms. Das supported the submission made by Mr. Kataki on behalf of respondent No.3.
I have given due consideration to the submissions made by the learned counsel. The issue before this court as raised by the learned counsel more specifically, Mr. Haque is in respect of the assessment made by the respondent Corporation in respect of the performance and the financial capability of the petitioner. Before entering into the issue raised by Mr. Haque it would be proper to circumscribe my limitations in order to examine the decision Page No.# 5/7 making process of the Corporation. The employer in the present case, the respondent Corporation is well placed in order to decide the capability of the performance of the stipulations by the petitioner in the lease agreement after settlement of the fishery. The petitioner is one of the office bearers of M/S Bampara Fishery Co-Operative Society Ltd. If the observation made in New Horizons Limited and another Vs Union of India and others (supra) is considered, the employer before entering into a contract in order to execute some work by the contractor has every right to know the credentials of the contractor from a commercial point of view . The Corporation is leasing out the fishery against the revenue quoted by the bidders. Under such circumstances the assessment of the financial capability of the bidders and the manner for such assessment is totally within the domain of the respondent Corporation. Interference of such domain by this court and the scope thereof is very limited until and unless the petitioner is able to discharge his burden by showing that the said decision making process is unreasonable and the same arrived at arbitrarily and violative of Article 14 of the Constitution.
The petitioner as one of the office bearers of M/s Bampara Fishery Co-operative Society admittedly filed WP(C) No. 4684/2017 and was protected by this Court directing the petitioner to deposit the defaulted revenue to the Corporation . As such action on the part of the society wherein the petitioner is a member itself goes to show that they had to take protection of the court in order to maintain the settlement of another fishery. Whether the said action of the society in its legal entity of a juristic person amounts to be an action of the petitioner in his individual capacity; Mr. Haque relied on Surjya Das Vs. Assam State Fisheries Development Corporation Ltd. and three others (supra) in support of his contention. Therein the 4th respondent as Chairman of another fishery Co-operative Society was a defaulter and as such his tender ought to have rejected. It was held that regarding default for that 4 th respondent was not individually respondent if at all the Society was a defaulter. However, I would like to reproduce the observation made by the Hon'ble Apex Court in State of U.P and another Vs Synthetics and chemicals ltd. and another (supra) to examine the submission of Mr. Haque:
"41 Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be Page No.# 6/7 considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond on Jurisprudrnce 12th Edition p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perperated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. State of Pondicherry, it was ob served, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
If we apply the said ratio and take note of the submission made by Mr. Haque on the basis of judgment of the learned Single Judge in Surya Das(supra) in fact, the issue raised before the court was an issue before the learned Single Judge but the finding was arrived at without reference to the crucial words of any rule and without citation of any authority Accordingly I am constrained to hold that the said decision as 'precedent sub silentio' and the issue raised by Mr. Haque in the present case in hand is decided against him.
The petitioner failed to discharge the burden in order to show that the decision taken by the respondent No.2 is without any basis or unreasonable and arbitrary. As observed the respondent No.2 on the basis of materials made the said observation in respect of the financial capability of the petitioner. The said decision cannot be interfered by this court in the process of judicial review.
Considering the aforesaid discussion, I do not find any arbitrariness nor any unreasonableness for interference to the decision making process of the corporation while settling the impugned fishery with the respondent No. 3.
Page No.# 7/7 Accordingly this writ petition stands dismissed. However without any cost. Writ petition stands disposed of.
JUDGE Comparing Assistant