Gauhati High Court
Gangadhar Fishery Co-Op. Society Ltd vs The State Of Assam And 3 Ors on 9 June, 2017
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(EXTRAORDINARY WRIT JURISDICTION)
WP(C) No.904 of 2016
Gangadhar Fishery Co. Op. Society Ltd.
.... ... Petitioner
-Versus-
The State of Assam & 3 others. ... ... Respondents
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the petitioner : Mr. D. K. Sarmah, Advocate.
For the respondents : Mr. Y. Doloi,
Addl. Advocate General, Assam.
Mr. I. Choudhury, Sr. Advocate.
Mr. A. K. Baruah, Advocate.
Date of hearing : 30.05.2017.
Date of Judgment : 09-06-2017
JUDGMENT AND ORDER (CAV)
1. Heard Mr. D. K. Sarmah, learned counsel for the petitioner. Also heard Mr. Y. Doloi, learned Additional Advocate General, Assam, appearing on behalf of respondent Nos.1, 2 and 3 as well as Mr. I. Choudhury, learned senior counsel appearing on behalf of respondent No.4.
WP(C) No.904/2016 Page 1 of 20
2. In this writ petition the decision to grant settlement of the "Gr. No.15/101- Torsa River Fishery" of Dhubri district in favour of the respondent No.4, as conveyed by communication dated 22.01.2016 issued by the respondent No.2, has been put under challenge.
3. The case of the petitioner, in brief, is that on 27.05.2015 the respondent No.3 had issued an NIT inviting tenders from the interested Fishermen Cooperative Societies/Self Help Groups and NGOs comprising of 100% actual fishermen of the Scheduled Caste (SC) community or Maimal community of the Barak Valley for awarding the settlement of the aforementioned fishery for a period of seven years. As per the NIT, the tender papers would be accepted till 2.00 p.m. on 26.06.2015 and the bids would be opened on the same day at 3.00 p.m.
4. A four member Fishery Advisory Committee headed by the Additional Deputy Commissioner (Fishery), Dhubri was constituted for the purpose of evaluation of the tenders. The Assistant Registrar of Cooperative Societies, Dhubri; the DFDO, Dhubri and Sri Ramesh Das, in his capacity as a member from the scheduled caste community (fishermen), were the other members in the said Committee.
4. In total, four tenders were received. The petitioner society became the second highest bidder by quoting the price of Rs.9,10,000/- whereas the respondent No.4 had emerged as the WP(C) No.904/2016 Page 2 of 20 highest bidder by offering an amount of Rs.18,24,025/-. The bids submitted by the other two bidders were found to be technically defective and hence, rejected.
5. The case of the writ petitioner is that in the minutes of the Fishery Advisory Committee meeting dated 26.06.2015 it has been categorically observed that the Bakijai Clearance Certificate dated 23.03.2015 enclosed by the respondent No.4 had lapsed and since the list of members of the society enclosed with the tender paper was not approved by the Assistant Registrar of Cooperative Societies (ARCS), Dhubri, hence, the tender of the respondent No.4 was liable to be rejected. Notwithstanding the same, the respondent No.3 had issued a communication dated 05.12.2015 addressed to the respondent No.1 depicting that the bid of the respondent No.4 was valid. Taking note of such illegal projection made in the communication dated 05.12.2015 the impugned decision to issue the order of settlement had been taken in favour of the respondent No.4. According to the petitioner, as per the minutes of the Advisory Committee dated 2606- 2015 the bid submitted by the writ petitioner was the only technically valid bid and therefore, the settlement ought to have been awarded in favour of the writ petitioner.
6. The respondent No.1 has filed counter affidavit, sworn by the Joint Secretary to the Government of Assam, Fisheries Department, inter- alia, stating that on the basis of a communication issued by the WP(C) No.904/2016 Page 3 of 20 Deputy Commissioner, Dhubri, the Additional Deputy Commissioner, Dhubri had conducted an enquiry and thereafter, submitted a report vide letter dated 18.11.2015 informing that there was no Bakijai proceeding pending against the respondent No.4 i.e. M/s Dhubri Disabled Men Jhagra Dohar and Soulmari Beel Fishery Development Cooperative Society Ltd. It has further been stated that the members list of the respondent no. 4 society enclosed with the tender paper was found to be counter signed by the ARCS, Dhubri. It has further been mentioned that the respondent No.4 had also submitted documents such as Neighbourhood Certificate and Fishing Experience, Actual Fishermen Certificate, Registration Certificate of the Society, Audited balance sheet of the society as well as the resolution of the Board for submission of tender on behalf of the society. Considering the fact that the price quoted by the respondent No.4 was the highest, a decision was taken to settle the fishery with the respondent no 4 since there was no valid ground to reject the bid of the said respondent.
7. The respondent No.3 i.e. the Circle Officer, Agomoni Revenue Circle, Dhubri, has filed a separate affidavit stating that since the Bakjijai Certificate dated 23.03.2013 annexed with the tender papers was found to have expired, hence, on receipt of communication from the office of the respondent No.3 an enquiry was conducted whereafter, it was found that there was no Bakijai proceeding WP(C) No.904/2016 Page 4 of 20 pending against the respondent no 4 society. In his affidavit the respondent No.3 has also stated that the list of members submitted along with the tender papers was duly counter-signed by the ARCS, Dhubri.
8. The respondent No.4 has also filed counter-affidavit, inter -alia, stating that the respondent No.4 society was established for the socio- economic growth of persons with physical disability belonging to the scheduled caste community through development of fishery. As per the Certificate of Registration, the areas of operation of the respondent No.4 society are Durahati, Bhetakoba, Soulmari Pt.I, Dimakuri Pt.II, Silaipar, Bishkhowa Pt.II, West Kanuri Pt.I, South Tokrerchora Pt.II, North Tokrerchora, Koimari, Harinchara Kuti (Palanghat), Kumargang, Debotar Barundang and Panchghat. While generally denying the averments made in the writ petition, the respondent No.4 had stated in the affidavit that the tender submitted by the respondent No.4 society was in total compliance with the mandatory clauses of the NIT. Since the price offered by the respondent No.4 was the highest, hence, the settlement has been rightly offered in its favour. Under the circumstances, there was no scope for interference with the order of settlement by this court.
9. Mr. Sarmah, learned counsel appearing for the writ petitioner, has assailed the order of settlement by taking various grounds. By referring to the notification dated 19.09.2008 issued by the respondent WP(C) No.904/2016 Page 5 of 20 No.1 Mr. Sarmah submits that in the present case the order of settlement has been issued without verifying as to whether the respondent No.4 society is comprised of 100% actual fishermen or not and was located in the vicinity of the fishery as per requirement of the said notification. According to Mr. Sarmah, the members of the respondent No.4 are not 100% actual fishermen nor are their members located in the vicinity of the fishery. Under the circumstances, the settlement of the fishery with the respondent No.4, according to Mr Sharma, was in violation of the notification dated 19.09.2008 and hence, unsustainable in law .
10. By referring to the minutes of the Fishery Advisory Committee meeting held on 26.06.2015 Mr. Sarmah submits that admittedly, the Bakijai Clearance Certificate furnished by the respondent No.4 had lost its validity on 26.06.2015 i.e. the date on which the tenders were opened. That apart, there is also no approved list of members furnished by the respondent No.4 and taking note of the aforesaid anomalies the Fishery Advisory Committee had held that the tender of the respondent No.4 was invalid. However, the said opinion of the Fishery Advisory Committee has been illegally reversed by the respondent No.3 based on which the respondent No.2 has issued the order of settlement in favour of the said respondent.
11. Besides the above, submits Mr. Sarmah, the tender of the respondent No.4 was liable to be rejected on account of the fact that WP(C) No.904/2016 Page 6 of 20 the tender form submitted by it was not counter signed by a gazetted officer nor did it contain signatures of witnesses. Not only that, submits Mr. Sarmah, even the security deposit of 15% was submitted by the respondent No.4 in the form of Demand Draft whereas, as per Clause 4(e) of the NIT , the same ought to have been tendered in the form of "Call Deposit".
12. Mr. Y. Doloi, learned Additional Advocate General, Assam, has submitted that the Bakijai Certificate annexed by the respondent No.4 along with the tender papers dated 23.03.2015 was valid for three months but the same had lapsed only three days before opening of the tenders. However, in order to ascertain as to whether any Bakijai claim is pending against the respondent No.4 society, necessary enquiry was made through the Additional Deputy Commissioner of the District pursuant whereto, it was found that there was no Bakijai claim pending against the respondent No.4. Mr. Doloi submits that the decision to award the settlement in favour of the respondent No.4 was taken keeping in mind the interest of the Government revenue and also the fact that the bid of the respondent No.4 was the technically valid highest offer.
Mr. Doloi has produced the records in support of his aforesaid contention.
13. Mr. I. Choudhury, learned senior counsel appearing for the respondent No.4, has submitted that the notification dated 19.09.2008 WP(C) No.904/2016 Page 7 of 20 issued by the Commissioner and Secretary to the Government of Assam, Fishery Department, addressed to the Deputy Commissioners and Sub-Divisional Officers (C) of the Districts, Sub-Divisions in Assam, is in the nature of an Inter-Office Memorandum meant for laying down certain guidelines and the same does not have the force of a statute. According to Mr. Choudhury, since there was no Bakijai case pending against the respondent No.4, hence, the mere fact that the certificate produced by it had lapsed three days before the tender was opened would not have any bearing on the fate of tender submitted by the respondent No.4.
14. As regards the plea of the writ petitioner that the members list furnished by it was not approved by the ARCS, Mr. Choudhury, besides inviting the attention of this Court to the pleaded stand of the respondent Nos.1 and 3, has also pointed out to the endorsement of the ARCS made in the list of members of the respondent No.4 society annexed to the writ petition to contend that the aforementioned plea of the petitioner is completely untenable on the face of the record.
15. As regards the objection pertaining to the submission of the security by means of Demand Draft instead of Call Deposit, Mr. Choudhury has placed reliance on a decision of this Court in the case of Bidhubhushan Chowdhury and another vs. Union of India and others, reported in 2000 (1) GLT 341 to contend that the purpose of securing the bid is achieved both by Call Deposit as well as by WP(C) No.904/2016 Page 8 of 20 Demand Draft. Since deposit of the security money through Demand Draft was not a defect affecting the substance of the tender the respondent authorities have rightly accepted the same.
16. As regards the objection raised by the petitioner regarding absence of signature of gazetted officer in the tender paper, Mr. Choudhury submits that the NIT does not lay down any condition for submitting a tender paper which is counter-signed by a gazetted officer. In such view of the matter, the bid of the respondent No.4 could not have been rejected on the said ground since the same did not violate the conditions of the NIT. In support of his aforementioned argument, Mr. Choudhury has relied upon a decision of this Court in the case of Raja Das vs. Assam Fisheries Devp. Corpn. And others reported in 2005(3) GLT 544.
17. Finally, Mr. Choudhury has argued that the tender of the respondent No.4 having offered the highest price, acceptance of the same would be in the public interest . As such, this Court in exercise of discretionary power under Article 226 of the Constitution of India would not interfere with the settlement even if some legal point is made out by the writ petitioner. In support of his aforesaid argument Mr. Choudhury has relied upon the decision of the Supreme Court in the case of Air India Ltd. vs. Cochin International Airport Ltd. and others reported in (2000) 2 SCC 617.
WP(C) No.904/2016 Page 9 of 20
18. In his reply argument, Mr. Sarmah, has added that one of the members of the respondent No.4 society, namely, Kekaru Biswas was the member of another society viz., M/s Raidak Gurarchora Fishery Cooperative Society Ltd. and therefore, the respondent society had incurred disability to participate in the bidding process under Section 23(e) of the Assam Cooperative Societies Act, 2007. Mr. Sarmah has further argued that since the AGM of the respondent society had not been held regularly, hence, it had lost its character of a Cooperative Society thereby incurring disqualification from participating in the tender process.
19. I have considered the submissions of learned counsel for the parties and have also perused the materials available on record.
20. From the pleadings of the parties it appears that the settlement awarded in favour of the respondent No.4 has been assailed by the petitioner on the following grounds :-
(1) That the Bakijai Clearance Certificate dated 23.03.2015 submitted by the respondent No.4 had lapsed on the date on which the bids were opened.
(2) The list of members of the society furnished by the respondent No.4 was not counter signed by the ARCS.
(3) The order of settlement had been issued by the respondent No.2 without complying with the requirement of notification dated 19.09.2008.WP(C) No.904/2016 Page 10 of 20
(4) The members of the respondent No.4 society are not 100% fishermen.
(5) The respondent No.4 society is not located in the vicinity of the fishery.
(6) The security deposit was not submitted in the form of Call Deposit as per Clause 4(e) of the NIT.
(7) The Tender Form was not counter signed by a gazetted officer or witnesses.
(8) One of the members of the respondent No.4 society had acquired membership of another fishery society.
21. Let me now deal with each of the aforesaid points on the basis of materials available on record. From the perusal of the record it is seen that the respondent No.4 had submitted a Bakijai Clearance Certificate dated 23.03.2015 which was valid for three months. The certificate had lost its force on 23.06.2015 i.e. the date on which the bids were opened. I find from the record that the Deputy Commissioner had sought clarification from the concerned revenue authorities as to whether any Bakijai Case is pending against the respondent No.4. In response to the said query a report was submitted by the concerned Additional Deputy Commissioner on 18.11.2015 clarifying that there was no Bakijai Case pending against the respondent No.4 society. It is also not the case of the petitioner that any Bakijai Case was pending against the respondent No.4 society at WP(C) No.904/2016 Page 11 of 20 the relevant point of time. By referring to the information furnished under the Right to Information Act, 2005, Mr. Sarmah, learned counsel for the petitioner, has made an attempt to contend that Bakijai cases were pending against Shri Dhiren Sarkar who was the Secretary of the respondent No.4 Society at the time of its incorporation/registration but from a perusal of the said information furnished under the RTI Act I find that the same refers to pending Bakijai proceedings in connection with GR No.40160 - Bhellamari; GR No.64180 - Bhimdaha Beel and GR No.16/102 - Gobererchora Fishery which are evidently not the constituent members of the respondent No.4 society.
22. Mr. Doloi has relied upon a decision of the Division Bench of this Court dated 29.09.2011 rendered in Writ Appeal No.294/2011 [Abu Talib vs. The Assam Fisheries Development Corporation Ltd. and others] to contend that requirement of submitting Bakijai Clearance Certificate is not a rigid requirement under the tender clause. The observation made by the Division Bench in the case of Abu Talib (supra) is quoted herein below :-
"Learned counsel for the writ petitioner has submitted that the requirement of submitting Bakijai clearance certificate was required to be rigidly followed as rightly held by learned Single Judge.
After considering the rival contentions we are of the view that the requirement of submitting Bakijai clearance certificate could not be taken as a rigid requirement. It is not a case where level playing field has been denied nor WP(C) No.904/2016 Page 12 of 20 a case where loss has been caused to public revenue. In exercise of jurisdiction under Article 226 of the Constitution of India this Court does not sit in appeal over the decision of an administrator in giving a contract unless there is illegality, irrationality or procedural irregularity as laid down by the Hon'ble Supreme Court in Tata Cellular vs. Union of India, AIR 1996 SC 11. If after taking into account all relevant considerations a decision has been taken to award contract, the Court has to be slow in interfering with the decision. In the present case, there was no compelling need for interference in absence of any illegality, malafides or loss of public revenue."
23. From a bare reading of the above observation made by the Division Bench, it is clear that a tender cannot be rejected merely on the ground of non-availability of Bakijai Clearance Certificate. The respondent no 4, in the present case, had submitted the Bakijai Clearance Certificate but since the same had expired on the date of opening of the tenders, necessary verification was made by the authorities so as to ascertain that there was no Bakijai Case pending against the said respondent whereafter, it was found that no such proceeding was pending. Therefore, the challenge made to the order of settlement on the aforesaid ground lacks merit and is accordingly rejected.
24. As regards the objection pertaining to list of members furnished by the respondent no 4, I find that the aforesaid statement has been WP(C) No.904/2016 Page 13 of 20 categorically denied in the affidavits filed by the respondent Nos.1, 3 and 4. That apart, the record reveals that the list of members submitted by the respondent No.4 was duly countersigned by the ARCS. If that be so, the aforesaid ground urged by the petitioner is without any substance and is liable to be held so.
25. In so far as the plea taken by the writ petitioner on the ground that the respondent No.4 is not constituted by 100% fishermen and that it is not located in the neighbourhood of the fishery, I find from the record that the respondent No.4 society had annexed a certificate issued by the competent authority certifying that its members constitute 100% fishermen. There is also a certificate dated 23.03.2015 enclosed with the tender document showing the distance of each of the 44 constituent members of the respondent No.4 society from the Torsa Fishery. By referring to the fact that 24 numbers of its members have been shown to be placed at a distance of 16 Km. to 22 Km. from the Torsa Fishery, Mr. Sarmah submits that the said 24 members cannot be said to be located in the vicinity of the fishery. Therefore, according to Mr. Sarmah, the respondent No.4 society cannot be treated to be located in the neighbourhood of the fishery.
26. The question as to what would constitute the neighbourhood in the context of proviso to Rule 12 of the Fishery Rules came up for consideration before this Court in the case of Brahmaputra Part-II Mach Mahal Samabai Samity Limited vs. State of Assam & others WP(C) No.904/2016 Page 14 of 20 reported in 2003 (1) GLT 155 wherein this Court had made the following observations :-
(14) The term 'neighbourhood' does not express any definite idea of distance. A few feet or several 100 yards or even a greater distance from an object would be in its neighbourhood.
(15) Thus, no mathematical formula has been devised to define and measure neighbourhood. Within the meaning attributed to the word as above, there is evidently an element of flexibility and, therefore, while dealing with the proviso to Rule 12 as above, it would, in our opinion, neither be permissible nor desirable to ascertain the neighbourhood by a measuring tape. If the residence of the members of an otherwise eligible fishery co-operative society is in the vicinity and proximity of the fishery as is understood in common parlance, they are deemed to be in the neighbourhood thereof. Any attempt to measure the neighbourhood in terms of inches, feet, yards or centimeters and metres, would render the proviso outiose in a given fact situation."
27. From the aforesaid observations made by the Division Bench it is, thus, clear that the expression 'neighbourhood' cannot be confined to a particular physical distance measurable in terms of quantity. Viewed from that angle, the mere fact that some of the members of the respondent No.4 society are located between 16 km to 22 km, by itself, would not be a good enough ground to hold that the respondent No.4 society is not in the neighbourhood of the fishery.
28. Coming to the question of implementation of the office order dated 19.09.2008, although the said notification is not a part of the WP(C) No.904/2016 Page 15 of 20 record, yet, the same has been produced by the learned counsel for the petitioner during the course of hearing. From perusal of the same I find that the purpose of the notification is to ensure that all relevant verifications including the constituent members of the society in question, its neighbourhood position and the orders of the Court in force were required to be analysed by the respective Deputy Commissioners/Sub-Divisional Officers before forwarding the proposal to the Government. In the present case, I find from the record that there were materials produced by the petitioner so as to permit the authorities to verify the aforementioned facts. Although the petitioner has urged that the members of the respondent No.4 society are not 100% fishermen, yet, the said plea could not be substantiated by the petitioner by placing relevant materials on record.
29. In the case of Bidhubhushan Chowdhury (supra) this Court was confronted with a case where the earnest money was deposited by the tenderer in the name of the wrong person which had led to rejection of his bid on technical ground. Disapproving such a course of action adopted by the employer, this Court had held that the purpose of depositing the earnest money is to bind the bargain and defect, if any, in the same would be curable in nature. Security money deposit is a matter of satisfaction of the employer and therefore, it would be upto the employer to decide whether the amount has been tendered in acceptable form or not. In the present case, the respondents have WP(C) No.904/2016 Page 16 of 20 accepted the Demand Draft submitted by the respondent No.4 without raising any objection. Under the circumstances, no prejudice can be said to have been caused to the writ petitioner in the matter.
30. In the case of Raja Das (supra) a question of similar nature had arisen as to whether tender papers submitted by the petitioner not counter-signed by gazetted officer would render the same as invalid. While answering the said question, the learned Single Judge had made the following observations :-
"14. The tender papers submitted by any tenderer can be invalid only, if any of the conditions of the NIT or the guidelines issued for that purpose has been violated. The tenderers and also the Corporation are bound to adhere to the terms and conditions of such NITs and also the guidelines. The Corporation cannot put any condition to treat a tender paper invalid, unless such condition is reflected in the terms and conditions of the NIT or in the guidelines issued for that purpose by the Corporation. The terms and conditions of the NIT must also stipulate that in case of violation of such condition, the tender paper submitted by any of the tenderer is liable to be rejected as being not valid. As discussed above, there is absolutely no condition either in the NIT or in the guidelines issued by the Corporation for that purpose requiring any of the tenderer to put his signature in presence of a gazetted officer and the counter signature of such tender paper by any of the gazetted officer."WP(C) No.904/2016 Page 17 of 20
31. In the present case, there is no clause in the NIT which requires that the tender paper should be countersigned by a gazetted officer or that the same needs to be signed by the witnesses. The signature of the Secretary of the respondent No.4 in the tender paper is not in dispute nor is it in dispute that the tender has been submitted on behalf of the respondent No.4. If that be so, in view of the law declared by this Court in the case of Raja Das (supra) it is held that the respondent authorities have rightly accepted the tender submitted by the respondent No.4.
32. Settlement of a Fishery, it must be borne in mind, is required to be made as per the mandate of the Assam Fishery Rules, 1953. Rule 12 of the Fishery Rules provides as follows:-
"12. Except those referred to in sub-rule 8(b) above, all registered Fisheries shall be settled under tender system of sale in place of sale auction :
Provided that the Government shall settle a 60% category fishery with special category of co-operative Societies, Non-Government Organizations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by the Tender System.
Explanation 1:- For the purpose of this rule, the words "special category" means and includes the Cooperative Societies, Self-Help Groups, Non- Governmental Organisations comprising of 100% actual fishermen of the Scheduled Caste community or Maimal community of erstwhile Cachar district. Who cannot WP(C) No.904/2016 Page 18 of 20 participate in competitive bidding because of poor financial condition due to famine, flood, draught, epidemic of any other circumstances which are beyond control of the society, non-Governmental Organisation or Self Help Groups as the case may be;
Explanation 2:- For the purpose of this rule "a 60% category fishery" means 60% of registered fisheries available in a Civil Sub-Division eligible for settlement in a particular year."
33. A perusal of the aforementioned Rules would go to show that the same has a benevolent object which is to promote the interest of the group of people mentioned therein. Proviso to Rule 12, therefore, clearly enjoins a duty upon the Government to take proper care that the 60% category Fishery is settled with the special category of co- operative societies mentioned there-in. Unlike in the case of an open commercial tender, in case of settlement of a fishery under the Rules, there is a statutory duty cast upon the Government to ensure that the objective of the Fishery Rules is realized in its letter and spirit. In doing so, it would not only be open but also incumbent upon the Government to make such relevant enquiries so as to reach a satisfaction that not only the most deserving group is conferred with the settlement but also to ensure that the interest of government revenue is adequately protected. Therefore, subject to fulfillment of the NIT conditions, the price offered by the highest bidder must receive utmost priority and should normally be accepted, unless there WP(C) No.904/2016 Page 19 of 20 are very good and compelling reasons to deviate therefrom. As long as the authorities provide a level playing field to all the bidders, mere technical defects not affecting the substance of the tender should not be permitted to defeat the underlying objective of the Fishery Rules.
34. In the case in hand, I find that the respondent authorities had good and sufficient reasons to recommend the settlement in favour of the respondent no 4 society. Once it is found that the respondent No.4 was the highest bidder, and it did meet the eligibility norms both as per the NIT as well as the Fishery Rules, the decision to award the settlement cannot be interfered with merely because there is some technical defect in the form in which the tender has been presented.
35. For the reasons stated herein above, I am of the opinion that there is no merit in this writ petition. Consequently, the writ petition fails and the same is accordingly dismissed.
Parties to bear their own cost.
Send back the records.
JUDGE T U Choudhury WP(C) No.904/2016 Page 20 of 20