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IN THE HIGH COURT OF GAUHATI
UJJAL BHUYAN, J.
Kapili Nadi Matshyajibi Samiti Ltd. - Appellant
Versus
State of Assam and Ors - Respondent
WP (C) No. 8754 of 2018
Decided On : 07-05-2019
Constitution of India – Article 226 – Assam Cooperative Societies Act, 1949 – Assam Cooperative Societies Act, 2007 – Assam Fishery Rules, 1953 – Rule 12 – Tender – By filing this petition, petitioner seeks quashing of order of the Deputy Secretary to the Govt. of Assam, Fishery Department settling No. 10 Kolong Nadi Fishery (fishery) with M/s. No. 10 respondent No. 5 for a period of 7 years from the date of handing over possession at its bid value of Rs. 2,75,30.00 per annum and further seeks a direction to the respondents to settle the fishery with the petitioner after treating the petitioner as the highest valid bidder – Notwithstanding the highest bid value offered by the petitioner, impugned order came to be passed settling the fishery with respondent No. 5 – Aggrieved, present writ petition has been filed – Held, From a careful perusal of the impugned order, it is seen that bid value offered by the petitioner was highest at Rs. 2,91,000.00 – However, settlement was not offered to the petitioner on two grounds. First ground is non-furnishing of Bakijai Clearance Certificate. Second ground is distance from the fishery as per report of Circle Officer – As per Clause 15 of the terms and conditions of NIT, a tenderer was required to submit Bakijai Clearance Certificate in the name of the President/Secretary along with the tender – In this case, settling authority noted that petitioner had submitted receipt of submission of application for Bakijai Clearance Certificate along with the tender – Subsequently, petitioner submitted copy of Bakijai Clearance Certificate directly to the settling authority before settlement was made – Settling authority has not denied or disputed the Bakijai Clearance Certificate submitted by the petitioner – It was before the settling authority at the time of consideration for settlement – Prior to that, petitioner had submitted receipt of submission of application for Bakijai clearance along with the tender – In so far second ground of rejection of the bid of the petitioner is concerned, it is seen that settling authority relied upon the report of the Circle Officer, which stated that petitioner is located at a distance of 15 kilometer from the fishery – On this ground, bid of the petitioner was found to be not valid – A careful perusal of the terms and conditions of the NIT does not disclose that any condition was stipulated that settlement would be offered to the bidder which is nearest to the fishery or that preference would be given to such bidder – There are scores of decisions of this Court on the point of neighbourhood as per requirement of Rule 12 of Assam Fishery Rules, 1953 – Sum and substance of all the decisions is that the concept of neighbourhood is a relative term and is not to be measured in inches, feet or meter – What is required to be assessed is the nearness of the bidder to the fishery so that the persons who are actual fishermen are able to enjoy the benefit of such settlement – That being the position, impugned order cannot be sustained and is accordingly set aside and quashed – Matter is remanded back to the Fishery Department, Govt. of Assam for passing a fresh order of settlement pursuant to NIT keeping in mind the discussions and observations made above – Writ Petition Disposed Of
ORDER :
UJJAL BHUYAN, J.
1. Heard Mr. T.J. Mahanta, learned Senior counsel, assisted by Ms. P. Chakraborty, learned counsel for the petitioner and Ms. R.B. Borah, learned Govt. Advocate, Assam. Also heard Mr. B.D. Das, learned Senior counsel assisted by Mr. H.K. Sharma, learned counsel for respondent No. 5.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 01.12.2018 of the Deputy Secretary to the Govt. of Assam, Fishery Department settling No. 10 Kolong Nadi Fishery (fishery) situated in the district of Nagaon with M/s. No. 10 Kolong Nadi Part IV Matsyajibi Samabai Samittee Ltd. (respondent No. 5) for a period of 7 years from the date of handing over possession at its bid value of Rs. 2,75,30.00 per annum and further seeks a direction to the respondents to settle the fishery with the petitioner after treating the petitioner as the highest valid bidder.
3. Petitioner is a cooperative society registered under the Assam Cooperative Societies Act, 1949 and presently governed by the provisions of the Assam Cooperative Societies Act, 2007. It is stated that all the members of the petitioner belong to fisherman community.
3.1. Notice Inviting Tender (NIT) was issued by the Deputy Commissioner, Nagaon on 8.8.2017 inviting bids for settlement of the fishery for a period of 7 years. Last date for submission of tender was 25.09.2017. Pursuant to such NIT, petitioner submitted its tender for the fishery. Altogether three tenderers had submitted tender for the fishery including petitioner and respondent No. 5.
4. On 15.09.2017 tenders were opened and thereafter scrutinized. As per comparative statement prepared, bid value offered by the petitioner was highest at Rs. 2,91,000.00 whereas that of respondent No. 5 was second highest at Rs. 2,75,000.00. Bid of the third highest bidder was Rs. 2,51,000.00.
5. Thus, bid value of the petitioner was the highest. In the meanwhile, to ensure that there was no loss of Government revenue during the interregnum, temporary settlement of the fishery was made with the petitioner on daily basis.
6. Notwithstanding the highest bid value offered by the petitioner, impugned order came to be passed on 01.12.2018 settling the fishery with respondent No. 5.
7. Aggrieved, present writ petition has been filed.
8. This Court by order dated 19.12.2018 had issued notice with the observation that impugned order dated 01.12.2018 would be subject to outcome of the writ petition.
9. Parties have exchanged affidavits whereafter matter was heard on 25.04.2019.
10. Respondent No. 2 in his affidavit filed on 07.03.2019 has taken the stand that after receipt of tender papers, a Committee was constituted for scrutiny of tender documents. Committee comprised of Additional Deputy Commissioner (Fishery), Nagaon; District Fishery Development Officer, Nagaon and Treasury Officer, Nagaon. After evaluation of the tender documents, comparative assessment was made by the Committee. It was pointed out that petitioner had not submitted Bakijai Clearance Certificate from the competent authority. Circle Officer, Raha Revenue Circle in his report dated 13.03.2018 had mentioned that distance of the fishery from the residence of the petitioner was about 15 kilometer whereas in respect of respondent No. 5, it was about 1.5 kilometer. It is contended that temporary settlement of the fishery with the petitioner on daily basis conferred no right upon the petitioner for getting regular settlement which in any case automatically ceased to have its effect after the regular settlement came into force. After considering the above, impugned order dated 01.12.2018 was passed. Basic stand is that though bid value offered by the petitioner was higher than that of respondent No. 5 but since tender of the petitioner was defective, settling authority offered settlement to respondent No. 5.
11. Respondent No. 5 has also filed counter affidavit taking more or less the same stand. Further it is stated that af
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