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2023 Supreme(Gau) 646
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SANJAY KUMAR MEDHI, J.
No. 11 Part-V Kolong Nadi Anchalik Meen Samabai Samity Ltd. and Others – Petitioners
Versus
The State of Assam and Others – Respondents
WP (C) Nos. 8174, 9225 of 2019
Decided On : 14-06-2023
Advocate Appeared:
For the Petitioner: J.I. Borbhuiya.
For the Respondent: D.K. Sharma.
Point of Law: It is a settled position of law that in matters concerning distribution of State largesse which are mainly for earning revenue, public interest is to be given a priority.
Headnote:
Assam Fishery Rules, 1953 - Rule 12 - Tender process - Operation of fishery - Highest bidder - Petition pertains challenge made to an order by which Fishery in question was settled with private respondent in spite of fact that bid private respondent was lowest whereas bid of petitioner no. 1 was highest – Original records contain a report from Circle Officer, who had recommended settlement in favor of petitioner no. 1, whose bid is highest - Para 34.
Finding of the Court: Original records contain a report from Circle Officer, who had recommended settlement in favor of petitioner no. 1, whose bid is highest - There is not even a reference to report in impugned order - Court is of unhesitant opinion that impugned action of respondent authorities in rejecting bid of petitioner no. 1 and accepting bid of private respondent for settlement of Fishery in question vide impugned order is unsustainable in law and accordingly, same is set aside - Authorities are accordingly directed to grant settlement with petitioner no. 1 at his offered price - Settlement has to be for a period which was mentioned in NIT - Since offer of petitioner no. 1 is almost Rs.22 lakhs more than amount which was accepted by authorities vide impugned order, requirement of enhancing rates will not arise.
Result: Petitions allowed.
JUDGMENT :
SANJAY KUMAR MEDHI, J.
1. The fairness and transparency which are the hallmark of a process involving distribution of State largesse is once again the issue which has arisen for determination in the present two writ petitions instituted by the same petitioners. The matter pertains to settlement of the Kamrup Prajgyotishpur Brahmaputra Meen Mahal (hereinafter “Fishery”). Since both the writ petitions are connected and pertain to the same settlement process, those were heard analogously and are disposed of by this common judgment and order.
2. Before going to the issue to be decided, it would be convenient to place the facts of the cases in brief.
3. The petitioner no. 1 is a Samabai Samity whereas the petitioner no. 2 is its Secretary. The petitioner no. 1 is a registered Co-Operative Society and all its Members belong to the Scheduled Castes Community of 100% actual fishermen in the neighborhood of the Fishery in question. A tender process was initiated vide notice dated 10.06.2019 in which the petitioner no. 1 had participated and had emerged as the highest bidder. However, the petitioners allege that the Additional Deputy Commissioner, Kamrup (M) had passed an order dated 23.09.2019 allowing the earlier lessee to run the Fishery on daily basis by holding that the neighborhood certificate of the petitioner no. 1, Society is incorrect. It has further been held that none of the villages where the members of the petitioner no. 1 reside are within the area of operation of the Fishery. The aforesaid order has been said to be passed in compliance with an order dated 19.07.2019 passed by this Court in WP(C)/4774/2019. The aforesaid order dated 23.09.2019 is the subject matter of challenge in the first writ petition.
4. The second writ petition being WP(C)/9225/2019 pertains to a challenge made to an order dated 18.11.2019 by which the Fishery in question was settled with the private respondent in spite of the fact that the bid of the said private respondent was the lowest whereas the bid of the petitioner no. 1 was the highest.
5. The respondents including the private respondent contend that the impugned action has been taken in accordance with law and by taking into consideration all the relevant facts and circumstances. It is contended that the findings arrived at that the petitioner no. 1 is not in the neighborhood are factual matters which cannot be gone into by this Court in exercise of its writ jurisdiction. It is also contended that the requirement is to be a “valid” highest bidder and simply because the financial bid offered by a party is higher, that by itself would not be the determining factor.
6. I have heard Shri JI Borbhuiya, learned counsel for the petitioners in both these writ petitions. I have also heard Shri DK Sarmah, learned Additional Senior Government Advocate, Assam; Ms. G. Hazarika, learned Standing Counsel for the Revenue Department and Ms. YK Konyak, learned counsel apearing for the Co-operation Department. Shri S. Borthakur, learned counsel has appeared for the private respondent. The materials placed before this Court have been carefully examined.
7. Shri Borbhuiya, learned counsel for the petitioners submits that the findings by which the petitioner no. 1 has been held to be disqualified are perverse. He has referred to the certificates issued by the various authorities, namely, the Registration Certificate, Certificate regarding Neighborhood, 100% Actual Fisherman Certificate and Certificate regarding Scheduled Castes Community. A list of members of the petitioner no. 1 Society has also been annexed to the writ petition with their addresses. Another Certificate issued by the Assistant Registrar of Co-Operative Society, Guwahati has been annexed.
8. It is submitted that vide an order dated 08.10.2018 issued by the Fishery Department, the earlier lessee Upper Part Brahmaputra FCS Ltd. (private respondent) whose term of seven years had expired on 08.08.2018 was allowed to run the Fishery temporarily on
