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THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, NELSON SAILO, JJ.
M/s. Dharnad Brahmaputra Fishery Co-Op Society Ltd., Represented By Its Secretary Sri Bimal Das, Son Of Brojen Das – Petitioner
Versus
The State Of Assam, Represented By The Additional Chief Secretary To The Government Of Assam, Fishery Department And Ors. – Respondents
WA No.186 Of 2023, WA No.216 Of 2023, WA No.218 Of 2023
Decided On : 16-06-2023
Assam Fisheries Rules 1953 - Rule 12 - Constitution of India, 1950 - Article 162 - Tender - Fisheries - Order of settlement - Order of settlement made in favour of appellant was interfered and set aside - Being aggrieved appeal has been instituted by appellant against judgment and order - It is an accepted proposition in administrative law that provisions of statutory law can always be supplemented, though not supplanted, so as to provide for a more detailed, clear and unambiguous procedure for carrying forward a particular act – Para 66.
Finding of the Court:
Settling authorities in order had followed provisions of Notification and it is not that society which was bestowed upon benefits of order seeks to enforce provisions - Under principle what would be impermissible is that if authorities are not following provisions of notification, it would not be open for renderers to seek for an enforcement of provisions, but reverse would not be applicable that if tendering authorities are following provisions, same warrants an interference on principle of provisions of a notification being not enforceable – Court do not see any acceptable reasoning that settling authority in settlement order having followed provisions of Notification, an interference would be justified on principle that notification is merely in nature of an executive instruction and that it being not framed under any statutory provision, provisions thereof cannot be relied upon by settling authority - Impugned judgment and order passed by learned Single Judge is interfered and set aside.
Result: Appeals disposed of.
JUDGMENT :
(A.M. Bujor Barua, J.)
Heard Mr. KN Choudhury, learned senior counsel assisted by Mr. S Khound, learned counsel for the appellants in WA No.186/2023 and WA No.216/2023 namely M/s. Dharnad Brahmaputra Fishery Co-op Society Ltd., (for short, Dharnad Brahmaputra FCS) and Mr. NC Das, learned senior counsel assisted by Ms. M Devi, learned counsel for the appellants in WA No.218/2023 namely M/s. Kachudola Fishery Co. Operative Society Ltd (for short, Kachudola FCS). Also heard Mr. YS Mannan, learned counsel for the respondent M/s. Dhir Beel Fishery Co.Operative Society Ltd. (for short, Dhir Beel FCS) as well as Mr. RK Bora, learned Additional Senior Government Advocate for the respondents in the Fisheries Department, Government of Assam and the Deputy Commissioner, Dhubri.
2. A notice inviting tender (for short, NIT) dated 17.12.2018 was issued by the Deputy Commissioner Dhubri inviting tendered bids, for settlement of Group No.1 Dhar Brahmaputra Fishery. Some of the relevant terms and conditions of the tender notice are as extracted:
4(Kha). Bakijai clearance certificate from the office of Deputy Commissioner (the certificate should be from the appropriate official in the office of the Deputy Commissioner clearly stating the name of the self help group or the society).
4(Unga) Security money amounting to 15% of the minimum Government value of the fishery shall be deposited in the form of call deposit clearly stating it to be in the name of the Deputy Commissioner/Sub-Divisional Officer along with stating the name of the Cooperative Society/Self Help Group.
4(Jhha) Annual audited balance sheet of three financial years from the current year, of the cooperative society/group shall be required to be submitted (balance sheet shall have to be approved by the concerned official).”
3. The Government of Assam in the Fishery Department had also issued a Notification dated 18.01.2018 bearing No.FISH-19/65/2017-FISHERY/1(eCF No.50022) wherein it is provided, amongst others, as extracted:
(i) 100% Actual Fishermen Certificate: Submission of 100% Actual Fishermen certificate of Fishermen Cooperative Society, SHGs, NGOs issued by the ARCS indicating that all the members of the Fishermen Cooperative Society, SHGs, NGOs, are actual fishermen belonging to Schedule Caste Community or Maimal Community of erstwhile Cachar district of Assam.
(iii) Fishermen experience certificate: Experience certificate of Fishermen Cooperative Society, SHGs, NGOs is to be issued by the DFDOs indicating that all the Members of Fishermen Cooperative Society, SHGS, NGOs have ample experience in fishing and related activities and they are fully involved in such activities.
(iv) Bakijai Clearance Certificate: Bakijai Clearance Certificate is to be furnished by the Bakijai authority under the concerned Deputy Commissioner where the Society/NGO is registered which should invariably be in the name of the Society/NGO/SHG and not in the name of the office bearers of the Society/NGO/SHG.
(v) Security Deposit: The security amount to be deposited in the form of Call deposit clearly pledging the same in favour of concerned DC/SDO (Civil) with name of the Bidder Society in case of 60% Govt. Fishery which shall not be less that one - tenth of the revenue of the fishery for first year of the full term of settlement.
(ix) Balance Sheet and profit loss account: Balance sheet and profit loss account for consecutive preceding three years shall be submitted duly verified by Competen
Rule 12 of Assam Fisheries Rules 1953 provides that all registered fisheries shall be settled under tender system of sale, where Government shall settle 60% category fisheries with special category o....
The rejection of bids based on conditions not stipulated in the Notice Inviting Tender or the Assam Fishery Rules, 1953 was held to be based on irrelevant considerations. The bids of the Petitioners ....
The main legal point established in the judgment is that the settlement process for a fishery must adhere to the requirements specified in the relevant rules and tender notice. The court emphasized t....
The court upheld the tender authority's discretion to relax submission requirements, emphasizing that tender evaluations are commercial decisions that should not be interfered with lightly.
Rule 12 of Assam Fishery Rules, 1953 has prescribed that a 60% category fishery is to be settled with special category of Cooperative Societies, Non-Government Organisations and Self Help Groups cons....
The settlement of the fishery was determined based on compliance with tender conditions and the relevant provisions of the Assam Fishery Rules, 1953.
It is settled position of law that power of judicial review of administrative action is intended to prevent arbitrariness, irrationality or unreasonableness or bias or mala fide.
Point of Law : A certificate issued by such an authority carries with it a presumption under Section 114 III.(e) – “That judicial and official acts have been regularly performed.
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