IMPORTANT POINT
Arbitrariness in government contract decisions, Need for transparency and official reports in lease extensions

ORDER :

Heard Mr. H. Buragohain, learned counsel for the petitioners. Also heard Mr. M. Chetia, learned counsel for the respondent nos. 1 to 7 and Mr. B. D. Das, learned Senior Counsel for the respondent no. 8 assisted by Mr. H. R. Das, learned counsel.

2. The petitioners have assailed the order dated 10.09.2020 issued by the Commissioner Secretary to the Govt. of Assam, Fishery Department, wherein extension of the lease of the Brahmaputra Part-II Fishery in Sivasagar district for 3 years w.e.f. from the hiring of the existing bids as per date of handing over possession in terms of the Government Orders dated 05.11.2014 and 01.12.2017 has been allowed. The petitioner has also made a challenge to the order dated 06.02.2021 issued by the Joint Secretary to the Government of Assam, Fishery Department, by which the lease of the Fishery has been extended for 3 years @ Rs. 2,58,300/-per annum w.e.f. 07.12.2017 till 04.11.2021 and from 04.11.2021 to 04.11.2024.

3. The petitioners case in brief is that pursuant to NIT dated 03.07.2014, for settlement of the Brahmaputra Part-II Fishery (hereinafter refer to as a Fishery) for a period of 7 years, the petitioners and the respondent no. 8 amongst others had submitted their bids. The Fishery was settled with the respondent no. 8 on 05.11.2014 as per the bid value of the respondent no. 8, which was Rs. 12,05,000/- per annum.

4. One Jewti NGO made a challenge to the settlement of the Fishery with the respondent no. 8 by filing WP(C) No.5734/2014. Status quo order dated 10.11.2014 was issued by this Court in WP(C) No. 5734/2014. As there was a status quo order issued by this Court with regard to the Fishery in question, the State respondents allowed the respondent no. 8 to look after the Fishery on a daily basis @ Rs.1165/-per day. Being aggrieved, Jewti NGO filed another writ petition, i.e. WP(C) No. 6308/2014 challenging the order dated 01.03.2014, allowing the respondent no. 8 to look after the Fishery on a daily basis. This Court thereafter passed a stay order dated 09.12.2015 in WP(C) No. 6308/2014. This Court disposed of WP(C) No. 5734/2014 and 6308/2014 by a common judgment and order dated 02.08.2017. “Jewti NGO Vs State of Assam”, 2017 SCCOnlineGAU643. By holding that the decision of the State respondents to reject the higher price offered by the bidders in respect of the said Fishery suffered from the vice of total non-transparency and was therefore vitiated by complete arbitrariness. The same was accordingly declared as illegal and unsustainable in law. The above being said, this Court in the common judgment and order dated 02.08.2017, directed the State respondents to make a fresh decision for granting permanent settlement of the Fishery, in the light of the observations made in the said judgment & order and also set aside the settlement made in favour of the respondent no. 8 herein.

5. The relevant paragraph numbers 23 to 25 in the above two cases which is Jewti NGO Vs State of Assam reported in 2017 SCC Online Gau 643 is extracted herein below as follows:-

“23. It is settled law that in the matter of Government contract, the court would examine the decision making process but not the merit of the decision. For the reasons stated above, this court is of the considered opinion that the impugned decision to reject the higher price offered by the bidders suffers from the vice of total non-transparency and, therefore, is vitiated by complete arbitrariness. The same is accordingly declared as illegal and un-sustainable in law.

24. There is another aspect of the matter which deserves herein. The bid of the fourth highest bidder quoting a price of Rs.15,25,999 was also refused by the order dated 5.11.2014 on grounds which are not tenable on the face of the record. In the order dated 5.11.2014, although it has been mentioned that the fourth highest bidder had not submitted fishing experience certificate, yet, from the record, I find that a fishing experience certificate dated 15.7.2014 issued by