Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Gau) 15274

GAUHATI HIGH COURT
Devashis Baruah, J
Gauripur Coop Fishery Society Ltd – Appellant
Versus
State of Assam – Respondent
WP(C)/7584/2022

Advocates:
For the Appellants/Petitioners: M. K. Choudhury, D. J. Medhi
For the Respondents: K. N. Choudhury, U. Goswami, G. Bordoloi, K. Gogoi

The doctrine of constructive res judicata prevents a party from raising pleas in a subsequent proceeding that could and ought to have been raised in an earlier litigation between the same parties, and formal errors in tender documentation like Bakijai certificates are curable defects.

Headnote:(A) Code of Civil Procedure, 1908 - Section 11, Explanation IV - Constructive Res Judicata - Principles of constructive res judicata are applicable to writ proceedings - If a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding. (Paras 20, 21)

(B) Tender Process - Documents - Bakijai Clearance Certificate - Curable defect - Issuance of a corrected certificate in the name of the society after initially issuing it in the name of the secretary is a curable defect and is an acceptable proposition of law in the tender process. (Paras 9, 10)

Facts of the case:
The petitioner challenged an order dated 15.11.2022 regarding the settlement of a fishery. The petitioner contended that the respondent's distance certificate was cancelled and the original Bakijai certificate submitted by the respondent was invalid. The respondent argued that the petitioner's claims were barred by the principle of constructive res judicata as they could have been raised in a previous related writ petition.

Findings of Court:
The court held that the petitioner was barred from raising the issue of the distance certificate due to constructive res judicata as it was not raised in an earlier proceeding. Furthermore, the court upheld the validity of the tender process, noting that the correction of the Bakijai certificate was a curable defect, a view previously affirmed by the Division Bench.

Issues: Whether the petitioner could challenge the distance certificate in the present proceedings and whether the corrected Bakijai certificate could be considered for the tender process.

Ratio Decidendi: Principles of constructive res judicata prevent parties from raising issues that should have been litigated in earlier proceedings. Corrective measures in documents like a Bakijai certificate are permissible as curable defects in tender processes.

Result: Petition dismissed.

Table of Content
1. nature of relief sought and scope of the petition. (Para 2 , 3)
2. history of tender disputes and judicial directions regarding certification. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10)
3. impugned order reasoning and subsequent appellate court findings. (Para 11 , 12 , 13 , 14)
4. parties' arguments on maintainability and res judicata. (Para 16 , 17 , 18)
5. application of constructive res judicata to bar belated challenges. (Para 20 , 21 , 22)
6. validity of curable defects in tender process documents. (Para 23 , 24)
7. final outcome and reservation of rights in parallel proceedings. (Para 25 , 26)

JUDGMENT AND ORDER (ORAL)

Heard Mr. M. K. Choudhury, the learned Senior counsel assisted by Mr. D. J. Medhi, the learned counsel appearing on behalf of the Petitioner and Mr. K. Gogoi, the learned Additional Senior Government Advocate appearing on behalf of the Respondent Nos. 1, 2, 3, 5, 6 and 7. I have also heard Mr. G. Bordoloi, the learned Standing counsel appearing on behalf of the Respondent No.4 as well as Mr. K. N. Choudhury, the learned Senior counsel assisted by Mr. U. Goswami, the learned counsel appearing on behalf of the Respondent No.8.

PREFACE:

2. The present writ petition has been filed by the Petitioner challenging various reports as well as orders passed which led to the order dated 15.11.2022 and further seeking a direction that the Group No.1/87 Dharnad Brahmaputra Part-I and Satkuri Nadi Fishery be settled with the Petitioner for a period of 7 (seven) years as the Petitioner was the valid highest bidder.

3. At the outset, it is very pertinent to take note of that the impugned order dated 17.10.2022 passed by the Respondent No.3, the Letter/Report No.DRF.5/2020/441-42 dated 29.09.2020 of the Deputy Commissioner, Dhubri, the Speaking Order No.DRF5/2020 dated 14.09.2020 of the Additional Deputy Commissioner, Dhubri, Report No.GRP(s)3/2019/339 dated 28.08.2020 have merged with the impugned order dated 15.11.2022. Under such circumstances, the issue involved in the present proceedings is as to whether this Court is required to interfere with the impugned order dated 15.11.2022 passed by the Respondent No.2.

BRIEF FACTS:

4. A Notice Inviting Tender was issued on 27.02.2020 for settlement of Group No.1/87 Dharnad Brahmaputra Part-I and Satkuri Nadi Fishery (hereinafter referred to as the “fishery in question”) for the period from 2019-20 to 2025-26. The said Notice Inviting Tender stipulated various terms and conditions including the necessity of Bakijai Clearance Certificate to be obtained from the concerned Office of the Deputy Commissioner distinctly in the name of the society or self-help group.

5. The records further reveal that there were various litigations as regards the settlement in respect to the fishery in question. Pursuant to the various orders passed by the learned Coordinate Benches as well as the learned Division Bench of this Court, an order was passed on 17.10.2022 by the Joint Secretary to the Government of Assam, Fishery Department whereby the Respondent No.8 society was offered the fishery in question for settlement at Rs.1,90,05,000/- for 7 (seven) years at Rs.27,15,000/- per annum. Pursuant to the said order passed by the Joint Secretary to the Government of Assam, Fishery Department, a writ petition was filed by the Petitioner which was registered and numbered as WP(C) No.6885/2012 challenging the settlement so made in favour of the Respondent No.8.

6. It is further relevant to take note of that another writ petition was filed by the Respondent No.8 before this Court wherein the Petitioner herein was the Respondent No.3 in the said writ petition. The said writ petition was registered and numbered as WP(C) No.7056/2022.

7. The case of the Respondent No.8 in WP(C) No.7056/2022 appears to be on account of the writ petition filed by the writ petitioner i.e. WP(C) No.6885/2022 challenging the order dated 17.10.2022. It was the case of the Respondent No.8 in WP(C) No.7056/2022 that the Bakijai C

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2026 Supreme(Online)(Gau) 15274

GAUHATI HIGH COURTDevashis Baruah, JGauripur Coop Fishery Society Ltd – AppellantVersusState of Assam – RespondentWP(C)/7584/2022

The doctrine of constructive res judicata prevents a party from raising pleas in a subsequent proceeding that could and ought to have been raised in an earlier litigation between the same parties, and formal errors in tender documentation like Bakijai certificates are curable defects.

Cases Referred (3)

GAUHATI HIGH COURT
Devashis Baruah, J
Gauripur Coop Fishery Society Ltd – Appellant
Versus
State of Assam – Respondent
WP(C)/7584/2022