WA 24/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR J. CHELAMESWAR HON’BLE MR. JUSTICE HRISHIKESH ROY Chelameswar, CJ: Aggrieved by the common judgment dated 09.01.2008 passed by a le arned Single Judge of this Court in W.P(C) No. 5122/07 and W.P(C) No.5165/07 the writ petitioner in W.P(C) No.5165/07, who was the 5th Respondent in W.P(C) No.5 122/07, has preferred the present appeal. Both the abovementioned writ petitione rs are the societies registered under the Assam Co-operative Societies Act, 1949 comprising with members belonging to fishermen community. 2. On 16.06.2006 the Respondent No.3 herein issued a notice for set tlement of the fishery known as Upper Brahmaputra (Kamrup-Guwahati) Fishery. By the said notification the 3rd Respondent fixing the minimum bid of Rs.3,21,750/- for a period of seven years for which the above mentioned fishery was offered. The abovementioned writ petitioners and some others participated in the tender p roceeding pursuant to the invitation of the 3rd Respondent and initially the fis hery was settled in favour of the appellant herein by proceeding dated 19.08.200 6. 3. The decision of the Respondent No.3 to settle the fishery in que stion in favour of the appellant herein came to be challenged in Writ Petition ( C) No.4142/2006 by the 5th Respondent in the present appeal i.e. the petitioner in W.P(C) No.5122/07. The said writ petition was allowed by an order of this Cou rt by order dated 31.05.2007 by which the order of the 3rd Respondent dated 19.0 8.2006 was set aside with an observation that the writ petitioner therein should file a representation before the Commissioner & Secretary to the Government of Assam, Fishery Department within 10 days with further direction to the Commissio ner and Secretary to consider such representation, if filed by the writ petition er, after hearing all the concerned parties within a period of sixty days and to take appropriate decision. It was further directed that until such final decisi on is taken the present appellant in whose favour the settlement was made by ord er dated 19.08.2006 be permitted to operate the fishery. 4. Pursuant to the said direction the Commissioner and Secretary to the Govt of Assam, Fishery Department i.e. the 2nd Respondent, considered the m atter afresh and by proceeding dated 20.09.2007 settled the fishery in favour of the 5th Respondent herein. The appellant herein made representation to the conc erned Minister complaining against the settlement made in favour of the 5th Resp ondent details of which may not be necessary for the present purpose. On such re presentation, it appears that the concerned Minister directed the 2nd Respondent herein to examine the representation. On receipt of such endorsement from the M inister, by the proceeding dated 25.09.2007 the Deputy Secretary to the Governme nt of Assam, Fishery Department directed the Deputy Commissioner, Kamrup (the Re spondent No.3 herein) not to handover possession of the fishery, which is the su bject mater of dispute in this appeal, to the 5th Respondent herein till final disposal of the complaint petition by the Department. The relevant communication reads as follows:- In inviting reference to the above, I am directed to inform you that a s erious complaint have been lodged by Sri Jadav Haldar Secy. 3(c) Lower Part Meen Mahal S.S.Ltd against the settlement order issued in favour of Secy. No.1, 1(A) and 2 Upper Part Brahmaputra Fishery Cooperative Society Ltd. vide this deptt’s order No.FISH. 107/ 06/Pt/88 dt. 20.09.07 for which an enquiry is conducted by the Department. You are therefore, requested not to hand over the possession of the fish ery to the Secy. No.1, 1(A) and 2 Upper Part Brahmaputra Fishery Cooperative Soc iety Ltd. till the final disposal of the complaint petition by the Department. Yours faithfully, Sd/- Deputy Secretary to the Govt of Assam, Fishery Department. We must place on record that the communication does not indicate that the Commissioner and Secretary of the concerned Department was in any way kept informed of the development. In the result, the Deputy Secretary in substan ce sat in judgment over the decision of the Commissioner and Secretary, obviousl y a superior of the Deputy Secretary, a very sad state of affairs and perhaps re quires an investigation on the whole episode by the Government, if it thinks fit . 5. Aggrieved by the communication dated 25.09.2007, the 5th Respond ent herein filed Writ Petition (C) No. 5122/07. After making the above represent ation to the Minister and becoming successful in stalling the delivery of the Fi shery to the 5th Respondent herein, the present appellant chosen to challenge th e order of settlement dated 20.09.2007 made in favour of the 5th Respondent by way of Writ Petition (C) No.5165/07. Both the matters clubbed together and disp osed of by the judgment under appeal. 6. The crux of the dispute concerning the 5th Respondent herein is regarding the order of settlement dated 20.09.2007. In substance, the grievance of the 5th Respondent against the appellant is that that the appellant did not c omply with the essential conditions indicated in the NIT i.e. one of the conditi ons by which the bidders were requested to furnish a Bakijai Certificate, which as admitted by all the parties, is a certificate issued by the Deputy Commission er in whose jurisdiction the society is registered and operates. It is also the admitted position that such a certificate is an assertion of the Deputy Commissi oner that the recipient of the certificate is not in arrears of revenue as on th e date of the issuance of the same. Though the process of issue of such certific ate is not supported by any authority or law, both the parties admit that such c ertificates are issued and insisted upon while inviting tenders by any departmen t of the Government. 7. The appellant herein along with his tender had submitted a Bakij ai certificate dated 28.06.2005. It is once again the admitted position that suc h certificate is valid only for a period of one year from the date of issuance. In other words, validity of the certificate would elapse on 27.06.2006. The tend ers were scrutinized on 06.07.2006 and according to the 5th Respondent there was no valid Bakijai Certificate on the date on which the tenders were scrutinized and in the absence of a valid Bakijai Certificate the appellant herein did not f ile a valid tender and, therefore, his tender ought not to have been considered in view of the law declared by this Court in 2003(3) GLT 503 . We may mention he re that that it was a case where one of the tenderers did not furnish a Bakijai certificate at all. In that context the Division Bench of this Court in para 13 held as follows:- 13. We have also carefully perused the records and we find that at the time, when the tender was opened, the appellant Society did not state anything in jus tification of non-production of the Bakijai Clearance Certificate nor did the ap pellant Society offered any explanation for its omission to put signature on the tender form in the presence of a gazetted officer. Thus, for the fact that the tender submitted by the writ petitioner not, contrary to the essential condition s of the NIT, accompanied by Bakijai Clearance Certificate and for the further f act that in the tender form, the tender had not put its signature in the presenc e of a gazetted officer, the appellant Society’s tender was invalid and the appe llant Society was not even eligible for consideration of its bid amount. 8. We agree with the submissions made by the learned counsel for th e 5th Respondent to the limited extent that if a tender which is not accompanied by a Bakijai Certificate is an invalid tender, equally the tender which is acco mpanied by a Bakijai Certificate whose validity expired by the date of the scrut iny (which is relevant for determining the eligibility of the tender) should log ically be also an invalid tender. But the question is, what is the law which dec lare a Bakijai Certificate to be valid only for one year. It is an administrativ e understanding which is also shared by both the parties to the present case. Th erefore, we do not propose to examine the question. 9. Admittedly, the appellant herein subsequently produced a Bakijai Certificate, which indicated that as on the relevant date i.e. 06.07.2006 the ap pellant was not in arrears of revenue. The appellant argued that the irregularit y, if any, in his tender of not annexing a valid Bakijai Certificate is purely a technical irregularity and, therefore, the defect is a curable defect. Learned counsel further submitted that if the purpose of asking for a Bakijai Certificat e is to ensure that the tenderer is not in arrears of revenue is more important than the certificate which is only a proof of fact. Therefore, the tender of the appellant ought to have been considered as valid tender. 10. In view of the decision noticed above, we do not propose to exam ine the correctness of the submission made by the appellant as this Court has al ready declared that a tender which is not accompanied by a Bakijai Certificate i s invalid and not required to be considered. We do not see any reason to disturb the law declared by this Court. But that doe not resolve the problem of the ins tant case. The above conclusion of ours would necessarily lead to a situation wh ere the 5th Respondent whose bid is only R.85,000/- for the first year with an u nderstanding to enhance the bid by 10% for every succeeding year of continuance of the settlement, whereas the appellant offered Rs.1,91,000/- for the first yea r with an undertaking to enhance 10% every succeeding year. The net result would be that because of the technical lapse of the appellant, the third party i.e. t he 5th Respondent would stand benefited. We are of the opinion that such is not the purpose sought to be achieved in the name of rule of law. 11. By the settlement in dispute a public property is sought to be a lienated, in which case it is the settled position of law that such an alienatio n is to be made to the best advantage of the State, in other words, the society at large. We, therefore, thought it fit to call upon the 5th Respondent whether he is willing to offer the same amount that is offered by the appellant herein f or securing settlement in his favour. Mr. A.K.Goswami, learned counsel for the appellant on instruction stated that the 5th Respondent is willing to offer the same amount which was offered by the appellant herein. 12. At this stage, learned counsel for the appellant submitted that in view of the fact that almost a period of one-and-half year elapsed from the d ate of the NIT, the settlement in question, if it is put to settlement process o nce again, would fetch higher value than even what is offered by the appellant. We called upon the appellant whether he is willing to deposit the entire amount of Rs.1,90,000/- as security for the probable loss, if any, in the event this Co urt directs for fresh tender process for the settlement in disput, learned couns el Mr. M.K.Choudhury submitted that the appellant would deposit the amount of R s.1,91,000/- in the event this Court directs the 3rd Respondent to initiate fres h tendering process for settlement of the fishery in question. 13. In the circumstances, we deem it appropriate to allow the writ a ppeal directing the 3rd Respondent to invite fresh tenders for settlement of pr operty which is the subject matter of dispute in the present appeal, on conditio n that the appellant deposits Rs.1,91,000/- within a period of 10 days from toda y, failing which the 3rd Respondent shall finalize the settlement made in favour of the 5th Respondent on condition that the 5th Respondent deposits Rs.1,91,000 /- and shall also execute proper documents agreeing to enhance the bid amount by 10% per annum. In the event of appellant’s depositing the abovementioned amount , the 3rd Respondent shall initiate fresh tender process in accordance with law and in such process if the highest bid falls short of Rs.1,91,000/- the settleme nt shall be made in favour of the highest bidder, but the amount deposited by th e appellant shall be forfeited to the State. The appeal stands disposed of with no order as to cost.