WP(C) 6616/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who submitted the tender seeking settlement of D ehing Part-I Meen Mahal in the district of Dibrugarh, pursuant to the NIT dated 12.05.2008, by the present petition has challenged the order of settlement dated 09.12.2010 passed by the Commissioner and Secretary to the Govt. of Assam in Fi shery Department, settling the said fishery in favour of the respondent No.5, wh o was the 4th highest bidder, by rejecting the tender paper submitted by the pet itioner, who was the 2nd highest bidder, on the ground of non-submission of the fishing experience certificate, in view of such a condition in the NIT dated 12. 05.2008. 2. The said fishery was put to sale under proviso to Rule 12 of the Assam F ishery Rules, 1953, as amended, inviting sealed tenders from the registered coop erative societies, non-government organizations and the self-help groups consist ing of 100% actual fishermen in the neighbourhood of the fishery. 4(four) regist ered cooperative societies, including the petitioner as well as the respondent N o.5, submitted the bids. While M/S Brahmaputra Part-III, IV & V Fishery Cooperat ive Society Ltd. offered the highest bid of Rs.7,77,777/-, the petitioner societ y, namely, M/S Dehing Nodi Paschimanchal Anchalik Fishery Cooperative Society Lt d. offered Rs.7,21,551/-. Another fishery cooperative society, namely, M/S Dibru garh Fishery Cooperative Society Ltd. offered Rs.7,07,555/- and the respondent N o.5 society, namely, M/S Dehing Party-I Fishery Cooperative Society Ltd. offered Rs.6,32,602/-. The highest bidder, namely, M/S Brahmaputra Part-III, IV & V Fis hery Cooperative Society Ltd., however, has withdrawn its bid leaving 3(three) f ishery cooperative societies in contention for settlement of the said fishery. T he writ petitioner society admittedly did not furnish the fishing experience cer tificate as required under the terms and conditions stipulated in the aforesaid NIT dated 12.05.2008. The respondent No.5 Cooperative Society also did not furni sh the income tax clearance certificate, which, however, was not a condition of the NIT. The said fishery was settled with the respondent No.5 by the Commission er and Secretary by the impugned order dated 09.12.2010 by rejecting the claim o f the 3rd highest bidder, namely, M/S Dibrugarh Fishery Cooperative Society Ltd. , on the ground of not being within the neighbourhood of the fishery concerned a nd also by rejecting the tender papers submitted by the present petitioner, who was the 2nd highest bidder on the ground of non-submission of the fishing experi ence certificate. Hence the present writ petition. 3. I have heard Mr. N.C. Das, learned Sr. counsel for the petitioner, Mr. T alukdar, learned Addl. Sr. Govt. Advocate, Assam, appearing for the respondent N o.1 to 4 and Mr. U. Bhuyan, learned Sr. counsel appearing for the respondent No. 5, settlement holder. 4. It is the contention of the learned Sr. counsel for the petitioner that the tender paper submitted by the petitioner cannot be rejected for non-submissi on of fishing experience certificate, as proviso to Rule 12 of the Assam Fishery Rules, 1953 does not stipulate such requirement. It has been contended that und er proviso to Rule 12, a registered cooperative society consisting of 100% actua l fishermen in the neighbourhood of the fishery, is entitled to be considered fo r settlement. It has also been submitted by the learned Sr. counsel that such co nditions as stipulated in the terms and conditions of the NIT for submission of the fishing experience certificate is a non-essential clause and hence cannot be the ground for rejection of the tender papers as defective, and if the same is insisted upon, it would amount to depriving the newly constituted fishery cooper ative societies or the non-Government organizations or the self-help groups cons isting of 100% actual fishermen in the neighbourhood of the fishery, from being considered for settlement. The learned Sr. counsel, therefore, submits that the ground on which the tender paper submitted by the petitioner has been adjusted a s defective, cannot be sustained in law and the petitioner being the 2nd highest bidder, the direction may be issued to the respondent authority to settle the s aid fishery in its favour. 5. The learned State counsel referring to the records produced has submitte d that the petitioner’s tender paper was found to be defective for non-submissio n of the fishing experience certificate as stipulated in the terms and condition s of the NIT and hence though he was the 2nd highest bidder, the settlement was not offered to him. It has also been submitted that since the 3rd highest bidder did not fulfill the requirement of proviso to Rule 12 of the Fishery Rules, the authority had no other alternative but to settle the fishery in favour of the 4 th highest bidder i.e. the respondent No.5, his tender paper having found to be in order. 6. The learned Sr. counsel appearing for the respondent No.5 has submitted that the petitioner having submitted the tender pursuant to the NIT dated 12.05. 2008 has accepted the terms and conditions stipulated therein and since under su ch terms and conditions submission of the fishing experience certificate is esse ntial, the authority has not committed any illegality in rejecting the tender pa per submitted by the petitioner as defective, the petitioner admittedly having n ot submitted the fishing experience certificate. It has also been submitted by t he learned Sr. counsel that the petitioner, in fact, has been settled with anoth er fishery by the Fishery Development Corporation and, therefore, there was no i mpediment on its part in submitting the fishing experience certificate, which it has failed to do and hence his tender paper was rightly found to be defective. 7. I have considered the submissions of the learned counsel for the parties and also perused the pleadings as well as the records as produced by Mr. Talukd ar, learned Addl. Sr. Govt. Advocate, Assam. 8. The various rates offered by various tenderers, as noticed above, are no t in dispute. Admittedly the petitioner was the 2nd highest bidder. The tender s ubmitted by the 1st highest bidder was withdrawn and the 3rd highest bidder was found to have not complied with the requirement of proviso to Rule 12 of the Fis hery Rules. In the terms and conditions of the NIT dated 12.05.2008 there was a requirement for furnishing the fishing experience certificate, which has not bee n complied with by the petitioner, for which the petitioner’s tender paper was f ound to be defective and hence rejected. Consequently the authority has settled the fishery, vide impugned order dated 09.12.2010, in favour of the respondent N o.5, its tender paper having found to be in order. 9. Proviso to Rule 12 of the Assam Fishery Rules empowers the Government to settle a 60% category fishery with special category of cooperative societies, n on-Government organizations and self help groups consisting of 100% actual fishe rmen in the neighbourhood of the fishery concerned by Tender System. Explanation 1 to Rule 12 explained the term special category , which means and includes th e Cooperative Societies, Self-Help Groups, Non-Governmental Organisations compri sing of 100% actual fishermen of the Scheduled caste community or Maimal communi ty of erstwhile Cachar district. Explanation 2 to Rule 12 defines 60% category fishery , as 60% of registered fisheries available in a Civil Sub-Division avail able for settlement in a particular year. 10. In the instant case it is not in dispute that both the writ petitioner a nd the respondent No.5, which are registered cooperative societies, are eligible for submission of the tender under proviso to Rule 12. As noticed above, provis o to Rule 12 does not impose a condition that the cooperative society or the non -Government organizations or the self-help groups must have the previous fishing experience to become eligible for submission of the tender and for consideratio n for settlement. In fact, the Assam Fishery Rules, 1953 nowhere provide complia nce of such a condition for consideration for settlement of any fishery, be it 4 0% category fishery or the 60% category fishery. Such condition has not been inc orporated in the Rule, as it would have the effect of depriving the newly regist ered cooperative societies or newly formed non-Government organizations or self- help groups from consideration for settlement. Such a condition relating to the fishing experience, if insisted, would also deprive such categories of the socie ties, organizations and groups from getting settlement for ever and in that case the fisheries would be open for settlement only to the cooperative societies or non-Government organizations or the self-help groups, which have past fishing e xperience. 11. That being the position, though a condition has been put in the terms an d conditions of the NIT, the tender papers of any of the tenderers cannot be rej ected, on the ground of non-submission of the fishing experience certificate, as has been done in the instant case by the Commissioner and Secretary pursuant to the decision taken by the Minister of Fisheries on 29.11.2010, which is evident from the records produced by the learned State counsel. 12. The contention of the learned Sr. counsel for the respondent No.5 that t he petitioner being the settlement holder in respect of a fishery under the Fish ery Development Corporation, they could have file the fishing experience certifi cate and hence non-submission of such certificate disentitle the petitioner from getting the settlement, is not acceptable in view of the aforesaid discussion a nd also in view of the fact that the said fishery was settled in favour of the p etitioner by the Corporation after the last date of submission of tender in the present tender process in question. 13. In view of the above, the order of settlement dated 09.12.2010 passed by the Commissioner and Secretary to the Govt. of Assam in Fishery Department sett ling the said fishery in favour of the respondent No.5 is set aside. The matter is remitted to the Commissioner and Secretary for passing a fresh order upon con sideration of the tender papers submitted by the petitioner and the respondent N o.5 and keeping in view the discussion made herein above. The said exercise is d irected to be completed within a period of 1(one) month from today. 14. The writ petition is accordingly allowed as indicated above. No costs.