WA 153/2010 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.P.KATAKEY Ranjan Gogoi, J This appeal is directed against the order dated 6.5.2010 passed in a proceeding registered and numbered as WP(C) No. 2452/2010. By the aforesaid order, the writ petition filed by the respondent No.4 has been allowed with cer tain directions the details of which will be noticed in the course of the discus sions that will follow. 2. The writ petitioner/ respondent No.4 claims to be a Fishery Coop erative Society composed of 100% fishermen. According to the writ petitioner, th e new Managing Committee of the Society assumed office on 26.12.2009 in an elect ion held in the Annual General Meeting. According to the writ petitioner, at th e time of the changeover the earlier body had failed to submit proper accounts o f the assets and liabilities of the Society due to acts of mismanagement. The ne w body of the Cooperative Society, therefore, requested the Managing Director of the Assam Fisheries Development Corporation by a letter dated 19.3.2010 to prov ide information on its outstanding dues, if any. It is the further case of the p etitioner that the information sought for was not forthcoming and by a Tender No tice dated 9.4.2010 the Corporation had invited bids for settlement of the Gathi a Beel Fishery (hereinafter referred to as ’the fishery’). In terms of the NIT i ssued, 26.4.2010 was fixed as the last date for submission of bids. It is also t he pleaded case of the petitioner Society that as no intimation with regard to i ts dues was furnished by the Corporation the petitioner Society was refused the tender documents by the Corporation on the ground that there were outstandings d ue. On the aforesaid facts, the writ petition out of which this appeal has arise n was instituted seeking a direction to the Corporation to furnish to the petiti oner Society the necessary details of the payments due and for suitable extensio n of the last date fixed for submission of tenders so as to enable the petitione r Society to pay its dues and, thereafter, participate in the tender process. Th e writ petition in question, it may be noticed, was filed on 26.4.2010. 3. On the said date, while entertaining the writ petition orders we re passed to the effect that the proceedings pursuant to the NIT dated 9.4.2010 shall not be finalized possibly on account of the fact that by the time the sai d order could be passed the bids had already been opened. Be that as it may, the writ petition which had soon thereafter come for final disposal was heard by a learned Single Judge on 6.5.2010. The learned Single Judge took the view that as information with regard to the dues of the petitioner Society was not furnished inspite of being sought for, the petitioner Society cannot be treated to be a d efaulter. Accordingly, directions were issued that an amount of Rs. 51,777/-, wh ich was quantified as the dues payable by the petitioner Society to the Corporat ion, should be paid on or before 12.5.2010. The learned Single Judge further dir ected that if the said amount is paid on or before the date fixed i.e. 12.5.2010 , the process initiated by the NIT dated 9.4.2010 will stand quashed and the res pondent Corporation would initiate a fresh settlement process. The learned Singl e Judge had also directed that if the amount due is not paid within 12.5.2010, t he settlement process pursuant to the NIT dated 9.4.2010 can be finalized. There is no dispute that the petitioner Society had paid the due amount within the da te fixed by the order dated 6.5.2010 passed by the Court. 4. In the aforesaid facts and circumstances, the appellant who clai ms to be the highest bidder pursuant to the NIT dated 9.4.2010, has assailed the order dated 6.5.2010 disposing of the writ petition. The appellant, it may be n oticed, was not a party to the writ proceeding before the learned Single Judge. 5. We have heard Mr AK Goswami, learned senior counsel for the appe llant; Dr B Ahmed, learned Standing Counsel, AFDC; Mr PS Deka, learned Govt. Adv ocate as well as Mr BD Goswami, learned counsel for the respondent No.4/ writ pe titioner. 6. Pointing out the provisions of Section 32(1)(c) of the Assam Coo perative Societies Act, 1949 and Rule 36(5) of the Rules framed thereunder, Mr A K Goswami, learned counsel for the appellant has submitted that the managing bod y of a Cooperative Society is required to have its accounts of the preceding yea r audited and such audited accounts along with the balancesheets are required to be considered in the Annual General Meeting of the Society. In the instant case , the election of the new body on 26.12.2009 was held in an Annual General Meeti ng of the Society where the audited annual accounts and balancesheets were statu torily required to be considered. If that be so, according to Mr Goswami, there is no room for the respondent No.4/writ petitioner to contend that the earlier m anaging body had not maintained the accounts so as to enable the new body to be aware of its liabilities to the Corporation. Mr. Goswami has further submitted t hat keeping in view the prayers made in the writ petition i.e. for a direction t o the Corporation to furnish details of the dues of the petitioner Society and t o extend the last date for submission of tenders, the writ petition had become i nfructuous the moment the bids submitted pursuant to the NIT dated 9.4.2010 were opened. Mr. Goswami has also taken the Court through Clause 4.1.7 of the detail ed terms and conditions of the Tender Notice to point out that an intending tend erer was required to submit a Bakijai Clearance Certificate in respect of Govern ment dues in addition to be free from any kind of default in respect of dues to the Corporation. Placing the averments made in para 5 of the Memorandum of Appea l, Mr Goswami has pointed out that the petitioner Society was in default of a su m of Rs. 91,083/- in respect of a Government fishery, namely, Barhowhowa Fishery and that a certificate dated 5.5.2006 was issued in this regard under Section 2 9 of the Bengal Public Demands Recovery Act, 1913. Mr Goswami has also drawn the attention of the Court to the averments made in para 5 of the Memorandum of App eal to the effect that the Certificate Officer, Mangaldoi had issued a warrant o f arrest dated 17.5.2010 against the Secretary of the petitioner Society. On the said facts, Mr Goswami has submitted that even if the issue dealt with by the l earned Single Judge is to be decided in favour of the respondent No.4/ writ peti tioner the default of the said Society in respect of Government dues as stipulat ed by Clause 4.1.7 of the NIT is clearly established. No Bakijai Clearance Certi ficate in respect of Government dues, as required by the aforesaid clause of the Notice Inviting Tender had been submitted by the petitioner Society, it is argu ed. 7. In reply, Mr BD Goswami, learned counsel for the respondent No.4 / writ petitioner has submitted that the Corporation being a statutory body was under a legal obligation to furnish to the petitioner Society the details of the dues payable by it. According to Mr Goswami, well before the impugned NIT was i ssued i.e. 9.4.2010, the petitioner Society had submitted a written request to t he Corporation for the necessary information which was followed by a reminder. A s the necessary information was not disclosed inspite of receipt of the said req uest(s) made in writing, the petitioner Society was unable to take part in the t ender process pursuant to the NIT dated 9.4.2010 for no fault of its own. Mr Gos wami has further pointed out that the Corporation has not denied receipt of the written request made by the petitioner Society. In these circumstances, accordin g to Mr Goswami, the order passed by the learned Single Judge is just and equita ble and would not call for any interference. Mr Goswami has further submitted th at the default, if any, in respect of the Government dues in connection with Bar howhowa Fishery had occurred during the term of the previous Managing Committee and the Bakijai proceeding including the warrant of arrest were initiated and is sued against the earlier office bearers of the Society. Mr Goswami has also plac ed before the Court a Bakijai Clearance Certificate issued by the SDO(S) Mangald oi which would go to show that all outstanding Government dues had been paid by petitioner Society. 8. We have considered the submissions advanced by the learned couns el for the contesting parties. We have perused the order of the learned Single J udge and the stand taken by the respective parties in the proceedings before the learned Single Judge as well as in the present appeal. 9. The detailed terms and conditions of the NIT dated 9.4.2010 whic h have been placed before us indicate that in Clause 4.1.7 thereof an intending tenderer is required to submit along with the bid documents a Bakijai Clearance Certificate in respect of Government dues and, furthermore, the intending tender er cannot be in default of any revenue due to the Corporation. In the present ca se, the averments made in para 5 of the Memorandum of Appeal, the details of whi ch have been noticed above, have not been controverted in any manner whatsoever though the respondent No.4/ writ petitioner has filed an affidavit in the appeal proceeding. In fact, from the Bakijai Clearance Certificate placed before the C ourt by the learned counsel for the respondent No.4/writ petitioner it clearly t ranspires that the outstanding Government dues had been deposited by the petitio ner Society only on 18.5.2010 whereas the last date for submission of tender pur suant to the NIT dated 9.4.2010 was 26.4.2010. In such circumstances, there can be little hesitation to take the view that the respondent No.4/ writ petitioner is a defaulter of Government dues and does not satisfy the requirement spelt out by the first part of Clause 4.1.7 of the terms and conditions of the NIT. The a foresaid aspect of the matter was not considered by the learned Single Judge ina smuch as the pleadings before the learned Single Judge did not indicate the said fact. In fact, the present appellant who had pointed out the said fact in the M emorandum of Appeal, as already noticed, was not a party to the proceedings befo re the learned Single Judge. If the respondent No.4/ writ petitioner is a defaul ter under the first part of Clause 4.1.7 of the terms and conditions of the NIT dated 9.4.2010, as we are inclined to hold, the other questions raised including the question of default in respect of the dues of the Corporation would have li ttle meaning. The said questions, therefore, will not be required to be gone int o as any findings on the same are bound to be redundant in view of the conclusio ns already reached. 10. In the light of the discussions that have preceded, this appeal will now have to be allowed, which we hereby do. The order dated 6.5.2010 passed by the learned Single Judge is, therefore, set aside. Consequently, the process initiated by the NIT dated 9.4.2010 will have to be given effect to by the Corp oration. The Corporation is directed to act accordingly. 11. The Writ Appeal, consequently, is allowed as indicated above.