WP(C) 2714/2006 BEFORE HON’BLE JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. While the first two writ petitions have been filed by the petitioner mak ing a challenge to the settlement of the particular fishery in favour of the pr ivate respondent, the private respondent has filed the third writ petition makin g a challenge to the order passed by the authority pursuant to interim order pas sed in the second writ petition, i.e. W.P.(C) No. 4900/06. In the first two writ petitions, the petitioner is one and the same and is a Cooperative Society regi stered under the Cooperative Societies Act, 1949. For the purpose of making sett lement of the fishery called Karha Fishery (Part-I) for a period of five years w.e.f. 23.11.05 to 22.11.10, the Deputy Commissioner, Dhemaji floated notice da ted 14.10.05 notifying tenders from the interested parties. The petitioner’s soc iety responded to the same by submitting its tender quoting the amount at Rs. 6, 51,100/- per annum. Six other tenders including the private respondent had also submitted their tenders. 2. The tenders were opened on 29.10.05 in presence of the authority of the Dhemaji Zila Parishad and it was found that the rate/bid offered by the petitio ner was the highest and the rate offered by the private respondent was the secon d highest at Rs. 6,50,621/-. According to the petitioner, the tender submitted by the private respondent was incomplete and defective, inasmuch as it did not submit yearly return from the Assistant Registrar of the Cooperative Societies nor did it submitted income tax clearance certificate. It also failed to submit the Bakijai clearance certificate issued by the competent authority. Be it state d here that as per clause-12 of the notice inviting bids, the tenderer is requi red to produce the certificate as proof of his not being defaulter in respect of any Govt. dues. Further as per clause-2 of the notice, income tax/sales tax cle arance and Bakijai clearance certificate also required to be submitted along wit h tenders. 3. After the tenders were received, the Deputy Commissioner, Dehmaji who ha d issued the tender notice, prepared the comparative statement showing the par ticulars of the bids offered by the tenderers and the same was forwarded to the Govt. by letter dated 09.11.05. A copy of the letter dated 09.11.05 along with t he comparative statement has been annexed as Annexure-B to the writ petition. In the letter it was indicated that on scrutiny of the documents submitted by the tenders, the bid offered by the petitioner was found to be the highest and accor dingly approval for settlement was sought for. The statements reveal that while the petitioner’s society submitted all the required documents, the private respo ndent did not submit the certificate from the bank , yearly return from the Assi stant Registrar of the Cooperative Society and the income tax certificate. The b id offered by the petitioner was the highest, while that of the private responde nts was the second highest. 4. While the petitioner was expecting the settlement of the fishery with ne cessary follow up action, the private respondent approached the Minister of Parl iamentary Affairs, Water Resources & W.P.T & B.C. for favouring with the settlem ent and the said Minister in turn directed the Secretary to the Govt. of Assam i n the Fishery Department to settle the fishery with the private respondent. From the letter, it appears that a process was initiated for retendering the fishery . 5. Being aggrieved by the aforesaid development, the petitioner approached this Court by filing the writ petition being W.P.(C) No. 8388/2005 and this Cour t while entertaining the writ petition passed the interim order in favour of the petitioner. Thereafter, the writ petition was finally disposed of by order date d 20.03.06 issuing direction to the authorities to decide the matter relating to settlement of the fishery on merit by offering reasonable opportunity of hearin g to the parties. It was further provided that endorsement made by the Minister to the Secretary of the Department shall be avoided. 6. After the aforesaid order of this Court, the Secretary to the Govt. of A ssam in the Fishery Department, i.e. the respondent No. 2, passed the impugned o rder dated 25.05.06 settling the fishery with the private respondent at his bi d of Rs. 6,50,621/-. The primary ground assigned for making the settlement in fa vour of the private respondent is that the private respondent is very nearer to the fishery although the petitioner’s society is also within the neighbourhood o f the fishery. Secondly, the difference of price bid between the petitioner and the private respondent being only Rs. 470/- is not substantial. Another ground a ssigned is that the petitioner’s society has already been settled with another f ishery and as per the policy decision of the Govt., two major fisheries should n ot be settled with one fishery Cooperative Society. 7. According to the petitioner, the finding recorded by the respondents tow ards settlement of the fishery in favour of the private respondent are utterly p erverse. As regards the purported policy not to settle two fisheries with one Co operative Society, the petitioner has contended that no such policy is in existe nce and even if any, being a hidden one, cannot be applied. In this connection , the petitioner has placed reliance on the decision of the Apex Court reported in (1997) 1 SCC 53 (Dutta Associates vs. Indo. Mercantiles ). 8. The petitioner has also contended that no settlement can be made on grou nd of being very nearer to the fishery as the same is not contemplated in the Ru le-12 of the Fishery Rules. According to the petitioner, the NIT never specified that a Cooperative Society being more nearer to the fishery would be preferred and that a Cooperative Society having settlement of one fishery would not be c onsidered for settlement of another fishery. Thus, according to the petitioner t hese two purported criteria adopted by the respondent No. 2 are opposed to the p rinciple laid down in Dutta Associate’s Case. The petitioner has also contended that the private respondent having not submitted the required certificates incl uding the Bakijai certificate contrary to the requirement of the NIT, could not have been settled with the fishery to the deprivation of the petitioner. 9. The first writ petition being W.P.(C) No. 2714, was entertained by order dated 02.06.06 and an interim order was passed staying operation of the impugne d order dated 25.05.06 on condition that if the fishery was not officially hande d over to the private respondent. 10. The occasion for the petitioner to file the second writ petition, i.e. W .P.(C) No. 4900/06 arose when the Circle Officer of the revenue circle passed th e order dated 18.09.06 purportedly modifying the boundary of the fishery which w as purportedly handed over to the private respondent earlier. However, in the or der no indication has been given as to when the fishery was handed over to the p rivate respondent. In the impugned order dated 18.09.06 the position of the fish ery has been shown as, taken over and handed over. Thus, according to the petiti oner in view of the earlier interim order dated 02.06.06 passed in W.P.(C) No. 2 774/06, the order dated 18.09.06 could not have been issued by the Circle Office r in the name of modification of the boundary and handing over possession of the same to the private respondent. 11. Pursuant to the aforesaid interim order passed by this Court, the author ities issued WT message and signals both dated 05.06.05 issuing direction for st ay of operation of the impugned settlement order. Referring to the WT message an d Signal, it is the case of the petitioner that till issuance of the order dated 18.09.06 by the Circle Officer, the fishery was never handed over to the privat e respondent. 12. The order passed by the Circle Officer was on the basis of the order dat ed 01.09.06 passed by the Deputy Commissioner in the matter of redetermination o f the boundary of the fishery. It was observed that the boundary of the fishery would remain the same until further order from the competent authority and the d irection was issued to the Circle Officer to hand over the possession of the sam e with the boundary as indicated in the order. From this order also, it has bee n contended by the petitioner that even after issuance f the order dated 01.09.0 6 by the Deputy Commissioner, the fishery in question was not handed over to the private respondent. But it is only after the order of the Circle Officer dated 18.09.06, the fishery was sought to be handed over to the private respondent. T he second writ petition being W.P.(C) No. 4900/06 was entertained by order dated 22.09.06 and it was provided that status quo as regards the possession of the f ishery as was existing and interpreted and taken into account by the Official re spondents on the date of passing the interim order dated 02.06.06 in W.P.(C) No. 2714/06, shall be maintained. 13. The private respondent has filed the 3rd writ petition being W.P.(C) No. 5201/06 making a grievance against the order dated 03.10.06 passed by the Deput y Commissioner directing the Circle Officer who had passed the aforementioned or der dated 18.09.06 to maintain the status quo as regards the possession of the f ishery in terms of the earlier order of this Court passed on 02.06.06. As per th e own showing of the respondent No. 5, the kist money in respect of the settleme nt of the fishery was deposited on 25.07.06 and a copy of the challan has been a nnexed to the writ petition as Annexure-2. In terms of the interim order dated 0 2.06.06, the impugned order of settlement dated 25.05.06 passed by the responden t No. 2 settling the fishery with the private respondent was to remain stayed if the fishery in question, in the meantime, was not officially handed over to the respondent No. 5. No materials have been brought to the notice of this Court th at the possession of the fishery was handed over to the private respondent befor e passing the interim order dated 02.06.06. 14. The aforesaid interim order will have to be understood in the context o f the observation of the Court in the order that as per communication dated 01.0 6.06 indicated in the order, same did not show deposit of any kist money. Needle ss to say that the deposit of kist money is the sine qua non for official handin g over of possession. Mere forceful occupation of the fishery backed by no legal authority cannot amount to official handing over of the fishery as contemplated in the interim order dated 02.06.06. However, it has been all along a case of t he private respondent who is the writ petitioner in W.P.(C) No. 5209/06 that pri or to passing of the interim order dated 02.06.06, it had already taken over the fishery. The official respondents are silent as to whether the fishery in quest ion has officially been handed over to the private respondent. 15. If the fishery was officially handed over to the private respondent ther e could not have been any occasion for the said respondent to file the writ peti tion being W.P.(C) No. 5209/06 making a grievance against the order dated 03.10. 06 by which the Deputy Commissioner directed the Circle Officer to maintain stat us quo as regards the possession of the fishery in terms of the earlier interim order dated 02.06.06. If before passing the interim order dated 02.06.06 the pri vate respondent was officially handed over the possession of the fishery, same w ould not have been disturbed by the impugned order dated 03.10.06 in W.P.(C) No. 5209/06 by which only a direction was issued to maintain the status quo as rega rds the possession of the fishery in terms of the earlier order dated 02.06.06. 16. The filing of the writ petition by the private respondent, i.e. W.P.(C) No. 5209/06, gives an impression that same has been filed to camouflage the situ ation which has arisen in view of the writ proceeding initiated by the petitione r’s Society by way of W.P.(C) No. 2714/06 and W.P.(C) No. 4900/06 and the interi m orders passed therein. 17. The private respondent has not filed any counter affidavit to the writ p etitions filed by the petitioner’s society. However, the petitioner’s society ha s responded to the writ petition filed by the private respondent by filing count er affidavit. Thus, the private respondent has not denied the specific plea rais ed by the petitioner that there was default on the part of the private responden t in submitting its tender by not annexing income tax/ sales tax clearance and Bakijai clearance certificates and so also the proof of being not defaulter as regards the Govt. dues. In the comparative statement prepared by the Deputy Comm issioner, it has been indicated that the private respondent did not submit no du es certificate from the bank, yearly return from the Assistant Registrar of the Cooperative Society and certificate of income tax. If that was the position rela ting to the tender submitted by the private respondent, its tender was liable to be rejected being not in conformity with the requirements of the NIT. 18. I have heard Mr. I. Choudhury, learned counsel for the petitioner in W.P .(C) No. 2714/06 and 4900/06 as well as Mr. N.C. Das, learned Sr. counsel assist ed by Mr. P.C. Deka, learned counsel appearing for the private respondent who is also the writ petitioner in W.P.(C) No. 5209/06. I have also heard Ms. R. Chokr aborty, learned State counsel representing the state respondents. 19. The fact material for the purpose of determining the issue raised have b een noted above. There is no dispute that the petitioner’s Society was the highe st bidder and the private respondent was the second highest bidder. While the pe titioner’s society complied with all the requirements of the tender notice, the private respondent failed to do so as will be evident from the comparative state ment prepared by the Deputy Commissioner. The comparative statement was forwarde d to the Govt. by letter dated 09.11.05 specifically recommending the case of th e petitioner for settlement, it being the highest bidder. In the comparative sta tement it was clearly indicated that the tender submitted by the private respond ent was defective due to non submission of no dues certificate from the bank, ye arly return from ARCS and the certificate of income tax. According to the petiti oner, the private respondent also did not submit the Bakijai clearance certifica te. 20. The above aspect of the matter has not been denied by the private respo ndent by filing any counter affidavit to both the writ petitions filed by the pe titioner. In the counter affidavit filed by the petitioner to the writ petition filed by the private respondent, this aspect of the matter has been highlighte d to which there is no denial on the part of the private respondent by way of fi ling any affidavit in reply. If that be so, on this ground alone the tender subm itted by the private respondent ought to have been rejected, but instead the off icial respondent decided to favour the private respondent with the settlement. S uch decision of the respondent No. 2 will have to be considered in the context o f the recommendation made by the Minister of Parliamentary Affairs unconnected w ith the Fishery Department. Even if the said Minister is connected with the Fish ery Department, he could not have arbitrarily issued direction to the respondent No. 2 to make the settlement in favour of the private respondent. The tender pr ocess is initiated and finalized within the parameters and the principles underl ying settlement through tender process. It is the Deputy Commissioner who had in vited the tenders and on receipt of the same, he prepared the comparative statem ent and on that basis made the recommendation in favour of the petitioner. Howev er, the respondent No. 2 without following the same, passed the impugned order d ated 25.05.06 making settlement in favour of the private respondent. 21. The grounds on which the settlement has been made in favour of the priva te respondent have been noted above. There is no whisper in the impugned order a s to the default on the part of the private respondent in not submitting the req uired documents, as noticed above, along with its tender. A strange reason has been given in the impugned order that the private respondent is in the more neig hbourhood of the fishery than that of the petitioner. It has not been denied tha t the petitioner is in the neighbourhood of the fishery. The relevant rules do n ot contemplate anything like more neighbourhood . If both the Cooperative Soci eties are in the neighbourhood of the fishery, they fulfill the requirement of b eing in the neighbourhood of the fishery. The distinction cannot be curved out i n the name of being in the more neighbourhood when such distinction is not conte mplated in the rules. 22. As regards the purported policy decision dated 14.06.82, undoubtedly sam e is an unsigned guidelines and without any indication as to circulation and app licability. Such purported guideline cannot override the provisions of the Assam Fishery Rules, 1953. Nothing could be shown from the rules that a Cooperative S ociety even on fulfillment of the requisite criteria for getting settlement of a fishery and also having been found more suitable for settlement, cannot be set tled with the same merely because it has also been settled with another fishery judging suitability. In the case of Ganga Fishermen Samabai Samity Ltd. Vs. Stat e of Assam and others (W.P.(C) No. 3152/06) disposed of by judgment and order da ted 18.08.06 dealing with the same question regarding applicability of the purpo rted guidelines dated 14.06.82, it has been held that such purported guidelines has no applicability and cannot override the provisions of the Assam Fishery Rul es, 1953. This decision has been upheld by the Division Bench of this Court by j udgment and order dated 07.12.06 passed in W.A. No. 384/06 and has been reported in 2007 (1) GLT 558. 23. As regards the plea of the respondent No. 2 towards passing the impugned order, that difference in price bid is very nominal same is not sustainable, f irstly because such a finding has been given after recording the finding in resp ect of the concept of being in the more neighbourhood and the aforesaid policy guidelines dated 14.06.82. There is no dispute that the petitioner with its val id tender is the highest tenderer. It is immaterial as to by what margin. 24. The consideration on which the fishery has been settled with the private respondent are immaterial once it is found and held that the tender submitted b y it was defective in view of non submission of the required documents about whi ch discussions have been made above. The respondent No. 2 in his impugned order has not stated anything as to how the tender submitted by the private respondent could be entertained even to the extent of making the settlement ignoring the f act that the tender submitted by the said respondent was defective being not acc ompanied by the required documents. 25. For the forgoing reasons and discussions, there is no escape from the co nclusion that the impugned order dated 25.05.06 (Annexure-E) to the writ petitio n being W.P.(C) No. 2714/06 is not sustainable. Likewise, the impugned order dat ed 18.09.06 (Annexure-K) to the writ petition being W.P.(C) No. 4900/06 is also not sustainable as the same amounts to overreaching the interim orders passed b y this Court. Even otherwise also, in view of the finding arrived at in this ju dgment, there is no question of any handing over the possession of the fishery t o the private respondent. The challenge made to the order dated 03.10.06 (Annexu re-10) in the writ petition being W.P.(C) No. 5209/06 filed by the private res pondent is totally misconceived. The said order dated 03.10.06 has been passed i n terms of the orders passed in the writ proceedings initiated by the petitioner and the same being only consequential order pursuant to the orders passed by th is Court, cannot be interfered with. 26. In view of the above, the first two writ petitions, i.e. W.P.(C) No. 271 4/06 and 4900/06 are allowed. The third writ petition, i.e. W.P.(C) No. 5209/06 is dismissed. There is no question of reconsideration of the case of the petitio ner vis-à-vis the private respondent as it has been held that the tender submitt ed by the private respondent is defective. Even otherwise also, the said respond ent is not entitled to get the settlement on the reasons assigned in the impugne d order. The petitioner being the highest bidder, it should now be settled with the fishery. Appropriate order in this regard shall be passed by the competent a uthority without any further delay, at any rate, not later than 30th April, 200 7. This target has been fixed considering the State revenue. 27. The writ petitions, i.e. W.P.(C) No. 2714.06 and 4900/06 are allowed. Th e writ petition being W.P.(C) No. 5209/06 is dismissed. However, there shall be no order as to costs.