WP(C) 5122/2007 BEFORE HON’BLE MR JUSTICE AMITAVA ROY The assailments made though differ are founded on same set of facts and traceable to the settlement of the Upper Brahmaputra (Kamrup- Guwahati) Fishery located in the Kamrup (Metro), District : Kamrup (hereinafter referred to as th e ’fishery’).The foundational facts are common and so are the parties engaged in the lis. These petitions were heard analogously and are being disposed of by t his common judgment and order. In terms of the order dated 10.10.2007 passed in the petitions , status quo with regard to the fishery involved has been maintai ned till date. 2. I have heard Mr AK Goswami, Senior Advocate assisted by Mr S.Ban ik, and Ms B.Sarma, Advocates for the petitioners in WP( C) No.5122/2007 and re spondent No.5 in WP( C) No.5165/2007, Ms R. Chakraborty, learned State counsel f or the official respondents and Mr MK Choudhury, Senior Advocate assisted by Mr M.Dutta, Advocate for the petitioner in WP( C) No. 5165/2007 and the respondent No.5 in WP( C) No.5122/2007. 3. The pleaded versions of the parties reduced to the bare essential a re that the Deputy Commissioner, Kamrup( Metro) had issued a Notice Inviting Ten der(hereinafter referred to as ’NIT’) dated 16.6.2006 for the settlement of th e fishery for a period of seven years and thereby invited participation of eligi ble tenderers in the process. Apart from the terms and conditions enumerated in the NIT, which tenderers were required to comply with , it disclosed that the t enders would be accepted between 10 A.M. to 1 P.M. on 6.7.2006 and would be ope ned on the same date. The minimum revenue for the fishery for the entire term w as fixed at Rs.3,21,750/- . The petitioner along with four others responded to the NIT and offered their bids which , when opened arrayed them in the followi ng order : Name of the tenderer Revenue offered (yearly) 1 Shri Bishnu Ram Das, Secretary, Rajabari Matshyajibi Atma Sabhayak Got Rs. 1,95,995/- 2 Shri Gobinda Biswas Bondajan Paria Matshyajibi Atma Sahayak Got Rs. 2,55,995/- 3 Shri Jadav Halder 3( C) Lower Brahmaputra Meen Mahal Cooperative Socier ty Ltd. Rs.1,91,000/- Petitioner in WP( C) No.5165/07 4 Shri Boloram Hazarika Secretary, Chandrapur Anchakik Min SS Ltd. Rs. 1,10,000/- 5 Shri Dwijen Hazarika Secretary, No.1,1(A) & 2 Upper Part Brahmaputra M .S.S.Ltd. Rs. 85,000/- Petitioner in WP( C)no.5122/07 6 Shri Jagadish Biswas. Secretary, No.II Part -V Kalloong Nadi Anchalik M. S.S. Ltd. Rs.1,20,501/-4. 4. According to No.1 ,1(A) & 2 Upper Part II Brahmaputra Cooperative Society Limited( for short herei nafter referred to as ’Upper Part Society’) , the petitioner in WP( C)No.5122/20 07 [respondent No.5 in WP( C)No.5165/2007] it is a registered Fishery Cooperati ve Society comprised of 100 % actual fishermen belonging to the fishing communi ty the members whereof belong to the scheduled caste community with fishing as t heir only means of livelihood. It has contended that the said society is in th e neighbourhood of the fishery. It has maintained that the villages namely, ( 1) Bhralumukh(2) Athgaon (3) Kharghuli (4) Uzanbazar(5) Moni Karneswar(Malobasti ) (6) Rajaduar(7) Panikhaity and (8) Chandrapur are within its area of operation . It has also set out the boundaries of the fishery offered to be settled. It has insisted that the villages are situated on the bank of the fishery. 5. No 3 ( C ) Lower Part Brahmaputra Min Mahal Cooperative Society Limited (for short hereinafter referred to as ’Lower Part Society’) , petitioner in [WP( C)No.5165/2007 ( respondent No.5 in WP( C) No.5122/2007) ]also has ass erted that it is a registered Cooperative Society under the Cooperative So cieties Act,1860 comprising of 100% actual fishermen belonging to the fishing community and that all its members are of scheduled caste community with fishi ng as their only means of livelihood. It too has insisted that it is within the neighbourhood of the fishery and is entitled under the Assam Fisheries Rules,1 993(hereinafter referred to as the ’Rules’) to be settled therewith. 6. On the completion of the assessment of the tenders as above, by order dated 19.8.2006 of the Deputy Secretary to the Govt.of Assam, Fishery D epartment , the fishery was settled with the Lower Part Society at its offer of Rs.1,91,000/- only per year with 10% increase annually for a period of 7 years f rom the date of delivery of the possession thereof subject to the stipulations contained therein. 7. Being aggrieved , the Upper Part Society challenged the settlem ent before this Court with WP( C) .4142/2006 contending inter alia that the tend er of the Lower Part Society was defective inasmuch as the updated Bakijai Clea rance certificate had not been appended therewith. Further, its Balance Sheet for the year 2005-2006 accompanying the tender was not audited by the Auditor of the Cooperative Department .It was also asserted that the balance sheet of th e Lower Part Society for the year 2004-2005 submitted along with its tender dis closed an outstanding loan of Rs.52,500/- together with interest of Rs.58,005/ - payable to the government. It was asserted that the address of the witness es required to be furnished in the tender papers was also missing. It was plea ded as well that the Lower Part Society was not situated in the neighbourhood of the fishery and that the settlement was in breach of Rule 12 of the Rules. In short, the settlement in favour of the Lower Part Society was impugned on th e ground that it was not eligible therefor its tender being defective in deroga tion of the NIT conditions. 8. The Lower Part Society contested the proceeding denying the alle gations insisting that it was very much in the neighbourhood of the fishery an d that its tender was neither incomplete nor defective. It insisted that the s ettlement, having regard to the bid offered by it was valid and unassailable. T hough in course of the proceeding, the Upper Part Society to substantiate its im pugnment brought on record a letter dated 17.8.06 of the Assistant Registrar of Cooperative Societies demanding payment of the Lower Part Society an amount of R s.1,10,505/- towards the government loan, the latter iterated that no such commu nication had been served upon it. 9. This Court by order dated 31.5.2007 recording a consensus to the said effect closed the petition with a direction to the writ petitioner( Upper Part Society) to submit a representation before the Commissioner and Secretary to the Govt.of Assam, Fisheries Department, Dispur,Guwahati highlighting its gri evances within a period of ten days therefrom. Thereby the aforenamed authority was directed to consider and dispose of the said representation by a speaking o rder within a period of sixty days from receipt thereof after affording a reaso nable opportunity of hearing to the Lower Part Society. The impugned order of se ttlement dated 19.8.2006 was quashed and the Lower Part Society was permitted to run the Fishery for a period of sixty days. 10. In deference to the above order, the Upper Part Society submitte d its representation before the abovenamed authority on 8.6.2007 to which the Lo wer Part Society lodged its reply on 14.6.2007. Both the parties were thereafte r heard on 18.7.2007 and on a consideration of the materials on record together with the reply dated 7.9.2007 submitted by the Deputy Commissioner, Kamrup(Metro ) as called for, by order dated 20.9.2007 the fishery was settled with the Uppe r Part Society at its quoted bid of Rs.85,000/ for the first year with subseque nt increase of 10% every year for a period of seven years from the date of deliv ery of possession thereof ,subject to observation of all formalities as per the prevalent norms etc. Thereby the tender of the Lower part Society was rejected as the same was not accompanied by a Bakijai Clearance certificate valid as on 6 .7.2006 as well as the caste certificate . The tenders of the other tenderers / bidders were also rejected being incomplete and defective. The tender of the Upp er Part Society was adjudged to be only valid tender entitling it to the settl ement of the Fishery. Aggrieved by the above decision, the Lower Part Society on the very same day sub mitted a representation before the Departmental Minister praying for annulment t hereof inter alia on the ground that various factual aspects had not been appro priately appraised and that the settlement at such a lower bid was detrimental to the financial interest of the State. The Lower Part Society further agitated that a fresh Bakijai clearance certificate had been submitted as soon as it wa s received which revealed that no Bakijai case was pending against it. It mainta ined that as no grievance with regard to the non submission of Caste Certificate had been taken before this Court in the earlier round of litigation, it was un fair on the part of the authority concerned to decide on that aspect. It ,howev er, denied its failure to have submitted a caste certificate. The Deputy Secretary to the Govt.of Assam, Fishery Department by his communicat ion dated 25.9.2007 addressed to the Deputy Commissioner, Kamrup(M), Guwahati wh ile referring to a complaint pertaining to the settlement of the fishery vide or der dated 20.9.2007 and enquiry in connection therewith ,requested the latter n ot to hand over the possession thereof to the Upper part society pending disposa l of the complaint. Whereas the order dated 20.9.2007 has been impeached in WP( C)No.5165/2007,the decision contained in the letter dated 25.9.2007 is the subj ect matter of impugnment in WP( C) No.5122/2007. The State respondents have refr ained from submitting their pleadings. The relevant official records however, ha ve been produced by the learned State counsel. 11. Mr Goswami has persuasively urged that the order dated 20.9.2007 being flawless , the decision against handing over the possession of the fis hery to the Upper Part society on a purported complaint and pending enquiry is visibly illegal, arbitrary and whimsical. Besides contending that the said ord er seems to have been prompted by extraneous considerations, the learned Senior counsel argued that it was also non est and lacking in jurisdiction as it partakes the nature of the administrative review of an earlier determination on merits. Mr Goswami endorsed the findings recorded in the order dated 20.9.2007 and pleaded that the Upper Part Society having been identified to be only valid tenderer under the Rules and stipulations in the NIT was rightly settled with th e fishery at its offer. The learned Senior counsel on instructions rejected the bid of the Lower Part society to be unrealistic and imaginary in the face of t he estimated revenue assessed by the State respondents. 12. Mr Choudhury per contra, has argued that the settlement in favo ur of the Upper Part Society being conspicuously untenable in law, the decision contained in the letter dated 20.9.2007 was rightly taken in public interest. Having regard to the infirmities in the order dated 20.9.2007 such a step was c alled for and the plea based on administrative review is unsound. The learned Senior counsel insisted that the tender of the Lower Part Society was valid in all respects, the Bakijai certificate as required having been submitted therew ith. No objection whatsoever with regard to the caste certificate having been raised in the representation, the same ought not to have been inferred and probe d into, he urged. According to the learned Senior counsel, the caste certificat e having been submitted , the finding with regard thereto against the Lower pa rt Society is perverse. Mr Choudhury has further urged that the as the Upper Pa rt society has in the meantime been awarded other fisheries, on the principles of distributive justice as well, the order dated 20.9.2007 is invalid. 13. Ms Chakraborty submitted that as an enquiry into the complaint l odged against the decision to settle the Fishery in favour of the Upper Part Soc iety is pending, no interference with the decision as communicated by letter dated 25.9.2007 is warranted at present. 14. Mr Goswami with reference to the decision of this Court in Sri Ganga Fisheries Co-operative Societies vs. State of Assam and Ors reported in ( 2007) 1 GLJ 696 has urged that in absence of any stipulation in the NIT disquali fying a tenderer already settled with other fisheries , the plea of distributiv e justice is misplaced. 15. I have extended my serious consideration to the rival pleadings and the arguments advanced. There is no wrangle at the Bar that as per the term s and conditions enumerated in clause 4 of the NIT,the following documents were to be mandatorily submitted with the tender to be valid. 4 & (a) &.. (b) &.. Bakijai clearance certificate from the Deputy Commissioner . (c ) Caste certificate of Scheduled caste /Maimul Communit y and Certificate of Profession of Fishermen/Meen Palak. ( d ) & & &. (f) & &.. (g) & &. (h) Annual balance sheet and Profit and Loss Account of the Co-operative Soc iety. A scrutiny of the tender papers in original submitted and as available in the r ecords produced disclose that the Bakijai Clearance certificate submitted by t he Lower Part Society along with its tender is dated 28.6.2005 mentioning in c ategorical terms that the same was valid only for a period of one year. The ca ste certificate to the effect that the said society comprises of 100% actual fi shermen belonging to the scheduled caste community and dated 24.6.2005 appears to have been received on 20.7.2006 i.e. beyond the date of submission of the ten ders on 6.7.2007. A note to the said effect is also available ion the official file No. FISH 107/2006 . Though the audited account of the Lower Part Society in the year 2004-2005 discloses an outstanding government revenue to the tune of R s. 52,500/- together with interest of rs.58,005/- thereon, in face of the findin gs recorded in the order dated 20.9.2005 negating the plea of disqualification of the said Society on the basis thereof, this facet of the controversy pales into insignificance in absence of any challenge to this conclusion. The tend er of the Upper Part Society is licit in all respects. At the first instance, on examination of the tenders received, the Lower Part society however was sele cted having regard to its offer and accordingly the order dated 19.8.2006 was pa ssed. 16. The official File No.Fish 107/06/Pt reveals that in compliance o f the order dated 31.5.2007 the Commissioner and Secretary heard the parties and on a consideration of the recorded facts and the documents adjudged the Upper Part Society to be only eligible tenderer and proposed the settlement of the fi shery in its favour. The same having been approved , the order dated 20.9.200 7 was passed. The records however, contain a Bakijai Clearance certificate dated 1.9.2006 issued by the Certificate officer, Kamrup(Metro), Guwahati to the effe ct that no Bakijai proceeding is pending against the Lower Part society. Admitt edly, the certificate did not accompany the tender of Lower Party Society and w as not a part thereof on 6.7.2006 , the date on which the tenders were submitte d and opened as per the NIT. This is admitted as well by the Lower party Societ y. According to it, it had applied for the updated Bakijai Clearance certificate on 25.6.2006 and was furnished the same only on 1.9.2006. As noticed from the records,its Caste certificate was also received by the respondent authorities o n 20.7.2006. Both these documents obviously were therefore submitted after the notified date 6.7.2006 on which the tenders in terms of the NIT and complete i n all respects as required were to be submitted . 16A. The settlement in question is peremptorily to be made in compliance o f Rule 12 of the Rules which mandates a tender system of sale of the fishery i nvolved. The process prescribed thereby obligates the government to settle a 60% government fishery with special category of Cooperative societies , Non gov ernment organizations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood village concerned by the tender system. The NIT therefor e was issued enjoining the terms and conditions to be meticulously adhered to by the tenderers for their offers to be valid and cognizable in law. The exercis e launched was in accord with the legislative ordainment contained in Rule 12 to rigorously act in terms of the stipulations contained in the NIT. Thereby a public participatory process was initiated inviting the eligible institutions comprehended by Rules to offer their tenders for assessment and eventual selec tion. No digression from the NIT stipulations was envisaged or countenanced for the sake of predictability and transparency of the exercise. Any infraction however minimal thus if overlooked or accommodated would not only undermine t he sanctity of the process but also expose it to be impeached as unfair and arb itrary besides being repudiatory of the Rules. The drill being governed by leg islative imperatives and the NIT parameters to actualise the same, a tender deficient in any of the prescribed essentialities would be repugnant to the le tter and spirit of the Rules and thus non est in law. 17. True, it is that the Upper Part society in its representation da ted 8.6.2007 did not in particular , question the failing in the tender of the Lower Part Society vis a vis the Caste certificate, the submission thereof b eing obligatory , the authority concerned was well within its jurisdiction to decide on this aspect as the same indubitably had a bearing on the issue of vali dity or otherwise of its tender. As noted hereinabove, the caste certificate had not been submitted along with the tender and was received only on 20.7.2006. The Bakijai clearance certificate dated 25.6.2006 had spent its force on 6.7. 2006 and therefore was not valid for the purpose for which it had been submitted . The Lower part Society being aware of the requirement of such documents to b e indispensably essential ought to have arranged for the same tobe submitted in time with its tender. There was no disclosure either in its tender that the up dated Bakijai clerance certificate had been applied for on 28.6.2005 but not r eceived till the date of submission thereof. There was no request by it seeking leave to submit such a document at any later point of time. It took a calcula ted risk of submitting an outdated Bakijai clearance certificate having no sig nificance on the relevant date. The findings recorded in the order dated 20.9. 2007 as the official records disclose are founded on contemporaneous materials . Though the issue of neighbourhood was decided in favour of the Lower Party So ciety, in the teeth of the infirmities in its tender on the above count, the dec ision to award the fishery to the Upper Part society is unassailable on the ass ertions made before this Court. 18. The official records produced do not disclose any complaint agai nst the settlement of the fishery in favour of the Upper Part Society as refer red to in the communication dated 25.9.2007. The representation before the Depa rtmental Minister submitted by the Lower Part society dated 20.9.2007 on the gr ounds alluded hereinabove is available. The said representation as well does n ot divulge any imputation beyond the pleas raised before this Court. In absence of any affidavit by the State respondents, the ground on which the delivery of the possession of the fishery has been deferred is not discernible. In view of the determination made hereinabove, the contentions raised in the representation dated 20.9.2007 of the Lower Party Society are unsustainable. In absence of be tter facts and circumstances bearing on the complaint said to have been made aga inst the settlement of the fishery in favour of the Upper Part Society , the dec ision contained in the communicated dated 25.9.2007 cannot be sustained. In vie w of this conclusion , it is not necessary to dilate on the permissibility or ot herwise of review of an administrative decision. 19. This Court in Sri Ganga Fisheries Cooperative Society (supra) in res ponding to a challenge to the settlement of a fishery under the Rules negated th e plea of distributive justice raised against the successful tenderer, being s ettled with other fisheries observing that no such debarring clause having bee n incorporated in the NIT, the settlement in favour of an otherwise deserving cooperative society under the Rules on that ground is unassailable. 20. In the above premise, the challenge in WP( C)No.5122/2007 there fore succeeds. WP( C) No.5165/2007 is hereby dismissed. The interim order passed on 10.10.2007 directing maintenance of status quo with regard to the fishery s tands vacated. No costs.