WP(C) 5107/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Both the writ petitions by and between the same parties being in terconnected have been heard together with and being disposed of by this common order. The first writ petition being WP(C) No. 4980/2011 was filed with the prayer for setting aside and quashing the approval/ recommendation towards settlement of the fishery in question namely Kumutia Gr. Fishery of Dhemaji with the respondent No. 3. While entertaining the writ petition, an interim order wa s passed on 23.9.2011 directing the respondent authorities not to settle the fis hery. The petitioner filed the second writ petition being WP(C) No. 51 07/2011, when he came to know that in the meantime, the fishery has been settled with the respondent No. 3. The prayer in the writ petition is to set aside and quash the action of the respondent authorities towards settlement of the fishery in favour of the respondent No. 3 by the impugned order dated 21.9.2011. It is on record that after passing the aforesaid interim order d ated 23.9.2011, legal opinion was sought for from the Departmental Counsel, who in turn by his note dated 1.10.2011 opined that since in the sub sequent writ pe tition i.e. WP(C) No. 5107/2011, in which actual challenge to the order of settl ement dated 21.9.2011 was made, there is no stay order operating in respect of t he said order, there is no bar to proceed with the matter towards materializatio n of the impugned order of settlement of the fishery. It was only thereafter the kist money etc. was deposited and further action in the matter was taken toward s materialization of the settlement order. Prima facie, the above action on the part of the respondents is illegal inasmuch as when the interim order was passed on 23.9.2011 in WP(C) No. 4980/2011, irrespective of the order of settlement dated 21.9.2011, the settleme nt order was not materialized in absence of payment of kist money and signing of formal agreement etc. However, basing on the legal advice, the respondent corpo ration proceeded with the matter towards materialization of the settlement. In t he process, it did not thing it prudent to obtain clarification from this Court and/or to pray for vacation of the said interim order dated 23.9.2011. The challenge of the petitioner with the settlement of the fishe ry in question in favour of the respondent No. 3 are on the following counts. (1) Although, the petitioner is the second highest bidder an d the respondent No, 3 is the first highest bidder, but because of defects in hi s tender, no settlement could have been made in favour of the said respondent. (2) The respondent No. 3’s tender being not accompanied with the required earnest money in the form of call deposit, the tender submitted by the said society, ought not to have been accepted. It is an admitted position t hat the tender submitted by the respondent No. 3 was accompanied with a photocop y of call deposit. (3) The call deposit submitted by the respondent No. 3 even if accepted, the same being only in the name of one Sri Satya Das and not in the name of the co-operative society i.e. respondent No. 3, such call deposit ought not to have been accepted by the respondent corporation. (4) The required experience certificate having not been furn ished along with the tender paper, the tender submitted by the respondent No. 3 ought not to have been accepted. Pointing out to the aforesaid alleged infirmities in submitting the tender by the respondent No. 3, it is the case of the petitioner that in vie w of such infirmities in derogation with the tender conditions, upon rejection o f the tender of the respondent No. 3, the petitioner’s tender ought to have been accepted as his tender is valid in all respects and he being the highest valid tenderer. Opposing the aforesaid contention raised by the writ petitioner, both the respondent corporation as well as the respondent No. 3 have contended that the above defects being minor in nature cannot form the basis for rejection of the tender and accordingly the tender submitted by the respondent No. 3 was rightly accepted by the authority in the corporation. They have contended that u pon such acceptance and when it was found that the bid offered by the respondent No. 3 was the highest, the respondent corporation rightly settled the fishery w ith the respondent No. 3 and the petitioner cannot make any grievance against th e same. I have heard Mr. A. Sarma, learned counsel for the petitioner as well as Mr. N.C. Das, learned Sr. Counsel assisted by Mr. A. Das, learned couns el for the respondent No. 3. I have also heard Dr. B. Ahmed, learned Standing Co unsel, Assam Fisheries Development Corporation, Assam. I have also perused the r ecords as has been produced by Dr. Ahmed. Mr. A. Sarma, learned counsel for the petitioner in support of h is argument, that the defective tender submitted by the respondent No. 3 could n ot have been accepted by the respondent corporation has placed reliance on two d ecisions of this Court, which are reported in 2003 (2) GLT 485 (Bikash Bora Vs. State of Assam) and 2005 (3) GLT 580 (Benjamin Lalrinawama Vs. State of Mizoram) . On the other hand Mr. N.C. Das, learned Sr. Counsel appearing fo r the respondent No. 3 has placed reliance on the order dated 29.9.2011 passed b y the Division Bench of this Court in W.A. No. 294/2011 (Abu Talib Vs. AFDC). He has also placed reliance on the Apex Court decision reported in (2004) 4 SCC 19 (Directorate of Education Vs. Educomp Data Matics Ltd.) Towards appreciating the submissions made by the learned counsel for the parties and the contentions raised in their pleadings, I have perused t he file in which the impugned decision has been taken. It appears that the Manag ing Director of the respondent corporation in his note dated 8.5.2011 towards co nsideration of the case of the tenderers pointed out that the tender submitted b y the respondent No. 3 did not accompany the call deposit, but was accompanied w ith photocopy of the same. However, the said note also points out that when the same was pointed out to the tenderer i.e. the respondent No. 3, the defect was r emoved and the original call deposit was submitted on the next date. As has been observed by the Division Bench in its order dated 29 .9.2011 in W.A. No. 294/2011 (Abu Talib Vs. AFDC), the essentiality of submittin g required document need not be rigidly followed in case of minor variations. In the instant case, the respondent No. 3 did submit call deposit, when it was poi nted out that their tender did not accompany the original call deposit, but only a photocopy of the same had accompanied the tender paper. In this connection, t he stand of the respondent No. 3 is that since in the tender condition nothing w as indicated as to whether the tender paper should accompany call deposit in ori ginal or not, in a mistaken view of the matter, it had submitted only the photoc opy of the call deposit, but when the mistake was pointed out, immediately on th e following day, they submitted the original of the call deposit. In my considered view, the defect in not submitting the original call deposit was a curable defect. It is not a case of submission of any fresh call deposit, but is a case of submission of original call deposit, photocopy of which was already submitted alongwith the tender document. This now leads us to the other alleged infirmities, on which the learned counsel for the petitioner has emphasized. On perusal of the tender doc ument submitted by the petitioner, the following are the revelations. The tender paper submitted by the respondent No. 3 did not accom pany the experience certificate, which was a condition of NIT. As pointed out by the learned counsel for the petitioner, call deposit is also in the name of Sri Satya Das and not in the name of the respondent No. 3 society namely Kumutia Fi shery Cooperative Society Ltd. The tender being submitted by the said Fishery So ciety, the call deposit ought to have been in its name and not in the name of Sr i Satya Das. It has been contended by the learned counsel for the respondent No. 3 that since Sri Das is the President of the said Society, there was nothing wrong in submitting the call deposit in his name. I am not impressed with this submission. The Co-operative Society having had its own legal entity, call depos it ought to have been in its name. Sri Satya Das, the present President of the s aid Co-operative Society may or may not remain as the President of the said Soci ety during the period of settlement, which is 7 years. Thus, in case of any cont roversy in the matter of settlement, the responsibility may not go to the Co-ope rative Society itself. The Bakijai certificate, which accompanied the tender submitted by the respondent No. 3 is also not in the name of the society, but in the name of an individual (Satya Das). Thus, the said certificate did not conform to the requirement of the tender conditions, although learned counsel for the responden ts have contended that Sri Satya Das being the President of the respondent No. 3 society, the document submitted in his name did conform to the requirement of t he tender condition and accordingly there was nothing wrong in accepting the ten der submitted by the said respondent. The records have revealed another fact which is the liability ce rtificate required to be issued by Bakijai and Certificate Officer. The certific ate that was produced along with the tender is in the name of Sri Satya Das and not in the name of the respondent No. 3 society. Thus, the said certificate depi cts liability of Shri Satya Das and not the Cooperative Society. Thus, in my con sidered opinion the said certificate did not conform to the requirement of submi ssion of Bakijai certificate along with the tender document by the tenderer. Above apart, the tender document submitted by the respondent No. 3 society also did not accompany the experience certificate, which was one of t he requirements of the tender conditions. Above being the position, the tender submitted by the respondent No. 3 was defective with the incurable infirmities noted above. Consequently, a lthough it was the first highest bidder, its tender could not have been accepted . This being the position, the petitioner certainly becomes the valid highest bi dder and consequently he has a right to be considered for settlement of the fish ery in question. In view of the above, the impugned order dated 21.9.2011 settlin g the fishery with the respondent No. 3 stands set aside and quashed and the res pondent corporation is directed to pass appropriate order in terms of this order and consistently with the observations made above. Let the appropriate order be passed as expeditiously as possible .