WP(C) 6066/2010 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY The petitioner society, who submitted the bid pursuant to the tender not ice issued by the District Fishery Development Officer, Kokrajhar under the BTC for settlement of Tipkai Meem Mahal registered No. 5/74, by the present petition , has challenged the order of settlement dated 17.8.2010 passed by the said auth ority settling the said fishery in favour of the respondent No. 6 society namely , Changghat Fishery Cooperative Society ltd., for a period of three years with e ffect from 17.8.2010 to 16.8.2013 at Rs. 75,000/- per year. The said tender notice was issued by the District Fishery Development Of ficer on 13.7.2010 inviting tenders from the interested registered cooperative s ocieties/fishery farms in sealed cover for settlement of the fishery for a perio d of three years fixing 20.7.2010 as the last date for submission of tender pape rs, pursuant to which the writ petitioner, the respondent No. 6 and another fish ery cooperative society namely, Sapatgram Fishery Cooperative Society Ltd., subm itted their bids. While the writ petitioner offered Rs. 1,15,786/-, the responde nt No. 6 offered Rs. 75,000/- and the other society offered Rs. 1,18,111/- per y ear. The comparative statement thereafter was prepared by the District Fishery D evelopment Officer on 2.8.2010 indicating Sapatgram Fishery Cooperative Society as the highest bidder, the writ petitioner as the second highest bidder and the respondent No. 6 as the third highest bidder. The tender committee, constituted for the purpose, in its proceeding dated 7.8.2010 accepted the offer of Rs. 75,0 00/-made by the respondent No. 6 and directed the District Fishery Development O fficer to settle the said fishery with respondent No. 6 for a period of three ye ars commencing from 17.8.2010, which was approved by the Secretary, BTC. The off er of the highest bidder Sapatgram Fishery Cooperative Society was rejected on t he ground that they are not in the vicinity of the fishery and they are also not financially sound. The offer of the writ petitioner was rejected on three groun ds namely; that it was a newly created society; for non submission of the neighb ourhood certificate along with the tender papers and because of newly creation o f the society and having no experience it was presumed to be financially not sou nd. The District Fishery Development Officer thereafter issued the impugned orde r settling the fishery in favour of the respondent No. 6 for the aforesaid perio d of three years. Hence the writ petition. I have heard Mr. Hussain, learned counsel for the petitioner, Ms Bordolo i, learned standing counsel, BTC appearing for the respondent Nos. 2 to 5 as wel l as Mr. A Sarma, learned counsel appearing for the respondent No. 6. I have als o heard Ms Phukan, learned State counsel appearing for the respondent No. 1. The learned counsel appearing for the petitioner referring to the notice inviting tender dated 13.7.2010 and also the comparative statement prepared on 2.8.2010 has submitted that since the petitioner’s offer was higher than the res pondent No. 6 which position was accepted by the District Fishery Development Of ficer in the comparative statement prepared and the petitioner’s tender papers h aving not been found to be defective, the respondent authorities could not have settled the fishery in favour of respondent No. 6, whose bid was admittedly lowe r than the petitioner’s bid. The learned counsel referring to the records produc ed by Ms Bordoloi, learned standing counsel, BTC has submitted that though it ap pears from the proceedings of the tender committee dated 7.8.2010 that the petit ioner’s bid was higher than the bid of the respondent No. 6, its bid was rejecte d on the ground that the petitioner society was a newly created society and ther efore not financially sound apart from the grounds of non submission of the neig hbourhood certificate though such requirements were not mentioned in the NIT iss ued by the District Fishery Development Officer on 13.7.2010. The learned counse l further submits that had there been a stipulation in the NIT that the intendin g bidders are required to submit the neighbourhood certificate the same would ha ve been submitted by the petitioner and since there is no indication in the NIT in that regard the tender papers submitted by the petitioner cannot be rejected on that count. The learned counsel further submits that as because the petitione r is a newly registered society, that cannot be the ground for rejection of the tender papers drawing presumption that the petitioner is not financially sound, more so when the financial condition can be judged only after the bidder is sele cted for settlement as stipulated in the NIT. The learned counsel further submit s that it appears from the records that on the basis of some complaints lodged b y the respondent No. 6 an enquiry was conducted by the Deputy Registrar of the C ooperative Societies wherein certain adverse findings were recorded against the petitioner without giving it any opportunity whatsoever and it was placed before the Secretary of the BTC at the time of consideration of settlement and hence t he Secretary must have been influenced by those factors and as such the decision making process is vitiated for taking into account those factors which ought no t to have been taken into account at all. The learned counsel further submits th at since the highest bidder has no interest in the settlement of the fishery the writ petitioner being the second highest bidder the direction may be issued to the respondents to settle the fishery in favour of the petitioner by setting asi de the settlement order dated 17.8.2010. The learned counsel for the petitioner further submits that it is apparent from the notice of the Bakijai proceeding da ted 29.10.2010 which is annexed as Annexure A to the affidavit-in-reply filed by the petitioner that the respondent No. 6 society is a defaulter and therefore i t is not entitled to get the settlement of the fishery in question as in the NIT it has been specifically stipulated that no defaulter cooperative society will be eligible for lease of the fishery. Though no affidavit has been filed by the respondent Nos. 2 to 5, Ms Bor doloi, learned standing counsel appearing for those respondents placing reliance on the records has submitted that it appears from the proceeding of the tender committee dated 7.8.2010 that the petitioner’s bid though was higher than the bi d of the respondent No. 6 the same was rejected on three grounds namely, the pet itioner society is a newly registered society; secondly the petitioner society d id not submit the neighbourhood certificate and thirdly because of newly creatio n of the society it was presumed that the society was not financially sound. Ms Bordoloi further submits that it is true that the respondent No. 6 after submiss ion of tender papers by the tenderers, pursuant to the aforesaid NIT, lodged a c omplaint against the petitioner on the basis of which an enquiry was conducted b y the District Deputy Registrar of Cooperative Societies, Kokrajhar who submitte d the report on 30.7.2010 with the finding that the registration of the petition er society is defective apart from others which was also placed before the Secre tary of the BTC. The learned counsel, however, has submitted that the records do not reflect as to whether the said report was also taken into consideration by the Secretary BTC while approving settlement of the fishery in favour of the res pondent No. 6. The learned counsel further submits that since the NIT was issued in exercise of the power conferred under proviso to Rule 12 of the Assam Fisher y Rules, which has been adopted by the BTC, the fishery can be settled with the society which is in the neighbourhood, the same being a condition precedent. It is also the contention of the learned counsel that the financial soundness is a relevant factor to be taken into consideration in the matter of settlement of th e fishery, as the society, which is not financially sound may default in payment of the kist money. The learned counsel further submits that the fishery in ques tion has two parts, one part falls within the BTC area and the other part outsid e the BTC area and the fishery within the BTC area is settled with the responden t No. 6 and since the respondent No. 6 is not a defaulter in that part of the fi shery there is no embargo to settle the fishery even though the said society is a defaulter in respect of the other part of the fishery which falls outside the BTC area. Mr. Sarma, learned counsel appearing for the respondent No. 6 supporting the order of settlement has submitted that the said society is not a defaulter in respect of the part of the fishery which falls within the jurisdiction of the BTC and therefore the order of settlement made in its favour by the District Fi shery Development Officer is not open to challenge on that ground. The learned c ounsel further submits that since the fishery has been settled in exercise of th e power conferred under proviso to Rule 12 of the Assam Fishery Rules, 1953 the neighbourhood of the fishery is a relevant factor to be taken into consideration while passing any order of settlement and as such all the cooperative societies claiming settlement are required to furnish the neighbourhood certificate irres pective of whether such a condition has been put in the NIT or not. The learned counsel further submits that it is not in dispute that the petitioner society ha s not submitted the neighbourhood certificate and hence its tender paper was rig htly rejected as defective. Mr. Sarma further submits that even if the ground ci ted by the tender committee in the proceeding dated 7.8.2010, while rejecting th e tender papers of the petitioner that it being a newly created society presumpt ion can be drawn about its financial unsoundness, may not be a good ground for r ejection of the tender paper submitted by the petitioner, since the petitioner d id not submit the neighbourhood certificate, its bid has rightly been rejected b y the tender committee. The learned counsel has also submitted that the order of settlement has been passed in favour of the respondent No. 6 solely on the basi s of the recommendation of the tender committee and not being influenced by the enquiry report submitted by the Deputy Registrar of Cooperative Societies. Mr. S arma also submits that since the highest bidder namely the Sapatgram Fishery Coo perative Society has not approached this Court challenging the order made in fav our of respondent No. 6, whose tender paper was also found to be defective by th e tender committee, the order of settlement may not be interfered with. Ms Phukan, learned State counsel has submitted that since the order of s ettlement has been passed by the District Fishery Development Officer under the BTC, the said authority is to defend its action and as such the State Govt. has nothing to do with the order of settlement of the fisheries which falls within t he BTC jurisdiction. I have considered the submissions made by the learned counsel for the pa rties and also perused the pleadings and the records produced by the learned sta nding counsel, BTC appearing for the respondent Nos. 2 to 5. It appears from records produced by the BTC authority that the tender co mmittee in the proceeding dated 7.8.2010 rejected the bid of petitioner on three grounds namely; it is a newly registered cooperative society, it has not submit ted the neighbourhood certificate and because of its new registration the societ y, is presumed to be financially unsound. In the NIT dated 13.7.2010 issued by the District Fishery Development Of ficer there was not stipulation that the fishery in question is not open for set tlement in favour of newly created or registered society. There is also no indic ation in the said NIT that the same was issued in exercise of the power conferre d under proviso to Rule 12 of the Assam Fisheries Rules, 1953 or about adoption of the said Rules by the BTC. There is also no stipulation relating to the requi rement of furnishing the neighbourhood certificate with the tenders to be submit ted pursuant to the said notice. Though under proviso to Rule 12 of the Assam Fi sheries Rules neighbourhood is a relevant consideration for the purpose of settl ement of 60% fisheries in favour of a cooperative society unless it is made know n to the intending bidders that the said sale notice is issued in exercise of th e power conferred under proviso to Rule 12 of the said Rules or that the BTC has adopted the said Rules or unless there is a stipulation in the NIT relating to the requirement of furnishing the neighbourhood certificate, the tender paper su bmitted by any of the bidder cannot be rejected on the ground that such certific ate has not been furnished, which was one of the grounds on which the tender com mittee has rejected the bid of the petitioner. The other two grounds, namely tha t the petitioner society is a newly created society and is not financially sound also cannot be the grounds for rejection of the tender papers submitted by the petitioner as it has not been stipulated in the NIT that no settlement will be m ade in favour of a newly created society. In any case no tender can be rejected on the ground that it is a newly created society as if it is allowed then no new ly registered society will ever be eligible for settlement of a fishery. No pres umption can also be drawn by the authority that a newly created society is finan cially unsound as has been done by the tender committee in its proceeding dated 7.8.2010. That apart, Clause 13 of the NIT dated 13.7.2010 clearly stipulates th at only the tenderer which is successful in the process has to produce the valid patta, certified copy of the Jamabandi in respect of the land owners/hirers or any other acceptable proof of his financial capacity or stability. In the presen t case the petitioner’s bid was rejected by the committee on the ground of finan cial unsoundness as it is a newly created/registered society, without giving any chance to prove its financial capability in terms of clause 13 of the NIT. It also appears from the records produced by the learned standing counse l, BTC that before the order of settlement was passed the respondent No. 6 level led certain allegation against the petitioner, which were enquired into by the D istrict Deputy Registrar who submitted the report on 30.7.2010. The same was als o placed before the Secretary of the BTC at the time of consideration of the mat ter relating to the grant of approval. The records does not reflect that such en quiry was conducted by the District Deputy Registrar with due notice to the peti tioner. The said report being before the Secretary of the BTC at the time of con sideration about grant of approval to the proceeding of the tender committee dat ed 7.8.2010, the same must have influenced the mind of the Secretary. The next question which requires consideration is as to whether the orde r of settlement in favour of the respondent No. 6, could have been issued by the BTC authority, he being a defaulter, as the NIT dated 13.7.2010 in clear terms has stipulated that no defaulter cooperative society will be eligible for lease and the tenderers are required to produce the certificate that he is not a defau lter with regard to any Govt. dues. In the writ petition as well as in the affid avit-in-reply filed, the petitioner has made categorical statement on oath that the respondent No. 6 is a defaulter. In support of such contention the petitione r has also annexed the notice issued by the Bakijai authority in the name of Chi tta Das, who was the secretary of the respondent No. 6 society which reflects th at the secretary of the said society was a defaulter of Govt. dues to the extent of Rs. 40700/-. The respondent No. 6 in the pleadings has contended that such d efault was on the part of Chitta Das in his individual capacity and not in the c apacity as the Secretary of the society. Such contention, however, cannot be acc epted as the respondent No. 6 in another writ petition being WP(C) No. 3035/2010 , filed by it, made a categorical statement that the fishery was settled with it with Chitta Das, as the secretary. Hence the respondent No. 6 society was a def aulter at the relevant point of time. Since the NIT dated 13.7.2010 clearly stip ulates that no defaulter in respect of Govt. dues would be settled with the fish ery, the BTC ought not to have settled the fishery in favour of the respondent N o. 6. That being the position the order of settlement dated 17.8.2010 passed b y the District Fishery Development Officer is set aside. The matter is remitted to the BTC authority to pass a fresh order of settlement in the light of the obs ervations and findings recorded in this judgment. The entire exercise shall be d one within a period of one month from today. The writ petition is accordingly allowed as indicated above. No cost.