WP(C) 872/2011 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R This matter relates to settlement of a fishery. The fishery in q uestion is the No. 1 Dhar Brahmaputra Fishery of Dhubri district (briefly the F ishery hereafter). The petitioner No. 1 is the Khoraghat Gulihara Fishery Co-op erative Society Limited (briefly the petitioner society hereafter) and the pet itioner No. 2 is its Secretary. The Deputy Commissioner, Dhubri issued a Notice Inviting Tender (NIT) dated 16-12-2009 inviting sealed tenders from eligible par ties for settlement of the fishery for a period of 7(seven) years. It was stated that the tenders would be accepted till 2 pm of 20-01-2010 and at 3 pm of the s ame day, the tenders would be opened. As per Clause 4 of the NIT, along with the tenders, the tenderers were required to submit amongst other documents the foll owing: \(a) Fishing experience certificate, (b) Bakijai clearance certificate, (c) Scheduled caste certificate/Maimal Community Certificate and certificate of actual fisherman, (d) Postal Order/cheque/bank draft of Rs. 10/-, (e) Revenue deposit of 15% of the Government yearly value, (f) Society Registration Certificate, (g) Tax clearance certificate, (h) Photo of the person authorized to submit tender on behalf of the society, (i) A copy of the Balance Sheet of the Society, (j) List of name, address and age of the members of the society. 2. According to the petitioners, the petitioner society did not sub mit the list of members along with its tender. It had submitted an application d ated 18-1-2010 before the Assistant Registrar of Co-operative Societies, Dhubri for furnishing a copy of the list of its members, which was furnished to it on 2 2-1-2010. On that day itself i.e. on 22-1-2010, the petitioner society submitted a copy of the said list to the Deputy Commissioner, Dhubri with a request to ac cept the same. According to the petitioners, they could subsequently come to kno w that the office of the Deputy Commissioner, Dhubri did not call for the inquir y report from the Sub-Divisional Officer(S) in respect of the petitioner society though such reports were called for in respect of other societies, who had subm itted tender. The petitioner society thereafter submitted a representation dated 24-3-2010 before the Commissioner and Secretary to the Govt. of Assam, Fishery Department enclosing therewith all the certificates, sketch map along with a lis t of its members for consideration and necessary action. The Deputy Secretary to the Govt. of Assam, Fishery Department by letter dated 15-5-2010 forwarded the aforesaid representation of the petitioner society to the Deputy Commissioner, D hubri for taking necessary action as was prayed for by the petitioner society. I n the meanwhile, in a parallel proceeding instituted by M/s. Kachudola Fishery Co-operative Society Limited i.e. WP(c) No. 2028 of 2010, this Court by order da ted 9-4-2010 directed the respondents not to proceed further with the tender. At that stage, the petitioners filed the instant writ petition seeking a direction upon the respondents not to reject the tender of the petitioner society on the ground of non submission of the list of members along with the tender and to con sider the tender of the petitioner society on its own merit. The respondent No. 3 i.e. the Deputy Commissioner, Dhubri has filed an affidavit-in-opposition. In para 4 of the said affidavit-in-opposition, it has been stated that the tenders were opened at 3 pm on 21-01-2010 in the presence of the tenderers and the Membe rs of the tender committee constituted by the Deputy Commissioner, Dhubri. It ha s been stated therein that the tender of the petitioner society was not accompan ied by the following documents : (1) Member list of the Society, (2) 100% scheduled caste actual fisherman certificate, (3) Fishing Experience Certificate, (4) Approved Managing Committee’s resolution of the society. Because of that, the tender was rejected. It has been further st ated that though the petitioner society submitted certain certificates on 22-1-2 010 after the tenders were opened and after preparation of the comparative state ment, those certificates could not be considered. In paragraph-18 of the counter affidavit, the respondent No. 3 has acknowledged receipt of the Government lett er dated 15-5-2010. M/s. Manash Padmabari Jinjiram Fishery Co-operative Society Ltd., which has been allowed to intervene in the present proceeding as an inter venor by this court vide the order dated 20-5-2011 passed in Misc. Case No. 1 259 of 2011, has also filed an affidavit-in-opposition. In its affidavit-in-oppo sition, the intervenor has stated that in terms of the NIT, 7(seven) nos. of ten derers have participated in the tender process including the petitioner society and the intervenor and when the tenders were opened on 21-01-2010, it was found that out of the 7(seven) tenderers, 3(three) did not submit the necessary docume nts along with the tender, which included the petitioner society. The intervenor has stated that the non submission of the required documents is fatal and that the tender process should not be interfered with at this stage. 3. I have heard Mr. A.M. Bujer Barua, learned counsel appearing for the petitioners. I have also heard Ms. S. Sharma, learned Govt. Advocate, Assam appearing for the respondent Nos. 1 to 5 and Mr. A. Sarma, learned counsel appe aring for the intervenor. 4. Mr. Bujer Barua submits that non-submission of the list of membe rs along with the tender is a curable defect, which in fact was cured when the s ame was submitted on the next date after opening of the tenders. He submitted th at though the application for furnishing the list of members was submitted befor e the Assistant Registrar of Co-operative Societies on 18-1-2011, the same was f urnished only on 22-1-2010 and without wasting any time, the petitioners submitt ed the list of members on that day itself. Referring to paragraph-13 of the writ petition where the petitioners have given a statement of the bid values of the respective tenderers, Mr. Bujer Barua submits that the bid offered by the petiti oner society is the highest and, therefore, it would be in the public interest i f the documents submitted subsequently are accepted and the bid of the petitione r society is considered as per its merit. In support of his contention that non- submission of the list of members is a curable defect, Mr. Bujer Barua relies on the following decisions: (1) 2000(1) GLT 341(BIDHU BHUSAN CHOWDHURY & ANR. VS. UNION OF INDIA & ORS.); a nd (2) 2007 (4) GLT 236 (BRAHMAPUTRA CONSORTIUM LTD. & ANR. VS. STATE OF ASSAM & OR S.). 5. Opposing the submissions advanced on behalf of the petitioners, Ms. S. Sarma, learned State counsel submits that the tender submitted by the pet itioner society was defective as it was not accompanied by the relevant document s as per the requirement of Clause 4 of the NIT. She refers to paragraph -4 of t he affidavit-in-opposition and submits that the writ petition is devoid of any m erit and should be dismissed. Mr. A. Sharma, learned counsel appearing for the i ntervenor submits that the conditions stipulated in the Clause- 4 of the NIT are essential conditions and non-submission of the list of members along with the t ender would render the tender invalid. In support of his submission he refers to and relies on the following decisions: (1) 2002 (3) GLT 653 (D.S. TRADING(M/S) VS. PADUM GOGOI & ORS.); and (2) 2003 (2) GLT 485 (BIKASH BORA VS. STATE OF ASSAM & ORS.) 6. The rival contentions have been duly considered. Considering the subject matter, I am of the view that the writ petition is pre-mature. The sett ling authority i.e. State Government is yet to take a decision. The complaint ma de by the petitioner society on 24-3-2010 has been taken note of by the Governme nt and accordingly the Deputy Commissioner, Dhubri has been asked to take necess ary action on the prayer of the petitioner society by the letter dated 15-5-2010 , the receipt of which has been acknowledged in paragraph 18 of the affidavit-in -opposition filed by the Deputy Commissioner. I am of the opinion that the issue as to whether the non-submission of the list of the members or the belated subm ission of the same is a curable defect or not need not be gone into at this stag e when the matter is yet to be finalized by the settling authority. Any decision given by the Court at this stage would in fact amount to directing the settling authority to conduct the decision making process in a particular way, which the writ court should avoid. Therefore, stalling the settlement process or preempti ng the settling authority from taking a decision would not be appropriate. As pe r the petitioners’ own showing, the Government is yet to take a decision on the matter. Therefore, it would be in the interest of justice to allow the settling authority i.e. the respondent No. 1 to proceed with the settlement process by co nsidering the tenders of all the tenderers in accordance with law and thereafter to pass necessary order of settlement. Already there has been a considerable de lay in making the settlement; in fact almost 2(two) years have elapsed since the issuance of the NIT, as a result of which interim arrangements have been resort ed to. 7. This writ petition is, therefore, disposed of in the above terms . The settling authority, i.e. the respondent No. 1 shall pass the settlement or der within a period of 4(four) weeks from today. Need less to say, any party agg rieved by the said order would be at liberty to challenge the same before the ap propriate forum. No cost.