Advocate for : MR S KHOUND Advocate for : SC AFDC appearing for THE STATE OF ASSAM AND 2 ORS.

Linked Case : WP(C)/8837/2019 Page No.# 3/19 M/S DHARNAD BRAHMAPUTRA FISHERY CO-OP. SOCIETY LTD. DHUBRI REP. BY ITS SECRETARY. SRI BIMAL DAS AGED ABOUT 40 YEARS S/O SRI BROJEN DAS R/O WARD NO. 16 R K MISSION ROAD DHUBRI P.O. BIDYAPARA P.S. DHUBRI DIST. DHUBRI PIN-783324 VERSUS THE STATE OF ASSAM AND 4 ORS.

REP BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM FISHERIES DEPTT. DISPUR GUWAHATI-06 2:THE SECRETARY TO THE GOVT. OF ASSAM FISHERIES DEPTT. DISPUR GUWAHATI-06 3:THE JOINT SECRETARY TO THE GOVT. OF ASSAM FISHERIES DEPTT. DISPUR GUWAHATI-06 4:THE DEPUTY COMMISSIONER DHUBRI DIST. DHUBRI ASSAM PIN-783301 5:M/S DHIR BEEL FISHERMAN COOPERATIVE SOCIETY LTD.

CHAPAR DHUBRI. R/O VILL. KHORIDA GOSAIGAON P.O.AND P.S. CHAPAR DIST. DHUBRI PIN-783371 DHUBRI ASSAM

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Advocate for : MR H K NATH Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS.

Page No.# 4/19 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT AND ORDER Date : 15-02-2022 All the three writ petitions - W.P.[C] no. 6903/2019, W.P.[C] no. 8837/2019 and W.P.[C] no. 3913/2020 - filed under Article 226 of the Constitution of India are relatable to the same subject-matter of settlement, that is, Group no. 1 Dhar Brahmaputra Fishery ['the Fishery', for short] located in the district of Dhubri.

2. The Fishery was settled earlier for a period of 7 [seven] years from 03.01.2012 to 02.01.2019 at an annual revenue of Rs. 3,42,101/- in favour of the petitioner in the writ petition, W.P.[C] no. 6903/2019 viz. M/s Gauripur Cooperative Fishery Society Ltd. ['M/s Gauripur Society', for short]. After expiry of the period of settlement, the respondent authorities decided to initiate a fresh competitive bidding process in order to settle the Fishery for another period of 7 [seven] years w.e.f. 2019-2020 to 2025-2026.

3. It was pursuant to the said decision, a Tender Notice dated 17.12.2018 came to be published by the Deputy Commissioner, Dhubri. By the Tender Notice dated 17.12.2018, bids were invited from the interested and eligible bidders for settlement of the Fishery for the period of 7 [seven] years from 2019-2020 to 2025-2026. The minimum annual value of the Fishery was fixed at Rs. 2,28,880/- and the last date of submission of bids was fixed up-to 02-00 p.m., 02.01.2019. In the Tender Notice, the terms and conditions of the bidding process were mentioned. Clause 4 of the Tender Notice mentioned about the documents which were required to be submitted by the bidders along with their Page No.# 5/19 bids.

4. After expiry of the time period for submission of the bids for the Fishery, the tender documents were opened. In response to the Tender Notice dated 17.12.2018, 7 [seven] nos. of bidders submitted their bids and the names of the bidders and their respective offered bid values, in descending order, for the period of 7 [seven] years are as under :

6903/2019, M/s Gauripur Society to operate the Fishery on daily average basis at 10% above existing lease value of Rs. 3,42,101/- per annum till regular settlement was made on the basis of the Tender Notice dated 17.12.2018. It was indicated therein that the above arrangement was purely temporary and could be withdrawn at any time if situation so warranted without any formal notice to the lessee Society i.e. M/s Gauripur Society.

8. As the matter of settlement of the Fishery got delayed, a representation was submitted by the petitioner in W.P.[C] no. 6903/2019, M/s Gauripur Society before the Government in the Fishery Department on 02.09.2019 praying inter alia for an early settlement of the Fishery. It was also represented by the said letter dated 02.09.2019 that since the earlier settlement period of the Fishery was already over and M/s Gauripur Society was the previous lessee, it may be allowed to operate the Fishery on daily average basis at 10% above the existing lease value till regular settlement was made on the basis of the tender dated 17.12.2018.

9. The writ petition, W.P.[C] no. 6903/2019 has been filed by M/s Gauripur Page No.# 8/19 Society who is operating the Fishery on temporary and day-to-day basis, seeking a direction to the respondent authorities to complete the bidding process initiated for the settlement of the Fishery in terms of the letter dated 04.04.2019 of the Fishery Department, Government of Assam in favour of the eligible valid bidder in an expeditious manner.

10. Subsequently, the writ petition, W.P.[C] no. 8837/2019 has been preferred by the petitioner society viz. M/s Dharnad Brahmaputra Fishery Co- operative Society Ltd. ['M/s Dharnad Society', for short] assailing the minutes of the meeting of the Scrutiny Committee. The primary ground of assailment is that despite making observations as regards non-responsiveness of the bid of the bidder society viz. M/s Dhir Beel Fisherman Cooperative Society Ltd. ['M/s Dhir Beel Society', for short] on many counts, the Scrutiny Committee ultimately observed that M/s Dhir Beel Society was a eligible bidder. The other contention is that the petitioner M/s Dharnad Society's bid was found to be responsive in relation to all the terms and conditions of the Tender Notice dated 17.12.2018 and it had emerged as the highest valid bidder. An interim order came to be passed on 29.11.2019 in the writ petition, W.P.[C] no. 8837/2019 whereby the resolution of the meeting of the Scrutiny Committee taken in its meeting dated 02.01.2019 was kept in abeyance.

11. The third writ petition, W.P.[C] no. 3913/2020 has been preferred by M/s Dhir Beel Society seeking inter alia setting aside of the order dated 03.01.2019 whereby M/s Gauripur Society has been allowed to operate the Fishery on daily average basis at 10% above the existing settlement amount and also for a direction to allow M/s Dhir Beel Society to run the Fishery at Rs. 12,267/- per Page No.# 9/19 day in terms of its offered bid value of Rs. 3,13,43,949/- in response to the Tender Notice dated 17.12.2018.

12. As a consequence of the interim order dated 29.11.2019, the Fishery, as on date, is being operated by M/s Gauripur Society and the competitive bidding process initiated by the Tender Notice dated 17.12.2018 has not reached its logical conclusion despite expiry of more than 3 [three] years.

13. I have heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. S. Khound, learned Counsel for the petitioner in the writ petition, W.P.[C] no. 6903/2019; Mr. D. Das, learned Senior Counsel assisted by Mr. H.K. Nath, learned counsel for the petitioner in the writ petition, W.P.[C] no. 8837/2019; Mr. A. Dasgupta, learned Senior Counsel assisted by Mr. H.K. Kalita, learned counsel for the petitioner in the writ petition, W.P.[C] no. 3913/2020; and Mr. R. Talukdar, learned Junior Government Advocate for the State respondents.

14. Mr. Choudhury, learned Senior Counsel for the petitioner in W.P.[C] no. 6903/2019, M/s Gauripur Society has submitted that its bid is compliant to the terms and conditions mentioned in the Tender Notice dated 17.12.2018. As it was the previous lessee of the Fishery, the Fishery was allowed to be run by it on temporary day-to-day basis at an enhanced rate of 10% above the previous settlement amount till the regular settlement of the Fishery is made by following the due process of law. He has submitted that the writ petition has been preferred seeking a direction to bring the bidding process for settlement of Fishery to its logical conclusion at an early date.

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15. Mr. Das, learned Senior Counsel for the petitioner in the writ petition, W.P. [C] no. 8837/2019 i.e. M/s Dharnad Society has submitted that the Scrutiny Committee has acted arbitrarily and exceeded its jurisdiction by observing that the bid of M/s Dhir Beel Society was compliant in nature despite non-submission of a number of essential documents mentioned in the Tender Notice. As the Scrutiny Committee was not the tender settling authority, it was not permissible for the Scrutiny Committee to make its recommendation in such a manner and there is every likelihood that such recommendation of the Scrutiny Committee would influence the decision of the tender settling authority. It is his further submission that the bid of M/s Dharnad Society is compliant on all counts and M/s Dharnad Society is to be treated as the highest valid bidder. By referring to the notification bearing no. FISH-19/65/2017-FISHERY/1[eCF No.50022] dated 18.01.2008 and the communication bearing no. FISH 198/2008/20 dated 19.09.2008, he has submitted that the tender settling authority has already laid down the norms and procedure therein for settlement of the Fishery in question. It is, therefore, obligatory on the part of the tender settling authority to strictly adhere to the norms and procedure set forth therein. It is the mandate of the Assam Fishery Rules, 1953 that a 60% category Fishery has to be settled in terms of Rule 12 thereof by following tender system. Thus, allowing the operation of a 60% category Fishery on temporary day-to-day basis for a prolonged period is abhorrent to the mandate of the Assam Fishery Rules, 1953.

16. Mr. Dasgupta, learned Senior Counsel for the petitioner in W.P.[C] no. 3913/2020, M/s Dhir Beel Society has also submitted that it is the process of regular settlement for the Fishery, which has to be brought to its logical conclusion at an early date. Allowing M/s Gauripur Society to run the Fishery Page No.# 11/19 temporarily on day-to-day basis for any further period is not necessitated. The tender settling authority has to take the decision on the basis of the documents submitted by the bidder societies who have participated in response to the Tender Notice dated 17.12.2018. The only matter left is to bring the bidding process to its logical conclusion at the earliest. It is his submission that if the Fishery is allowed to run on temporary day-to-day basis, then it is M/s Dhir Beel Society who is in the best position to run the same as it has offered the highest bid value in the bidding process initiated by the Tender Notice dated 17.12.2018.

16.1. Mr. Dasgupta has further submitted that the petitioner, M/s Dharnad Society is not eligible to submit the bid as the registration of M/s Dharnad Society vide letter no. AFDD-288/RCS/2009-10/7099 dated 23.07.2009 [Annexure-I to the writ petition, W.P.[C] no. 8837/2019] was effected by the District Fishery Development Officer, Dhubri in purported exercise of powers under Section 11[2] of the Assam Cooperative Societies Act, 1949 [since repealed]. It is his submission that the District Fishery Development Officer, Dhubri has no power, authority and jurisdiction to register a fishing cooperative society. The Assistant Registrar of Co-operative Societies, Dhubri by his letter no. CGDF.2/2009/350 dated 03.10.2019 [Annexure-II to the writ petition, W.P. [C] no. 8837/2019] had issued a certificate of registration to M/s Dharnad Society amending bye-law no. 3 on the basis of the registration dated 23.07.2009 in exercise of powers delegated to him by the Government vide a notification dated 23.05.2012 and in exercise of powers conferred under Section 12 [2] of the Assam Co-operative Societies Act, 2007 . When the original registration of M/s Dharnad Society dated 23.07.2009 is null and void the consequential the Certificate of Registration dated 03.10.2019 amending bye-

Page No.# 12/19 law no. 3 by the Assistant Registrar of Co-operative Societies, Dhubri is also void. Submitting as such, Mr. Dasgupta has submitted that M/s Dharnad Society cannot be treated as a registered fishery cooperative society and that aspect has to be looked into by the Settling Authority while considering the matter of regular settlement of the Fishery.

17. Mr. R. Talukdar, learned Junior Government Advocate for the State respondents has submitted that a common affidavit-in-opposition has been filed by the Joint Secretary to the Government of Assam, Fishery Department in W.P. [C] no. 8837/2019 clarifying its stands. In the said common affidavit-in- opposition, the Government in the Fishery Department has also taken a stand that the Government has already laid down the norms for settlement of 60% category Fishery vide notification bearing no. FISH-19/65/2017-FISHERY/1[eCF No.50022] dated 18.01.2008. It has been stated that the Deputy Commissioner, Dhubri forwarded the tender papers on 07.02.2019 with a statement showing the documents submitted by the bidders without, however, examining the validity/acceptability of the documents. Thereafter, the Deputy Commissioner, Dhubri was requested by the letter dated 04.04.2019 to enquire and examine the neighbourhood issue of the 7 [seven] participating bidder societies as well as the matter of their membership status in the light of Rule 12 of the Assam Fishery Rules, 1953.

18. I have duly considered the submissions advanced by the learned counsel for the parties and have also gone through the materials on record including the pleadings submitted by the parties.

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19. The Tender Notice dated 17.12.2018 was published inviting sealed bids for settlement of the Fishery [Group no. 1 Dhar Brahmaputra Fishery] located in Dhubri district. While publishing the Tender Notice, it has been made clear that the Fishery is a 60% category fishery and it would be settled for a period of 7 [seven] years. The settlement of a 60% category Fishery has to be made as per Rule 12 of the Assam Fishery Rules, 1953. As per Rule 12, except those referred to in Rule 8[b] of the Assam Fishery Rules, 1953, all registered Fisheries shall be settled under tender system of sale in place of sale by auction. As per the proviso of Rule 12, the Government shall settle a 60% category Fishery with special category of Co-operative Societies, non-government organizations and self-help groups consisting of 100% actual fishermen and in the neighbourhood of such a fishery. The definition of 'special category fishery' has been provided in Explanation [1] thereto. Explanation [2] has provided that '60% category fishery' means 60% of registered fisheries available in a Civil Sub-Division eligible for settlement in a particular year. The Deputy Commissioner of the concerned district is a tender inviting authority and he is not the tender settling authority in respect of a 60% category fishery. It is the Government in the Fishery Department who is the tender settling authority in respect of a 60% category fishery.

20. As per the Tender Notice dated 17.12.2018, a bidder had to submit a number of certificates/documents along with his bid. The purpose of the Scrutiny Committee constituted by the tender inviting authority i.e. the Deputy Commissioner, Dhubri, is to scrutinize the documents submitted by the participating bidders. As the Scrutiny Committee was constituted by the tender inviting authority only, it cannot be envisaged that it can make any Page No.# 14/19 recommendation for settlement of a 60% category fishery when the concerned Deputy Commissioner forwards the tender documents to the tender settling authority in respect of a 60% category fishery, which is the State Government in the Fishery Department. Even if any recommendation is made by the tender inviting authority and or for that matter, the Scrutiny Committee constituted by the tender inviting authority, it is the tender settling authority i.e. the State Government in the Fishery Department who with due application of mind, has to consider the bids of the participating bidders along with the documents submitted in support of such bids in an independent manner and take the final decision. While considering and evaluating such bids, it has to be alive to the provisions contained in the Assam Fishery Rules, 1953, more particularly, to Rule 12 thereof as well as to the terms and conditions contained in the Tender Notice. It is the tender settling authority which alone has the authority to examine and decide as to whether the terms and conditions of the tender notice are complied with or not by the bidders. The terms and conditions of a tender notice is ordinarily not subject to judicial review under Article 226 of the Constitution of India unless they or any of them are/is found to be contrary to any statutory provision or incorporated in a mala fide manner or for extraneous consideration for the purpose of selection of any particular bidder.

21. There is no dispute to the proposition that the activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly, in a transparent manner, without discrimination and without unfair procedure. This proposition holds good in all cases of dealings by the State or an instrumentality of the State with the public. Where the State or Page No.# 15/19 an instrumentality of the State is dealing with the public in distribution of State largesses, it cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with the standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the State or an instrumentality of the State in the matter of grant of largesses must be confined and structured by rational, relevant and non- discriminatory standards or norms and if the State or an instrumentality of the State departs from such standards or norms in any particular case or cases, its action would be liable to be struck down, unless it can be shown by the State or the instrumentality of the State that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory and which should be consistent with the principles enshrined in Article 14 of the Constitution of India. Where the statutory rules are silent on an aspect, the same can be filled up by way of executive instructions which should not supplant the statutory rules in any manner but only supplement the statutory rules. The notification bearing no. FISH-19/65/2017-FISHERY/1[eCF No.50022] dated 18.01.2008 has been issued under the orders of the Governor of Assam whereby it has formulated a set of guidelines in order to streamline and to maintain transparency in the matter of settlement of 60% category fisheries and the same are in the nature of executive instructions. The tender settling authority by issuing the said set of guidelines has professed itself to adhere to the same while settling a 60% category fishery by way of tender system.

22. It is noticed that the settlement of the Fishery was set into motion with the publication of the Tender Notice dated 17.12.2018. As has been noticed Page No.# 16/19 above, all these writ petitions have been preferred when the competitive bidding process initiated by the Tender Notice dated 17.12.2018 was in the mid-stream. Before the tender papers were evaluated by the tender settling authority, the petitioner in the writ petition, W.P.[C] no. 6903/2019 M/s Dharnad Society has approached this Court by instituting the writ petition, thereby, assailing the observations made by the Scrutiny Committee constituted by the tender inviting authority i.e. the Deputy Commissioner, Dhubri.

23. The competitive bidding process initiated by the Tender Notice dated 17.12.2018 for settlement of the Fishery in question will be culminated when the final decision for the settlement will be taken by the tender settling authority, that is, the Government in the Fishery Department. Any observations made by any other authority during the process of evaluation cannot be construed to be the final outcome in the decision-making process. Till the conclusion of the competitive bidding process with the selection of the successful bidder in the form of the highest valid bidder it cannot be said that any right has accrued to any of the participating bidders to get the settlement in its favour. A bidder participating in the tender process cannot insist that his bid should be accepted for the sole reason that his tender is the highest. A participating bidder is, however, entitled to a fair, equal and non-discriminatory treatment in the matter of evaluation of his tender. To that limited extent, a bidder has an enforceable right in the Court and the Court in exercise of its power of judicial review can examine whether an aggrieved participating bidder has been treated in an unfair, unequal or discriminatory manner or not. But in the case in hand, the petitioner in the writ petition, W.P.[C] no. 8837/2019, M/s Dharnad Society is found to have approached this Court seeking interference at a pre-decisional Page No.# 17/19 stage. The scrutiny at the level of the tender inviting authority was only a step in the mid-way of the process of settlement of the Fishery where the final decision on the settlement is yet to be taken by the tender settling authority. A tentative view taken in the process by any authority other than the tender settling authority cannot be deemed to be the final view taken in the matter of settlement. The writ jurisdiction under Article 226 of the Constitution of India is discretionary jurisdiction and such discretionary jurisdiction is not ordinarily exercised in a matter which is at a pre-decisional stage where no right of any party is found to have been affected. A writ petition is ordinarily entertained only when some right of any party is infringed. In such view of the matter, the writ petition, W.P.[C] no. 8837/2019 preferred by M/s Dharnad Society is found to be a premature one since no right of the petitioner is seen to be violated and when no final decision in the matter of settlement of the Fishery has been taken by the tender settling authority. As such, the writ petition, W.P.[C] no. 8837/2019 is held to be a premature one. In consequence, the interim order dated 29.11.2019 stands recalled.

24. Notwithstanding the fact that the writ petition no. 8837/2019 is held to be a premature one, this Court has noticed that there are some observations in the minutes of the meeting of the Scrutiny Committee constituted by the tender inviting authority which are found contrary to one another. As the tender settling authority is yet to evaluate the tender documents of the participating bidder and take a decision thereon and to settle the Fishery, this Court does not want to make any observation as regards the merits of the bids of each of the participating bidders.

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25. Despite elapse of more than 3 [three] years there from the date of issuance of the Tender Notice on 17.12.2018, the settlement process of the Fishery has not reached its logical conclusion till date and the Fishery is being operated on temporary day to day basis at 10% above the annual settlement value fixed for the settlement period which expired on 02.01.2019. The earlier annual value of settlement for the Fishery was Rs. 3,42,101/-. The Assam Fishery Rules, 1953 is silent on the aspect of operating 60% category fishery on temporary basis and/or on day-to-day basis. It is noticeable from the Table above that the bid values offered by all the 7 [seven] participating bidders are above the earlier annual settlement value of Rs. 3,42,101/-. There is possibility that one of the 7 [seven] participating bidders could emerge as the highest valid bidder in the event the competitive bidding process initiated by the Tender Notice dated 17.12.2018 is brought to its logical conclusion. As a consequence of not bringing the settlement process to its logical conclusion by settling the Fishery in favour of the highest valid bidder, if there is one amongst the 7 [seven] participating bidders, there is consequent loss to the State Exchequer. One of the purposes for distribution of State largesses like the case in hand is to maximize the revenues for the State.

26. In the above fact situation obtaining in the case, this Court is of the considered view that the settlement process initiated for the settlement of Fishery for a period of 7 [seven] years is required to be brought to a logical conclusion at the earliest for the interest of all concerned.

27. The Court is of the considered view that while settling the Fishery for a period of 7 [seven] years, the tender settling authority has to evaluate the bids Page No.# 19/19 of all the 7 [seven] participating bidders in terms of the provisions of the Assam Fishery Rules, 1953, more particularly, Rule 12 thereof and qua the terms and conditions contained in the Tender Notice dated 17.12.2018. It is made clear that while applying its mind for the settlement of the Fishery, it should not allow itself to be influenced in any manner by the observations made by the tender inviting authority and/or for that matter, the Scrutiny Committee constituted by the tender inviting authority. While undertaking such exercise for settlement of the Fishery, the tender settling authority shall also have to consider the issue of validity of registration of M/s Dhir Beel Society, as has been raised by the petitioner in W.P.[C] no. 3913/2020. It is also made clear that this Court has not made any observation on the merits of the bids of any of the participating bidders. It is accordingly directed. The entire exercise for settlement of the Fishery shall be brought to its logical conclusion as expeditiously as possible, but not beyond a period of 45 [forty five] days from today. It is provided that till regular settlement of the Fishery is made, the petitioner in the writ petition, W.P. [C] no. 6903/2019, M/s Gauripur Society shall be allowed to run the Fishery.

28. With the observations made and directions given above, the writ petition, W.P.[C] no. 6903/2019 is partly allowed to the extant indicated. The writ petition, W.P.[C] no. 3913/2020 is accordingly disposed of. There shall be no order as to cost.

JUDGE Comparing Assistant