with the tender is given. One of the documents in the list is photocopy of Pan
Card of Income Tax Department ( 4 chh). Admittedly, the 3rd highest bidder did
not submit the photocopy of Pan Card of Income Tax Department. But he did
submit the Income Tax Clearance Certificate. The purpose of submitting
photocopy of the Pan Card of Income Tax Department is only to ensure that
tenderer is an income tax assessee. This purpose can also be served by filing
the Income Tax Clearance Certificate. There is no mention in the terms and
conditions of the NIT that in the event of failure to submit photocopy of the Pan
Card of Income Tax Department, the tender shall be rejected. In the context of
the condition in question, the object is that the fishery is settled to an income
tax assessee. And that the 3rd highest bidder has fulfilled by submitting the
Income Tax Clearance Certificate. The Assam Fishery Rules, 1953 (in short
“Rules”), which are statutory and regulate the settlement of fishery in favour of
fishermen, do not provide for a condition of submitting photocopy of Pan Card
of Income Tax Department along with tender documents. The purpose of
settlement of fishery to fishermen, in our considered view, does not get
defeated in any manner due to non-submission of the photocopy of Pan Card of
Income Tax Department by the 3rd highest bidder. The authorities were thus
justified in accepting the tender of 3rd highest bidder as he had submitted the
Income Tax Clearance Certificate instead of Pan Card of Income Tax
Department. For these reasons, we are unable to agree with the learned Single
Judge that merely because the 3rd highest bidder did not submit the Pan Card
of Income Tax Department, his tender deserved to be cancelled. In fact, the 3rd
highest bidder had substantially complied with the condition.
IN THE GAUHATI HIGH COURT
WRIT APPEAL NO. 44 of 2015
No.11 Part-V Kallong Nadi Anchalik Meen Samabay Samity Ltd.,
Vs
The State of Assam,
BEFORE
MR. JUSTICE AJIT SINGH, THE CHIEF JUSTICE
MR. JUSTICE SUMAN SHYAM
Date of hearing & judgment : 14.6.2016
These writ appeals are directed against the common order dated
27.11.2013 passed by the learned Single Judge of this High Court in WP(C)
No.138 of 2013 and WP(C) No.328 of 2013. The appeals were therefore heard
together and they also involve the same issue.
2. On 15.9.2013, Notice inviting tender (NIT) was issued for settlement of
No.25/28/103/104 Dhipujijan/Garanga Garsag/Malia Group Fisheries. The NIT
enumerated terms and conditions for the settlement. These terms and
conditions also mentioned the documents, which were required to be submitted
along with the tender.
3. As many as 10 tenders were submitted. The bid offered by Santosh
Barman, on behalf of 5 No. Sonai Pt-III Co-operative Society, was the 1st
highest whereas bid offered by Kandulal Mandal, on behalf of Katahguri
Matshajibi Samabai Sammittee Limited, was the 3rd highest. And the bid offered
by Jagadish Barman, on behalf of No.11 Part V Kollong Nadi Anchalik Meen
Samabai Samity Limited, was the 9th highest. Since the 1st and 2nd highest
bidders were not found to be eligible, their tenders were rejected and
settlement of fishery was made in favour of 3rd highest bidder i.e. Katahguri
Matshajibi Samabai Sammittee Limited.
4. The 2nd highest bidder felt satisfied with the decision of rejection of his
tender. He therefore did not challenge the same.
5. The 1st highest bidder however felt aggrieved and filed WP(C) No.138 of
2013. His main ground was that despite submission of complete tender papers,
the tender had wrongly been rejected. It is pertinent to note that he did not
challenge the eligibility of 3rd highest bidder, whose tender was accepted. The
9th highest bidder too filed WP(C) No.328 of 2013 and prayed that since all
other tenderers were ineligible, settlement be directed to be made in his favour.
The objection of 9th highest bidder against 3rd highest bidder was that he did
not submit photocopy of the Pan Card of Income Tax Department as per terms
and conditions of NIT. His another objection was that the 3rd highest bidder did
not file any certificate about 100% actual fishermen being in the neighbourhood
of the concerned fishery. The State Government, on the other hand, defended
its decision regarding settlement of fishery in favour of 3rd highest bidder. The
3rd highest bidder also replied to the objections taken by 9th highest bidder
against him.
6. The learned Single Judge, by the impugned order, has dismissed WP(C)
No.138 of 2013 of 1st highest bidder on the ground that he was not eligible for
settlement. Interestingly, the 1st highest bidder has graciously accepted the
order passed by the learned single Judge and has not challenged the same. The
learned Single Judge, however, agreed with one of the two objections of 9th
highest bidder that the 3rd highest bidder did not submit photocopy of the Pan
Card of Income Tax Department, which was the mandatory requirement and
cancelled the settlement of fishery in his favour. The learned Single Judge also
agreed with the decision of the State Government that even 9th highest bidder
was not eligible for settlement of fishery and dismissed his petition. Since the
learned Single Judge found that all the 3 stakeholders i.e. 1st highest bidder, 3rd
highest bidder and 9th highest bidder were not eligible, he directed the State
Government to issue fresh NIT for the settlement of fishery, in question. It is, in
this background, the 3rd highest bidder has filed WA No.415 of 2013 and WA
No.413 of 2013 and the 9th highest bidder has filed WA No.44 of 2015.
7. As already stated above, the 1st highest bidder has not challenged the
order of the learned Single Judge dismissing his petition. The 2nd highest bidder
also never challenged the rejection of his tender. Therefore, now only 3rd and
9th highest bidders are in the field.
8. The only question, which calls for our consideration, is - whether in the
fact situation of the case, the 3rd highest bidder had substantially complied with
the terms and conditions enumerated in the NIT. And if we decide the question
in the affirmative, then, obviously, 9th highest bidder will have no chance for the
settlement of fishery in his favour.
9. Condition 4 of the NIT reads as under:-
“The willing tenderers shall submit the tender papers on 19.10.2012 on or before 2:00
p.m. during the office hours in the tender box. No tenders shall be accepted after the
fixed date. The relevant documents as mentioned in the Tender Form shall be filled in
and those shall be enclosed with the tender papers and submitted in the office.
(ka) The fishing experience certificate.
(kh) The Bakijai Certificate proceedings issued by the Deputy Commissioner.
(ga) The proof of Schedule Caste/Maimal Community and Individual Certificate of
fisherman and Fish Farmers.
(gha) Bank Draft/Indian Postal Order/Bank Cheque of Rs.10.00.
(na) The security/call deposit of Rs.15% of the lowest revenue fixed by the
Government for the 1st year.
(ch) The proof of Registration Certificate of the Co-operative Society.
(chh) Photocopy of Pan Card of Income Tax Department
(j) The photocopy of the authority letter on behalf of the Society to submit with
the tender.
(jha) The photocopy of the Annual Balance Sheet of Samity of profit and loss.”
10. In the above quoted condition, list of documents to be submitted along
with the tender is given. One of the documents in the list is photocopy of Pan
Card of Income Tax Department ( 4 chh). Admittedly, the 3rd highest bidder did
not submit the photocopy of Pan Card of Income Tax Department. But he did
submit the Income Tax Clearance Certificate. The purpose of submitting
photocopy of the Pan Card of Income Tax Department is only to ensure that
tenderer is an income tax assessee. This purpose can also be served by filing
the Income Tax Clearance Certificate. There is no mention in the terms and
conditions of the NIT that in the event of failure to submit photocopy of the Pan
Card of Income Tax Department, the tender shall be rejected. In the context of
the condition in question, the object is that the fishery is settled to an income
tax assessee. And that the 3rd highest bidder has fulfilled by submitting the
Income Tax Clearance Certificate. The Assam Fishery Rules, 1953 (in short
“Rules”), which are statutory and regulate the settlement of fishery in favour of
fishermen, do not provide for a condition of submitting photocopy of Pan Card
of Income Tax Department along with tender documents. The purpose of
settlement of fishery to fishermen, in our considered view, does not get
defeated in any manner due to non-submission of the photocopy of Pan Card of
Income Tax Department by the 3rd highest bidder. The authorities were thus
justified in accepting the tender of 3rd highest bidder as he had submitted the
Income Tax Clearance Certificate instead of Pan Card of Income Tax
Department. For these reasons, we are unable to agree with the learned Single
Judge that merely because the 3rd highest bidder did not submit the Pan Card
of Income Tax Department, his tender deserved to be cancelled. In fact, the 3rd
highest bidder had substantially complied with the condition. Annexure-A/03
filed in WP(C) No.138/2013 is the list of members of 3rd highest bidder’s
society. This list was also submitted along with the tender. And the list is
certified that all the members named therein do belong to Scheduled Caste and
are actual fishermen. Annexure-A/03 thus answers the 2nd objection of 9th
highest bidder in favour of 3rd highest bidder. We, therefore, set aside the
impugned order passed by the learned Single Judge.
11. In the result, WA No.415/2013 and WA No.413/2013 of the 3rd highest
bidder are allowed and WA No.44/2015 of the 9th highest bidder is dismissed.
JUDGE CHIEF JUSTICE
Skd/-
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