JOGIGHOPA FISHERY CO-OPERATIVE SOCIETY LTD. AND ANR. Vs. ASSAM BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India for an order or a Writ of Certiorari to remove into this Court Case No. 23 F(G) 1982 disposed by the Assam Board of Revenue, the highest appellate authority constituted under the Rules for the Settlement of Fisheries, for short "the Rules", for the purpose of quashing the impugned order dated 21.9.82.

(2.) NO . 1/77 Digdhar Brahmaputra Fishery is the bone of contention. Since 1976, the Petitioner society was enjoying 'the fishery' on payment of a very nominal annual revenue of Rs. 39,660/ -. of course it undertook to improve and/or develop the fishery. Thus it enjoyed it for years. However, the Government decided to put up the fishery for sale, instead of direct settlement with the Petitioner, and, accordingly, issued sale notice dated May 24, 1982 inviting tenders, vide Annexure 'C'. The Petitioner as well as Respondent No. 2 vied for the settlement. The Petitioner offered Rs. 40,101/ -per annum whereas Respondent No. 2 offered Rs. 86,711.75 annum -the difference per year comes to over Rs. 46,000.00. The period of lease is for 3 years. Thus the offer of Respondent No. 2 was Rs. 1,38,000/ - over the offer of the Petitioner. Thus, if Respondent No. 2's offer was accepted the Government would have gained revenue over Rs. 1,38,000/ - for the fishery. Situated thus the settling authority, namely, the S.D.C., Goalpara, in consultation with the Advisory Board preferred Respondent No. 2 and that too very rightly. By its order dated 25.6.82, Respondent No. 2 was given the first preference provided it could produce Income -Tax Clearance Certificate in the name of "the Society" by 2.30 P.M. on 28.6.82 and also directed Respondent No. 2 to produce proof of "financial stability of landed property and/or bank account transacted till 25.6.82 worth 50% of the offered amount in the tender". However, the tender was submitted by Shri Maniram Das, for and on behalf of his registered Co -operative fishery, namely Baladmari Gobindapur Machmara Aru Jalbowa Samabay Samity Ltd. It is a Co -operative Society registered under the Assam Co -operative Societies Act and composed of 100% fishermen. The fishery has had fishing implements worth Rs. 25,000/ -apart from cash money and landed properties. It may be noted here that Respondent No. 2 had applied for obtaining Income -tax Clearance Certificate which was clearly set out in Column No. 12 of the Tender and the acknowledgment of the receipt of the application was also appended along with an affidavit. He produced the Sales -tax certificate. As such, on the date of the submission of the tender, Respondent No. 2 had applied for obtaining Income -Tax Certificate of his Co -operative Society but could not obtain the same. However, the S.D.O., by his order dated 25.6.82 asked him to produce the said certificate and also to produce materials to bear up the financial stability of "the co -operative society". It was also stated in the order that on failure of Respondent No. 2 to produce the documents the tender of the Petitioner's Co -operative Society would be given the first preference provided the latter could produce "proof of financial stability of landed property and/or bank account transacted upto 25.6.82 in the name or on behalf of the Society worth 50% of the offered amount in the tender". It appears that Respondent No. 2 had failed to produce the Income -tax Clearance Certificate and document called for by the Sub -Divisional Officer and on that count alone the S.D.O. settled the fishery with the Petitioner. The sole reason for settling the fishery with the Petitioner was that Respondent 2 had failed to produce the documents required by the S.D.O. It also appears that apart from obtaining the settlement of the fishery the Petitioner obtained settlement of another fishery, being No. 20/118 Valley Manas Fishery at Rs. 6101.00 per year. Therefore, two fisheries were settled with the Petitioner. We reiterate that the sole reason for not settling the fishery with Respondent 2 was non -production of some documents. However, in respect of the Income -Tax Clearance Certificate, Respondent 2 had applied for the same from the Department and filed an acknowledgement of receipt. The security papers demanded, however, were not produced by Respondent No. 2. It appears that on 28.6.82. Respondent 2 filed an application, vide Annexure 'A' to the Affidavit -in -opposition. We have seen the original. It was stated that the Secretary of Respondent 2 went to Dhubri to obtain the certificate from the Income -tax Officer but as it was a holiday for "Ambubashi' (a Hindu festival), the officer did not attend his office and Respondent 2 could learn that the certificate would be given on 28.6.82. Admittedly, Respondent 2 could not obtain the certificate and he filed an affidavit stating the reasons for failure to the certificate and prayed for time till 29.6.82. However, it will appear that the order of settlement was made without considering this application. On the next day, i.e., on June 29, 1982 Respondent 2 filed a copy of the Income -tax Clearance Certificate. The S.D.O. wrote on the body of the petition as under:

(3.) IT will appear that the learned Board of Revenue (sic) exercised over the matter, taken into consideration all the relevant factors and reached a decision. But Mr. Bhuyan, learned Counsel for the Petitioner submits that the following errors are apparent on face of the record: