High Court · 2009

Heard Mr. A.K. Bhattacharjee, learned Sr. counsel assisted by Mr. A. K. Choudhury, learned counsel for the petitioner and Mr. D. K. Das appearing for the respondent no. 7. The petitioner was settled for the aforesaid sand Mahal by the settlin g authority for the period 2004 to 2006 and thereafter again from 2007 to 2009. Just after expiry of the period of the Mahal i.e. on 22-6-2009, the respondent N o. 7 has filed an appeal before the Govt. purportedly under Rule 9 of the Sale o f Forest Produces Coupes and Mahal Rules, 1977, praying for extension of time by one year, inasmuch as, he could not extract the entire quantity of sand due to construction of embankment on the said river. In the meantime the authority issued the NIT for settling the Maha l by way of tender system and the present petitioner being the successful tender er an order was passed on 10-6-2009 by the DFO Cachar Division, Silchar, provisi onally settling the said Mahal in favour of the present petitioner from the peri od 2009 to 2011. But before the petitioner could operate the Mahal, vide order d ated 25-8-2009 the Commissioner and Secretary to the Govt. of Assam, Environment and Forest Department allowed the extension of the Mahal period in favour of re spondent No. 7 by another 6 months. While the aforesaid extension was made in fa vour of the respondent No. 7 at that time, the provisional settlement of the Mah al in favour of the present petitioner was in operation. Situated thus, the present petitioner has approached this Court by filing this writ petition challenging the impugned order dated 15-8-2009 extend ing the Mahal period in favour of the respondent No. 7. Mr. Bhattacharjee, learned Sr. counsel submits that the aforesaid or der was passed in the purported appeal filed by the petitioner under Rule 9 but the provision of Rule 9 is not attracted to provide such a relief to the petitioner. Further contention of the ld. counsel is that even if the said appea l is treated as an application for extension of the period of the Mahal, the pra yer for extension cannot be allowed for a period of 6 months in terms of Rule 21 (3) of the Rules, more so when an adverse report in against granting of such ex tension was furnished by the D.F.O. concerned to the Conservator of Forests, Sou thern Assam Circle, Cachar Silchar, Assam, vide his report dated 28-7-09 which was called for in connection with the appeal so filed for extension of time. Mr. D.K. Das, learned counsel appearing for the respondent No. 7 howeve r fairly submits that the provision of Rule 21(3) does not allow the extension p eriod of the Mahal for 6 months. The stated facts have not been denied at the Ba r. From the facts eluded hereinabove, it is thus transparent that the perio d of operation of the Mahal in question was extended in favour of the Respdt. n o. 7 vide impugned order dated 25-8-2009 for a period of 6 months in terms of hi s prayer, although in fact the same was provisionally settled in favour of the p etitioner vide order dated 10-6-09 on his being successful in the tender process , initiated by the authority. It is to be noted herein that the present respondent No. 7 was third in rank in terms of the bid value in terms of the tender notice issued by the authority . Rule 21(3) of the Rules provides as follows : (cid:28)21(23) - In case the settlement holder is not able to operate the Ma hal for certain periods within the settled term of the Mahal, for reasons beyond his control, such periods may be provided to him in addition to the Mahal perio d, but not exceeding a total of 3 months, by the principal Chief Conservator of Forests. The Mahaldar, in every such case shall apply to the Divisional Forest O fficer concerned within 7 days of each occurrence. The Divisional Forest officer shall submit a report in the matter through the concerned Conservator of Forest s for consideration (cid:29). In passing the order of extension of the Mahal beyond the period of settlement the basic consideration for the authority is to consider whether t he settlement holder was not able to operate the Mahal for a certain period for reasons beyond his control. In such a case the mahaldar is to apply before the DFO within seven days of any occurrences which may obstruct in running the Mahal . The report of the DFO dated 24-8-09 clearly indicates that the ground set fort h by the Respdt. No 7 for extension of the period are not at all substantive. In fact the Respdt. No 7 has failed to pay the kist money and VAT payable by him, and recommended not to extend the period of the Mahal. In spite of such an adver se report and in infraction of Rule 21(3) the respondent No. 7 was allowed to op erate the Mahal extending his lease that too settlement order in favour of the p etitioner, for a period of 6 months at a time. The settlement of extension of period is provided under the Rules which are statutory in nature. The respondent No. 7 not having been able to show and establish the ground for extension of th e Mahal period, the impugned order is not at all justified under the law. That a part the respondent authority has no jurisdiction to extend the period of settle ment for more than 3 months. In view of the above discussions, the impugned order dated 25-8-2009 stands set aside and quashed. The Mahal shall now be allowed to be operated in terms of the tender notice so issued by the authority, subject to any appeal. This writ petition stands allowed as indicated above.