High Court · 2012

I have heard Mr. J. Sharma, learned counsel for the petitioner and Ms. H

5. It is also been stated in the affidavit that the tender of the p etitioner was regular in all respects and that the difference of rate between th e first bidder and the petitioner was too high to justify settlement of the Fish ery mahal in favour of the writ petitioner and in order to earn more Departmenta l revenue, re-sale notice was issued. 6. .M. Phukan, learned state counsel for the respondents. 7. Mr. J. Sharma, learned counsel for the petitioner submits that the re-sa le notice dated 20/8/2011 is not sustainable in law in view of the fact that no grounds were mentioned in the said re-sale notice as to why the earlier sale not ice dated 3/5/2011 is cancelled. He has also contended that in terms of Rule 17 of the Assam Sale of Forest Products Coupes and Mahals Rules, 1977, for short, t he Rules, a mahal can be re-sold only after sale of the coupe or mahal is cancel led on the ground that the tenderer, whose tender had been accepted failed to pa y the security or to pay the instalment on due dates mentioned in Rule 5 or to e xecute agreement mentioned in Rule 16, for the remaining part of the coupe or ma hal period at the risk of such a tenderer. In the instant case, re-sale notice, according to the learned counsel for the petitioner, was issued without making a ny order of settlement in favour of any tenderer and therefore, re-sale notice c ould not have been issued after cancelling the earlier sale notice dated 3/5/201 1. The learned counsel also relies on a judgment of the Division Bench of this C ourt rendered in the case of Charan Muchahary vrs State of Assam and ors, report ed in 2005 (2) GLJ 233. 8. Ms. H.M. Phukan, learned State counsel submits that the re-sale notice d ated 20/8/2011 was published in a local daily newspaper on 25/8/2011 and in term s of Rule 20 of the Rules, the authorities were justified in issuing the re-sale notice.

9. The rival submission of the learned counsel for the parties have been duly considered. I have also perused the pleadings of the case.

10. Part 1 of the Rules provides for sale by tender system and havin g regard to the rival contentions, it will be appropriate to quote Rule 4, Rule 17 and Rule 20 of the Rules: Rule-4 Notice) (cid:28) Notice for tender- Brief advertisement inviting tender (Tender for sale of Mahal/Timber lots containing the names of the Mahals/lots, Areas of the Mahal/quantity of timber, period of which shall not exceed two years alongwith the receipt of tender, shall be punished in the least consecutive two days by the onth prior to the last date ls of the Mahals/lots sale notice, lease/settlement date, time and venue for (cid:28)Local daily newspapers (cid:29) for at Divisional Forest Officer at least one m fixed for submission of tender stating the detai and other terms and conditions shall be available in the which can be procured from the offices of the Divisional Forest during office hours of any working day on payment of Rs.50.00 Officer (Rupees fifty) per copy of the sale notice. Provided that for resale of any Mahal or timber lot, publication short sale notice at least fifteen days before the last date of receipt the tender shall be made which may or may not be published in the news papers. (cid:29) Rule-17 to execute agreement- If the tenderer whose tender has been accepted (cid:28)Cancellation and resale for failure to pay Security instalments mentione fails to pay the security or to pay the instalment on due dates d in Rule 5 or to execute agreement mentioned in Rule 16, the sale of the coupe or mahal shall be liable to be cancelled and the coupe or the mahal shall be resold for the remaining part of the coupe or mahal period at the risk of s Government and if the proceeds on resale which it originally sold, the difference shall b e realisable from him, and further the earnest money shall be forfeited and the fixed security deposit or part thereof as may be necessary, shal uch tenderer as regards the loss to are less than the value at whole of the l be adjusted against the dues. (cid:29) Rule-20 Forest Department and the authority competent to accept tender shall (cid:28)Right of withdrawal of any coupe or mahal from sale- Government have the right to withdraw any coupe or mahal from sale at any time ssue of final order of acceptance of tender or otherwise by negotiation. (cid:29) before i

11. A perusal of Rule 4 indicates that, amongst others, date, time a nd venue for receipt of tender shall be published in the local daily newspaper f or at least two consecutive days by the Divisional Forest Officer, at least one month prior to the last date fixed for submission of tender. The provision of Ru le 4 stipulates that for re-sale of any mahal or timber lot, publication of shor t sale notice at least 15 days before the last date of receipt of the tender sha ll be made which may or may not be published in the newspaper.

12. A perusal of provisions of the Rules would indicate that Rule 17 is the only provision in the Rules dealing with re-sale. Rule 17 contemplates r e-sale following default or lapses on the part of the settlement holders after c ancellation of the order of settlement and there is no escape from the fact that re-sale would invariably have a connotation that there was an act of an earlier sale. Rule 20 undoubtedly reserves in the Government in the Forest Department a nd in the authority, competent to accept tender, the right to withdraw any coupe or mahal from sale at any time before issuing final order of acceptance of tend ers or by negotiation.

13. If rights under Rule 20 is exercised, the logical corollary in t he event of authority again deciding to issue a sale notice, would be to follow the procedure as mandated in Rule 4 of the Rules. The re-sale notice dated 20/8/ 2011, on the own showing of the respondents, do not satisfy the requirement of t he Rule 4 of the Rules.

14. In the instant case, no materials have been placed that the auth orities had taken recourse to Rule 20 of the Rules though statements to the effe ct has been made in the affidavit and submissions have also been advanced to tha t effect.

15. A perusal of the re-sale notice dated 20/8/2011 indicates that t he earlier sale notice dated 3/5/2011 was cancelled. Power of cancellation is av ailable only if there is default on the part of the settlement holder to carry o ut his obligations as indicated in Rule 17 of the Rules. It, apparently, is not a case of withdrawal, as has been sought to be contended by the learned Governme nt counsel. This Court in Charan (supra) stated thus: (cid:28) & & & &.Whether the earlier sale notices dated 27.1.04 and 30.6.04 had been withd rawn is a question that has to be answered by the Court on the basis of the reco rds. Nothing has been placed before the Court to indicate that the sale notices had been withdrawn in a manner permissible and authorized in law. Consequently, the statements made in the affidavit of the official respondents which are sugge stive of the withdrawal of the earlier sale notices cannot be safely acted upon by the Court to arrive at the logical consequences that would follow such a deci sion. The alternative argument advanced on behalf of the petitioner in this rega rd, i.e, that if the earlier sale notices cannot be treated to have been withdra wn, the validity of the resale notices dated 4.9.04 has to be tested in the ligh t of the provisions of the Rules, therefore, is the next question that has to be answered by the Court. Rule 17 is the only provision contained in the Rules dea ling with the resale of Mahals.Not only Rule 17 contemplate resale following lap ses or default committed by the Mahaldar to whom the Mahal may have been initial ly sold, the very word ’resale’ would signify an act of an earlier sale. Admitte dly, the Mahal in question was not sold pursuant to the sale notice dated 27.1.0 4. In such a situation, it is difficult to appreciate as to how the Mahal could have been attempted to be resold by issuing the resale notice dated 4.9.04. We a re fortified in the view that we have taken by a decision of this Court rendered in the case of Abdus Salam Choudhury vs. State of Assam & others reported in (1 989) 1 GLR 464 (1989 (1) GLJ 223) & & & & (cid:29) 16. The stand taken in the affidavit that there is a vast difference between the highest bidder and the petitioner and therefore, in order to protect public revenue, re-sale notice was issued, is also without any foundation. It would ap pear from the comparative statement that the tender of the 1st two tenderers wer e rejected on the ground that the highest 2 tenderers had not signed the tender papers. When one has not even put his signature in the tender papers, this Court is of the opinion that the rate mentioned in the tender cannot at all be taken into consideration. No sanctity can be attached to such a bid wherein identity o f the tenderer is itself clouded and doubtful. It is also seen that the value of the bid offered by the petitioner is higher than the amount paid in the last te rm which was Rs.4,72,000/-. 17. In view of the discussion above, the impugned re-sale notice dated 20/8/ 2011 is not sustainable in law and as such, the same is set aside and quashed. T he respondents are directed to complete the tender process initiated by the sale notice dated 3/5/2011 without any further delay.

18. No order as to cost.