Page 1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Writ Appeal No. 273/2014 Md. Imranul Hoque, S/o Shamsul Hoque, Village- Kacharipara, District Nagaon, Assam. -Versus- - Appellant 1. Manik Talukdar, S/o Tafazul Ali, Village- Sutangaon, 2. Md. Rahan Uddin Chowdhury, S/o Bazir Ahmed, Village- Niz Doboka, 3. Sri Jayanta Laskar, S/o Sri Ratneswar Laskar, Village- Niz Doboka, 4. Reazul Islam Chowdhury, S/o Sirajul Islam Chowdhury, Village- Doboka Town, Ward No. 7, 5. Muhib Uddin Laskar, S/o Late Mahmud Ali Laskar, Village- Doboka Town, Ward No. 7, 6. Rofiqur Rahman, S/o Haji Abdus Kadir, Village- Kacharipara,
Page 2 7. Abdul Khalique Talukdar, S/o Late Haji Anfor Ali,, Village- Mikirpara, 8. Jamal Uddin Talukdar, S/o Haji Mosorof Ali Talukdar, Village- Mikirpara, 9. Nazim Uddin, S/o Abu Subhan, Village- Kacharipara, 10. Md. Abdul A, S/o Late Mahmud Ali, R/o Village- Poschim Jarini, 11. Rohim Uddin, S/o Mokoddos Ali, Village- Kacharipara, 12. The State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Forest Department, Dispur, Guwahati 6, 13. The Principal Chief Conservator of Forests, Rehabari, Assam, Guwahati 8, 14. The Conservator of Forests (T), Upper Assam Zone, Guwahati, 15. The Divisional Forest Officer, Nagaon South Division, Nagaon, Assam, - Respondents
Page 3 BEFORE HON BLE THE CHIEF JUSTICE (ACTING) HON BLE MR JUSTICE A. K. GOSWAMI Advocates: For the appellant : Mr. S. K. Talukdar, Ms. H. Das, For respondent Nos. : Mr. G. Soren, 1 to 11 For the respondent : Mr. R. K. Bora, Government Advocate, Nos. 12 to 15 Date of hearing : 03.09.2014 Date of judgment : 09.09.2014 (Goswami, J) JUDGMENT AND ORDER This writ appeal is presented against the order, dated 13.08.2014, passed by the learned Single Judge in WP(C) 2703/2014. 2. Heard Mr. S. K. Talukdar, learned counsel for the appellant, as well as Mr. R. K. Bora, learned State counsel, appearing for the respondent Nos. 12 to 15. We have also heard Mr. G. Soren, learned counsel appearing for the respondent Nos. 1 to 11. 3. The respondent Nos. 1 to 11 were the writ petitioners in WP(C) 2703/2014 and the present appellant was arrayed as the respondent No. 5 in the writ petition. 4. Pursuant to a sale notice dated 20.08.2013, issued by the Divisional Forest Officer, Nagaon South Division, for settlement of the Doboka Ordinary Sand Mahal No. 2 (Outside R.F.) (for short, the Sand Mahal ) for a period of seven years, the appellant had submitted his tender. According to the appellant, he emerged as the highest tenderer with his
Page 4 tendered amount of Rs. 28,21,199.00. However, instead of settling the Sand Mahal with him, a re-sale notice, dated 25.02.2014, was issued by the Divisional Forest Officer, Nagaon South Division, fixing 13.03.2014 as the last date for receipt of tenders. 5. The appellant challenged the said re-sale notice, dated 25.02.2014, by filing a writ application under Article 226 of the Constitution of India, which came to be registered and numbered as WP(C) 1216/2014. 6. By an order, dated 12.03.2014, this Court disposed of the writ petition giving liberty to the appellant to approach the appellate authority to file an appeal against the said re-sale notice dated 25.02.2014. It was observed that the appellant would be entitled to make prayer to the appellate authority for interim relief. It was also provided that further process, in respect of the re-sale notice, dated 25.02.2014, would be subject to the order to be passed by the appellate authority. Accordingly, the appellant preferred an appeal to the Principal Secretary to the Govt. of Assam, Environment and Forest Department, under Section 68(2) of the Assam Minor Mineral Concession Rules, 2013 (for short, the Rules ), against the re-sale notice dated 25.02.2014. 7. The petitioners in WP(C) 2703/2014, alongwith 344 others, had submitted a representation, on 07.05.2014, to the Principal Secretary to the Government of Assam, Environment and Forest Department, praying for withdrawing the re-sale notice dated 15.02.2014 and the sale notice dated 20.08.2013 and to put the Sand Mahal to fresh sale. As no action was taken on the said representation, the writ petition was filed by 11 of them
Page 5 praying for a direction to the Principal Secretary to the Government of Assam, Environment and Forest Department, to consider the representation, dated 07.05.2014, submitted by them. 8. In the writ petition, the petitioners had stated that some of the writ petitioners had participated in the tender process initiated by the tender notice dated 20.08.2013. No specific averments were made as to which of the writ petitioners had participated. But from a perusal of the comparative statement annexed with the writ petition, it appears that the petitioner Nos. 1, 2 and 11 had participated in the tender process by offering amount of Rs. 14,00,500.00, Rs. 12,00,500.00 and Rs. 19,20,000.00, respectively. 9. After having heard the learned counsel for the parties, the learned Single Judge disposed of the writ petition with the following directions: Having considered the rival submission and noticing the Court s order dated 12.03.2014 in the WP(C) 1216/2014, the pending appeal(s) of both groups (writ petitioners and the respondent No. 5) are directed to be considered within 4 weeks by the competent authority of the Forest Department. Before the matter is disposed of, both parties should be heard and their competitive offers should be taken into account. But if the authorities feel that even better offer can be received for the Sand Mahal through re-sale notice, they are at liberty to order the same. With this order the writ petition is disposed of. The interim order merges with this final order. 10. Mr. S. K. Talukdar, learned counsel for the appellant submits that so far as the direction of the learned Single Judge to the competent authority, in the Forest Department, to consider the appeal and the
Page 6 representation filed by the petitioners, is concerned, he cannot have any objection. The learned counsel also submits that while he can have no objection to the direction to hear the parties, the direction to the appellate authority to take into account the competitive offers of the parties is uncalled for. The learned counsel submits that when the appellant had filed a statutory appeal, the observations made by the learned Single Judge may influence the appellate authority while passing the order in disposing of the appeal. In substance, the learned counsel submits that the order of the learned Single Judge may be interfered with by providing that the appellate authority in the Forest Department may dispose of the appeal, filed by the appellant, and the representation, dated 27.05.2014, filed by the petitioners, on merits, after hearing the parties and in accordance with law. 11. Mr. R. K. Bora, learned Government Advocate, and Mr. G. Soren, learned counsel for respondent Nos. 1 to 11, however, submit that no interference with the impugned order is called for as this Court had not directed the competent authority to act in a particular manner. 12. We have considered the submission of the learned counsel for the parties and have perused the materials on record. 13. One issue before the appellate authority is the validity of the re-sale notice dated 25.02.2014. The other issue, which is required to be considered by the appellate authority, is the prayer of the petitioners, as prayed for by them in the representation dated 07.05.2014, to put the Sand Mahal to a fresh sale.
Page 7 14. It is already noticed that all the writ petitioners had not responded to the tender notice. On perusal of the operative portion of the order of the learned Single Judge, it seems to us that the parties would be required to make competitive offers before the appellate/competent authority, which should also be taken into account. In our considered opinion, such a course of action will not be permissible in law. The appellate/competent authority will have to decide the issues on the basis of the materials already on record. Distribution of State largesse has to be made on the basis of a fair and transparent procedure. If, at this stage, the parties are allowed to offer their bids, it will be akin to permitting private negotiation with some tenderers and also strangers to the sale notice, i.e., persons who never responded to the sale notice. Such a course of action will run counter to the principles governing distribution of state largesse and will be violative of Article 14 of the Constitution of India. 15. In the facts and circumstances of the case, we are of the opinion that it will be just and proper to direct the Principal Secretary to the Government of Assam, Environment and Forest Department, to take a decision in the matter on the basis of the materials on record and to pass appropriate order disposing of the appeal filed by the appellant as well as the representation filed by the petitioners. Accordingly, without expressing any opinion on the merits of the appeal as well as of the representation, we dispose of this writ appeal by directing the Principal Secretary to the Government of Assam, Environment and Forest Department, to dispose of the appeal filed by the appellant as well as the representation filed by the petitioners within a period of four weeks from
Page 8 the date of receipt of a certified copy of this order, by affording reasonable opportunity of hearing to the parties. The order of the learned Single is modified to that extent. 16. The appeal stands partly allowed. No cost. JUDGE CHIEF JUSTICE (ACTING) rk