Nitu Sonowal vs State of Assam and Others

B.K. Sharma, J.—The grievance raised in this writ petition is in respect of the decision of the Respondents to put the Stone Quarry in question for sale again abandoning the earlier process of settlement.

The Petitioner in response to the notice inviting tenders dated 12.12.03 in respect of Dilli Stone Quarry No. II(A) putting the same to re-sale for 2004-06, submitted his tender offering bid value of Rs. 5,05,000/-. Alongwith the Petitioner, two other tenderers also submitted their tenders offering bid value of Rs. 4,92,001/- and Rs. 3,91,005/-. The Divisional Forest Officer, Sivasagar Division (Respondent No. 5) upon scrutiny of the tender papers, recommended the case of the Petitioner, he being the highest bidder. After anxiously awaiting for the settlement order to be issued and there being delay, the Petitioner enquired the matter in the Office and came to know that the Respondent No. 3 by his impugned communication dated 12.04.04 issued direction to put the Stone Quarry again for re-sale. The impugned letter dated 12.04.04 is quoted below:

GOVERNMENT OF ASSAM OFFICE OF THE CHIEF CONSERVATOR OF FORESTS (T), ASSAM No. FGT. 24/37/Dilli-II (A)/57, Dated Guwahati, the 12.04.04. The Conservator of Forests Eastern Assam Circle Jorhat.

Sub: Settlement of Dilli Stone Quarry No. II (A)

Ref: Your letter No. FG 24/S/Dilli-II/04-06/SIV/EAC Dt. 03.02.04.

In inviting a reference to the above, I am to inform you that as per the records it appears that the daily newspaper Dainik Janambhoomi carried the sale advertise and on 30.12.03 and the tenders were received on 05.01.04. Thus, there were only 4 (four) days between these two date, i.e. between 30.01.03 and 05.01.04. Out of these 4 days one (01.01.04) happened to be a restricted holiday and Anr. (03.01.04) happened to be Saturday. The prospective tenderers were, therefore, not given the opportunity to compete. It appears that the bids offered are less for this reason.

You are requested to issue necessary instruction so that the mahal is again put to sale after wide circulation of the sale notice as per rules.

Sd/ Chief Conservator of Forest (T), Assam, Guwahati-1.

The ground for the decision to put the Stone Quarry to re-sale is the inadequate notice and bid amounts. According to the Petitioner such a plea is wholly untenable both on factual and legal aspect of the matter. Referring to the other similarly situated Stone Quarry within the same Sivasagar Division, it is the case of the Petitioner that the Respondents did not put the same to re-sale on ground of inadequate notice. According to the Petitioner, publication of tender notice in respect of re-sale is not a condition precedent as per the provisions of Rule 4 of the Assam Sale of Forest Produce Coupes and Mahals Rules, 1977. As per the requirement of the proviso to Rule 4 of the Rules, publication of short sale notice at least 15 days before the last date of receipt of tenders with or without publication of the sale notice in news paper conforms to the requirements and in the instant case, the re-sale notice having been issued on 12.12.2003 fixing the last date as 05.01.04 met the said requirement of proviso to Rule 4 of the said Rules which reads as follows:

Provided that for resale of any Mahal or timber lot, publication of short sale notice at least fifteen days before the last date of receipt of the tender shall be made which may or may not be published in the news papers.

Two counter affidavits have been filed on behalf of the Respondents, one by the Respondent No. 3 and another by the Respondent No. 5. In both the affidavits, the stand of the Respondents is that there was delay in publication of the re-sale notice dated 12.12.03 in the news paper and the time given for submission of tender in news paper notice was inadequate. In the affidavit filed by the Respondent No. 5 the matter has been explained in detail. Referring to the earlier sale notice preceding the re-sale notice dated 12.12.03, the Respondent No. 3 has highlighted as to how the Petitioner on that occasion offered bid of Rs. 9,99,999/-. On that occasion the highest bid was of Rs. 18,28,280/- and the lowest was Rs. 9,99,999/-.

The Respondents in their said affidavit have expressed their surprise over the bid of Rs. 5,05,000/- offered by the Petitioner as against his bid of Rs. 9,99,999/- on the earlier occasion. Accordingly to the Respondents, adequate opportunity for submission of tenders was not given to respective bidders in view of publication of the notice in news paper only on 30.12.03 fixing 05.01.04 as the last date. In between, the days, i.e. 03.01.04 and 04.01.04 were Saturday and Sunday and thus, the virtual two full working days were not sufficient to submit tenders. According to the Respondents, the news paper publication on 30.12.03 fixing the last date as 05.01.04 was in violation of the provision of the said Rules.

Mr. GN. Sahewalla, learned Sr. Counsel assisted by Mr. D. Senapati, learned Advocate argued that in view of the admitted factual and legal aspect of the matter, the Petitioner is entitled to get the settlement of the Stone Quarry, he being the highest bidder. He argued that the ground assigned for putting the Stone Quarry to re-sale is contrary to the proviso to Rule 4 of the said Rules.

Mr. H.K. Mahanta, learned Government Advocate, on the other hand supported the action of the Respondents in taking the impugned decision. He submitted that the Petitioner cannot as a matter of course claim settlement of the Quarry pursuant to the tender process. He submitted that once a decision was taken for news paper publication of the sale notice, the time schedule laid down in the Rules was to be followed which was not so followed. He submitted that but for the inadequate notice more tenders would have come with higher bids than the Petitioner. He finally submitted that the State cannot afford to loose revenue and the impugned decision had to be taken for the twin purposes of adequate opportunity to all prospective bidders and the revenue of the State.

Rule 4 of the aforesaid Rules lays down the procedure in respect of notice for tender. As per the said procedure, the brief advertisement inviting tender for sale of mahal etc. shall be published in the local daily newspaper for at least consecutive two days by the jurisdictional Divisional Forest Officer (DFO) at least one month prior to last date fixed for submission of tender. However, in case of resale of any Mahal etc. publication of short sale notice at least 15 days before the last date of receipt of the tender shall be made which may or may not be published in the news paper. The Rule reads as follows:

Rule 4. Notice for tender.-Brief advertisement inviting tender (Tender Notice) for sale of Mahal/Timber lots containing the names of the Mahal/lots, Areas of the Mahal/quantity of timber, period of the lease/selectmen which shall not exceed two years alongwith the date, time and venue for receipt of tenders, shall be published in the "Local daily news papers" for at least consecutive two days by the Divisional Forest Officer at least one month prior to the last date fixed for submission of tender stating that the details of the Mahals/lots and other terms and conditions shall be available in the sale notice, which can be procured from the offices of the Divisional Forest Officer during office hours of any working day on payment of Rs. 50.00 (Rupees Fifty) per copy of the sale notice.

Provided that for re-sale of any Mahal or timber lot, publication of short sale notice at least fifteen days before the last date of receipt of the tender shall be made which may or may not be published in the news papers.

The entire argument made on behalf of the Petitioner is on the basis of the aforesaid Rule. It is the case of the Petitioner that the ground assigned in the impugned letter towards putting the Stone Quarry into re-sale is not tenable in view of the provision made in the proviso in the aforesaid Rule.

According to the Petitioner the re-sale notice having been issued on 12.12.03 fixing the last date as 05.01.04 and thus requirement of minimum time limit of 15 days having been complied with, the ground assigned in the impugned letter dated 12.04.04 is not sustainable. In the impugned letter the decision to put the Mahal for re-sale on the ground of inadequate notice through news paper publication has been conveyed. Referring to the aforesaid proviso to Rule 4 in terms of which a re-sale notice may or may not be published in the news paper, it is the case of the Petitioner that inadequacy or otherwise of the advertisement published in the news paper will have no bearing when the other requirement has been duly complied with.

The moot question for determination is, whether the decision conveyed by the impugned letter dated 12.04.04 can be said to be arbitrary, irrational and illegal. The affidavits filed on behalf of the Respondents clearly revealed that on the earlier occasion as against the bid value as high as Rs. 18,28,280/-, this time the bid offered by the Petitioner is Rs. 5,25,551/- in which rate the Petitioner wants settlement of the Stone Quarry. As pointed out in the affidavit, it is the same very Petitioner who on the said occasion offered his bid of Rs. 9,99,999/-. According to the Respondents such quoting of lower bid value was the result of inadequate notice of re-sale of the said Stone-Quarry.

As per the own admission of the Petitioner altogether 3 tenders were received pursuant to the re-sale notice in question and the respective bid values were Rs. 5,25,551/- (Petitioner), 5,05,333/- and 4,92,001/-. However, it is the case of the Petitioner that the Stone Quarry was settled at Rs. 3,91,005/- on the last occasion pursuant to a sale notice and thus, the bid offered by the Petitioner is a reasonable bid. Be it stated here, that although tenders were received pursuant to a sale notice in respect of the Stone Quarry proceeding the re-sale notice in question in which the highest bid was Rs. 18,28,280/- in which the Petitioner''s own bid was for Rs. 9,99,999/- same did not materialize since the highest bidder in whose favour the provisional settlement was made did not comply with the requirements. On that occasion the Petitioner''s bid stood at 7th position with the offer of Rs. 9,99,999/-. When the settlement made in favour of the highest bidder did not materialise, decision for putting the Stone Quarry to re-sale was taken without offering the settlement to the second highest bidder. Pursuant to the impugned re-sale notice, the Petitioner offered his bid of Rs. 5,25,551/-.

As per the impugned letter dated 12.04.04, re-sale notice was published in the daily news paper on 30.12.03 fixing the last date of receipt of tenders as 05.01.04. As against the requirement of minimum 15 days notice, only 5 days notice was given and in between two days, i.e. 03.01.04 and 04.01.04 happened to be Saturday and Sunday. Thus, if the sale notice published in the news paper is taken into account, there cannot be any second opinion that the time limit specified for submission to tender was inadequate. Coupled with this when the bids offered by 3 tenderers were comparatively much lower than the earlier bids, can it be said that the decision conveyed by the Chief Conservator of Forest (CCF) (T) to put the Stone Quarry to re-sale after wide publication by the impugned order dated 12.04.04 is arbitrary, irrational and illegal. It is on record that pursuant to the impugned decision on 12.04.04, the Stone Quarry has been put to re-sale by news paper publication dated 13.09.03. However, in view of the interim order passed in this proceeding, the Stone Quarry is yet to be settled. Needless to say that in view of non-settlement of the Stone Quarry the State is incurring revenue loss.

It is true that as per the proviso to Rule 4 of the Rules, in case of are-sale notice the same may or may not be published in the news paper. The re-sale of any Mahal etc. requires publication of short sale notice at least 15 days before the last date of receipt of the tenders. As per the said proviso, such resale notice may or may not be published in the news paper. It in this context, it was argued on behalf of the Petitioner that when the publication of re-sale notice in news paper is only optional, inadequacy or otherwise of such notice in the news paper will have no bearing when the requirement of at least 15 days notice by publishing the re-sale notice in the notice board is complied with.

In the instant case had it been a case of no paper publication at all and the publication of the re-sale notice in the manner and method provided in the proviso of Rule 4 would have met the requirement. However, a decision having been taken to go for paper publication and the same having been published in the news paper, adequacy or otherwise of the time limit prescribed in the news paper notice can surely be a ground for a decision to put the Stone Quarry to re-sale giving wide publication. As noticed above from the date of publication of the re-sale notice in the news paper to the last date of receipt of the tenders, there were hardly three days. This could be a probable ground of receipt of lesser number of tenders with lower bid amounts compared to the bid amounts on the earlier occasion. If on these twin grounds of inadequate notice and receipt of lesser number of tenders with much lower rates compared to the bids offered on the earlier occasions, the impugned decision was taken to put the Stone Quarry to re-sale, I am of the considered opinion that no fault is attributable to such a decision.

The impugned letter dated 12.04.04 reveals that the decision to put the Stone Quany to re-sale has been taken on account of consideration of the bids offered being less for the reason of inadequacy of notice published in the news paper. Such a decision arrived at by the competent authority of the Forest Department cannot be faulted with so as to quash the same with a direction to the Respondents to settle the Stone Quarry with the Petitioner at his bid value of Rs. 5,25,551/- when the same very Petitioner had offered Rs. 9,99,999/- for the same Stone Quarry on the earlier occasion and on which occasion the bid value was as high as Rs. 18,28,280/-. No malafide has been attributed in such a decision making process. The competent authority of the Forest Departments upon evaluation of the entire matter, came to the decision that the Stone Quarry should be put to re-sale giving wide publicity. There is nothing to indicate that such a decision is based on irrelevant consideration. Rather the decision is quite reasonable and no interference is called for to such a decision and that too in exercise of the power of judicial review under Article 226 of the Constitution of India.

In view of the above, I do not find any merit in the writ petition and accordingly same stands dismissed. Interim order passed earlier stands vacated. However, having regard to the facts and circumstances involved in the case, I leave the parties to bear their own costs.