Research › Browse › Judgment

Gauhati High Court · body

1972 DIGILAW 31 (GAU)

Kamala Kanta Das v. Budha Prasad Dewri and others

1972-05-25

B.ISLAM, P.K.GOSWAMI

body1972
Judgement GOSWAMI, C. J.:- This application under Article 226 of the Constitution of India is directed against an order of settlement of the Sadia-Saikhowa Ferry for the year 1972-73 in favour of the 1st Respondent Buddha Prasad Dewri. 2. The period of settlement of the ferry is from 1-4-72 to 31-3-73. The first Respondent was the highest tenderer offering Rs.76,351/- The petitioner was the next tenderer offering Rs.65,101/-. The officer who opened the tenders, and in that sense was conducting the sale, provisionally accepted the tender of the petitioner by recording certain reasons. He did take into account the factors which are necessary to be borne in mind under Rule 19 of the Control and Management of Ferries Rules, 1968, hereinafter called the Rules, which admittedly govern the present case. No order of the Secretary to the Government of Assam in the Transport Department is produced before us, but the communicated order is marked as Annexure C and that is the impugned order according to the petitioner. 3. The learned Advocate-General, Assam, however, has shown us the original records wherefrom we find that the Secretary, Transport Department, received the papers and reports of the officer conducting the sale forwarded by the Director of Inland Water Transport Department, and he came to the conclusion that the settlement should be in favour of the first Respondent. It, however, appears that after he had decided to settle the ferry in favour of the highest tenderer, he also forwarded the papers to the Government for approval and the Governors approval was also, in due course, obtained, after which he communicated the result to the Director of Inland Water Transport, Assam, Gauhati, by the impugned letter (Annesnire C). Mr. B.K. Goswami, the learned Counsel for the petitioner, submits that here is a case in which Rule 19(b) has been violated. We will, therefore, read that rule: "19(b) - The Secretary to the Government of Assam in the Transport Department shall consider the results of the auction sale or tender or both together as the case may be for the purpose of final settlements. In doing so he shall consider among others whether the officer conducting the sale/calling for tenders and the Director have taken into account and considered all the factors mentioned in Rule 19 above. In doing so he shall consider among others whether the officer conducting the sale/calling for tenders and the Director have taken into account and considered all the factors mentioned in Rule 19 above. The Secretary to the Government of Assam in the Transport Department may for reasons recorded in writing disapprove of the bid/tender or both as the case may be, accepted by the officer conducting the sale/ calling for tenders and by the Director (underlining is mine) and may settle the ferry with any bidder/tenderer or may disapprove the sale/tender or both. The decision of the Secretary to the Government of Assam, in the Transport Department will be final and binding on all concerned." Mr. Goswami admits that the factors required to be considered under Rule 19, namely Rule 19(i) to (iii), have been considered by the officer conducting the sale. He has, therefore, no grievance on that score. His only grievance is that the Secretary has not taken the decision and it is a decision of the Government which is not the intention of Rule 19(b). This is, however, a case where the Secretary has been shown to have taken the decision and that his decision has only been approved by the Governor. In that view of the matter, it cannot be said that the final settlement in favour of the first Respondent was not in pursuance of the decision of the Secretary to the Government in the Transport Department. 4. Mr. Goswami next contends that the Secretary has not given any reasons in the impugned letter. Assuming but not deciding that reasons have not been given in this case by the Secretary about which there may be something to be said in his favour by the learned Advocate-General backed by the original records in his possession, this is not a case where the Secretary was required under the second paragraph of R.19(b) to record reasons. He is under an obligation to record reasons only when a bid or tender accepted by the officer conducting the sale at the first instance and accepted again by the Director of Inland Water Transport, through whom the report has to come to the Secretary, is there. We find in this case that it is only the officer conducting the sale who, for reasons recorded in writing, refused to accept the first tender. We find in this case that it is only the officer conducting the sale who, for reasons recorded in writing, refused to accept the first tender. The Director of Inland Water Transport only forwarded the papers. From this we are unable to hold that the Director has refused to accept the highest tender in this case. It is, therefore, Rule 19, which provides that the sale by auction/tender snail generally be to the highest bidder/tenderer, that is complied with in this case. The Secretary has accepted in this case the highest tender and that being the position, he was not required to give any reasons under the law, particularly because the tender of the first Respondent has not been refused by the Director of Inland Water Transport in forwarding the papers. Only the officer conducting the sale has refused to accept his tender. There is, therefore, no merit in the submission that Rule 19(b) in this case has been violated. 5. In the result, the application fails and is accordingly dismissed. We will, however, make no order as to costs. 6. B. ISLAM, J.:- I agree. Petition dismissed.