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Gauhati High Court · body

1984 DIGILAW 78 (GAU)

Suresh Chandra Giri v. State of Assam and others

1984-06-13

K.LAHIRI, T.C.DAS

body1984
Judgement LAHIRI, J.:- The short point that falls for consideration in this case is the computation of the period of limitation for preferring an appeal under R.9(1)(b) of the Assam Sale of Forest Produce, Coupes and Mahal Rules, 1977, for short "the Rules". 2. The petitioner preferred an appeal against the order of acceptance of tender by the Conservator of Forest to the Governor under R.9(1)(b) of "the Rules". The order of settlement was made on 8-7-1983 and the appeal was preferred on 3-8-1983, admittedly after 26 days of the making of the provisional order of settlement. The appellate authority dismissed the appeal in limine on the ground that it was barred by limitation. According to the appellate authority the period of limitation is 15 days which commences from the date of communication of the order of acceptance of the tender by the Conservator of Forest. The appellate authority held that the order of acceptance of the tender was communicated to the successful candidate on 8-7-1983, the period of limitation commenced from that date and expired after 15 days, so the appeal presented on 3-8-1983 was barred by limitation. 3. We are, therefore, to consider when time commences to run against "an unsuccessful tenderer" for preferring such an appeal. We extract the provisions of R.9(1)(b) of "the Rules". "9. Appeal and review : (1) Appeal shall lie within 15 days from the date of communication of the order of acceptance of the tender by the Divisional Forest Officer as follows : - (a) x x x x x x x x x x x (b) Against the order of acceptance of tender by the Conservator of Forests and the C.C.F. to the Governor whose order in the appeal shall be final." - (Emphasis supplied) 4. The appellate authority has held that the order was communicated to "the successful candidate" on 8-7-1983 and as such, the period of limitation for the appeal commenced, even against the unsuccessful candidate, on and from that date. In our opinion, the appellate authority committed an error of law touching the jurisdiction of the appellate authority. Appeals are filed by unsuccessful tenderers and we are to consider when time commences to run against such unsuccessful tenderer. In our opinion, the appellate authority committed an error of law touching the jurisdiction of the appellate authority. Appeals are filed by unsuccessful tenderers and we are to consider when time commences to run against such unsuccessful tenderer. "The Rule" provides that time commences to run - "from the date of communication of the order of acceptance of the tender by the Divisional Forest Officer." It follows, therefore, that the order of acceptance of the tender of a successful tenderer must be communicated to all the unsuccessful candidates and from the date of the communication of the said order to the unsuccessful candidate the period of limitation starts running against him. None can prefer an appeal unless he "knows" that an order has been made to his prejudice and in favour of another. It would be absurd, against all canons of fair play and principles of justice, to provide a right of appeal within a short span of time, say 15 days, unless he is informed about the order to be appealed against. In fact, it would amount to frustration of the right of appeal, if the adverse order is not communicated to him. As such, the communication of the order to the aggrieved party is the prime obligation of the authority, as time commences from the date of communication of the order. However, the question is what is that "date of communication" from which the period runs against the unsuccessful candidate. Is it the date on which the order of the authority is rendered or is it the date of receipt of the order by an unsuccessful tenderer? We are of the opinion that only upon communication of an order i.e., when the order is received by the unsuccessful candidate he acquires knowledge about "the order" and time runs on and from the date of service of the order to the unsuccessful tenderer. 5. In order to reach the conclusion, we heavily relied on Harish Chandra v. Dy. Land Acquisition Officer, AIR 1961 SC 1500 Madan Lal v. State of U. P. AIR 1975 SC 2085 Assistant Transport Commr. v. Nand Singh (1979) 4 SCC 19 : ( AIR 1980 SC 15 ) and Kiranmayee Das v. Assam Board of Revenue, AIR 1980 Gauhati 25. Land Acquisition Officer, AIR 1961 SC 1500 Madan Lal v. State of U. P. AIR 1975 SC 2085 Assistant Transport Commr. v. Nand Singh (1979) 4 SCC 19 : ( AIR 1980 SC 15 ) and Kiranmayee Das v. Assam Board of Revenue, AIR 1980 Gauhati 25. In Harish Chandra (supra) their Lordships have held that the knowledge of the party affected by the award, either actual or constructive, is the essential requirement of fair play and natural justice. Their Lordships have construed the expressions "the date of the award" in proviso to S.18 of the Land Acquisition Act as the date when the award is either communicated to the party or is known by him either actually or constructively. Their Lordships have construed the collocation of the words "from the date of the Collectors award" used in the proviso to S.18 of "the Act" not in a literal or mechanical way, but extended the meaning by observing as under : "......... Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned." (Emphasis supplied) 6. In Madan Lal (supra) and Nand Singh (supra) their Lordships accepted the said principles. In Kiranmayee Das (supra), this Court has held that it is a fundamental principle of justice that a party whose rights have been affected by an order must have notice of it. 7. We hold on the authorities just alluded that the period of limitation for preferring an appeal against an order of acceptance of tender runs from the date of knowledge, either actual or constructive, of the making of the order. In the instant case, the order was communicated to the successful tenderer on 8-7-1983. However, the order was not communicated to the petitioner at all. It has been stated at the bar that immediately on getting "information" about the impugned order the petitioner preferred the appeal within the period of 15 days from the date of knowledge of the order. 8. However, the order was not communicated to the petitioner at all. It has been stated at the bar that immediately on getting "information" about the impugned order the petitioner preferred the appeal within the period of 15 days from the date of knowledge of the order. 8. We make it clear that when an order is rendered by the officer accepting the tender of the successful candidate it is his obligation to communicate the order to all unsuccessful candidates, as on and from the date of receipt of such communication the period of limitation commences to run. The right of appeal cannot be denied to an unsuccessful candidate by keeping the order of settlement in file or merely informing the successful candidate about the order. 9. For the foregoing reasons, we hold that the appellate authority did not approach the question from that angle. The finding of the authority that the appeal was filed after 26 days of the date of communication of the order of acceptance of the tender by the Divisional Forest Officer to the successful candidate and as such it was barred by limitation is bad in law. In our opinion the authority is to calculate the period of limitation from the date of knowledge, actual or constructive, of the order of settlement by the appellant. If the appeal has been preferred within 15 days from the date of knowledge, whether actual or constructive, of the impugned order the appeal will be within the period of limitation, otherwise it will be barred. 10. In the result, the petition is accepted. The impugned order is set aside. Respondent 1 is directed to hear and dispose of the appeal in accordance with the law after giving notice to the parties to the appeal. However, while disposing of the appeal, the State Govt. shall consider as to whether the appeal was preferred within the period of limitation or not. There will be no order as to costs. Petition allowed.