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Gauhati High Court · body

1996 DIGILAW 144 (GAU)

Monideep Borgohain v. State of Assam and Ors.

1996-07-03

M.SHARMA

body1996
The above mentioned two writ petitions have been preferred by the writ petitioner against the order dated 15th December, 1995 vide memo No.FRS. 187/ c 90/79 passed by the Commissioner and Secretary to the Govt of Assam, Forest Department, Dispur and also for extension of the mahal period of the said stone quarry which was settled with the petitioner for a period of two years and extended from time to time. Writ petitioner filed Civil Rule No.4573 of 1995 for extension of the Bihubpr Stone Quarry No. VII. As the same was not extended and proposed to settle with the respondent No.5 Mahadev Kurmi by direct settlement without considering petition for extension of the said quarry he preferred the Civil Rule No.5421 of 1995. As both the Civil Rules have emerged regarding settlement/ extension of the same stone quarry both the petitions are taken for disposal by this common judgment. 2. Taking the facts of the Civil Rule No.4573 of 1995 it is seen that the Bihubor Stone Quarry No.VII was settled with the petitioner for a period of two years with effect from 7.3.92 for extraction of 7,000 cu.m of stone during the period from 7.3.92 to 6.3.94 at a total sum of Rs.2,80,000/-. Due to various factors beyond the control of the writ petitioner he could not operate the said mahal and he could only extract 5200 cu.m of stone within this period. Therefore, the petitioner applied for extension of the mahal period. Accordingly first f extension was given for one year on payment of the required amount. However the order of extension was not given in time as a result of which settlement of the stone quarry was extended for a period of one year from 11.11.94 to 10.11.95. The extension of period was granted on fulfilment of certain conditions such as the payment of 15% of the extension charge. Moreover, the Govt of Assam also allowed extension of 3 500 cu.m of stone within the extended period of settlement g at new rate of royalty which was at the rate of 70% per cu.m. It is contended that in compliance of the direction petitioner paid 15% of additional extension fee and also balance amount alongwith 3/4th of the value for the additional quota of 3500 cu.m of stone at the rate of 70% per cu.m fixed by the Government and the payment was made till 10.11.95. Within this period, it is contended, the petitioner was entitled to extract not only the left over 1800 cu.rri of stone. 3. This time also because of unavoidable operational bottleneck the petitioner could extract only 1500 cu.m of stone from the additional quota of 3500 cu.m although he already paid for %th of the total quantity of 3500 cu.m of stone which comes to 2625 cu.m. Balance of 1125 cu.m of stone remained to be extracted for which the payment was already made by the petitioner. In this situation petitioner filed another application dated 13.7.95 for second extension of the settlement period of the aforesaid stone quarry for further two years against payment of 10% additional charge. Subsequently by another application dated 3.11.95 petitioner offered 25% of the existing revenue if the settlement of Bihubor Stone Quarry No.VII be extended for a period of two years. During this period petitioner came to know that the Govt is negotiating with the respondent No.5 to settle the said quarry with him by direct settlement. It is learnt that this respondent No.5 is only offering 20% of the existing revenue for direct settlement of the said stone quarry which is less than the amount offered by the petitioner. In Civil Rule No.4573 of 1995 the basic contention of the petitioner was that in his application dated 7.11.95 he made an offer of 25% of the existing revenue of the Bihubor Stone Quarry for granting settlement in his favour for two years more. Petitioner also kept it open for negotiation with the respondents that if any person was ready to offer more than the petitioner's offer, he would be ready to further increase the offer. He also offered option that the settlement of the stone quarry in question be made by issuing a notice for tender in accordance with law and there must not be any private negotiation in making the settlement. As the respondent Government neigher considered his prayer for extension for further period of two years with enhanced 25% revenue nor considered his offer for direct settlement at the rate of 25% which was more than the 20% revenue offered by the respondent No.5. As the respondent Government neigher considered his prayer for extension for further period of two years with enhanced 25% revenue nor considered his offer for direct settlement at the rate of 25% which was more than the 20% revenue offered by the respondent No.5. As no response was given by the respondents the petitioner filed the subsequent writ petition being Civil Rule No.5421 of 1995 praying for a direction for direct settlement of the said quarry at the rate offered by the petitioner. 4. The prayer in the Civil Rule No.4573 of 1995 was : (a) for a direction to the respondents to make settlement of the stone quarry in question by issuing a notice of tender in total transparancy in accordance with law; (b) to direct the respondents to consider the petitioner's offer made in his application dated 3.11.95 wherein offer was made to pay 25% more than the existing revenue to get the settlement for a period of two years. 5. By order dated 8.11.95 (Annexure I to the earlier writ petition) this Court gave interim direction directing the authority that if the authority decide to make direct settlement representation of the petitioner offering a higher revenue be considered. After this order dated 8.11.95 petitioner submitted representation dated 15.11.95 before the respondent No. 1. In that petitioner reiterated his offer of payment at higher revenue if the settlement of the quarry was made in his favour. But respondent Government by order dated 15.12.95 rejected the petitioner's prayer for direct settlement. However the respondent Government permitted the petitioner to lift 2000 cu.m of stone against the value already paid, on payment of requisite extension fee within a period of one year. Petitioner admitted that he partially got the relief by the said order dated 15.12.95 (Annexure 3). Petitioner contended that though the petitioner was partially relieved by the order he is aggrieved by the rejection of his prayer for direct settlement. The main contention of the petitioner is that the petitioner is aggrieved by the order dated 15.12.95 as the settlement in favour of the respondent No.5 was made illegally though the petitioner offered 25% more than the existing revenue against 20% offered by the respondent No.5 which was done only to favour the respondent No.5. The main contention of the petitioner is that the petitioner is aggrieved by the order dated 15.12.95 as the settlement in favour of the respondent No.5 was made illegally though the petitioner offered 25% more than the existing revenue against 20% offered by the respondent No.5 which was done only to favour the respondent No.5. In the subsequent writ petition Civil Rule No.5421 of 1995 the main contention of the petitioner is that the impugned order dated 15.12.95 suffers from infirmities which are as follows - (a) that the order refers to report dated 16.10.95 (Annexure 4 to the writ petition) and report of the DFO, Sibsagar dated 25.8.95 (Annexure 5 to the writ petition) which were given in favour of writ petitioner for settlement of the stone quarry in question. In the report (Annexure 4) petitioner was stated to be the only person who offered the highest rate, moreover there was no other specific offer before the Government except the petitioner's offer; (b) that the impugned order has relied upon the report of the Chief Conservator of Forest and that of the DFO, Sibsagar dated 25.9.95. But the subsequent report of the DFO, Sibsagar dated 26.9.95 wherein the petitioner was recommended was not considered in the impugned order. In the subsequent order the DFO, Sibsagar clearly recommended the petitioner's name for direct settlement at original quota of 8000 cu.m of stone materials; (c) that the impugned order was influenced by the recommendation/ endorsement of the Chief Minister of Assam as a result of which the order of settlement in favour of the resopondent No.5 was passed with political interference; (d) that with the extraneous reason the respondents distorted the fact ithat the prayer for direct settlement made by the petitioner by reducing the quantities from 8000 cu.m. to 5000 cu.m of stone will cause loss to the Government revenue, which is actually not correct position. Petitioner offered his no objection if the settlement of the stone quarry is directly settled in his favour on the original quota of 8000 cu.m and the petitioner was ready to get such settlement on payment of usual Government royalty plus 25% thereon; (e) that the impugned order dated 15.12.95 by which petitioner's prayer for direct settlement was rejected petitioiner was described as inefficient but this stigma was cast on the petitioner without giving any opportunity to the petitioner to confront with the same. 6. The respondents 1 to 4 filed their affidavit through Shri AB Roy Choudhury, Deputy Secretary to the Government of Assam, Forest Department. It is averred that the Government had given the first extension of one year by order dated 2.9.94 subject to the payment of outstanding dues and 15% fee on the balance quanity of 1830 cu.m. In addition to it Government allotted 3500 cu.m of stone to extract within the extension period on payment of new rate of royalty over the same mahal. The petitioner was directed to deposit the outstanding dues and 15% extension fee and new rates of royalty on equal instalments on the additional quantity of 3500 cu.m of stone in time. But the writ petitioner failed to deposit the last kist, i.e. 4th kist of the instalments on or before 1.9.95 in spite of repeated instructions by the department and therefore he was riot allowed to remove the balance quantity due to the loss of Government revenue. But after the settlement in favour of the respondent No.5 on 15.12.95 the writ petitioner deposited the outstanding kist money on 20.12.95 only. Further it is averred that the writ petitioner offered for 5000 cu.m. whereas the settlement was made for 8000 cu.m. Therefore the request for direct settlement could not be acceeded to; that the Government considered the case of both the writ petitioner and the respondent No.5 and after due consideration of the revenue at large the quarry was settled with the respondent No.5 on 15.12.95, that the writ petitioner had already been granted a permit for 2000 cu.m of stone against the value already paid on payment of requisite extension fees within a period of one year. The respondents have given a comparative table of offers of both the contesting parties as follows : Shri Mahadev Kurmi Shri Monidep Borgohain Total quantity - 8000 M3 Total quantity - 5000 M3 Royalty @ 70% per M3 Royalty @ 70% per M3 =5,60,000/-plus 20% of the =Rs.3,50,000/- plus 25% above = above =?Rs.l2,000/- Rs.87,5000/- Total Rs.6,72,000/- Total Rs.4,27,500/- 7. The stand of the respondent Government is that the respondent No.5 has been settled with the stone quarry considering the public interest. The stand of the respondent Government is that the respondent No.5 has been settled with the stone quarry considering the public interest. It is further averred that the direction of the High Court dated 8.11.95 has been complied with by considering the representation of both the parties and the stone mahal has been settled with the respondent No.5 considering question of revenue offered by respondent No.5 as the respondent Government settled the mahal taking into consideration the public interest and profits in revenue. The respondents also denied the claim of the writ petitioner averring that the writ petitioner offered revenue of 25% on the quantity of 5000 cu.m only whereas the respondent No.5 offered 20% on the quantity of 8000 cu.m of stone and the resultant effect would be that the revenue offered by the respondent No.5 is more than that offered by the petitioner. 8. The record shows that by letter dated 13.7,95 the writ petitioner clearly prayed for reduction of original quantity of stone from 8000 cu.m to 5000 cu.m on the ground that as the course of the river changed the quantity of the stone reserved has been reducing. It is the last communication between the respondent and the writ petitioner which is written in Assamese and this was addressed to the Chief Minister, Assam. I find nothing in the record which may support the claim of the petitioner that he offered 25% for 8000 cu.m. of stone against the 20% offered by the respondent No.5. 9. Under Rule 3 of Sale of Forest Produce, Coupes and Mahal Rules, 1977 (the Rules, 1977) the Government can sale its various produce by (a) by inviting tender, (b) by public auction and (c) by negotiation, direct by Government or on behalf of Government of Assam in Forest Department or any other manner as decided by Government on its own discretion. 10. In the instant writ petition though the writ petitioner attempts to make out a case that he is entitled to participate in the negotiation; but as record shows he never offered his proposal for negotiations because all along his offer was for 5000 cu.m at the rate of 25%which in actual counting goes below the rate offered by the respondent No.5. Non acceptance of petitioner's offer by the respondents cannot be taken as arbitrary or illegal .as Rule 13 of the Rules, 1977 provides that no defaulter is entitled to get settlement. Record shows that petitioner defaulted in depositing the outstanding kist money in time and that the kist money in question was deposited after the settlement of the stone quarry in question in favour of the respondent No.5. Further the petitioner himself admitted that he got partial relief by the order by which he was allowed to lift 5000 cu.m of stone from the quarry against the value already paid. 11. Rule 3 of the Rules, 1977 provides that it is the discretion of the Government to settle various mahals by any mode of sale as provided in the Rules. The records show that the respondents considered the case of both the parties and in public interest and revenue profit the mahal in question was settled with the respondent No.5. Further extension prayer was not considered as admittedly the petitioner failed to extract the remaining stone in addition to the subsequent enhanced quantities in spite of extensions given by the Government. From the above discussion, I am of the view that the writ petitioner's claim for extension and also subsequent claim for direct settlement are not sustainable. 12. In the result the writ petitions are rejected.