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Gauhati High Court · body

1998 DIGILAW 297 (GAU)

Dhaniramgogoi v. State of Assam and Ors.

1998-09-19

A.K.PATNAIK

body1998
The Subansiri Reserve Fishery Mahal was settled with the petitioner for the period from 1995 to 1997 and the petitioner took possession of the fishery. On 31.3.97 the petitioner submitted an application before the Commissioner and Secretary to the Govt of Assam, Forest Department for extension of the period of settlement but no orders were passed on the application of the petitioner for extension. Instead, by an order dated 30th April 1998, the Govt of Assam in the Forest Department settled the Subansiri Reserved Fishery Mahal in favour of the respondent No. 5 for a period of 2 years with effect from the date of actual possession of the mahal subject to payment of 30% above the last settled value of the mahal. Aggrieved, the petitioner has filed this application under Article 226 of the Constitution praying for quashing the said order dated 30th April, 1998 of the Govt of Assam, Forest Department, settling the fishery mahal in favour of the respondent No. 5. 2. At the hearing, the only contention raised by Mr. BD Das, learned counsel for the petitioner is that the impugned order of settlement dated 30th April, 1998 has been made with the respondent No.5 without inviting tenders or without holding any public auction. He submitted that although under Rule 3 of the Assam Sale of Forest Produce, Coupes and Mahals Rules, 1977, the Govt can settle a forest mahal directly by negotiation, this Court has held in the case of Jeng Hanser vs. Karbi Anglong Autonomous District Council & others, (1997) 3 GLR 436 (1997 (2) GLJ 149) that the sale of forest produce by inviting tenders of public auction should be the normal rule. He argued that in the present case no compelling reasons have been disclosed by the State Govt for settling the fishery mahal in favour of the respondent No. 5 directly by negotiation without inviting any tender or without holding a public auction and therefore the impugned order of settlement in favour of the respondent No. 5 is liable to be quashed. He further submitted that, had tenders been invited or public auction held, the petitioner would have had the opportunity to participate in the tender or the public auction. But as no tender was invited nor any public auction held, the petitioner has been discriminated against and his right under Article 14 of the Constitution had been affected. 3. Mr. He further submitted that, had tenders been invited or public auction held, the petitioner would have had the opportunity to participate in the tender or the public auction. But as no tender was invited nor any public auction held, the petitioner has been discriminated against and his right under Article 14 of the Constitution had been affected. 3. Mr. NC Das, learned counsel for the respondent No. 5, on the other hand, referred to the various averments made in the affidavit-in-opposition filed by the respondent No. 5 and contended that the fishery mahal has been settled in favour of the respondent No. 5 as he belonged to Scheduled Castes community and about 500 local fishermen in the area had held a public meeting and adopted a resolution that the fishery should be settled in favour of the respondent No. 5 so that local fishermen can earn their livelihood out of the fishery. He argued that the settlement had been made in favour of the respondent No. 5 in the public interest and that the decision of this Court in the case of Jeng Hanser vs. Karbi Anglong Autonomous District Council & others (supra) cited by Mr. BD Das, learned counsel for the petitioner, was not applicable in the facts of the present case. 4. On a perusal of the records produced by Mr. Chutia, learned counsel for the respondent Nos 1, 2, 3 and 4,1 find that a request has been made by a large number of villagers of the area that the fishery be settled with the respondent No. 5 and accordingly, the Govt in the Forest Department called for a report and the Divisional Forest Officer, Lakhimpur Division, North Lakhimpur vide his letter dated 17.6.97 eported that the respondent No.5 was a permanent inhabitant of No. 1 Damati Sonapur and belonged to Scheduled Castes community and that the village people of Damati Sonapur and four other Sonapur villagers approved the name of the respondent No.5 for direct settlement of the mahal in apublic meeting.It is on these facts that the fishery mahal was settled with the respondent No.5 by the impugned order dated 30th April, 1998 by the Govt of Assam in the Forest Department for a period of two years with effect from the date of actual possession of the mahal, subject to payment of 30% above the last settled value of the mahal. The Govt, therefore, settled the mahal in favour of the respondent No.5 directly without inviting any tender of without holding any public auction as the respondent No.5 belonged to the Scheduled Castes community and the local villagers including the fishermen made a request that the fishery be settled in favour of the respondent No.5 so that the interest of the local villagers and fishermen are taken care of. 5. In the case of Jeng Hanser vs. Karbi Anglong Autonomous District Council & others (supra) cited by Mr. BD Das, learned counsel for the petitioner this Court did not hold that in no case a settlement can be made by the Govt directly be negotiation. Rule 3 of the Assam Sale of Forest Produce, Coupes and Mahals Rules, 1977, expressly provides negotiation directly by the Govt as one of the modes of sale of forest produce. The Court, however, held that sale of forest produce should normally be made by inviting tenders or by holding public auctions and only in appropriate cases, a departure may be made for sale of forest produce by negotiation for compelling reasons. In fact, in the said case this Court has quoted the following observations of the Supreme Court in the case of Shri Sachidanand Pandey & another vs. State of West Bengal & others, AIR 1987 SC 1109. “... State-owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotis.” The decision of the Supreme Court quoted above would show that in any sale of public property, public interest is the paramount consideration and that sale by public auction or inviting tenders were methods of securing public interest. Nothing should be done which gives an appearance of bias, jobbery or nepotis.” The decision of the Supreme Court quoted above would show that in any sale of public property, public interest is the paramount consideration and that sale by public auction or inviting tenders were methods of securing public interest. Thus, where public interest can be better secured by negotiation and direct settlement a departure can be made from the normal rule of selling the property by public auction or by inviting tenders but the reasons for such departure must be rational and should not be suggestive of discrimination. In the present case, the reasons for departure from the ordinary rule settling the mahal by inviting tenders or public auction was the fact that the local villagers including the fishermen had made a request that the settlement of the fishery be made in favour of the respondent No. 5 who belonged to the Scheduled Castes community so that the interest of the local villagers would be served. The aforesaid reason is rational. It was also not suggestive of discrimination against the petitioner as the petitioner did not belong to the Scheduled Castes community, whereas the respondent No.5 belonged to the Scheduled Castes community and was entitled to a special treatment as a separate class in matters relating to settlement of fishery. Moreover, the settlement was made at the value of 30% above the last settled value of the mahal and did not bring about any loss of Govt revenue as such. In the circumstances, the settlement was in the public interest and no discrimination had been caused to the petitioner so as to effect his right under Article 14 of the Constitution. 6. In the result this writ petition has no merit and accordingly dismissed. But considering the facts and circumstances of the case, the parties shall bear their own costs.