In this writ application under Article 226 of the Constitution of India, the extent and the content of the power of and the procedures to be adhered to by under the Assam Fotest Regulation, 1891 is the subject matter at issue, which arises in the following circumstances. 2. The petitioner is a registered owner of a truck bearing registration No. NLA 3709 which operates as a public carrier. The Range Officer, Protection Range, Diphu, found the vehicle inside the Dhansiri Reserve Forest on 2.2.98 at 11 AM while some persons were loading the truck with Bogi Poma and Badam, collected and stacked inside the Reserve Forest. The vehicle was accordingly seized in presence of witnesses. The petitioner stated that at the relevant time, when the incident took place, he was at Silchar and as such, he was totally unaware about it. On his return from Silchar when he was informed about the matter, he approached the respondent No.3, the Divisional ForeslOfficer,; Karbi Anglong, West Division, Diphu, for release of the vehicle. The petitioner received a notice bearing No.FO 3/98/32103-104 dated 8.4:95 advising him to appear before the respondent No.3 on 25.6.98 and signed by the DFO Karbi Anglong, West Division, on 6th of May, 1998; The petitioner appeared before the respondent No.3 on the aforesaid date, on which date, however, the case was adjourned informing him that the next date would be intimated in due course. According to the petitioner, he had to move the High Gouit for release of the vehicle and the High Court entertained his petition and passed an interim ordei directing the authority to release his vehicle on furnishing an indemnity bond. As per direction of the Court, the petitioner moved the Authorised Officer for release of his vehicle, but the respondent instead of releasing the vehicle passed the impugned order dated 20.8.98 whereby the vehicle of the petitioner was confiscated under sub-section (4) of section 49 of the Assam Forest Regulation, 1891, hereinafter referred to as the Regulation, 1891, the legality and validity of which is challenged in this writ petition as being arbitrary and discriminatory. 3. The respondent No.3, Divisional Forest Officer, Karbi Anglong, West Division, Diphu, who passed the impugned order, contested the case and filed affidavit-in-opposition. 3. The respondent No.3, Divisional Forest Officer, Karbi Anglong, West Division, Diphu, who passed the impugned order, contested the case and filed affidavit-in-opposition. The respondent asserted that the vehicle in question was seized by the In-charge, Range Officer, Protection Range, along with tools and equipments on 3.2.98 as per the seizure memo and the District Magistrate, Karbi Anglong was accordingly intimated on 4.2.98, informing inter alia that on 2.2.98 at about 11 AM, the Forest Protection Party along with Home Guards, one truck bearing Registration No.NLA 3709 with eight persons, while patrolling in the Dhansiri Reserve Forest, and subsequently also detected another truck bearing Registration No.NL 04/A 036 and after due search, found one person with a Carbine loaded with thirty two numbers of bullet. The respondent referring to a communication bearing No.PS/98/4(9)/37-38 dated 4.2.98, addressed to the District Magistrate, Karbi Anglong, by the In-charge, Protection Range, Diphu, stated that from the recorded statements of the persons referred to in the communication it was revealed that they came from Dimapur to take timber collected illegally from Dhansiri Reserve Forest. That the arrested persons were produced before the District Magistrate in accordance with the provisions of law. That the Authorised Officer thereafter issued notice dated 20.2.98 calling upon the concerned person to submit documents regarding the ownership of the seized truck. Thereafter, the writ petitioner submitted a petition dated 5.3.98, stating that the truck was forcibly taken to Dhansiri Reserve Forest and accordingly, asked for release of the vehicle. It was further stated that thereafter the respondent No.3 by notice dated 19.3.98, asked the petitioner and other concerned persons to appear before him on 17.4.98, However/fhereafter again 25.6.98 and 25.7.98, were fixed for further hearing and finally by an order dated 20.8.98, the truck was confiscated. That the respondent at all the relevant time, acted lawfully and afforded reasonable opportunities to the petitioner to defend his case and passed the impugned order bonafide and in accordance with law. 4. Mr. A. Roy, learned counsel appearing on behalf of the petitioner,.submitted that the petitioner was deprived of the procedural safeguards as provided by law. Referring to the statutory provisions, more particularly to section 49 of the Regulation, 1891, the learned counsel argued that the special statute conferred . 4. Mr. A. Roy, learned counsel appearing on behalf of the petitioner,.submitted that the petitioner was deprived of the procedural safeguards as provided by law. Referring to the statutory provisions, more particularly to section 49 of the Regulation, 1891, the learned counsel argued that the special statute conferred . summary power on the authority, fraught with a serious consequence, and the same statute also provided procedural safeguards which is mandatory in content, any infraction of which will/would entail invalidation. Mr. Roy, the learned counsel for the petitioner, further, submitted that the order for confiscation is permissible only when the concerned officers satisfied that a forest offence has been committed. The statute insists due application of mind to the fact situations requiring satisfaction of the authority as to the commission of a forest offence and the -said satisfaction of the authority must be made known by a -speaking order. The impugned order is not only perverse but is also devoid of reasons and accordingly is contrary to the provisions contained in sub-section (4) of section 49 of the Regulation, 1891 and, therefore, unsustainable, submitted Mr. Roy, the learned counsel for the petitioner. Mr. Roy, the learned counsel, also submitted that the petitioner time and again pointed it out to the Authorised Officer that the vehicle in question was used without his knowledge or connivance and, therefore, he could not be held guilty of abetment and in such a situation, the Authorised Officer had no alternative, but to release the vehicle/truck. In support of his contentions, Mr. Roy, the learned counsel, referred to the decisions in Ranjit Thakur vs. Union of India & others, reported in (1987) 4 SCC 611 ; Assistant Conservator of Forest & others vs. Sharad Ram Chandra Kale, reported in (1998) 1 SCC 48 ; Mitthanlal Mishra vs. State Govt of MP& others, AIR 1998 MP 67 ; and Jibon Bailoung vs. State of Assam & others, reported in 1998 (1) GLJ 234. Lastly, Mr. A. Roy, the learned counsel submitted that the Authorised Officer, in the instant case, maliciously and in a most illegal fashion, passed the impugned order. 5. Mr. Lastly, Mr. A. Roy, the learned counsel submitted that the Authorised Officer, in the instant case, maliciously and in a most illegal fashion, passed the impugned order. 5. Mr. BD Das, learned counsel appearing on behalf of the respondent, firstly questioned the maintainability of the writ petition and submitted that the order passed under section 49 (4) of the Regulation, 1891 which is impugned in this proceeding, is an appealable order under the provisions of section 49C of the Regulation, 1891. Adverting to the merits, Mr. BD Das, the learned counsel for the respondent, referred to the magnitude of the situation those are to be faced by the forest officials at the ground level, and submitted that to counteract the calculated moves of the smugglers who are denuding the forest wealth, the statute has armed the authorities to take necessary measures including confiscation. Referring to the statutory provisions, Mr. Das, the learned counsel has pointed out that the statute insists for issuance of notice on the person(s) who has/have e some interest in such property affording opportunity of making representation and for hearing of the party/parties concerned. That the respondent assiduously adhered to the procedure prescribed and the Authorised Officer on evaluation of the facts situation, found that a forest offence was committed and the vehicle in question was used in committing the said forest offence and accordingly, ordered for confiscation and auction of the said vehicle. In support of his contentions, the learned counsel for the respondent, placed reliance on the decisions in Ram Chandra Singh vs. State of West Bengal & another, reported in 1997 Crl LJ 3576; State of Maharashtra vs. VD Jadhav, reported in 1995 Crl LJ 798; State of MP vs. Rakesh Kumar, reported in 1995 Crl LJ 1037. 6. The law relating to forests, forest produce and the duty leviable on timber in the State of Assam, is regulated by Assam Forest Regulation, 1891. The Regulation, 1891 provides for declaration of a certain forest area as reserved forest by notification to be published in Official Gazette under section 17 and such forests are deemed to be a reserve forest from the date so fixed by the notification and the lands thereof become vested in the State Govt. The Regulation, 1891 provides for declaration of a certain forest area as reserved forest by notification to be published in Official Gazette under section 17 and such forests are deemed to be a reserve forest from the date so fixed by the notification and the lands thereof become vested in the State Govt. Penalties for trespass into or damage to the reserved forests and acts prohibited in such forests are provided for in sections 24 and 25 of the Regulation, 1891, respectively. General protection of forests and forest produce, control of forest produce in transit, etc are all regulated by the Regulation, 1891. Chapter Vin of the Regulation, 1891 provides for penalties and procedure to be adopted for imposing the same. It may be stated here that to combat the large scale erosion of forest wealth, the Legislature introduced the Assam Forest Regulation (Amendment) Act, 1995 which brought a large scale amendment in the Regulation, 1891. Sub-section (1) of section 49 of the Regulation, 1891 empowers any forest officer not below the rank of Forester or any police officer net below the rank of Sub Inspector of Police to seize any forest produce or such forest produce together with, all tools, boats, motorised boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implements, articles or materials used in the commission of forest offence when there is reason to believe that such a forest offence has been committed in respect of any forest produce. On such seizure, the concerned officer is to adhere to the steps/procedures provided for in sub-section (2) of section 49 of the Regulation, 1891. Sub-section (3) authorises the prescribed forest of police officer to stop a vehicle and to inspect and verify the goods carried in the vehicle. On such seizure, the concerned officer is to adhere to the steps/procedures provided for in sub-section (2) of section 49 of the Regulation, 1891. Sub-section (3) authorises the prescribed forest of police officer to stop a vehicle and to inspect and verify the goods carried in the vehicle. Sub-section (4) of section 49 of the Regulation, 1891 provides that subject to the provisions of sub-sections (5) and (6), where the Authorised Officer upon production before him of the property seized or upon receipt of a report about seizure as the case may be, and after such personal inspection or verification as he may deem fit and necessary, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded therein, confiscate the forest produce so seized together with all tools, vehicles, cattle, trucks, motorised boats, boats, carts, machineries, rafts, vessels, ropes, chains, or any other implements or articles used in committing such offence. Sub-section (5) of section 49 of the Regulation, 1891 envisages that the Authorised officer is to adhere to the following steps before confiscation : (a) to send an intimation in the prescribed form about the initiation of the proceeding for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which seizure has been made; (b) to issue a notice in writing to the person from whom the property is seized, and to any other person who may appear to the Authorised Officer to have some interest in such property and in cases of motorised boats, vessels, vehicles, trucks, etc having a registered number to the registered owner thereof; (c) to afford to the persons referred to in clause (b) above a reasonable opportunity of making a representation within such reasonable time as may be specified in the notice, against the proposed confiscation; and (d) to give to the officer effecting the seizure and the person or persons referred to in clause (b) or (c) above, a reasonable opportunity or being heard on a date or dates to be fixed for the purpose. Under section 49 (6) of the Regulation, 1891, no order of confiscation under sub-section (4) of any tools, boats, motorised boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implements, articles (other than timber or forest produce) shall be made if any person referred to in clause (b) of sub-section (5) proves to the satisfaction of the Authorised Officer that such tools, vehicles, machinery, vehicles, trucks, vessels, boats, motorised boats, rafts, carts, cattle, ropes, chain or any other implements, articles were used without his knowledge or connivance or abetment or as the case may be without the knowledge or connivance or abetment of his servant or agent and that all reasonable and due precautions had been taken against the use of the object aforesaid for the commission of forest offence. 7. An order of confiscation can be made only when the Authorised Officer is “satisfied that a forest offence is committed in respect thereof.” To arrive at the satisfaction, there must be materials before the officer establishing the fact that a forest offence has been committed. The satisfaction of the officer is required to be conveyed in writing. Apart from satisfaction of the Authorised Officer and recording reasons therefor, there must be materials to show that the procedure prescribed under section 49 (5) was assiduously complied/followed. Confiscation under section 49 (4) of the Regulation, 1891 is a penalty imposed on the strength of the powers conferred thereunder. Confiscation is an act as a measure of penalty imposed by the statute on contravention of the provisions as laid down in the Regulation, 1891. It is a move by which a private property of a lawful owner is seized by the State without compensation to the owner as a penalty for the offence committed, through its Authorised Officer. 8. The law prescribes the procedure for confiscation. The statute armed the officer(s) to confiscate the articles mentioned in the statute and at the same time provided the procedural safeguards. The procedural protection enjoined in the Regulation, 1891 is required to be looked into in the light of the amplitude of the power of summary nature .and the grave effect of and consequences of the order. In that context, the procedural safeguards envisioned by the statute insist for strict-observance. The procedural protection enjoined in the Regulation, 1891 is required to be looked into in the light of the amplitude of the power of summary nature .and the grave effect of and consequences of the order. In that context, the procedural safeguards envisioned by the statute insist for strict-observance. In Ranjit Thakur (supra), while dealing with a matter arising out of Summary Court Martial, the Supreme Court emphasising on procedural safeguards, made the following observations : “....The Act and the Rules constitute a self contained code, specifying offences and the procedure for detention, custody and trial of-the offenders by the Court Martial. 11. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction ...The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The oft-quoted words of Frankfurter, J. in Vitarelli vs. Seaton are again worth recalling: “....If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” (359 US 535,546-47:3 L ed 2nd 1012,1021). 12. The history of liberty' said the same learned Judge 'has largely been the history of observance of procedural safeguards'. (McNobb vs. US. 318 US 332, 347: 87 L ed 819,827)” 9. The provisions referred to in sub-section (5) of section 49 of the Regulation. 1891 contains the basic of the fair play in action. It has now become a established principle and a basic requirement of justice that where a person's right, interest are affected by a judicial, quasi-judicial or administrative decision, he or she should be provided with an opportunity to know and understand the allegation or the case made out against him/her and to make a representation before the authority. It has now become a established principle and a basic requirement of justice that where a person's right, interest are affected by a judicial, quasi-judicial or administrative decision, he or she should be provided with an opportunity to know and understand the allegation or the case made out against him/her and to make a representation before the authority. For a fair adjudication of a subject under section 49 (4) of the Regulation, 1891, the authority is required to follow the following procedures affording: (a) a right to know about the initiation of the proceeding including the materials sought to be relied upon; (b) a right to appear before the Authorised Officer to any person who has some interest in such property, and in case of motorised boat, vessels, vehicles, etc to the registered owner of the same; (c) a reasonable opportunity of making a representation within a reasonable time (a right is to be given an opportunity to respond to the evidence); and (d) a reasonable opportunity of being-heard on a date or dates fixed (a right to an oral hearing). 10. Section 40 (6) enjoins upon the concerned person to satisfy the Authorised Officer that the articles/tools, etc, were used without his knowledge or connivance or abetment or the case may be, without the knowledge or connivance or abetment of his/her servant or agent and that all reasonable and due precautions had been taken against the use of the object(s) for the commission of the forest offence; it is a shield to protect an innocent person without whose knowledge or connivance or abetment or those of his/her servant or agent, the offence took place. A duty is cast on such person t.o establish his/her plea. 11. In Jibon Bailoung (supra), the Court dealing with the nature of proof required to be established by the person referred to in clause (d) of sub-section (5) of section 49 of the Regulation, 1891 held that the person is required to establish a probable case. The standard of proof required to be given by such person under sub-section (6) of section 49 of the Regulation, 1891 is not as high as is required for confiscation of an article/property under sub-section (4) of section 49. The standard of proof required to be given by such person under sub-section (6) of section 49 of the Regulation, 1891 is not as high as is required for confiscation of an article/property under sub-section (4) of section 49. The Legislature no doubt used the language “proves to the satisfaction of the Authorised Officer”; it cannot, however, be equated with the same standard of proof as is required for confiscation under section 49 (4) of the Regulation, 1891. The word 'prove' here means no more than to establish/evince/manifest by some facts or circumstance indicating about his or her absence of knowledge, connivance or abetment in the matter and that all reasonable and due precautions had been taken against the use of the object(s) referred to in the commission of the forest offence. The word 'prove' means no more than some materials sufficient to be left to the Authorised Officer to come to a conclusion/decision. The burden is not as onerous as indicated in sub-section (4) of section 49 of the Regulation, 1891. The person concerned under sub-section (6) is to establish a reasonable and probable case though it may not be convincing as is required in the case of satisfaction of the Authorised Officer under sub-section (4). It will all depend on the fact situations. 12. From the records of the proceeding, it appears that a notice bearing No. FO.3/98/32103-104 dated 8th April, 1998 signed on 6th May, 1998 by the Authorised Officer, amongst others, was also sent to the petitioner on the subject of confiscation proceeding against seizure of forest produce, which reads as follows : “Whereas it appears that you are to give material evidence for prosecution/in defence, you are hereby summoned to appear before me in the office of the undersigned at 1PM oh 17.4.98,1995 to dispose of the above case failing which the case will be heard exparte in your absence and will be disposed of on the basis of material evidences and exhibits already on records or founded on facts gathered on b witnesses etc. Given under my hand and seal of this office on 19th day of March 1998.” The above notice did not indicate about any offence report, nor anything about intimation in the prescribed form about initiation of proceeding for confiscation of the truck before the Magistrate having jurisdiction to try the offence on account of which the seizure was made. Given under my hand and seal of this office on 19th day of March 1998.” The above notice did not indicate about any offence report, nor anything about intimation in the prescribed form about initiation of proceeding for confiscation of the truck before the Magistrate having jurisdiction to try the offence on account of which the seizure was made. The above notice was responded to by the petitioner. Prior to the above notice, vide No.FO-3/98/723-28 dated 20.2.98, a general notice was issued which read as follows : “It is for general interest to all concerned that on 02.02.98 the staff of Range Office, Protection Range, Diphu, has seized two trucks bearing Regn No. NLA 3709 and NL-04/A 0306 is presently in the custody of the Divisional Head Quarter. The seized trucks No. NLA 3709 and NL 04/A 306 is liable to be confiscated under section 49 of APR (Amendment) Act, 1995. So, all are hereby called upon to. produce legality and proof of original ownership of the seized trucks No. NLA 3709 & NL 04/A 306 on or before 20.03.98. Please also show cause as to why the seized trucks shall not be confiscated on the date.” The aforesaid communication was forwarded to the Deputy Commissioner, Karbi Anglong, the Deputy Secretary, Incharge Forests, Karbi Anglong, the Divisional Forest Officer, East, the Range Officer, Protection Range, Diphu, all Range Officers for information and wide circulation and Notice Board. However, the said notice did not refer to the communication sent by the in-charge, Protection Range, Diphu, dated 4.2.98, to the District Magistrate, Karbi Anglong, producing the arrested persons and praying for remand of the said accused persons to jail hajot. The petitioner responded to the notice dated 20.2.98, vide his communication dated 6.3.98 whereby he stated that at the relevant time, he went to his home at Silchar for celebration of Id-Ul Zuha and during his absence the driver took his truck at the stand for hire on 2.2.98. That in the meantime “some unknown persons forcibly and pointed out the gun to my driver for hiring towards Dayapur 8 side. But they are ordered to go the Dhansiri RF for carrying the logs and the Forest Protection Party caught my driver and handiman. As such, I am owner of the said truck the illegalities totally unknown.” 13.1 have gone through the records of the proceedings. But they are ordered to go the Dhansiri RF for carrying the logs and the Forest Protection Party caught my driver and handiman. As such, I am owner of the said truck the illegalities totally unknown.” 13.1 have gone through the records of the proceedings. It appears that the case was finally taken up on 20.8.98. The order sheets are not properly maintained. The case was earlier fixed on 17.4.98, 25.6.98, as it appears from the order sheet, and the matter was put up before the Authorised Officer. The Authorised Officer postponed the hearing of the matter to 25.7.98 since the In-charge, Protection Range, was not available on those dates. The order sheet does not indicate as to what happened on 25.7.98. but from the endorsement made to the DFO/Authorised Officer by the office, it transpires that “As the owner did not appear on 25.7.98, hearing not conducted. Now the owner appeared today i.e. 20.8.98 and verbally requested to conduct hearing today, ifpossible. Please advice if hearing can be conducted. Put up.” And the DFO/Authorised Officer made the following note : “Can be conducted. Call the owner, I/C Protection etc at 3 PM today.” As to what was the nature of hearing and the steps taken therein is hot shown. However, from the impugned order dated 20.8.98, it is found that the petitioner as well as the In-charge, Protection Range, were present. The Authorised Officer recorded the statement of the owner that the vehicle was taken away from parking by threatening the driver towards Dayapur and then to Intanki. That subsequently, the owner came to know that the vehicle was lying in the West Divisional Complex. Except this, there is no indication as to the statements given by the petitioner in the order sheet. In the order, the Authorised Officer recorded the statement of the In-charge, Protection Range, that the vehicle in question was found inside the Dhansiri Reserve Forest on 2.2.98 at 11 AM when eight persons were found loading the truck with Bogi Poma and Badam, collected and stacked in the Reserve Forest illegally. That one person also tried to attack the forest staff on duty with sophisticated weapon, but fortunately the said person was overpowered. The vehicle in question was thereafter brought to the Divisional Complex for safe custody and the smugglers were handed over to the lower Court. That one person also tried to attack the forest staff on duty with sophisticated weapon, but fortunately the said person was overpowered. The vehicle in question was thereafter brought to the Divisional Complex for safe custody and the smugglers were handed over to the lower Court. The Authorised Officer then noted: “According to the Range Officer, Protection Range illegality was committed by smugglers from across the border. According to the owner also, illegality was committed. The owner confessed.” The Authorised Officer then reached at the following finding which he described as judgment: “A detailed analysis of the foregoing clearly shows that the vehicle No. NLA 3709 was taken into the Reserve Forest with an ill motive of collecting timber illegally. The intention was to plunder one of the richest Reserve Forests of Asia. The forest staffs by regular, intensive, day and night patrolling are saving the valuable Reserve Forests even by risking their life. An offence has been committed. It is therefore decided to confiscate the vehicle on the following grounds : (1) Trespass into Reserve Forest area (2) Committing illegal activity (3) Merciless destruction of rare and a valuable species of Reserve Forest. Sections violated: (1)24,25,40,41 of APR 1891, Act amended in 1995. (2) Hon'ble Supreme Court's judgment in Writ Petition (C) 202 of 1995, dated 15.01.98. Therefore the vehicle No. NLA 3709 is confiscated and will be put to auction. Inform all concerned.” Save and except the statements referred to in the impugned order, no confessional statement appears to have been recorded from the records. The order does not record satisfaction of the Authorised Officer as required under section 49 (4) of the Regulation. 1891. The order alsddoes not indicate that the Authorised Officer ever addressed his mind to the defence taken by the petitioner. 14. In view of the above, the impugned order patently suffers from non-application of mind by the Authorised Officer and the same was passed contrary to the scheme set out in sub-sections (5) and (6) of section 49 of the Regulation, 1891. The impugned order dated 20.8.98, is therefore, not sustainable in law. 15. What is the next step? When exercising discretion, the Court is to do justice between the competing interests. The impugned order dated 20.8.98, is therefore, not sustainable in law. 15. What is the next step? When exercising discretion, the Court is to do justice between the competing interests. There is a marked distinction between a public law proceeding and a private law proceeding, there should be therefore a difference of approach in the exercise of discretion in a public law proceeding to that in a private law proceeding. In a public law proceeding, normally, not only c it affects the immediate parties but the public at large or a section of the public as well as the administration. Besides, in a case of breach of the principles of natural justice, it can well be taken care of and cured in appeal. If the appeal fulfills the requirements of the principles of fairness, in that events, there cannot be any further grounds of grievance. 16. In the instant case, the petitioner could have preferred an appeal under the statute section 49C and in that event, the appellate authority could have remedied the situation. Since the writ petition was already entertained by the Court and parties were heard on merit, it would not be proper now to reject the petition on that ground, more so after finding the breach of the statutory provisions and contravention of the principles of natural justice. 17. On consideration of all the aspects of the matter, I quash and set aside the impugned order dated 20.8.98 passed in OR No. PS/26 of 1996-97 passed by the respondent No.3, the Divisional Forest Officer-cum-Authorised Officer, Karbi Anglong, West Division, Diphu, confiscating and ordering for auction of the truck bearing registration No.NLA 3709. 18. The respondent No.3 may now proceed with the confiscation proceeding in accordance with law afresh affording adequate opportunity to the petitioner to defend in terms of the statute and pass necessary directions by a reasoned order, keeping in mind the provisions of sub-sections (5) and (6) of section 49 of the Regulation, 1891 as well as the observations of this Court. During the pendency of the proceeding, the vehicle in question, viz, the truck bearing registration No. NLA 3709, shall remain in custody of the petitioner subject to the condition that the petitioner shall furnish a Bank guarantee of Rs. 1,00,000 (Rs one lakh) only, in addition, the petitioner shall als6 furnish an indemnity bond for an amount of Rs.l,00,OOOA (Rs one lakh) only. 1,00,000 (Rs one lakh) only, in addition, the petitioner shall als6 furnish an indemnity bond for an amount of Rs.l,00,OOOA (Rs one lakh) only. On fulfillment of the above conditions, the respondent No.3 shall forthwith release the vehicle in question, if already not released. The petitioner shall produce the vehicle from time to time as and when demanded by the Authorised Officer for inspection. The custody of the vehicle all throughout the proceeding, as mentioned above, and further two weeks after furnishing a certified copy of the order on passing of the final order by the Authorised Officer on the conclusion of the proceeding, shall remain with the petitioner so as to enable the petitioner to take appropriate steps under the law before the appropriate forum in the event any adverse order is passed against the petitioner by the Authorised Officer finding. 19. The writ petition is allowed to the extent indicated. There shall, however, be no order as to costs.Shri S. Raghumani Singh, a Special Class Contractor for contract works under the PWD, Govt of Manipur, has filed the present writ petition, praying for a direction on the respondents to quash the letter of acceptance dated 21.3.1998 (Annexure A/4) and also for a direction to the respondents to dispose of his representation dated 5.12.1997 (Annexure A/3). 2. The respondent No, 2. Superintending Engineer, National Highway Circle, PWD, Govt of Manipur invited tenders from Special Class Contractors to quote rates for road work on NH 39» Manipur by Tender Notice No 4/97 dated 6.6.97 for strengthening of existing double lane pavement and widening todoublelane standard on NH 39 in Manipur including construction of RCC Slab Culverts etc. In connection with the aforesaid work, a meeting was held on 20.8.97 where 13 Special Contractors were selected for quoting their rates for the aforesaid works, Tenders were opened on 8.1.98 at 3.30 PM by the respondent No.2 and the petitioner was found to be the lowest tenderer from amongst the pre-qualified contractors. The. respondent No. 2 without assigning any reason, accepted tender for execution of the aforesaid work in favour of the second lowest tender, Shri N. Kumar Meitai, respondent No. 4. Having felt aggrieved by the action of the respondent No. 2 in issuing the work to the second; lowest tenderer the petitioner has filed the present writ petition. 3. The. respondent No. 2 without assigning any reason, accepted tender for execution of the aforesaid work in favour of the second lowest tender, Shri N. Kumar Meitai, respondent No. 4. Having felt aggrieved by the action of the respondent No. 2 in issuing the work to the second; lowest tenderer the petitioner has filed the present writ petition. 3. It is stated that the respondents have acted arbitrarily in rejecting the lowest rate of the petitioner for implementation of the aforesaid contract work and has illegally accepted the tender of the second lowest tenderer and thereby depriving the petitioner of his right to get the contract work as lowest tenderer. The acceptance of the second lowest tenderer is arbitrary and invalid and therefore such acceptance of tender is liable to be cancelled. It is further stated that the respondents are under obligation to inform the petitioner why the rates quoted by him has not been accepted by them in spite of the fact that the petitioner is the lowest tenderer in the aforesaid contract work. It is further stated that the petitioner has quoted a rate of Rs.46,45,121.82 which is 0.043% above the estimated costs and rate quoted by respondent No.4 was Rs.56,03,044.22 which 20.67% above the estimated costs prepared by the respondent No.2. Thereafter, the respondent Nos 1, 2 and 3 entered into a negotiation with the respondent No.4 and in the negotiation, the respondent No.4 has agreed to implement the contract work at Rs.49,77,865. It is also stated that in the negotiation the petitioner should also have been called and there is no reason to award the contract work in favour of the respondent No. 4 whose rates, even after negotiation, is higher than the rates quoted by the petitioner. It is, therefore, submitted that the tender quoted by the respondent No.4 and accepted by the respondent No.2 should be quashed. 4. State respondent has filed counter affidavit wherein they have denied the allegations made by the petitioner. It is stated in the counter that the respondent is not bound to accept the lowest tender quoted by any contractor. While accepting the tender, the respondents are under obligation to see that on the rates quoted by a particular contractor and whether he will be in a position to execute the contract work as per specifications and without compromising with the quality of work. While accepting the tender, the respondents are under obligation to see that on the rates quoted by a particular contractor and whether he will be in a position to execute the contract work as per specifications and without compromising with the quality of work. It is stated in the counter that estimate prepared for the aforesaid contract e work is based on Manipur Schedule Rates of 1995 and after 1995 no fresh Schedule of Rates has been prepared by the Public Works Department of the Govt. It is further stated in the counter that while accepting the tender, the respondents are to work Out the justified estimate in relation to the Schedule of Rates of 1995. It is stated that along with the 1995 Schedule of Rates, 4.9% sales tax are to be added and carriage charges and increase in cost index are to be taken into consideration while preparing the justified estimate. It is further stated that according to Manipur Schedule Rates, 1995 the estimated cost of the contract work was indicated in the tender as Rs..46.42.996 while calculating the justified rate in 1998 estimated cost of the justified rate in 1998 has gone upto Rs.49,40,85 ie 5.66% above the modified estimated costs. Since the rate quoted by the petitioner is lower than the justified estimated costs, the respondent No.2 with the concurrence of the respondent No.l, came to the conclusion that it is not possible for the petitioner to complete the contract works according to the specification maintained in the quality of work with the rates quoted by him which is below the justified estimated costs worked out by the Department. Consequently, the rate quoted by the petitioner, even though it is the lowest tender, has been rejected by the respondents. It is further stated that according to CPWD Manual which is being followed by the State PWD a contractor cannot be allotted work whose rate is 5% below the justified estimated costs. In the instant case, the rate quoted by the petitioner is below 5% than the justified estimated costs and therefore his tender has been rejected. With the rejection of the tender of the petitioner, the respondents considered to negotiate with the second lowest tenderer and after such negotiation, the second lowest tenderer brought down his rate from Rs.56,03,044.21 to Rs.49,77,865. In the instant case, the rate quoted by the petitioner is below 5% than the justified estimated costs and therefore his tender has been rejected. With the rejection of the tender of the petitioner, the respondents considered to negotiate with the second lowest tenderer and after such negotiation, the second lowest tenderer brought down his rate from Rs.56,03,044.21 to Rs.49,77,865. The time for completion of the work being two years, the respondents considered that the negotiated rate of respondents No. 4 is the reasonable rate and accordingly accepted the negotiated rate of respondent No. 4 for implementing the aforesaid contract work. 5. The respondent No. 4 has also filed counter affidavit wherein it has been stated that the rate quoted by him was found to be 14.33% above the justified estimated costs and therefore respondent No.2 requested to bring down the rates and in the negotiation the respondent No.4 has agreed to execute the contract work at Rs.49,77,865 which is 1.579 above the justified estimated cost, and accordingly as per the provisions of the CPWD Manual, the respondent No. 2 has accepted his tender. It is further stated that after obtaining the work order, the respondent No.4 has invested huge amount and has already started the work and a considerable progress has been made by him and therefore there is no reason to cancel the contract work at this stage. 6.1 have heard Mr. L. Nandakumar Singh, learned senior counsel appearing on behalf of the petitioner, Mr. RK Sanajaoba Singh, learned counsel appearing on behalf of the respondents I and 2 and also Mr. HS Paonam, learned counsel for respondent No.4. 7. Mr. L. Nandakumar Singh, learned counsel appearing on behalf of the petitioner submits that the estimated costs of the work, according to 1995 Manipur Schedule of Rate as indicated in the tender is Rs .46,42,996 and the said estimate has come down on the technical sanction and accorded estimated costs according to the 1995 Schedule of Rates came to Rs. 46,37,979.77. It is further argued by Mr. L. Nandakumar that the petitioner has quoted rate of Rs.46.45,121.82 which is 0.0457% above the estimated cost, and 0.108 above the accorded estimate cost according to the technical sanction. It is further argued by Mr. 46,37,979.77. It is further argued by Mr. L. Nandakumar that the petitioner has quoted rate of Rs.46.45,121.82 which is 0.0457% above the estimated cost, and 0.108 above the accorded estimate cost according to the technical sanction. It is further argued by Mr. L. Nandakumar Singh that the respondent No.4 has quoted his rate at Rs.56,030,044.22 which is 20.677% above the estimated cost and 20.80% above the accorded estimated cost according to the technical sanction. Mr. Nandakumar also argued that there is no provision to prepare any justified estimate, because there is a clause for price escalation and keeping in view the aforesaid clause, the tenderers are to quote their rates. The petitioner has quoted the rate keeping in view the price escalation and therefore there is no reason for non acceptance of the lowest rate quoted by the petitioner. It is also submitted that to deprive the petitioner, the department has worked out a justified estimate after adding sale tax, carriage charges and increase in cost index. By preparing the justified rate, the rate quoted by the petitioner has come to Rs.5.254% below the justified estimate costs and this has been done only to deprive the petitioner from getting the contract work. Mr. L. Nandakumar also argued that even after negotiation the rate quoted by the respondent No. 4 is higher than the rate quoted by the petitioner and therefore by allotting the work to respondent No; 4, Govt will incur about Z5 lacs extra for the said work Mr Nandakumar Singh, consequently, submits that the respondents 1 arid 2 in collusion with the respondent No.4 has negotiated the rate and in the negbtiatibn the petitionerwas not even invited to quote his farther rate. It is submitted that the; public servants should act fairly and in the present case they have acted arbitrarily: and in a most unfair manner and, thereby causing a loss of Govt revenue to the tune of about about 2.5-lacs; Mr. Naradakumar, consequently that the tender of the respondent No.4 accepted by respondent No.2,should be cancelled immediately as he may be paid for the works he has already done and the remaining work should be allotted to the petitioner. 8. Naradakumar, consequently that the tender of the respondent No.4 accepted by respondent No.2,should be cancelled immediately as he may be paid for the works he has already done and the remaining work should be allotted to the petitioner. 8. Mr: L.Nandakumar Singh has drawn my attention to the Tata Cellular case reported in (1994) 6 SCC 651 and-submitted that a judicial review would apply to the exercise of contractual power by the Govt bodies in order to prevent arbitrariness and favouritism. However, it must be clearly stated that inherent limitation in exercise of that power of judicial review. The Govt is the guardian of the finance of the State: It is expected to protect financial interest of the State. Mr; Nandakumar Singh consequeritly submits that in the instant case the respondents 1 and 2 have faied to protect the financial interest of the State and by infringing the provisions of Article 14 of the Constitution, has acted arbitrarily and made favour of respondent No. 4 by allotting the work to him even hthough he is the second lowest tenderer. In the instant case it is necessary to examine whether the methodology adopted by the respondent No. 2 in awarding the contract to respondent No. 4 is just, fair and lawful. 9. Mr RK Sanajaoba Singh, learned counsel appearing on behalf of the respondents 1 and 2 submits that the Govt is following the CPWD Manual relating to the execution of contact works in the department. It is submitted by Mr. RK Sanajabba Sirigh that the Manipur Schedule of Rate was prepared in 1995 and thereafter if the aforesaid scheduled of rate has not been revised or modified by the Govt. It is also submitted that in the aforesaid schedule of rate the sales tax payable by contractors have not been included and while allotting the work in 1998, the respondents are to work out the justified estimated costs with regard to the increase of price during the last three years. Mr. RK Sanajaoba Singh draws my attention to. para 20:10.11 of the CPWD Manual Vol II which runs as follows: “20.10.11 In the preparation of justification statement for considering reasonableness of tenders, at present, mainly two methods are being followed with slight modifications in CPWD. Mr. RK Sanajaoba Singh draws my attention to. para 20:10.11 of the CPWD Manual Vol II which runs as follows: “20.10.11 In the preparation of justification statement for considering reasonableness of tenders, at present, mainly two methods are being followed with slight modifications in CPWD. The first method consists of preparing detailed analysis of rates by taking market rates of labour materials and carriage etc the method of analysing item is the same as given in Standard CPWD Analysis of rates for major Tit m& on the whole costing about 9C % of the: estimated cost put to tender and working out the justified percentage on this basis; The second method mainly consists of calculating the increase in cost due to (i) above increase in rates of stipulated materials over those adopted in schedule of rates used for estimate, (ii) increase in rates of non-stipulated materials and; (iii) increase in cost of labour.” 10. It appears from the aforesaid provisions that the department is to work out the justified estimate when the tender is to be accepted for any particular work, While preparing the justified estimate, three things are to be kept in view namely, (a), increase in rates of stipulated materials over; those adopted in schedule of; rates used for estimate, increase in rates of non-stipulated materials, and (c) increase in cost of labour. 11. It is an admitted fact that the price index has'gone higher from 1995 to 1998. The Govt has prepared the Rate of Schedule as back as in 1995 and therefore while working out the justified cost; theabove three things are to be kept in view. It further appears that sales tax has not been included in the Schedule of Rates of 1995. Since the sales tax is payable by contractor then the amount that will be required to be paid by the contractor to wards sales'tax has to be included in the estimated cost. In the instant case, the carriage charges has also been included in the estimated cost of the contract work. It is, therefore evident that the estimated cost prepared by the respondent No.2 on the basis of 1995 Rates of Schedule will come up while allotting any work in the year 1998. In the instant case, the carriage charges has also been included in the estimated cost of the contract work. It is, therefore evident that the estimated cost prepared by the respondent No.2 on the basis of 1995 Rates of Schedule will come up while allotting any work in the year 1998. From Annexure R/l, it appears that the respondent No.2 has worked out the justified estimated cost and in the said Annexure each item has been shown and the rate according to 1995 Schedule of Rates have been indicated and the percentage of increase for such price have also been indicated. A detailed statement has been prepared in Annexure R/l of the counter affidavit which shows that the rate on 1995 Schedule Rate have been indicated against each item of work and the increase thereof against each item has also been worked out On perusal of the Annexure R/l it is evident that the methodology adopted by the respondent No.2 in working out the justified rate is sound and proper It is submitted by Mr. RK Sanajaoba Singh that according to the justified estimate the cost of the contract work-came at R.s.49,00,485. It is further submitted by Mr. RK Sanajaoba Singh that by maintaining the quality and standard of work, it is not possible for any contractor to execute the work at a rate lower than the justified estimated cost. It appears thattbe petitioner has quoted a rate of Rs.46,45,121.82 which is 5.254% below the justified estimated cost. Mr. RK Sanajaoba Singh, further, argued that according to the provisions of paragraph 20.10.11 of the aforesaid Manual, the tender quoted by any contractor below 5% of the justified estimated cost cannot be accepted. It is also submitted that since the petitioner has quoted a rate more than below 5% of the justified estimated cost, the respondent No.2 cannot accept such tender. 12.There is sufficient force in the submission of Mr. RK Sanajaoba Singh, because it appears that the respondent No.2, before rejecting the tender of the petitioner, has worked out a methodology to find out the justified estimated cost. It further appears that the rate quoted by the petitioner is more than 5% below the justified estimated cost of the work. 12.There is sufficient force in the submission of Mr. RK Sanajaoba Singh, because it appears that the respondent No.2, before rejecting the tender of the petitioner, has worked out a methodology to find out the justified estimated cost. It further appears that the rate quoted by the petitioner is more than 5% below the justified estimated cost of the work. The authority has taken a view that at such allotted rate, it may not be possible for the contractor to complete the work maintaining the specifications, design and also standard and quality of the work. Further, it appears that after negotiation, the respondent No.2 has brought down his rate from Rs.56,03,44.22 to Rs.49,77,865 which is 1.57% above the justified cost. The authority came to the conclusion that having regard to the fact that two years will be required for completion of the work at the negotiated.rate to respondent No. 4. The administrative authority is within its jurisdiction to have a free play within its jurisdiction to exercise its discretion and to choose between more than one plausible course of action when the decision is just, fair and within the limit of reasonableness. It is not the function of the Court to look further into the merit. The Court is not concerned as to whether a particular policy is wise or foolish, but the Court is undoubtedly concerned as to whether the decision made by the administrative authority is just, fair and lawful. In the instant case, before taking a decision the respondent No.2 has prepared a comparative statement showing the 1995 Rates Schedule and also the rates as are prevent in the market in the year 1993. The authority was satisfied that it is not possible for the petitioner to complete the work with such allotted rate with comparison with the standard and quality of work. The negotiation and rate accepted by the respondent No.2 appears to be 1.57% above the justified estimated cost. Having regard to the facts that the work is to be completed within the next two years during which period there may be further increase in the price index, I am of the view that the negotiated rate by respondent No.4 as accepted by respondent No.2 is just, legal and proper. 13. As regards the arguments of Mr. Having regard to the facts that the work is to be completed within the next two years during which period there may be further increase in the price index, I am of the view that the negotiated rate by respondent No.4 as accepted by respondent No.2 is just, legal and proper. 13. As regards the arguments of Mr. L. Nandakumar that at the time of negotiation, the petitioner should also been called by the respondent No. 2 has got no force. In the negotiation the tenderers are called by the administrative authorities to bring down the price quoted by them. The petitioner has already quoted a price which is far below the justified estimated cost. Therefore, I am of the view that no error has been committed by the respondent No. 2 in not calling the petitioner in the negotiation. Further, in the negotiation the contractor cannot be asked to raise his price earlier quoted by him in the tender. This practice has already been deprecated by the Apex Court. Therefore, I am of the view that no illegality has been committed by the respondent No.2 in refusing to call the petitioner in the negotiation. I do not find any illegality in accepting the negotiated rate of respondent No.4 for the contract work. 14. Mr. RK Sanajaoba Singh has produced the relevant office file before me. It appears from the office file that since the rate quoted by the petitioner is more than 5% below the justified estimated cost, the respondent No. 1 considered it fit to negotiate with respondent No.4, the second lowest tenderer, and after negotiation it is found that the negotiated rate is only 1.579% above the justified estimated cost and having regard to the fact that two years time will be required for completion of the work, the respondents thought that the negotiated rate is just reasonable and proper rate for the aforesaid contract work. 15. Mr. HS Paonam, learned counsel appearing on behalf of the respondent No.4 submits that the work order has been issued in favour of the respondent No. 4 on 21.3.98 and immediately after obtaining the contract work, the respondent No. 4 has started the work. It is also submitted by Mr. Paonam that the contractor has invested huge amount of money by engaging labourers and also by bringing planks and other materials for the aforesaid work. It is also submitted by Mr. Paonam that the contractor has invested huge amount of money by engaging labourers and also by bringing planks and other materials for the aforesaid work. It is also submitted by Mr. Paonam that the contractor has already been supplied with materials amounting to Rs.8,61,652 and apart from the aforesaid materials towards labour and other charges, the petitioner has already invested more than 12 lakhs in the work. The construction of retaining wall as well as widening of the road has been considerably progressed and at this stage if the work order is cancelled, the respondent No. 4 will suffer huge financial loss. Mr. Paonam, consequently, submits that since the contract work has been allotted at the negotiated rate as per provisions of CPWD Manual, there is no reason to cancel the contract work allotted to the respondent No. 4. 16. Having regard to the facts and circumstances stated above and after considering the submissions of the learned counsel of all the parties, I am of the view that there is no merit in this writ petition and it is liable to be dismissed. Accordingly, this writ petition is dismissed. No costs.