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2016 DIGILAW 994 (GAU)

MANOJ KUMAR DAS v. STATE OF ASSAM

2016-11-09

A.K.GOSWAMI

body2016
JUDGMENT : A.K. Goswami, J. Heard Mr. J. Sarma, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned standing counsel, Forest Department appearing for the respondents. 2. Even at the stage of motion, opportunities were granted to the learned counsel representing the Forest Department to obtain instruction in order to elicit the response of the State before a substantive and effective order was passed. As no instructions were forthcoming for a number of days, on 19.9.2016, this Court directed the Principal Chief Conservator of Forests and Head of Forest Force to file an affidavit. However, the affidavit as directed was not filed necessitating and requiring this Court to pass an order for personal appearance of the Principal Chief Conservator of Forests and Head of Forest Force. 3. Mr. D. Mathur, Principal Chief Conservator of Forests and Head of Forest Force is present pursuant to direction of this Court. He is also heard. An affidavit was filed by the Principal Chief Conservator of Forests and Head of Forest Force. 4. Mr. Mathur has submitted that in view of some gap in communication, the affidavit was not filed and there was no deliberate attempt to undermine the majesty of the Court. He has assured that he will do the needful and try to ensure that as and when instruction is called for by the Court, information is duly furnished to the counsel representing the Forest Department. 5. Coming to the case at hand, the challenge in this writ petition is to the order dated 15.7.2016 issued by the Additional Principal Chief Conservator of Forest (P) directing the Additional Principal Chief Conservator of Forest (T) to issue a re-sale notice with wide publicity for grant of mining permit in respect of Doigrung Sand/Stone Mahal No. 2, for short, the Mahal, under Golaghat Division. It is indicated in the said letter that such an order was issued in view of requirements under Rule 34 of the Assam Minor Mineral Concession Rules, 2013, for short, the Rules, having not been fulfilled. 6. Initially, the notice inviting tender was issued on 29.10.2013 for a period of seven years for the aforesaid Mahal. As no tenders were received, re-sale notice dated 23.12.2013 for seven years was issued. The petitioner along with two others had participated in the aforesaid tendering process and it is contended that the petitioner emerged as the highest tenderer. 6. Initially, the notice inviting tender was issued on 29.10.2013 for a period of seven years for the aforesaid Mahal. As no tenders were received, re-sale notice dated 23.12.2013 for seven years was issued. The petitioner along with two others had participated in the aforesaid tendering process and it is contended that the petitioner emerged as the highest tenderer. In the meantime, the Mahal was bifurcated into two, namely, Doigrung Sand/Stone Mahal No. 1 and Doigrung sand/Stone Mahal No. 2 and a fresh re-sale notice was issued on 20.12.2014. The petitioner submitted tender for Doigrung Sand/Stone Mahal No. 2 and it is stated that his case was recommended for settlement by the Conservator of Forests, Eastern Assam Circle. The impugned order was passed in connection with the aforesaid re-sale notice dated 20.12.2014. 7. Rule 34 reads as under : "(1) A public notice of 21 days shall be published for inviting bids or conduct of open auction for the grant of mineral leases/contract/permits, as the case may be. (2) In addition to the publication of notice in writing competitive bids/open auction under Sub-Rule (1) above, the gist of such notice along with the schedule for inviting bids/holding open auctions, shall also be published in one daily news paper having good circulation in the area. (3) A copy each of the said public notice shall also be sent to the Deputy Commissioner and other as decided by the competent authority for giving wide publicity in the area." 8. Rule 34 of the Rules visualizes that a public notice of 21 days shall be published for inviting bids. Admittedly, even as per own admission of the petitioner at paragraph 7 of the writ petition, the stipulated period of 21 days was not fulfilled in view of the fact that the last date for receiving tender was fixed on 5.1.2015, which is less than 21 days. What is contended by the petitioner is that Rule 34 will not come into play in case of re-sale notice but the same is applicable to a notice inviting tender only. 9. Such a contention cannot be accepted. 10. Re-sale or notice inviting order is issued in order to enable intending tenderers to participate in a tender process. Distribution of State largesse has to be fair, transparent and open. 9. Such a contention cannot be accepted. 10. Re-sale or notice inviting order is issued in order to enable intending tenderers to participate in a tender process. Distribution of State largesse has to be fair, transparent and open. By way of notice inviting tender or re-sale notice the State is inviting intending participants to participate in the process of distribution of State largesse. In other words, notice inviting tender and re-sale notice are both public notices. When there is no fundamental difference with the idea and concept, the label of the notice is of no consequence. The Rules do not have any separate provision specifically for re-sale notice. 11. Viewed in this context, I find no merit in this writ petition and accordingly, the same is dismissed. 12. At this stage, Mr. Sarma has submitted that notwithstanding the direction for issuance of re-sale notice, the earnest money deposited is not refunded to the petitioner even in the earlier occasion. 13. The respondents are directed to ensure refund of the earnest money to the petitioner within a period of 45 days of furnishing of a certified copy of this order before the Divisional Forest Officer, Golaghat Division. It will be the collective responsibility of all the respondents to ensure that the earnest money is refunded to the petitioner. 14. No cost.