Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1305 (GAU)

Trio Stoney Mart v. Jamal Ahmed

2017-09-16

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : UJJAL BHUYAN, J. Subject-matter of the two appeals being inter-related, those were heard together and are being disposed of by this common order. 2. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. B. Kashyap, learned counsel for the appellants; Mr. T.C. Chutia, learned Government advocate, Assam; Mr. S. Borthakur, learned counsel for respondent No. 7 and Mr. N.N.B. Choudhury, learned counsel for respondent No. 8. 3. Matter relates to settlement of Kalain Minor Mineral Unit Nos. 1 and 2(Stone) following sale notice dated 5.9.2013. 4. Writ Appeal No. 345/2015 arises out of WP(C) No. 4358/2014 whereas Writ Appeal No. 346/2015 arises out of WP(C) No. 4360/2014, both the writ petitions being disposed of by the learned Single Judge on 2.11.2015. 5. Though the core issue involved in the two appeals is short and within a narrow compass, a brief narration of facts would be necessary for putting the issue in proper perspective. 6. For the sake of convenience, facts narrated in WA No. 345/2015 would be referred to in the course of the judgment though as and when the occasion arises, reference would be made to the facts specifically relevant to WA No. 346/2015. 7. Sale notice dated 5.9.2013 was issued by the Divisional Forest Officer, Karimganj (DFO) for sale of Kalain Minor Mineral Unit No. 1 (Stone) and Kalain Minor Mineral Unit No. 2(Stone) along with other mahals for a working period of 7 years from the date of final settlement. Stipulated quantity in respect of both the two mahals were 70,000 cubic metre of stone and earnest money stipulated was Rs. 17. lakhs. 8. It appears that appellants and respondent No. 1 along with other tenderers had responded to the sale notice and submitted their respective bids. In respect of Kalain Minor Mineral Unit No. 2 (Stone) amount offered by the appellant in WA No. 345/2015 was Rs.7,86,00,000; the amount offered by Shri Rajib Das was the second highest being Rs. 5,17,30,000. Amount offered by respondent No. 1 Jamal Ali was the lowest being Rs. 3,10,00,000. 9. In the comparative statement prepared by the DFO in respect of Kalain Minor Mineral Unit No. 1 (Stone), amount offered by the appellant in WA No. 346/2015 was found to be the highest being Rs. 6,28,00,000; Shri Rajib Das (respondent No. 7) was the second highest bidder at Rs. 3,10,00,000. 9. In the comparative statement prepared by the DFO in respect of Kalain Minor Mineral Unit No. 1 (Stone), amount offered by the appellant in WA No. 346/2015 was found to be the highest being Rs. 6,28,00,000; Shri Rajib Das (respondent No. 7) was the second highest bidder at Rs. 4,53,04,000; and Shri Nitya Gopal Das (respondent No. 1) was the third highest bidder, his amount being Rs. 4,05,00,000. 10. After records of the tender were forwarded to the office of the Principal Chief Conservator of Forests, Chief Conservator of Forests, Southern Assam Circle informed the DFO by his letter dated 8.1.2014 that from the scrutiny of the documents furnished by the highest tenderer, it was seen that many documents furnished were not in favour of the tenderer. The financial capability of the highest tenderer was negligible as compared to the amount offered. Therefore, DFO was requested to put the two mahals to resale. 11. Thereafter, short resale notice dated 22.1.2014 was issued. 12. In the meanwhile, appellants preferred separate appeals before the Appellate Authority on 20.1.2014 under rule 68(2) of the Assam Minor Mineral Concession Rules, 2013 against such decision. 13. At that stage, Shri Rajib Das approached this court assailing the legality and validity of the resale notice by filing two writ petitions being WP(C) Nos. 756/2014 and 780/2014. Both the writ petitions were disposed of by separate orders dated 12.3.2014 granting liberty to the petitioner, i.e., Shri Rajib Das, to participate in the appeal proceeding preferred by the appellants with the observation that Appellate Authority would dispose of the appeals as expeditiously as possible. 14. It appears that the appeals preferred by the appellants were heard by the Appellate Authority whereafter order dated 23.7.2014 was passed by the Secretary to the Government of Assam, Environment and Forest Department allowing the appeal in respect of Kalain Minor Mineral Unit No. 2 (Stone) and directing the Principal Chief Conservator of Forests to issue necessary instructions for issuance of Letter of Intent to the appellant. Similar appellate order was passed on 21.7.2014 in respect of Kalain Minor Mineral Unit No. 1 by the Secretary to the Government of Assam, Environment and Forest Department acting as the Appellate Authority. 15. Similar appellate order was passed on 21.7.2014 in respect of Kalain Minor Mineral Unit No. 1 by the Secretary to the Government of Assam, Environment and Forest Department acting as the Appellate Authority. 15. At that stage, WP(C) No. 4358/2014 was preferred by one of the unsuccessful tenderers, Jamal Ahmed assailing the appellate order dated 23.7.2014 in respect of Kalain Minor Mineral Unit No. 2 (Stone). Likewise, another unsuccessful tenderer, Shri Nitya Gopal Das preferred WP(C) No. 4360/2014 challenging the legality and validity of the appellate order dated 21.7.2014 in respect of Kalain Minor Mineral Unit No. 1 (Stone). Though several contentions were raised on behalf of the writ petitioner (respondent No. 1 herein), the primary challenge was centered around two grounds. Firstly, appellate order was not an order of the Government inasmuch as it was not issued in the name of the Governor. No steps were taken by the State to rectify the defect. Therefore, such an order could not be said to be an order of the Appellate Authority. The second ground was that financial soundness certificates of the appellants pertained to individual partners and not of the tendering firms, namely, M/s. D&J Suppliers and M/s. Trio Stoney Mart. Therefore, Chief Conservator of Forests was perfectly justified in holding that the highest tenderers did not have financial soundness to execute the contracts. 16. The two writ petitions were contested by the appellants. On behalf of the State, DFO, Karimganj Forest Division filed affidavit. 17. After hearing the matter, learned Single Judge allowed both the writ petitions vide the common order dated 2.11.2015 by setting aside the appellate orders dated 23.7.2014 and 21.7.2014 with a further direction to the Principal Chief Conservator of Forests to take necessary steps for resale of the two mahals. Thus, learned Single Judge upheld the two contentions of the writ petitioners. 18. Aggrieved, present appeals have been preferred. 19. Learned counsel for the parties have advanced extensive arguments on both the grounds which we have duly taken note of. 20. Before we proceed further, we may revert back to the sale notice dated 5.9.2013. Clause 12 of the sale notice mentions that tender papers must be accompanied with the documents mentioned therein from (a) to (e). Clause 12(d) is relevant for the purpose of this litigation and the same is extracted hereunder: “12. The tender papers must be accompanied with the following documents. Clause 12 of the sale notice mentions that tender papers must be accompanied with the documents mentioned therein from (a) to (e). Clause 12(d) is relevant for the purpose of this litigation and the same is extracted hereunder: “12. The tender papers must be accompanied with the following documents. ********* (d) A financial soundness certificate from the concerning Deputy Commissioner/Sub-Divisional Officer ascertaining the financial capability to operate the mining lease/contract and the income-tax return for the last 3 (three) years is also to be submitted.” 21. A careful analysis of the aforesaid clause would go to show that a financial soundness certificate from the concerned Deputy Commissioner or Sub-Divisional Officer ascertaining financial capability to operate the mining lease/contract and income tax return for the last three years should be submitted with the tender papers. 22. Learned Single Judge found that financial soundness certificate of the appellants were not of the tendering firms but of the individual partners. Be it stated that the appellants are partnership firms registered under the provisions of the Indian Partnership Act, 1933. Learned Single Judge posed the question as to whether certificates in favour of individual partners in a case where the tenderer is a duly constituted partnership firm could be deemed to have satisfied the requirement of clause 12(d)? Learned Single Judge held that furnishing of financial soundness certificates of the partners and not of the tendering firm was not in compliance to the requirement of clause 12(d) of the sale notice. This aspect was not considered by the Appellate Authority. It was held, thus: “24. A perusal of the Partnership Agreements in question does not disclose any covenants to the effect that the property of individual partners would be treated as the property of the partnership. No financial soundness certificates had been submitted in favour of the tendering firm. All that had been submitted, belonged to individual partners. The said flaw also extended to the Income-tax Returns. Having regard to the provisions under section 14 of the Indian Partnership Act, 1932 and that of legal proposition laid down in Arm Group Enterprises Ltd. (supra), there is no hesitation in holding that the financial soundness certificates and the Income-tax Returns submitted by the respondent No. 6 firms along with its tender papers were not in compliance of the essential requirements under clause 12(d) of the Sale Notice. This aspect of the matter was not at all considered in the orders under challenge, which is also otherwise held in the foregoing paragraphs to be not valid orders in the teeth of rule 68(2) of the AMMC Rules, 2013.” 23. We have already extracted clause 12(d) of the sale notice above. 24. A bare perusal of the aforesaid clause would go to show that tender papers must be accompanied by a financial soundness certificate from the concerned Deputy Commissioner/Sub-Divisional Officer ascertaining the financial capability to operate the mining lease/contract and income-tax return for the last three years should also be submitted. 25. It is a settled proposition that a partnership firm is not a juristic person. It is an association of persons where individual identity of the individual partners is recognized. This means that a partnership firm is a collection of the partners and nothing else. It is not a legal entity and has no separate legal existence. It is a mere collective name for the individuals who are the members of the partnership. That apart, requirement of the clause is not that financial soundness certificate has to be of the tendering firm if it is a partnership firm. All that it says is that a financial soundness certificate from the concerned Deputy Commissioner or Sub-Divisional Officer ascertaining the financial capability to operate the mining lease/contract should accompany the tender papers. 26. In New Horizons Ltd. v. Union of India, (1995) 1 SCC 478 , Supreme Court was considering evaluation of one of the eligibility criteria for the tenderers, namely, ‘experience’ by the Tender Evaluation Committee. The tenderer in that case was a joint venture company. In the context of that case, Supreme Court held that the requirement regarding ‘experience’ cannot be construed to mean that such ‘experience’ should be of the tenderer in his name only. It was possible to visualize a situation where a person having past experience had entered into a partnership and the tender had been submitted in the name of the partnership firm, which may not have any past experience in its own name. This would not mean that the earlier experience of one of the partners of the firm could not be taken into consideration. This would not mean that the earlier experience of one of the partners of the firm could not be taken into consideration. Similarly, a company incorporated under the Companies Act, 1956 having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the re-organised company. It cannot be the purport of the requirement that the ‘experience’ of the company which had merged into the re-organized company cannot be taken into consideration because tender has not been submitted in its name and has been submitted in the name of the reorganized company which does not have ‘experience’ in its name. Conversely, there may be a split in the company and the persons looking after a particular field of the business of the company form a new company after leaving it. The new company though having persons with ‘experience’ in the field has no experience in its name while the original company having ‘experience’ in its name lacks persons with experience. The requirement regarding ‘experience’ does not mean that the offer of the original company must be considered because it has ‘experience’ in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have ‘experience’ in its name though it has persons having ‘experience’ in the field. Supreme Court held that while considering the requirement regarding ‘experience’, it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. Terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. Thereafter, Supreme Court went on to explain the evolving concept of joint venture. 27. The reasonings given by the Supreme Court in respect of the eligibility requirement of ‘experience’, in our considered opinion, would also be applicable in the case of a financial soundness certificate as required under clause 12(d) of the sale notice. 28. Thereafter, Supreme Court went on to explain the evolving concept of joint venture. 27. The reasonings given by the Supreme Court in respect of the eligibility requirement of ‘experience’, in our considered opinion, would also be applicable in the case of a financial soundness certificate as required under clause 12(d) of the sale notice. 28. In Master Marine Services (P.) Ltd. v. Metcalfe & Hodgkinson (P.) Ltd., (2005) 6 SCC 138 , Supreme Court in the context of the tender conditions requiring the bidder to have licence to act as Surveyor/Loss Assessor under the Insurance Act to prequalify, held that tender document did not say that in a case where a company had made a bid, the licence to act as Surveyor/Loss Assessor under the Insurance Act must be in the name of the company itself or that a licence personally in the name of the Chairman or a Director of the company would not be treated as a valid compliance with the requirement of the tender. 29. In the instant case, requirement of clause 12(d) is that tender papers must be accompanied by a financial soundness certificate ascertaining the financial capability to operate the mining lease/contract which is to be obtained from the concerned Deputy Commissioner/Sub-Divisional Officer. It nowhere says that the financial soundness certificate has to be that of a partnership firm if the tenderer is a partnership firm. We have already noted that a partnership firm is not a juristic entity and is only an association of persons. It is a collective name of the individual partners comprising the partnership. A partnership firm being not a legal person, the ultimate liability would be that of the partners. Every partner is liable for all acts of the partnership firm, jointly as well as severally. Therefore, having regard to the settled legal position, a financial soundness certificate of any one of the partners comprising the partnership, to our mind, would fulfill the requirement of the aforesaid condition. Whether the particular tenderer is financially sound or not, the decision is that of the tendering authority or may be, that of the higher authorities, including the Appellate Authority under the Assam Minor Mineral Concession Rules, 2013. Ordinarily, Court should not substitute its understanding of financial soundness for that of the administrative authorities. Whether the particular tenderer is financially sound or not, the decision is that of the tendering authority or may be, that of the higher authorities, including the Appellate Authority under the Assam Minor Mineral Concession Rules, 2013. Ordinarily, Court should not substitute its understanding of financial soundness for that of the administrative authorities. Of course, in a case of arbitrariness or unreasonableness or mala fide exercise of power, certainly court would interfere with such decision but in the facts and circumstances of the case, interpretation given by the learned Single Judge to the requirement of clause 12(d) of the sale notice would not be justified. 30. This takes us to the other ground on which the learned Single Judge had set aside the appellate order, namely, that the appellate order was not issued in the name of the Governor as is the requirement of article 166 of the Constitution. 31. Be it stated that under rule 68(2) of the Assam Minor Mineral Concession Rules, 2013, an appeal against an order of the Principal Chief Conservator of Forests lies to the Government in the Forest and Environment Department. 32. Learned Single Judge posed the question as to who is the Government in the context of rule 68(2) and thereafter held as under: “18. But who is the ‘Government’ so authorized to exercise statutory powers under rule 68(2). This is the moot question. Can it be said that the order passed by the Secretary to the Government of Assam, Environment and Forest Department is an order in discharge of the mandate of rule 68(2). Whether the order passed by the Secretary can be deemed to be the order passed by the ‘Government’ in terms of rule 68(2)? The term “State Government” is defined in section 3(60) of the General Clauses Act, 1897 and, more particularly at clause (c) thereof, to mean that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956 in a State, the Governor, and in a Union Territory, the Central Government. Article 166(1) of the Constitution, in the conduct of government business, lays down that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166(1) of the Constitution, in the conduct of government business, lays down that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. In addition, the Assam Rules of Executive Business, 1968 (as amended), framed under article 166(3) of the Constitution, more particularly at rules 11 and 12, lays down as follows: “11. All orders or instruments made or executed by or on behalf of the Government of Assam shall be expressed to be made or executed in the name of the Governor of Assam. 12. Every order or instrument of the Government of the State shall be expressed to be made in the name of the Governor and shall be signed either by a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, an Under Secretary or such other Officer as may be specially empowered in that behalf such signature shall be deemed to be the proper authentication of such or instrument.” 19. Having noticed the aforesaid provisions of law, the orders of the Secretary to the Government of Assam, dated 21.7.2014 and 23.7.2014, in purported exercise of powers under rule 68(2) of the AMMC Rules, 2013 cannot be held as orders passed by the Government. The said orders do not indicate that it had been made or executed in the name of the Governor. 20. The inevitable issue that now falls for consideration is whether the orders passed by the Secretary to the Government of Assam are void ab initio in view of non-compliance with the requirements of article 166(1) and that of the provisions under the Assam Rules of Executive Business, 1968 (as amended). The answer is not far to seek. In the case of Dattatreya Moreshwar Pangarkar (supra), followed and relied upon in R. Chitralekha (supra), the respective Constitution Bench of the Apex Court have held that strict compliance with the requirements of article 166 operates to the extent of giving immunity to the order, in that, it is immune from a challenge on ground that it is not an order made by the Governor. Vice versa, the immunity cannot be claimed by the State if the requirements under article 166 had not been complied with. However, the caveat is that an omission to comply would not vitiate the order or render the executive action a nullity. Vice versa, the immunity cannot be claimed by the State if the requirements under article 166 had not been complied with. However, the caveat is that an omission to comply would not vitiate the order or render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government should confirm or validate the order. If an order is not in form, that is, shorn of compliance of the requirements of article 166, it is always open to the State Government to prove by other means that such an order had been validly made. Although it is no more res integra, in view of the aforesaid Constitution Bench decisions, that the provisions of article 166 of the Constitution are not mandatory in character, however, in case of non-compliance it needs to be established as a question of fact that the order was issued in fact by the State Government or the Governor. 21. There is no gain-saying that the orders of the Secretary to the Government of Assam, Environment and Forest Department, were rendered without compliance of the requirements under article 166 of the Constitution. Although the said orders did not stand vitiated initially due to non-compliance of article 166, the fact remains that there are no records to indicate that same had been confirmed, cured or validated by any orders of the State Government or the Governor. In view thereof, the orders dated 21.7.2014 and 23.7.2014 of the Secretary to the Government of Assam, Environment and Forest Department, are not orders validly passed under rule 68(2) of the AMMC Rules, 2013. On this count alone the orders under challenge warrants interference.” 33. Article 166 of the Constitution of India deals with conduct of business of the Government of a State. As per article 166(1), all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. In so far appellate orders in the present litigation are concerned, those were issued by the Secretary to the Government of Assam, Environment and Forest Department without any reference to the Governor of Assam. As discussed by the learned Single Judge, requirement of article 166(1) of the Constitution though not mandatory, those were vitiated on the ground of failure of the State to validate the appellate orders. 34. As discussed by the learned Single Judge, requirement of article 166(1) of the Constitution though not mandatory, those were vitiated on the ground of failure of the State to validate the appellate orders. 34. Long back in 1964, a Constitution Bench of the Supreme Court in R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 , had examined the implication of article 166 of the Constitution of India. Supreme Court held that if conditions laid down in article 166 are complied with, order cannot be called in question on the ground that it is not an order made by the Governor. It, therefore, follows that if the requirements of that article are not complied with, resultant immunity cannot be claimed by the State. This, however, does not vitiate the order itself or render the same a nullity. 35. Pausing for a moment, from the above, what is discernible is that an order passed in compliance to article 166(1) of the Constitution cannot be questioned on the ground that it is not an order passed by the Government. Conversely, if there is no compliance to the article 166(1) of the Constitution, it will not be open to the State to defend that order as an order of the Government. That does not vitiate the order itself or render the same a nullity. In other words, it is a curable defect. State can always step in and cure the defect by owning up the order so passed. 36. Proceeding further, Supreme Court held that provisions of article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or by the Governor. 37. Though Mr. Borthakur, learned counsel, tried to submit that there has been a shift in the thinking of the Supreme Court in this regard by referring to two decisions, namely, MRF Ltd. v. Manohar Parikar, (2010) 11 SCC 374 and Lala Ram v. ]oypur Development Authority, (2016) 11 SCC 31 , we notice that the quorum of the above two judgments were two hon'ble Judges whereas Chitralekha (supra) was rendered by a Constitution Bench of 5 hon'ble Judges of the Supreme Court. The law laid down in Chitralekha (supra) is still the law of the land and binding on all concerned. 38. Faced with such a situation, in the course of the hearing on 31.8.2017 we had called upon Mr. T.C. Chutia, learned Government advocate to inform us as to what would be the stand of the Government in so far the appellate orders are concerned - whether Government construed those to be orders of the Government or not? 39. On the subsequent date, i.e., on 7.9.2017, Mr. Chutia had placed before us a written instruction of the Secretary to the Government of Assam, Environment and Forest Department dated 5.9.2017 that the appellate orders dated 23.7.2014 and 21.7.2014 did not have the approval of the hon'ble Minister, Environment and Forest Department. In other words, Government has disowned the appellate orders of the departmental Secretary. 40. Right of appeal is granted to an aggrieved person under rule 68(2) of the Assam Minor Mineral Concession Rules, 2013. The Appellate Authority has to take a decision on the appeal in accordance with law. For a procedural mistake of the Appellate Authority, should the appellate remedy of an aggrieved person be rendered ineffective? 41. A logical answer to this query would be in the negative. In such circumstances, we feel that it would meet the ends of justice if the matter is remanded back to the Appellate Authority to take a fresh decision on the two appeals preferred by the appellants strictly in accordance with law. 42. However, before parting with the record, we would like to observe that our attention is drawn to a disturbing facet of the litigation. The appellate order was passed by a high authority of the Forest and Environment Department, namely, the Secretary. Courts have time and again reiterated that the State must speak in one voice. In this case, only one department is involved, i.e., the Forest and Environment Department and we find it difficult to appreciate that authorities in the Forest and Environment Department are not speaking in one voice. But more importantly, we find that before the learned Single Judge an affidavit was filed by the DFO, Karimganj Division. No other affidavit was filed on behalf of the Government. In this affidavit, the DFO in paragraphs 14, 17, 19 and 21 had supported the appellate orders and rightly so. 43. But more importantly, we find that before the learned Single Judge an affidavit was filed by the DFO, Karimganj Division. No other affidavit was filed on behalf of the Government. In this affidavit, the DFO in paragraphs 14, 17, 19 and 21 had supported the appellate orders and rightly so. 43. Before the learned Single Judge, learned Government advocate had represented all the State respondents, from respondent Nos. 1 to 5, i.e., Commissioner and Secretary to the Government of Assam, Forest and Environment Department; Principal Chief Conservator of Forests and Head of Forest; Additional Principal Chief Conservator of Forests (T), Lower Assam Zone; and Divisional Forest Officer, Karimganj Division. Submission of the learned Government advocate as recorded by the learned Single Judge is extracted hereunder: “10. Mr. *** learned State counsel representing respondent Nos. 1 to 5 in both the writ petitions submits that in terms of rule 2(e) of the AMMC Rules, 2013, the competent authority in respect of minor minerals listed in Schedule ‘Y’ is the Principal Chief Conservator of Forest and Head of Forest Force, Assam (PCCF & HoFF). As per the said provision, the ‘competent authority’ is empowered to exercise such powers and to carry out such functions as prescribed under the said Rules. Mr. Bora also refers to rule 37 of the Rules to say that no bid shall be regarded as ‘successful’ unless accepted by the officer competent to accept the bid/tender in accordance with the provisions of the Delegation of Financial Powers Rules, 1999 of the State. According to Mr. Bora, the provisions under rule 37(1) have to be read with the prescription under rule 2(e) of the Rules. With regard to the appeal provisions under the Rules, it is contended that rule 68(2), as applicable in the instant case, recognizes the Government in the Environment and Forest Department as the Appellate Authority. This power of appeal of the Government cannot be delegated, as statutorily provided for in rule 66 of the Rules. Lastly, Mr. Bora contends that the requirement under clause 12(d) of the Sale Notice is that the financial soundness certificate has to be obtained from the concerned Deputy Commissioner/Sub-Divisional Officer ascertaining the financial capability. However, the Certificates, even in the case of individual partners, are not those of the Deputy Commissioner/Sub-Divisional Officer concerned, but of the Circle Officer concerned. This according to Mr. However, the Certificates, even in the case of individual partners, are not those of the Deputy Commissioner/Sub-Divisional Officer concerned, but of the Circle Officer concerned. This according to Mr. Bora is in blatant violation of the requirement under clause 12(d), not to speak of the absence of any financial soundness certificates in favour of the respondent firms.” 44. From the above, what is discernible is that learned Government advocate had criticized the appellate orders by contending those to be in blatant violation of the law, more particularly, clause 12(d) of the sale notice. Submission of the Government advocate was contrary to the pleaded stand of the DFO. Representing the Government at the highest level, Government advocate could not have disowned and condemned the order of the Government itself. Be that as it may, we do not wish to go deeper into this aspect of the matter but certainly we feel disturbed by the stand taken by the Government advocate contrary to the instructions and by the Government itself which became evident from the subsequent turn of events which we have already noticed above. 45. In view of above, judgment and order of the learned Single Judge dated 2.11.2015 is set aside. Matter is remanded back to the Additional Chief Secretary to the Government of Assam, Forest and Environment Department to pass fresh orders on the two appeals preferred by the appellants after giving opportunity of hearing to all the contesting parties. Let such decision be taken within a period of 45 days from the date of receipt of a certified copy of this order. Additional Chief Secretary shall apply his own mind and decide the two appeals strictly in accordance with law without being influenced by the findings of the learned Single Judge which we have set aside or the discussions and observations made in the present judgment which are only for the purpose of adjudication of the two writ appeals before us and not for deciding the inter se claim of the parties on merit. 46. Both the writ appeals are accordingly allowed. No cost.