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2017 DIGILAW 612 (GAU)

Imran Hussain Laskar v. State of Assam

2017-05-18

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Mr. AHMR Choudhury, learned counsel for the petitioner. Also heard Mr. D Nath, learned Addl. Senior Govt. Advocate, appearing for the State respondents. 2. The petitioners had participated in a tender process pursuant to an NIT dated 29-08-2013, for settlement of the Katakhal Sand Mining Contract Unit-2. In the said tender process, the petitioner having quoted an amount of Rs. 84,00,000/-, was the highest bidder. The petitioner had also deposited the required earnest money amounting to Rs. 4,20,000/- for the purpose of participating in the tender process. Prior to the said NIT, an earlier NIT dated 04-10-2013 was also floated in respect of the same sand Mahal but it could not be brought to its logical end. In the earlier NIT one Himangshu Roy had quoted an amount of Rs. 45,00,000/ . It is also stated that the value of the mahal in the earlier NIT was Rs. 40,00,000/-. 3. Situated thus, the said Himangshu Roy had preferred a writ petition before this Court being WP(C) No.7262/2013 which was disposed of by order dated 19-06-2014, wherein this Court by taking into consideration the rate of Rs. 45,00,000/- submitted by Himangshu Roy in and also the amount of Rs. 84,00,000/- quoted by the present petitioner in the subsequent tender had directed that the settling authority to settle the mahal for the highest bidder in accordance with law. As the said order was not duly complied, the present petitioner preferred another writ petition being WP(C) No. 4749/2014, which was disposed of by order dated 23-09-2014 by directing the respondent authorities to give settlement of Katakhal Sand Mining Contract Unit-2 on or before 07-10-2014 to the highest bidder on or before 07-10-2014. 4. But as nothing was done, the petitioner had preferred another writ petition being WP(C) No.2526/2015 wherein, order dated 06-05-2015 was passed directing the respondent authorities to dispose of the representation dated 09-03-2015 which was submitted by the petitioner for refund of the earnest money. 5. The said representation of the petitioner dated 09-03-2015 was given its due consideration by the respondent authorities and accordingly, order dated 14-07-2015 was passed. 5. The said representation of the petitioner dated 09-03-2015 was given its due consideration by the respondent authorities and accordingly, order dated 14-07-2015 was passed. The said order dated 04-07-2015 provides that as the petitioner is a defaulter in respect of another settlement made in his favour in respect of Katakhal Sand Mining Contract Unit-3, therefore, his bid submitted pursuant to the NIT dated 21-11-2013 be revoked along with forfeiture of the earnest money amounting to Rs. 4,20,000/-. The said order of the PCCF by which the bid of the petitioner pursuant to the NIT dated 21-11-2013 was revoked and the forfeiture of the earnest money amounting to Rs. 4,20,000/- is being assailed in this writ petition. 6. The learned counsel for the petitioner contends that while operating the earlier sand mahal being Katakhal Sand Mining Contract Unit-3, the petitioner for some inexplicable reason and for no fault of his own, could not operate the mahal to its full. It is stated by the petitioner that on the other hand, the petitioner had paid 2 quarterly kist money, although in his view he was not required to pay the same. Accordingly, the petitioner projects that he is not a defaulter and, therefore, order dated 04-07-2015, by which his bid was revoked and earnest money forfeited was not sustainable. 7. On the other hand, Mr. D Nath, learned Govt. Advocate by referring to Rule 35(5) of the Assam Mines and Minerals Concession Rules, 2013 in short 2013 contends that as the petitioner was found to be in arrears in respect of some other settlement, the respondent authorities have the authority to revoke the subsequent bid of the petitioner as well as forfeit the earnest money deposited by him. Rule 35(5) of the 2013 Rules reads as under: "(5) No person, who is a defaulter of any mining dues in respect of any mineral concession granted in the past or any other current mineral concession shall be eligible to participate in the auction or bid process. In case he is found to be in such arrears at any stage, his bid shall be revoked with forfeiture of the amount deposited by him. In case any of the partners of a Partnership Firm or a Director of a Company participating in the bid/auction process are found to be defaulters, the bidder firm/company would be held ineligible and attract similar action. In case any of the partners of a Partnership Firm or a Director of a Company participating in the bid/auction process are found to be defaulters, the bidder firm/company would be held ineligible and attract similar action. Provided that where any injunction has been granted by a Court of law or any other competent authority staying the recovery of any such amount, the non-payment thereof shall not be treated as a disqualification for the purpose of participation in the auction." 8. Mr. Nath also refers to Rule 38(1) of the 2013 Rules which provides that the lessee/contractor is required to deposit the annual rent or contract money in four quarterly installments in advance on the 1st of April, 1st of June, 1st of September and 1st of December of the given year. Mr. Nath also refers to Rule 52(1) and 52(5) which provides for the requirement of a mining plan. 9. In this respect, Mr. Nath also refers to the averments made in paragraph 16 of the affidavit-in-opposition filed by the respondent authorities. In paragraph 16, it had been stated that although the petitioner was required to deposit the kist money in advance on 1st of April, 1st of June, 1st of September and 1st of December of the given year, but his third installment due on 1st September, 2014 was not paid and therefore, the petitioner is a defaulter in making the payment. Another contention made by Mr. Nath is that although the petitioner has raised an assertion that he was not handed over with the sand mahal concerned and that the petitioner was not aware of the mining area, Mr. Nath refers to Rule 52(1) and 52(5) of the 2013 Rules which provides that every mineral concession holder shall prepare a mining plan and shall not commence mining operations in any area except in accordance with such Mining plan duly approved by an officer authorized by a Director in this behalf. Further the mining plan shall also incorporate the plan area under which the mining operation are proposed to be undertaken. 10. By referring to the said Rule 52(1) and 52(5), Mr. Nath contends that mining plan is required to be prepared by the petitioner himself and therefore, he ought to be aware of the area of the mahal. 11. Further the mining plan shall also incorporate the plan area under which the mining operation are proposed to be undertaken. 10. By referring to the said Rule 52(1) and 52(5), Mr. Nath contends that mining plan is required to be prepared by the petitioner himself and therefore, he ought to be aware of the area of the mahal. 11. Be that as it may, the petitioner was never handed over the mahal in question and therefore, this Court deems that the said aspect regarding the area of the mahal need not be determined in this writ petition. 12. On a consideration of the totality of the facts and circumstances, it transpires to this Court that although under Rule 35(5) of 2013 Rules, the respondent authorities are empowered to revoke a subsequent bid and also to forfeit earnest money in the event a particular bidder is a defaulter in respect of any earlier settlement, but at the same time the authorities also have to arrive at a conclusion that the said bidder is a defaulter and in doing so the required procedure in conformity with the principles of natural justice also have to be followed. 13. It cannot be the case that the respondent authorities merely on the basis of their own view can unilaterally take a decision that the concerned bidder is a defaulter in respect of the earlier settlement. 14. The Rules of natural justice would require that if the respondent authorities intend to arrive at an conclusion that the particular bidder is a defaulter and act to his detriment it would be necessary for the respondent authorities to give the concerned bidder at least a show cause notice and give him an opportunity to show case that he is not a defaulter. 15. In the instant case, as the petitioner had stated that the petitioner had never operated the earlier mahal which was settled with him and therefore, he is not a defaulter, can be a case which requires some consideration on the part of the respondent authorities. 16. In the said view of the matter, this Court is of the view that ends of justice would be met if the petitioner is issued a show-cause notice by the respondent authorities indicating as to why he is a defaulter in respect of the earlier settlement as regards the Katakhal Sand Mahal Contract Unit-3. 16. In the said view of the matter, this Court is of the view that ends of justice would be met if the petitioner is issued a show-cause notice by the respondent authorities indicating as to why he is a defaulter in respect of the earlier settlement as regards the Katakhal Sand Mahal Contract Unit-3. On the said notice being served, the petitioner shall be entitled to give his reply to make out a case that he is not a defaulter. Thereafter, the petitioner be given an opportunity of personal hearing to present his case and also to present any relevant material that the petitioner may desire to produce. 17. Upon completion of the aforesaid exercise, the State respondents shall pass a speaking order by arriving at a conclusion that as to whether the petitioner is a defaulter or not. 18. In the event, the respondent authorities arrive at a conclusion that the petitioner is a defaulter, they may accordingly act pursuant to the provisions of Rule 35(5) of the 2013 Rules. On the other hand, if the respondent No.4 arrives at a conclusion that the petitioner is not a defaulter, the earnest money deposited by him pursuant to the NIT dated 21-11-2013 be refunded to him. 19. The aforesaid exercise shall be carried out within a period of 4 months from the date of receipt of a certified copy of this order.