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2018 DIGILAW 1258 (GAU)

RATUL DAS v. STATE OF ASSAM

2018-08-27

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT : A M BUJOR BARUA, J. 1. Heard Mr. S.K. Medhi, learned Additional Advocate General for the appellans in WA No.213/2017 and Mr. B.J. Ghosh, learned counsel for the appellant in WA No.129/2017. Also heard Mr. K.N. Choudhury, learned senior counsel for the respondents. 2. Pursuant to an earlier sale notice dated 29.08.2013, the two Sand Mahals in question, namely, NKD-B-5 Shahpur Mining Contract Area and NKD-B-6 Bandarkhowa Mining Contract Area were settled with one Madhusudan Sutradhar and Khandakar Jiaur Rahman, respectively. Both the settlement holders surrendered their mining contract areas through their respective applications dated 25.11.2014, resulting in a re-sale notice dated 23.12.2014. 3. The present respondents participated in the re-sale process pursuant to notice dated 23.12.2014 and were respectively found to be the highest bidder. But before any settlement could be made in their favour, the Additional Principal Chief Conservator of Forest (P) issued two identical letters dated 15.07.2016 in respect of the two mining contract areas, wherein the Principal Chief Conservator of Forest was requested to put up the two mining contract areas for a re-sale by citing the reason that the time gap between the newspaper publication of the re-sale notice dated 23.12.2014 and the date of receiving the tenders was not in accordance with the provisions of Rule-34 of the Assam Minor Mineral Concession Rules, 2013 (in short Rules of 2013). 4. The said letter dated 15.07.2016 was assailed by the two respondents herein by preferring a writ petition No.4383/2016, by seeking a further relief for a direction to the respondent authorities to make the settlement of the mining contract areas to them on the basis of being the highest bidder in the re-sale process pursuant to the re-sale notice dated 23.12.2014. The core contention of the respondents in the writ petition was that although Rule-34(1) of the Rules of 2013 mandates a requirement of a sale notice comprising of 21 days be issued, but there is no such requirement under Rule-34(2) that the paper publication of the notice also has a requirement of 21 days. The core contention of the respondents in the writ petition was that although Rule-34(1) of the Rules of 2013 mandates a requirement of a sale notice comprising of 21 days be issued, but there is no such requirement under Rule-34(2) that the paper publication of the notice also has a requirement of 21 days. In the resultant judgment and order dated 31.01.2017, the learned Single Judge arrived at a conclusion that Rule 34(2) of the Rules of 2013 requires that in addition to publication of the notice under Rule-34(1), a gist of the notice be also published in a daily newspaper having good circulation, but Rule-34(2) does not contain a stipulation that the notice period in respect of the paper publication also has a requirement of 21 days notice and that such requirement cannot be inferred from in Rule-34(2). 5. Accordingly, the learned Single Judge arrived at a conclusion that in the instant case, the resale notice having been issued on 24.12.2014 with the last date of submission of bids as 15.01.2015, do meet the requirement of 21 days and therefore, there being no requirement of a further 21 days from the date of publication in the newspaper, the Publication of the gist of the said notice in newspapers on 10.01.2015 and 13.01.2015, did not violate the requirement of Rule-34(2) of the Rules of 2013. 6. Being aggrieved by the judgment and order dated 31.01.2017, the appellant State has preferred Writ Appeal No.213 of 2017 whereas some of the private persons, who got themselves impleaded in the writ petition for supporting the letter dated 15.07.2016, have preferred Writ Appeal No.129/2017. 7. Mr. S.K. Medhi, learned Additional Advocate General appearing for the appellant State raises the contention that the interpretation given by the learned Single Judge in the judgment and order dated 31.07.2017 to the effect that the provisions of Rule 34 (2) of the Rules of 2013 does not contain the requirement of 21 days in respect of the paper publication of the sale notice is a restrictive interpretation and against the public interest and public revenue and as such is unsustainable. 8. To substantiate his contention, Mr. S.K Medhi, learned Additional Advocate General states that in respect of the mining contract area, NKD-B-5, the earlier settlement made in the year 2014 was at a value of Rs. 8. To substantiate his contention, Mr. S.K Medhi, learned Additional Advocate General states that in respect of the mining contract area, NKD-B-5, the earlier settlement made in the year 2014 was at a value of Rs. 2.10 crores, whereas in the settlement made pursuant to the re-sale notice dated 23.12.2014, it was settled for Rs. 40.04 lakhs. On the other hand, in respect of the mining contract area NKD-B-6, the earlier settlement was for an amount of Rs. 4.10 crores, whereas pursuant to the re-sale notice dated 23.12.2014, it was settled for Rs. 1.10 crores. According to the learned counsel, the earlier settlement of 2014 was at least four times more than the rate of settlement pursuant to the notice dated 23.12.2014 and the said variance is because of the restrictive publicity that the sale notice of 23.12.2014 had. The learned Additional Advocate General accordingly relies upon two judgments of the Division Bench of this Court rendered in Tarun Bharali vs- State of Assam and others, reported in (1991) 2 GLR 296 and Jogeshwar Doley vs- State of Assam and others, reported in (1992) 1 GLR 134, wherein it is held that in the matter of settlement, which earns revenue for the Government, the paramount factor to be taken into consideration, is public interest where the authorities are required to take into consideration the aspect of public finance. Reliance has also been placed on the decision of the Hon'ble Supreme Court in M/s Michigan Rubber (I) Ltd vs- State of Karnataka and others, wherein the requirement of adhering to the public interest in the matter of settlement was urged upon. 9. Mr. B.J. Ghosh, learned counsel for the appellants in the other writ appeal, contends that as because there was a gap of only five days between the paper publication and the last date of submission of bids, there was no competition and only three bidders had submitted their bids. It is also contended that letter dated 15.07.2016 requesting for a re-sale notice to be issued does not suffer from any arbitrariness or mala-fide on the part of the State authorities. Another significant contention raised by Mr. It is also contended that letter dated 15.07.2016 requesting for a re-sale notice to be issued does not suffer from any arbitrariness or mala-fide on the part of the State authorities. Another significant contention raised by Mr. Ghosh is that after the judgment and order of the learned Single Judge, the settlement was made in favour of the respondents and after the settlement was made, both the respondents by their respective general power of attorney, dated 08.05.2017 had nominated one of the earlier settlement holders of the year 2014, namely Khandakar Jiaur Rahman to manage the mining contract areas. It is contended that Khandakar Jiaur Rahman being one of the settlement holders of the year 2014 had surrendered his settlement, resulting in the re-sale notice dated 23.12.2014. Mr. Ghosh submits that a definite pattern has arisen by the aforesaid nomination of the earlier settlement holder to operate the mining contract areas to the effect that it is a manipulation by the earlier settlement holder to operate the mining contract areas at a much lesser rate than what was earlier settled to him in the year 2014 and the method adopted smacks of arbitrariness and malafide. Mr. Ghosh also raises a contention that while interpreting the provisions of Rule 34(2) of the Rules of 2013, the principle of purposive interpretation has to be adopted and in doing so, Rule 34(2) is also to be interpreted to include the requirement of 21 days while making the paper publication of the sale notice. To that extent, the learned counsel for the appellants relies upon the decision rendered by the Supreme Court in Ram and Shyam Company -vs- State of Haryana and others, reported in (1985) 3 SCC 267 to substantiate that while disposing of State property, the public interest requires that the method adopted be such, so as to grant an opportunity to the public at large for participating in it. Reliance has also been made to the pronouncement of the Supreme Court rendered in State of Jharkhand and others vs- M/s CWE-Soma Consortium, reported in (2016) 14 SCC 172 , wherein it is provided that there is no obligation on the part of the authorities issuing the tender notice to accept any of the tenders, if it was found that there was no competition amongst the bidders. 10. XXX XXX XXX 11. Mr. 10. XXX XXX XXX 11. Mr. K.N. Choudhury, learned senior counsel for the respondents on the other hand contends that neither a restrictive interpretation had been given by the learned Single Judge to the provisions of Rule 34(2) of the Rules of 2013, nor it is a case for applying the Rules of purposive interpretation, inasmuch as, a purposive interpretation is required to be given only in a circumstance where the provisions of the Rules are ambiguous. According to Mr. Choudhury, in the instant case, the provisions of Rule 34(2) clearly does not provide for any requirement of 21 days for the paper publication and therefore, the Court cannot add any further word to the provisions of Rule 34(2) for arriving at a conclusion that there is also a requirement of adhering to 21 days in respect of the paper publication of the sale notice. Mr. Choudhury also contends that by two earlier pronouncements, the learned Single Judge of this Court has held that the provisions of Rule 34(2) are directory in nature and therefore, any non-compliance thereof will not vitiate the process. Mr. Choudhury by referring to Rule 34(2), also contends that the said provision begins with the word in addition and therefore, the provision thereof are distinct and separable from that of Rule-34(1) and as such, the requirement of 21 days for paper publication cannot be incorporated while interpreting Rule 34(2). 12. We have given our consideration to the rival submissions and contentions made by the parties. In the light of the contentions and submissions made, the core issue for determination would be as to whether there is a requirement of 21 days for the paper publication of the sale notice under Rule 34(2) of the Rules of 2013. Rule 34 of the Rules of 2013 is as follows:- "34. Public notice for inviting expressions of Interest/bids/open auctions; (1) A public notice of 21 days shall be published for inviting bids or conduct of open auctions for the grant of mineral leases/contracts/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 newspaper having good circulation in the area. (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 newspaper having good circulation in the area. (3) A copy each of the said public notice shall also be sent to the Deputy Commissioner and others as decided by the competent authority for giving wide publicity in the area." 13. A perusal of Rule 34(1) shows that a public notice of 21 days shall be published for inviting bids or conducting open auctions for the grant of mineral lease/contract/permits. While Rule 34(2) provides that in addition to the publication of the notice under Rule 34(1), the gist of such notice along with the schedule shall also be published in one daily newspaper having good circulation in the area. 14. The requirement of Rule 34(1) is therefore, that 'a public notice of 21 days' is required to be published, whereas the requirement of Rule 34(2) is that a gist of 'such notice' is also required to be published in one daily newspaper having a good circulation. 15. The expression 'such notice' appearing in Rule 34(2) would have to be understood in the context of the meaning of the word 'such'. As per the Black's Law Dictionary, the word 'such' means 'That or those; having just been mentioned.' Therefore, the expression 'such notice' would mean that the notice which had just been mentioned. Accordingly, it is to be interpreted that the expression such notice appearing in Rule 34(2) would mean the notice that was immediately mentioned in the preceding provision i.e. Rule 34(1). 16. As already noticed, Rule 34(1) refers to a 'public notice of 21 days'. Therefore, the expression 'such notice' appearing in Rule 34(2) would also have to mean 'a public notice of 21 days'. When we read the expression such notice in Rule 34(2) to mean a public notice of 21 days, the meaning that flows would be that the gist of a public notice of 21 days would have to be published in one daily newspaper having a wide circulation so as to fulfill the object of having more competition. 17. When we read the expression such notice in Rule 34(2) to mean a public notice of 21 days, the meaning that flows would be that the gist of a public notice of 21 days would have to be published in one daily newspaper having a wide circulation so as to fulfill the object of having more competition. 17. In view of such interpretation, we find that the requirement of 21 days in the publication of the sale notice in one daily newspaper having good circulation is also present under the provision of Rule 34(2). 18. It being so, it cannot be stated that as because Rule 34(1) and Rule 34(2) are separate provisions, therefore, the requirement of 21 days in the publication of the sale notice in a daily newspaper under Rule 34(2) is absent. 19. The learned Single Judge in the judgment and order dated 31.01.2017 has arrived at a conclusion that under Rule 34(2), there is no stipulation with regard to any notice period in respect of the paper publication and therefore, the requirement of 21 days notice cannot be read into Rule 34(2). In view of our conclusion, we are unable to accept the aforesaid interpretation of the learned Single Judge of Rule 34(2) and accordingly, hold that the interpretation that Rule 34(2) does not contain the requirement of 21 days notice is incorrect and unsustainable. 20. In view of our interpretation that Rule 34(2) also contains the requirement of a 21 days notice for the paper publication of the sale notice, we do not find any infirmity in the letter dated 15.07.2016, by which the Principal Chief Conservator of Forest was requested that the two mining contract areas be put up for re-sale inasmuch as, the earlier re-sale notice dated 23.12.2014 was made in aberration of the requirement of Rule 34(2) of the Rules of 2013. 21. Although the contention raised by Mr. 21. Although the contention raised by Mr. B.J. Ghosh, learned counsel for the appellants in WA No.129/2017 that the respondents by doing so has allowed the earlier settlement holder to operate the mining contract areas at a rate, which is approximately 1/4th of the rate at which he was earlier required to operate, is an attractive proposition, but in view of the aforesaid conclusion as regards the sustainability of the letter dated 15.07.2016, we refrain to go into the said question and leave it to the State authorities to take appropriate action, if the same is found to be correct. 22. A contention has been raised by Mr. K.N. Choudhury, learned senior counsel for the respondents that the appellants in WA No.129/2017 had got themselves impleaded at a very belated stage and they ought not to have been allowed to intervene in the matter and as such, the WA No.129/2017, be not entertained. But as an appeal has already been preferred by the State authorities against the same judgment and order, it would not make any difference in the ultimate outcome as to whether the WA No.129/2017 is entertained or not and in such view of the matter, we refrain from accepting the aforesaid contention of the learned senior counsel for the respondents. 23. As a result, the judgment and order dated 31.01.2017 in WP(C) No.4383/2016 is set aside and the letter dated 15.07.2016 requesting the Principal Chief Conservator of Forest to issue a further resale notice by not persisting with the earlier re-sale notice of 23.12.2014 is upheld. 24. As the respondents have been settled with the two mining contract areas pursuant to the judgment and order dated 31.01.2017 of the learned Single Judge and the same having been set aside in appeal, we are of the view that further continuance by the respondents with the settlement of the two mining contract areas would be unsustainable and accordingly, the State authorities are directed to take appropriate action on the same. In terms of the above, both the appeals stand allowed.