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2018 DIGILAW 439 (GAU)

Sujit Sarkar v. State of Assam

2018-03-13

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : 1. Heard Mr. P. K. Roy, learned counsel appearing for the petitioner. Also heard Mr. T. C. Chutia, learned State counsel, appearing for the State respondents as well as Mr. K. P. Pathak, learned counsel appearing for respondent No. 4. 2. It is the case of the petitioner that a tender notice dated 02.03.2016 was published for sale of "NKD-B-2 Safakama Mining Contract Area" (for short, "mining area") , for the period 2016-2023, wherein the last date for receipt of tender was fixed on 28.03.2016, up to 3-00 P.M. It is pleaded that, subsequently, by paper publications in "Axomiya Khabor" and "Dainik Agradoot", both dated 23.04.2016, the last date for receipt of tender was extended to 24.05.2016 and, then, again to 30.05.2016 vide paper publication dated 27.05.2016 published in "Niyomiya Barta" and "The Sentinel". The petitioner had submitted his tender for the same. On 30.05.2016, the tenders were opened and it was found that 5 (five) tenderers had submitted their tenders. Out of the five tenders, except the tender of the petitioner, tenders of other tenderers were found to be defective. While the petitioner was legitimately expecting formal order of settlement, a re-sale notice dated 25.06.2016 was issued in one Assamese newspaper, namely, "Axomiya Khabor" in respect of the same mining area and this prompted the petitioner to approach this court by filing this application under Article 226 of the Constitution of India. 3. The petitioner had also filed an affidavit on 29.08.2016 to bring on record a paper publication effected in respect of the said tender notice dated 02.03.2016 in "Niyomiya Barta" in its publication dated 04.03.2016. 4. Mr. Roy has submitted that the lease granted to the earlier lessee in respect of the same mining area, who had quoted a sum of Rs. 1,22,00,000.00/- for a period of 7 (seven) years, had to be terminated as the said amount was an unworkable amount and it was after such termination the Tender Notice dated 02.03.2016 was issued for settlement of the said mining area. It is submitted by him that the petitioner had quoted almost Rs. 9 lakhs more than the reserved price of the mining area and, therefore, the issuance of the impugned re-sale notice dated 25.06.2016 is wholly not sustainable in law. 5. Mr. It is submitted by him that the petitioner had quoted almost Rs. 9 lakhs more than the reserved price of the mining area and, therefore, the issuance of the impugned re-sale notice dated 25.06.2016 is wholly not sustainable in law. 5. Mr. Roy has submitted paper publication was issued not only in one Assamese Newspaper, but also in one English Daily, namely, "The Sentinel", in its issue dated 04.03.2016 published from Guwahati. He has also placed a copy of such paper publication for perusal of the court and the same is kept in the record of the case. 6. Mr. Chutia has produced the records. On the basis of the letter dated 09.03.2018, issued by the Divisional Forest Officer, North Kamrup Division, Rangia, addressed to (i) the Chief Conservator of Forest & Head of Forest Force, Assam and (ii) the Chief Conservator of Forest (T), Central Assam Circle, Guwahati, with copy to him,, he submits that Election Code of Conduct was imposed with effect from 04.03.2016 as a result of which it could not be confirmed as to whether the sale notice dated 02.03.2016 was published or not. It is submitted by him that from 02.03.2016 to 28.03.2016, neither any tender paper was sold nor anyone had approached the Division in respect of tender papers. It is submitted by him that permits were issued to various Government Departments for extraction of minor minerals from the mining area to execute Government developmental works and an amount of Rs. 44,02,164.00/- was realized for the period from 01.04.2017 to 05.03.2018. He submits that the State expects to earn more revenue than the tendered amount of the petitioner. 7. The letter dated 09.03.2018 along with its enclosures is also placed on record. 8. Mr. Pathak, learned counsel for respondent No. 4 endorses the submission of Mr. Chutia that the mining area would fetch more revenue than what is offered by the petitioner. 9. I have considered the submission of the learned counsel appearing for the parties and have also perused the materials on record and the record produced by Mr. Chutia. 10. At the first instance, it is to be noted that the copy of the document showing realization of revenue to the tune of Rs. 44,02,164.00/-, stated to be enclosed as Annexure-IV to the letter dated 09.03.2018, is not found enclosed with the said letter. 11. Chutia. 10. At the first instance, it is to be noted that the copy of the document showing realization of revenue to the tune of Rs. 44,02,164.00/-, stated to be enclosed as Annexure-IV to the letter dated 09.03.2018, is not found enclosed with the said letter. 11. It appears from Annexure-E to the writ petition that the Divisional Forest Officer cum Competent Authority, North Kamrup Division, Rangia, vide his letter dated 02.06.2016, had recommended settlement of the said mining area with the petitioner at his offered value of Rs. 63,00,000.00/-. A Comparative Statement was also enclosed with the said letter addressed to the Chief Conservator of Forest. It is indicated in the said letter that although the sale notice was sent to Director of Information and Public Relation (DIPR), Dispur, DIPR could not publish the notice because of imposition of Model Code of Conduct for General Assembly Elections. 12. Rule 34 (2) of the Assam Minor Mineral Concession Rules, 2013 requires that in addition to publication of notice of 21 days for inviting bids for conduct of open auctions for grant of mineral leases/contracts/permits, the gist of such notice, along with the schedule for inviting bid/holding open auctions, shall also be published in one daily newspaper having circulation in the area. 13. At this juncture, it will be relevant to take note of the decision making process as reflected in the records produced by Mr. Chutia, which culminated in issuing the re-sale notice dated 25.06.2016. When the Comparative Statement was laid before the Chief Conservator of Forest, he had asked the Deputy Conservator of Forest, vide his note dated 16.06.2016, to examine the same. The Deputy Conservator of Forest submitted a note on 16.06.2016 itself as follows: "CCF Examined the tender papers and found that main sale notice dated 02.03.2016 was not published in newspaper for wide circulation. Sd/- (illegible) 16.06.2016" The Chief Conservator of Forest, thereafter, noted as follows: "Since mining unit related main sale notice dated 02.03.2016 was not published in newspaper, the mining unit may be put to re-sale afresh. Sd/- (illegible) 16.06.2016" 14. Thereafter, a re-sale notice dated 18.06.2016 was issued. The same was subsequently published in the newspaper on 25.06.2016. Sd/- (illegible) 16.06.2016" The Chief Conservator of Forest, thereafter, noted as follows: "Since mining unit related main sale notice dated 02.03.2016 was not published in newspaper, the mining unit may be put to re-sale afresh. Sd/- (illegible) 16.06.2016" 14. Thereafter, a re-sale notice dated 18.06.2016 was issued. The same was subsequently published in the newspaper on 25.06.2016. Therefore, it is apparent that the decision to issue the re-sale notice dated 18.06.2016, published in the newspaper on 25.06.2016, was taken on the ground that newspaper publication of the tender notice dated 02.03.2016 had not been effected. Presumably, such finding was recorded on the basis of the letter dated 02.06.2016 (Annexure-E) of the Divisional Forest Officer cum Competent Authority, North Kamrup Division, Rangia. 15. In the letter dated 09.03.2018, the Divisional Forest Officer had taken a stand which is at variance with his earlier letter dated 02.06.2016. Whereas in the said letter dated 02.06.2016 it was categorically stated that the sale notice was not published by DIPR, in the letter dated 09.03.2018, which is produced before the court today by Mr. Chutia, there is a shift to the effect that it could not be ascertained as to whether the sale notice was published in newspaper or not. 16. Long back the petitioner had, by filing affidavit, placed before the court the paper publication in "Niyomiya Barta" in its publication dated 04.03.2016. The said advertisement contains reference to "Janasanyog/5749/15". The advertisement published in "The Sentinel" also refers to "Janasanyog/5750/15". The letter dated 09.03.2018 is conspicuously silent on this score. 17. Therefore, the professed reason, which is non-publication of the re-sale notice dated 02.03.2016 in newspaper for which the re-sale notice dated 02.03.2016 was aborted and fresh re-sale notice was directed to be issued, is based on non-existent ground and, therefore, the decision making process is vitiated. 18. The plea taken by Mr. Chutia that the mining area would fetch more revenue is also belied by the own conduct of the respondent authorities inasmuch as in the subsequent re-sale notice dated 18.06.2016 also, the reserved price was fixed at Rs. 54,25,000.00/-, which was same as that of the tender notice dated 02.03.2016. 19. 18. The plea taken by Mr. Chutia that the mining area would fetch more revenue is also belied by the own conduct of the respondent authorities inasmuch as in the subsequent re-sale notice dated 18.06.2016 also, the reserved price was fixed at Rs. 54,25,000.00/-, which was same as that of the tender notice dated 02.03.2016. 19. In view of the above discussions, the impugned re-sale notice dated 18.06.2016, published in the newspaper on 25.06.2016, is set aside and the respondents are directed to pass appropriate orders, in accordance with law, settling the NKD-B-2 Safakama Mining Contract Area in favour of the petitioner in terms of the tender notice dated 02.03.2016 within a period of three weeks from the date of receipt of a certified copy of this order. 20. Writ petition is allowed. No cost.