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2019 DIGILAW 350 (GAU)

Jayanta Kumar Baruah v. State of Assam

2019-03-15

A.K.GOSWAMI

body2019
JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Mr. I.A. Talukdar, learned counsel appearing for the petitioner. Also heard Mr. B.D. Das, learned Senior counsel, appearing for respondent No. 5 as well as Mr. S. Dutta, learned Standing counsel, Forest Department, appearing for respondent Nos. 1 to 4. 2. Mr. Talukdar prays for withdrawal of the writ petition. 3. Mr. Das submits that it is a fit case where cost should be imposed on the petitioner for taking recourse to blatant falsehood in filing the writ petition. 4. Mr. Taukdar has submitted that even if there are some incorrect statements, the same were not intentional and, therefore, cost may not be imposed. 5. By this writ application, the petitioner calls into question the provisional Letter Of Intent (LOI) dated 05.07.2018, issued by respondent No. 4 in favour of respondent No. 5, granting mining permit in respect of Chaparmukh Kapili Nodi Sand Permit Area Part-1(B). 6. On 17.12.2018, the following order was passed: "Heard Mr. I.A. Talukdar, learned counsel for the petitioner. Challenge made in this writ petition is to the provisional letter of intent dated 05.07.2018, issued by the Divisional Forest Officer, Nagaon Forest Division, proposing to grant mining permit to respondent No. 5 for extracting mining minerals (sand) from the Chaparmukh Kapili Nodi Sand Permit Area Part-1 (B) for a period of 2 (two) years. Contention of learned counsel for the petitioner is that impugned provisional letter of intent has been issued to respondent No. 5 with-out finalizing the tenders pursuant to notice dated 04.02.2016 and without considering bids of other bidders including that of the petitioner. (emphasis supplied) Issue notice, returnable within 6 (six) weeks. Respondent Nos. 1 to 4 be served through Mr. S. Dutta, learned Standing Counsel, Forest Department. Extra copies within 3 (three) days. Notice to respondent No. 5 by registered post with A/D. Steps within 3 (three) days. In the meanwhile, Divisional Forest Officer, Nagaon, i.e., respondent No. 4 is directed not to proceed further pursuant to the provisional letter of intent dated 05.07.2018. List on 25.01.2019." 7. Perusal of the order dated 17.12.2018 goes to show that contention was advanced on behalf of the petitioner that without finalizing the tenders pursuant to the notice dated 04.02.2016 and without considering bids of other bidders, including that of the petitioner, provisional LOI was issued. 8. List on 25.01.2019." 7. Perusal of the order dated 17.12.2018 goes to show that contention was advanced on behalf of the petitioner that without finalizing the tenders pursuant to the notice dated 04.02.2016 and without considering bids of other bidders, including that of the petitioner, provisional LOI was issued. 8. An Interlocutory Application was filed by the respondent No. 5 seeking vacation/modification of the order dated 17.12.2018. In paragraph 4 of the Interlocutory Application, it is categorically stated that the petitioner did not submit his bid pursuant to the tender notice dated 04.02.2016. It is stated that pursuant to the tender notice dated 04.02.2016, four tenderers had submitted tenders, but the petitioner was not one among them. The Treasury Challan dated 20.8.2016, annexed as Annexure-3 to the writ petition, indicates that the petitioner had purchased Tender Form in connection with the re-sale notice dated 09.08.2016. 9. It is submitted by Mr. Das and Mr. Dutta that by making false statements and concealing developments that had taken place in the interregnum, the writ petition was filed. 10. The petitioner had respondent to the Interlocutory Application by filing an affidavit. In the affidavit filed, it is pleaded that vacation of the interim order would cause multiplicity of proceedings. 11. It is not indicated therein that any incorrect statement was made inadvertently in the writ petition. It is also not stated that the petitioner had not participated in the tender process pursuant to the tender notice dated 04.02.2016. 12. Mr. Dutta, by producing the relevant records, including the Comparative Statement, has submitted that the petitioner did not participate in the tender process in response to the earlier tender notice dated 04.02.2016. 13. I have perused the records produced by him including the Comparative Statement. 14. From the perusal of the records produced by Mr. Dutta, it is clear that the petitioner did not participate pursuant to the tender notice dated 04.02.2016. 15. The respondent No. 5 had challenged the re-sale notice dated 09.08.2016 by filing a writ petition, numbered as W.P.(C) 4889/2016, and had prayed for a direction to make settlement of Chaparmukh Kapili Nodi Sand Permit Area Part-I(B) (Rev. Portion) for the period 2016-2018 by bringing the tender notice dated 04.02.2016 to its logical end. 16. The writ petition was disposed of by judgment and order dated 31.05.2018. Paragraphs 10 and 11 of the aforesaid judgment reads as follows: "10. Portion) for the period 2016-2018 by bringing the tender notice dated 04.02.2016 to its logical end. 16. The writ petition was disposed of by judgment and order dated 31.05.2018. Paragraphs 10 and 11 of the aforesaid judgment reads as follows: "10. The need to record reasons in support of the order can hardly be over emphasized because reasons are the soul of the order. Recording of reasons is an essential feature of dispensation of justice. A tenderer is entitled to know the reasons why a particular course of action was adopted. Recording of reasons also show proper application of mind. When an order is passed, its validity must be judged by the reasons mentioned in the order or in the file. Though some grounds have been offered for going for re-tender in the affidavit, the decision making process has to be judged on the basis of reasoning given when the decision is taken and reasons cannot be supplemented over a period of time. Otherwise, when an order is bad in law at the very inception, may get validated with the setting forth of grounds in the affidavit. 11. Having regard to the above discussion, the decision to go for re-sale and the re-sale notice dated 09.08.2016 (Annexure-4 of the writ petition) issued by the Divisional Forest Officer, Nagaon Division, Nagaon for settlement of Chaparmukh Kapili Nadi Sand Permit Area Part-I (B) (Rev. Portion) of 2016-18 are set aside and quashed. It is made clear that this Court has expressed no opinion on the merit of the submissions advanced by the learned counsel appearing for the parties. The decision to opt for re-sale and the impugned re-sale notice dated 09.08.2016 are set aside only on the ground that decision making process was vitiated as the decision was bereft of any reason. The Principal Chief Conservator of Forest & Head of Forest Force is directed to consider the matter afresh and take a decision on the matter on its own merit in accordance with law within a period of 1 (one) month from the date of receipt of a certified copy of this order." 17. The petitioner had annexed a copy of the said judgment and order in the writ petition as Annexure-4 and, therefore, evidently, he was aware of the developments in connection with settlement of Chaparmukh Kapili Nodi Sand Permit Area Part-I (B). 18. The petitioner had annexed a copy of the said judgment and order in the writ petition as Annexure-4 and, therefore, evidently, he was aware of the developments in connection with settlement of Chaparmukh Kapili Nodi Sand Permit Area Part-I (B). 18. In paragraph 10 of the writ petition, the writ petitioner stated as follows: "10. The petitioner states that to the best of his knowledge the respondent authorities did not cancel the earlier Tender Notice dated 04.02.2016 and the Earnest Money received from the bidders including the present petitioner pursuant to the earlier tender process and as such the issue of Letter of Intent by the respondent for settlement of the Sand Mahal is totally illegal, arbitrary and unjust process dehorning the procedure established by law." 19. Thus, it is seen that categorical stand was taken in the writ petition that the petitioner had responded to the tender notice dated 04.02.2016. 20. The order dated 17.12.2018, which is already noted, also reflects that submission was advanced to that effect on behalf of the petitioner before the court. 21. The petitioner has not brought on record any evidence of his participating in the tender process pursuant to the earlier tender notice dated 04.02.2016. The Treasury Challan annexed as Annexure-3 is in connection with re-sale notice dated 09.08.2016. Therefore, it is evident that the petitioner had abused the process of the court and had polluted the stream of justice by laying the foundation of the claim in the writ petition on misrepresentation of facts and, thus, had also succeeded in obtaining an interim order on that basis. 22. In the background of the facts, while permitting withdrawal of the writ petition on the prayer of Mr. Talukdar, I impose a cost of Rs. 20,000.00 (Rupees twenty thousand) on the petitioner. The cost is to be deposited by the petitioner through www.bharatkeveer.gov.in towards "Bharat Ke Veer Corpus Fund", which is set up for disbursement to the families of bravehearts on need basis. 23. Writ petition stands dismissed on withdrawal with cost of Rs. 20,000.00/-.