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2006 Supreme(Gau) 300
IN THE HIGH COURT OF GAUHATI
B.S. Reddy, C.J. and Anima Hazarika, J.
Sultan Mohammad Khan - Appellants
Vs.
Sahin Ahmed and Ors. - Respondent
W.A. No. 669 of 2005
Decided On: 28.03.2006
For Appellant/Petitioner/Plaintiff: B.C. Das, D.N. Bhattacharjee, S.C. Biswas and A.K. Hussain, Advs.
For Respondents/Defendant: B. Goyal, Adv.
The main legal point established in the judgment is the mandatory nature of Rule 4 of Rules 1977, requiring the publication of a notice for tender in local daily newspapers for at least consecutive two days, giving at least one month time prior to the last date fixed for submission of tender. Non-compliance renders the notice calling for tender violative of the rule, justifying its quashing and setting aside.
Headnote:
Rule 4 of Rules 1977 - Sale of Forest Produce - Rule 4 of Rules 1977 - The court discussed the mandatory nature of Rule 4 of Rules 1977, which requires the publication of a notice for tender in local daily newspapers for at least consecutive two days, giving at least one month time prior to the last date fixed for submission of tender. The purpose of this publication is to make it known to every person interested in the settlement of coupe or mahal, providing an opportunity for fair competition and preventing favoritism, nepotism, and unfair settlements to the detriment of public revenue. The court held that the provision is mandatory, and non-compliance renders the notice calling for tender violative of Rule 4 of Rules 1977, justifying the quashing and setting aside of the Sale Notice dated 6.6.2005 and 1.7.2005.
Fact of the Case:
The Appellant challenges the order allowing a writ petition without hearing the Appellant, who is a necessary party in the case. The case involves the sale notice for settling Longai River Sand Mahal No. IV, the highest valid bidder being the Appellant. The writ Petitioner filed a petition alleging that the Sale Notice was published contrary to the provision of Rule 4 of the Rules 1977. The learned Single Judge allowed the writ petition, setting aside and quashing the Sale Notice, directing the matter to go back for publication in compliance with Rule 4 of the Rules 1977.
Finding of the Court:
The court found that the provision in Rule 4 of Rules 1977 is mandatory, requiring the publication of a notice for tender in local daily newspapers for at least consecutive two days, giving at least one month time prior to the last date fixed for submission of tender. Non-compliance renders the notice calling for tender violative of Rule 4 of Rules 1977, justifying the quashing and setting aside of the Sale Notice dated 6.6.2005 and 1.7.2005.
Issues: The issues involved the legality and validity of the order allowing the writ petition without hearing the Appellant, the compliance with Rule 4 of the Rules 1977 regarding the publication of the Sale Notice, and the locus standi of the writ Petitioner to challenge the Sale Notice.
Ratio Decidendi: The court held that Rule 4 of Rules 1977 is mandatory, and non-compliance renders the notice calling for tender violative of the rule, justifying the quashing and setting aside of the Sale Notice dated 6.6.2005 and 1.7.2005.
Final Decision: The appeal was dismissed, affirming the order passed by the learned Single Judge on 12.9.2005 in WP (C) No. 5255/2005. Parties were left with no costs.
A. Hazarika, J.
1. The Appellant in the instant appeal, calls in question the legality and validity of the order dated 12.9.2005 passed by the learned Single Judge of this Court in WP (C) No. 5255/2005 allowing the writ petition filed by the Petitioner/Respondent No. 1 herein without hearing the Appellant, who is a necessary party in the case.
2. On an application filed by the Appellant praying for granting leave for preferring appeal, this Court granted him leave vide order dated 19.12.05 and therefore the Appellant before us.
3. We have heard Mr. B.C. Das, Senior Advocate assisted by Mr. D.N. Bhattacharjee, Advocate for the Appellant and Ms. B. Goyal, learned Govt. Advocate, Assam. Inspite of service of notice upon Respondent No. 1/writ Petitioner, none appeared on behalf of the Respondent No. 1, when the matter was called on for hearing.
4. The factual background of the case in brief is that pursuant to sale notice dated 6.6.05 and 1.7.05 issued by the Divisional Forest Officer, Karimganj Division, Karimganj for settling Longai River Sand Mahal No. IV for a period of 2 years, that is, from 28.6.05 to 27.6.07. The Appellant submitted tender for settlement of the said and Mahal, the tender process was carried out after observing all formalities as provided under the Assam Sale of Forest Produce Coupes and Mahals Rules, 1977 as amended (Rules 1977 to be referred to hereinafter). The tender was opened on 15.7.05 by the Tender Committee. Altogether, there were 6 (six) numbers of tender and amongst them the Appellant was the highest valid bidder as per the comparative statement dated 30.7.05 prepared by the Respondent No. 5.
5. The writ Petitioner/Respondent No. 1 filed a writ petition being WP (C) No. 5255/05 before this Court, although he was not a tenderer in the said tender process, without arraying the Appellant as party Respondent in the case, wherein the Petitioner prayed inter alia, for setting aside and quashing the Sale Notice dated 6.6.05 and 1.7.05 alleging on the ground, that the same were published contrary to the provision of Rule 4 of the Rules 1977.
6. The learned Single Judge, after hearing the learned Counsel appearing on behalf of the writ Petitioner and the learned Government Advocate, State of Assam, appearing on behalf of the Respondents, allowed the writ petition by setting aside and quashing the aforesaid Sale Notice dated 6.6.2005 and 1.7.2005 respectively and directed that the matter shall go back to the Respondents for publication of Sale Notice in due compliance of Rule 4 of the Rules 1977. It was also made clear that the Respondents shall take immediate steps for taking necessary follow up action for the interest of revenue of the State.
7. The aforesaid order was passed by the learned Single Judge, taking into consideration the fact that the publication of the Sale Notice in the news paper was contrary to the provision of Rule 4 of the Rules 1977, inasmuch as, as per Rule 4 of Rules 1977, Sale Notice required to be published giving at least one month time for submission of tender. Admittedly it was not done in the instant case.
8. For better appreciation, Rule 4 of Rules 1977 is quoted hereunder:
4. Notice for tender: Brief advertisement inviting tender (Tender Notice) for sale of Mahal/Timber lots containing the names of the Mahals/lots, Areas of the Mahal/quantity of timber, period of the lease/settlement which shall not exceeds two years alongwith the date, time and venue for receipt of tender, shall be published in the "Local daily news papers" for at least consecutive two days by the Divisional Forest Officer at least one month prior to the last date fixed for submission of tender stating the details of the Mahals/lots and other terms and conditions shall be available in the sale notice, which can be procured from the offices of the Divisional Forest Officer during office hours of any working day on payment of Rs. 50.00 (Rupees fifty) per copy of the sale notice.
Provided that for resale of any M
