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1971 Supreme(Gau) 33
GAUHATI HIGH COURT
P.K.Goswami, M.C.Pathak, JJ.
Muhsin Ali Barbhuvan -Appellant
Versus
State of Assam -Respondent
Civil Rule No. 250 of 1970
Decided On : 16-06-1971
S.K.H.Choudhary, R.K.Deb , M.S.Rahman, J.C.Medhi, A.M.Majumdar
Rule 11 of the Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1967, providing for preferential treatment to Scheduled Castes, Scheduled Tribes, and other Backward Classes in the settlement of coupes and mahals, is not violative of Articles 14 and 15(1) of the Constitution.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14, 15(1), 15(4) - TENDER RULES - RULE 11 - PREFERENCE TO SCHEDULED CASTES, SCHEDULED TRIBES AND OTHER BACKWARD CLASSES - VALIDITY - NOT VIOLATIVE OF ARTICLES 14 AND 15(1) - NOT A TOTAL EXCLUSION - REASONABLE PREFERENCE - RULE 6(4)(V) - DOCUMENTARY EVIDENCE OF FINANCIAL SOUNDNESS - NOT MANDATORY - DIRECTORY ONLY.
Fact of the Case:
Petitioner challenged the validity of Rule 11 of the Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1967 (Tender Rules) on the grounds that it violated Articles 14 and 15(1) of the Constitution by giving preference to Scheduled Castes, Scheduled Tribes, and other Backward Classes in the settlement of coupes and mahals. The petitioner also contended that the tender of the 5th respondent was invalid for non-compliance with Rule 6(4)(v) of the Tender Rules, which required documentary evidence of financial soundness.
Finding of the Court:
The court held that Rule 11 of the Tender Rules was not violative of Articles 14 and 15(1) of the Constitution as it did not provide for a total exclusion of all others except the Scheduled Castes, Scheduled Tribes, or other Backward Classes. The court also held that Rule 6(4)(v) of the Tender Rules was not mandatory but only directory, and therefore, the tender of the 5th respondent was valid.
Issues: 1. Whether Rule 11 of the Tender Rules was violative of Articles 14 and 15(1) of the Constitution? 2. Whether the tender of the 5th respondent was invalid for non-compliance with Rule 6(4)(v) of the Tender Rules?
Ratio Decidendi: 1. Rule 11 of the Tender Rules did not provide for a total exclusion of all others except the Scheduled Castes, Scheduled Tribes, or other Backward Classes. It only provided for a preferential treatment to these categories of persons, subject to certain conditions and limitations. Therefore, it did not violate Articles 14 and 15(1) of the Constitution. 2. Rule 6(4)(v) of the Tender Rules was not mandatory but only directory. Therefore, the tender of the 5th respondent was valid even though it did not include documentary evidence of financial soundness.
Final Decision: The petition was dismissed.
2. The Divisional Forest Officer. Silchar (Respondent No. 4) invited tenders for Sand and Stone Mahals under Cachar Division for the vear 1969-71 by a Sale Notice dated 31st July. 1969 published in the Assam Gazette on 8th October. 1969. For the Stone Quarry in Question, there were only two tenderers, viz.. the petitioner and the 5th respondent. When the tenders were opened on 27th October. 1969. it was found that the petitioner's offer was Rs. 43.77S/- and that of the 5th respondent was Rs. 26.501/-. The 5th respondent belongs to the Namasudra community which is a recognised Scheduled Caste and this fact is not Questioned before us. Under the Assam Delegation of Financial Powers Rules. 1960. read with clause 4 of the Sale Notice, as the value of the accepted tender exceeds Rs. 10,000 but does not exceed Rs. 50,000. the Conservator of Forests is the competent authority to settle this Mahal. The 3rd respondent, on receipt of the tenders and reports from the 4th respondent, settled the Mahal with the 5th respondent giving him preference under Rule 11(1) (b) of the Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1967 (hereinafter called the 'Tender Rules', for brevity), under which the settlement has taken place. The petitioner appealed to the Governor under Rule 9 and the same was rejected on 24th February. 1970 and he obtained the present 'Rule on 24th March, 1970.
Since the petitioner challenged the validity of Rule 11 of the Tender Rules, notice was given to the Advocate-General. Assam who has made his submissions before us.
3. The petitioner submits that Rule 11 is ultra vires the provisions of Article 15 (1) and Article 14 of the Constitution and is not sayed by the provisions of Article 15 (4). It is contended that by Rule 11. there is a total exclusion of all others except the Scheduled Castes and Scheduled Tribes or other Backward Classes recognised by the State Government in settlement of coupes and mahals. Such a total exclusion, according to him cannot be considered as a special provision to enjoy the protection of Article 15(4) of the Constitution. The learned counsel relies upon a decision of the Supreme Court in AIR 1963 SC 649, M. R. Balaji v. State of Mysore and draws our attention to the following observations at paragraph 31 of the Report:
"It is because the interest of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15 (4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society that clearly is outside the scope of Art. 15. It would be extremely unreasonable to assume that in enacting Article 15 (4) the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored." The case before the Supreme Court was with regard to the constitutionality of an executive order of the Government of Mysore reserving 68% of available seats for admission to the Engineering and Medical Colleges and to the other technical institutions specified in the order. It is in that context that the above observations were made by the Supreme Court. The Court also observed as follows:
"In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad wav. a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case".
The Court
