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1980 Supreme(Gau) 40
GAUHATI HIGH COURT
K.Lahiri, J.
Khoi Singnar -Appellant
Versus
State of Assam and Ors. -Respondent
Civil Rule No. 499 of 1979
Decided On : 20-11-1980
A.K.Phukan, C.C.Deka, J.P.Bhattacharjee, M.K.Sarma
Rule 6(4)(v) of the Tender System Rules, 1967, which requires tenderers to submit documents evidencing their financial soundness, is directory and not mandatory.
Headnote:
ADMINISTRATIVE LAW - SETTLEMENT OF FOREST COUPES AND MAHALS - TENDER SYSTEM RULES, 1967 - RULE 6(4)(V) - MANDATORY OR DIRECTORY - INTERPRETATION - FAILURE TO PRODUCE CERTIFICATE OF FINANCIAL SOUNDNESS - EFFECT - APPELLATE AUTHORITY'S ORDER QUASHED - MATTER REMITTED BACK FOR FRESH CONSIDERATION.
Fact of the Case:
The petitioner, a member of the Karbi Tribe, submitted a tender for the settlement of Kakojan Stone Quarry. The Divisional Forest Officer (D.F.O.) recommended the petitioner's tender for settlement, but the Additional Chief Conservator of Forests (Respondent No. 3) settled the quarry upon Respondent No. 5, who had not submitted a certificate of financial soundness along with his tender. The petitioner appealed the decision to the Appellate Authority, which upheld the settlement in favor of Respondent No. 5 on the grounds that the petitioner had not submitted a certificate of financial soundness and that his address was inconsistent between his tender paper and his caste and Sales Tax Clearance Certificate.
Finding of the Court:
The court held that Rule 6(4)(v) of the Tender System Rules, 1967, which requires tenderers to submit documents evidencing their financial soundness, is directory and not mandatory. The court found that the Appellate Authority had erred in assuming that non-production of a certificate of financial soundness was fatal to the petitioner's tender. The court also found that the Appellate Authority had erred in rejecting the petitioner's appeal without giving him an opportunity to establish his identity.
Issues: 1. Whether Rule 6(4)(v) of the Tender System Rules, 1967, is mandatory or directory. 2. Whether the Appellate Authority erred in assuming that non-production of a certificate of financial soundness was fatal to the petitioner's tender. 3. Whether the Appellate Authority erred in rejecting the petitioner's appeal without giving him an opportunity to establish his identity.
Ratio Decidendi: 1. In determining whether a provision is mandatory or directory, the court considered the following factors: (a) the form or manner in which something is to be done; (b) the absence of legal consequences for failure to observe the prescription; (c) the use of the compulsive word 'shall'; and (d) the importance of the requirement in relation to the general object intended to be secured. The court found that Rule 6(4)(v) is directory because it provides the form or manner in which something is to be done, there are no legal consequences for failure to observe the prescription, the use of the compulsive word 'shall' must be interpreted in accordance with the legislative intent, and the requirement is minor and non-essential. 2. The court found that the Appellate Authority erred in assuming that non-production of a certificate of financial soundness was fatal to the petitioner's tender because Rule 6(4)(v) is directory and not mandatory. 3. The court found that the Appellate Authority erred in rejecting the petitioner's appeal without giving him an opportunity to establish his identity because the petitioner had provided sufficient evidence to establish his identity.
Final Decision: The court quashed the Appellate Authority's order and remitted the matter back to the Appellate Authority for fresh consideration. The Appellate Authority was directed to afford reasonable opportunities to the petitioner and Respondent No. 5 to place their cases and produce necessary certificates and documents, and to consider the effect of the provisions of the Rules as well as the norms or conditions of the tender notice about the preferential treatment to the members of the Scheduled Tribes.
2. To appreciate the question of law involved, it is necessary to narrate the cognate and intrinsic facts which ars set out:
The petitioner belongs to the Karbi Tribe, a recognised Scheduled Tribe and is a permanent resident of village-Rangsoli in the district of Karbi Anglong, an Autonomous District in Assam. The Divisional Forest Officer, Eastern Assam Wild-life at Bokakhat, for short, "the D.F.O.", invited tenders for settlement of Kakojan Stone Quarry for the period commencing from August 1, 1979 to October 31, 1982, fixing the last date of submission of tenders on 19.6.79. The petitioner had late knowledge of the Notice and could submit his tender hurriedly on the last date. He offered Rs. 35,111/- and expressed in his tender that hs could not submit some of the requisite certificates for the reasons alluded, but undertook to produce them before the execution of the agreement. However, he produced his caste certificate to show that he 'belongs to the Karbi Tribe' and submitted his Sales Tax Clearance Certificate as well. Others, including Respondent No. 5, Badulal, submitted their tenders. Rsspondent No. 5 could not file hi
