1. Sluggish justice is antithesis of decent and fair procedure enshrined in our Constitution. We invited learned counsel to help us dispense quick but deliberate justice and we record our appreciation that learned counsel for the parties co-operated with us and desired that the matter may be finally disposed of today.
2. This writ application under Article 226 of the Constitution is projected against the order dated 30-7-1983 passed by the Government of Assam (Forest Department) dismissing the review application of the petitioner. It is necessary to give a thumb-nail details of the facts leading up to this application.
Over six years ago tenders were invited for settlement of the Plywood coupes in question under the provisions of the Assam Sale of Forest Produce, Coupes and Mahals Rules, 1977, for short 'the Rules'. Six persons boxed their tenders and Ram Nath Singh, Respondent No. 5 offered Rs. 1,11,999/-, admittedly the highest offer. However, his tender was declared to be invalid and irregular by the Divisional Forest Officer, for short--'the D. F. O.', as Shri Singh submitted his bank draft for the earnest money allegedly after the opening of the tender papers. The tender of Shri Singh was rejected and cancelled on that count. The D. F. O. processed the tenders, prepared a comparative statement of the remaining five tenderers and recommended the second highest tenderer (the present petitioner) for settlement who had offered Rs. 14,000/-less than Respondent No. 5. However, the settling authority, the Government, settled the coupes with respondent No. 5. It has not been disputed that the Government was the settling authority under ''the Rules'. Being dissatisfied and aggrieved by the order, the petitioner made an application for review under Rule 9 (c) of 'the Rules' but the same was turned down. Therefore, the petitioner filed another review application in 1983 and obtained an order of stay, in consequence whereof the operation of the coupes remains suspended. Strange are the ways, acts and actions of the Public Servants. A simple matter got bogged down unnecessarily. However, at long last the matter was heard and the reviewing authority held (1) that the bank draft depositing the earnest money was filed by respondent No. 5, (2) that the same was duly received and accepted by the D. F. O. and, (3) that the D. F. O. never rejected the bank draft or refused to accept the same. It also held that the bank draft was accepted by the D. F. O. yet did not treat the tender of respondent No. 5 as valid. The authority did not find any material to interfere with the order of the State Government settling the coupes with respondent No. 5 and rejected the second review application. This writ application stems from the said order.
3. Mr. J.P. Bhattacharjee, learned Advocate General, Nagaland, submits that the provisions of Rule 7 (5) (i) are mandatory. We extract the provisions of Rule 7 (5) (i):--
'Rule 7 (5):--The tender shall be accompanied with the following documents:
(i) A copy of the treasury challan or Bank draft evidencing deposit of the earnest money as stipulated in the sale notice'.
Learned Counsel submits that a copy of the treasury challan or bank draft evidencing deposit of the earnest money as stipulated in the sale notice must accompany the tender. According to learned counsel, the tender was submitted earlier, but the bank draft was produced later, two hours after the opening of the tenders, and, as such, the tender was not 'accompanied with' the bank draft. Learned counsel lays special emphasis on the expressions 'the tender shall be accompanied' and submits that it is mandatory. We have dealt with similar provisions of the Rules and have held that such rules are generally directory. However, let us examine the question anew. In our opinion the words may, shall, must, do manifest the intention of the legislature and they may indicate whether the provisions of the rules are directory, mandatory or compulsory. There is no wrangle at the bar that if the rule is mandatory it must be complied with strictly, as absolute obligation imposed by law to perform a specified act in a certain manner must be strictly adhered to and in absence of due compliance, the entire act may be invalid or void. However, to ascertain the intent of the rule making authority one must look at the nature and the scheme of the rules. There is no cast-iron formulae by which the distinction between mandatory or directory (provision?) can be discerned. No universal rule can be laid down for the construction of statutory rules as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to get at the real intention of the rule making authority by carefully attending to the whole scope of the statute. It is indubitable that in 'the rules' no consequence of the non-fulfilment of the condition has been laid down. There is no provision that failure to comply with the terms of Rule 9 (c) would entail rejection of the tender nor is there any provision that the tender shall be treated as invalid. As such, where is the source of power of the authority processing the tenders to reject it or to declare it invalid? Prima facie, therefore, the rules do not lay down that non-compliance or failure to comply with the terms of the rule shall make the tender invalid. These are procedural requirements necessary to be complied with by the tenders because the deposit of earnest money has a bearing on the settlement itself. The earnest money may be forfeited on the happening of certain future events. Therefore, tendering of earnest money in the prescribed manner is necessary but it is not mandatory that it must go along with the tender; if it is filed separately either before the tender is submitted or after the tender is submitted, but duly accepted by the authority there cannot be any question of penalising the tenderer for not depositing the earnest money. There is no dispute that in the instant case the earnest money had been deposited in the Bank before tenders were opened. However, the Bank draft was filed later. In our opinion it was sufficient compliance with the provisions of the rule, and sufficient compliance of a directory provisions does not entail rejection of a tender. There is no express or implied nullification for the irregularity. We are of the opinion that substantial compliance with the provisions of Rule 9 (c) of the Rules is enough and the authority cannot reject the tender on technical grounds like slight delay in filing the Bank draft. On perusal of the entire rules, the scheme thereof and the purpose sought to be achieved, we hold that the expressions 'the tender shall be accompanied with ......' are terrorem clause or warning signal to the tenderers that they must substantially comply with the term of the rules. Under these circumstances we are constrained to hold that Rule 7 (5) (i) is directory and substantial compliance with the rule is enough compliance and the settling authority has had the jurisdiction to accept the tender. Therefore we do not find any substance in the first contention of the learned counsel for the petitioner.
4. The second contention of the learned counsel for the petitioner is that the State Government disposed of the review application without the records of the case. Indeed, the reviewing authority expressed clearly that the relevant records were not before it and it disposed the matter without them. We shall consider this question in due course.
5. Mr. D. N. Choudhury, learned Sr. Government Advocate, Assam has contended that the petitioner has no locus standi to come up before this Court against the impugned order, as he had no statutory right to present the second review application. We have perused Rule 9 and scanned the entire rules. Rule 9 provides that an order passed in an appeal shall be final subject to review of the final order Learned counsel for the petitioner does not contest that the impugned order was passed in a second review application filed by the petitioner. Learned Counsel could not place before us any rule which allows filing of consecutive review applications. In our opinion, there can be only one review against the final decision and no second review is enter tainable by the State Government. However, the question will be examined by the authority and dispose the same in accordance with the law, notwithstanding our observations made above.
6. The substantial ground urged by Mr. Bhattacharjee is that a review application cannot be disposed of without perusal of the relevant records and if we allow the State Government to disposes review matters in such slipshod manner they shall continue to commit such errors in future. Learned counsel submits that there was no disposal of the review, in accordance with the principles of law, as the impugned order was based on conjectures and surmises, and not based on the records of the case, which were admittedly not before the authority. In view of positive observations of the State Government that it disposed of the review application without the records, Mr. Choudhury, learned Senior Government Advocate could not satisfy us that the impugned order is a valid one. However, we must observe that if the State Government entertains consecutive review applications the records would certainly be lost or destroyed. A number of years have rolled by since the making of the order and in all probability the records could not be located due to lapse of time. In our opinion, it is a stale matter of settlement for the years 1977-78. The order of settlement was made in 1978 which was the final order. The petitioner has not annexed the final order nor could produce the same, to show that injustice was committed to him in the final order. It is true that the reviewing authority has referred the order of settlemeat as 'provisional settlement'. Naturally, so, as it had no records before it. Indeed, it was a provisional one, in the strict sense of the term, as the order got confirmed only after the disposal of the first review application. But the fact remains that this review application was entertained and disposed of on merit. It was not dismissed on the ground that the second review application was not entertainable In that event the result of our decision might have been otherwise. However, the reviewing authority went into the merit of the case without the records and disposed the review petition. It may be that the review application was disposed of on the basis of the reconstituted records as the original records were not readily available before the authority. However, we are extremely unhappy with the manner of disposal of the review on merit when the authority had no records. The State Government should have made endeavour to reconstitute the records, and, on perusal thereof could have disposed of the application. Review is a statutory right and if the petitioner had such a right the State Government should have disposed the same in accordance with the provisions of the rules, justice and fair play. It should not have disposed of the application without perusal of the original records and/or the reconstituted records. It has been rightly contended by the petitioner that the respondents must be made to understand that the were discharging a statutory duty. In our opinion, the authority could have considered the maintainability of the review application and dispose the same on the ground of maintainability, but it could not have dismissed the review petition on merits without the aid or assistance of the records. If we allow such things to happen, in every case the State Government may repeat the crucial error. Under these circumstances we are compelled to hold that the disposal of the review application on merit, without any records, was invalid, and, on this ground alone we set aside the impugned order.
7. Instead of detaining the case at this end, we set aside the impugned order in review including the stay order passed in this case. We direct that the entire matter should go back to the Government for reconsideration of the review application. The State Government may consider the question of maintainability of the review and dispose it accordingly. Otherwise, it shall call for the records of the case, failing which it must reconstitute the records and upon hearing the parties the authority shall dispose the review application in accordance with the provisions contained in 'the Rules'. However, the State Govt may consider the question of maintainability of the second review application while considering the merits of the review petition. However, we leave it to the State Government to consider whether the settlement made in favour of respondent No. 5 should be stayed during the continuance of the proceedings before the reviewing authority.
8. With these observations we remit the matter to the Govt. with the directions that the review application should be disposed of within one month from the date of receipt of this order. We make it clear that the views expressed above may be treated by the State Government as tentative. Send a copy of the order to respondent No. 1 for doing the needful.