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Jugal Chandra Chetia Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Commercial
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 6 of 1982
Judge
Acts Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1977 - Rule 20; Constitution of India - Article 226
AppellantJugal Chandra Chetia
RespondentState of Assam and ors.
Appellant AdvocateN.M. Lahiri, S.N. Medhi, P. Pathak and P. Das, Advs.
Respondent AdvocateD.N. Choudhury, Sr. Govt. Adv. and P. Prasad, Govt. Adv.
DispositionPetition allowed
Excerpt:
- .....prescribed under 'the rules'. it will be seen that clause 9 of the statutory notice confers the right of withdrawal on the authority competent to make the settlement but the power can be exercised only before 'issue of the final order of acceptance of the tender'. it is, therefore, clear that the power of withdrawal cannot be exercised after issuance of final order of acceptance of the tender. similarly, the power of withdrawal can be exercised on just and sufficient ground and it cannot be exercised arbitrarily or capriciously. therefore, it is necessary to inform the party/parties likely to be affected by the order of withdrawal. a tenderer has the right to have his tender considered and when his right is taken away he must be informed about the reason why his right is taken away to.....
Judgment:

Lahiri, J.

1. This is an application under Article 226 of the Constitution wherein the petitioner prays for a Writ or order directing the Respondents to settle a forest coupe with the petitioners and not to give effect to the impugned orders of the State of Assam to operate the coupe departmentally.

2. The intrinsic facts necessary to decide the case are set out: A short-term Sale Notice was issued by the Divisional Forest Officer, Doom Dooma, (DFO, for short) inviting Tenders for settlement of several forest coupes including R. F. P. W. Coupe No. 10 of 1980-81. The last date of receiving tender was 10-4-1981. The petitioner's offer was the highest. There was another tenderer hut he submitted a lower rate. It is beyond any doubt that under the Assam Settlement of Forest Coupes and Mahals by Tender system Rules, 1977 -- 'the Rules' for short, the competent authority is bound to consider the tenders and settle the coupe in accordance with the provisions of 'the Rules'. Of course the Government or other competent authority can withdraw the coupe or mahal 'from the settlement'. The power to withdraw a coupe from settlement is an express condition of all Sale Notices. The condition reads as under:

'9. The authority competent to make the settlement shall have the right to withdraw any coupe from the settlement at any time before issue of final order of acceptance of the tender'.

3. The Sale Notices are prescribed under 'the Rules'. It will be seen that Clause 9 of the statutory notice confers the right of withdrawal on the authority competent to make the settlement but the power can be exercised only before 'issue of the final order of acceptance of the tender'. It is, therefore, clear that the power of withdrawal cannot be exercised after issuance of final order of acceptance of the tender. Similarly, the power of withdrawal can be exercised on just and sufficient ground and it cannot be exercised arbitrarily or capriciously. Therefore, it is necessary to inform the party/parties likely to be affected by the order of withdrawal. A tenderer has the right to have his tender considered and when his right is taken away he must be informed about the reason why his right is taken away to enable him to ask for relief before an appro-priate authority or the Court. Therefore, we hold that the order of withdrawal with the reasons should be duly communicated to the parties likely to be affected by the order of withdrawal. Admittedly the D. F. O. who was competent to withdraw the coupe from settlement has not exercised the power under Clause 9. At least we do not find any material from the records (in part) produced before us. Therefore, we conclude, on the basis of the records produced before us that there is no order of withdrawal of the coupe from set-telement made by the Divisional Forest Officer, who could have withdrawn the coupe on just and sufficient ground.

4. However, the Respondents claim that they have the statutory right to withdraw any coupe or mahal from sale under Rule 20 of 'the Rules' and the State has exercised the right. The relevant extract of Rule 20 is set forth below :

'Right of withdrawal of any coupe or mahal from Sale: Government in Forest Department and the authority competent to accept tender shall have the right to withdraw any coupe or mahal from sale at any time before issue of final order of acceptance of tender.'

5. Rule 20 confers the right to withdraw coupe from sale on two authorities only. First, on the Government in Forest Department and no other department of the Govt. and secondly on the authority competent 'to accept tender'.

The exercise of the power is time bound. It can be exercised before issue of the final order of acceptance of tender. As alluded, when the right of the tenderer to have his tender considered is taken away, the termination of his right must be based on iust and appropriate reason. The sale proceedings cannot be arbitrarily and capriciously terminated in 'the purported exercise of the power.' The order must have the backing of reasons and the order must be communicated to the parties to enable them to ask for appropriate relief against the termination of his right. Mr. P. Prasad, learned counsel for the State has candidly conceded that there is no such order of withdrawal of the coupe from Sale, either by the State Government in Forest Department or by the competent authority who could accept the tender.

6. It is true that there are certain directions given by the Respondents, to manage the coupe departmentally which have been impugned by the petitioner. This power of management may be exercised by the State Govt. only upon withdrawal of the coupe from sale, faithfully following the provisions of 'the Rules.' Is there any order of the 'Govt. in Forest Department' to withdraw the coupe from settlement? There is nothing to show from the record that the Govt. was ever apprised that the coupe was under the process of settlement awaiting final acceptance by the competent authority, Accordingly, being oblivious of that fact and on the assumption that it was 'a free coupe' wherein there were no proceedings for settlement and no necessity for withdrawal of the coupe from sale, the Government decided to direct that the coupe should be operated departmentally. Therefore, the order directing management and control of the coupe departmentally cannot be sustained as the Government could not have exercised the power before withdrawal of the coupe from sale, as re-quired under Rule 20 of 'the Rules.' However, the Govt. in Forest Department and/or the authority competent to accept tender have the right to withdraw the coupe from sale, at any time before issue of final order of acceptance of the tender.

7. It has been rightly contended by Shri D. N. Choudhury learned Senior Government Advocate that the power of the Govt. to withdraw the coupe from sale ought not to be taken away by virtue of this order. We have not taken away the power of withdrawal. The Government in Forest Deptt. or the competent authority to accept tender have the right to withdraw the coupe in question from sale at any time before issue of final order of acceptance of tender. The tender has not been finally accepted as yet. So, the authorities enumerated in Rule 20 can exercise the power to withdraw the coupe, provided there is just, proper and appropriate ground of withdrawal. The authority must, however, communicate the grounds of withdrawal to the petitioner before allowing 'to operate the coupe departmentally.' Mr. Choudhury, learned Senior Govt. Advocate submits that there are just proper and sufficient grounds. However, we do not express any opinion on this issue What we desire to express is that if the Government in Forest Department or the competent authority to accept tender considers that the coupe should be withdrawn they can exercise their power under Rule 20 of 'the Rules' communicate the reasons to the persons likely to be affected by the order and thereafter may give direction to operate the coupe departmentally.

8. In the result, the petition is accepted and we direct the Respondents to consider the tender of the petitioner expeditiously, unless of course, in the meantime, the competent authority exercises its power under Clause 9 of the Sale Notice and/or Rule 20 'the Rules.' However, there will be no order as to cost. The stay order issued stands vacated.

Civil Rule No. 7 of 1982

9. For the reasons set forth in Civil Rule No. 6 of 1982 we accept the petition and direct Respondent No. 4 to consider the tender of the petitioner expeditiously, unless, of course, in the meantime the competent authority exercises its power under Clause 9 of the Statutory Sale Notice and/or under Rule 20 of 'the Rules.' However, there will be no order as to cost. The stay order issued stands vacated.


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