Bubul Pator vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2775 Gua

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GAHC010199572018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/6227/2018

            BUBUL PATOR
            S/O. SRI RAMESWAR PATOR, RESIDENT OF NO. 1 BANGALBARI, P.O.
            DUNGORBORI, P.S. JAGIROAD, DIST. MORIGAON, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY, GOVT. OF ASSAM,
            FOREST AND ENVIRONMENT DEPTT., DISPUR, GUWAHATI-6.

            2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST ASSAM
             PANJABARI
             GUWAHATI-37.

            3:THE CONSERVATOR OF FOREST

             NORTHERN ASSAM CIRCLE
             TEZPUR
             ASSAM.

            4:THE DIVISIONAL FOREST OFFICER

             NAGAON DIVISION
             DIST. NAGAON
             ASSAM

Advocate for the Petitioner   : MR. R S CHOUHAN

Advocate for the Respondent : SC, FOREST

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER Date : 10-11-2021

The writ petitioner has approached this Court by this writ petition under Article 226 of the Constitution of India seeking setting aside of a Short Re-Sale Notice dated 09.08.2016 and for a direction to the respondent authorities in the Forest Department to finalize the tender process initiated by a Re-Sale Notice dated 28.01.2016 for settlement of Nakhola Beat Sand Permit Area No. 3, 2016- 18 [Rev Portion] in his favour as he emerged as the highest valid bidder in the said bidding process.

2. The facts leading to the institution of this writ petition can be stated as follows :

2.1. Nakhola Beat Sand Permit Area No. 3 [Rev Portion] ['the Sand Mahal', for short], located under Morigaon Range, was initially settled with one Haren Saikia for the period, 2014-2016. Haren Saikia failed to submit the required EIA clearance from the competent authorities, despite repeated reminders from the respondent authorities in the Forest Department. The settlement made in favour of Haren Saikia for the said Sand Mahal came to be terminated by an order dated 22.12.2014 and the security money deposited by him also stood forfeited by an office order dated 12.01.2015.

2.2. After forfeiture of the security money of Haren Saikia, the Sand Mahal was put to re-sale again by a Sale Notice dated 02.02.2015. In response to the said Sale Notice, 5 [five] nos. of bids were received. After receipt of the bids, a comparative statement was prepared and the matter was forwarded to the Additional Principal Chief Conservator of Forests & Head of Forest Force, Assam Page No.# 3/10

by the respondent no. 4 on 05.06.2015 for his decision with regard to settlement of the Sand Mahal. After examination, the Principal Chief Conservator of Forests & Head of Forest Force, Assam directed the respondent no. 4 to put the Sand Mahal for re-sale for the period 2015-2017 by his order dated 14.01.2016.

2.3. After receipt of the said order from the Principal Chief Conservator of Forests & Head of Forest Force, Assam, the Sand Mahal was again put to re-sale by an Re-Sale Notice dated 28.01.2016. In response to the said Re-Sale Notice dated 28.01.2016, three bids were received on 26.02.2016. In the said competitive bidding process, the writ petitioner emerged as the highest bidder with his offered bid value of Rs. 5,83,550/-.

2.4. The respondent no. 4 by his communication dated 28.06.2016 had forwarded the matter of settlement of the Sand Mahal to the Additional Principal Chief Conservator of Forests (T), Upper Assam Zone recommending that the Sand Mahal be settled with the writ petitioner at his offered bid value of Rs. 5,83,550/- was the highest. The tender papers of the three participating bidders were also forwarded by the said communication.

2.5. In this writ petition, the writ petitioner has averred that after emerging as the highest bidder, he was expecting that the respondent authorities in the Forest Department would settle the Sand Mahal in his favour and accordingly, he waited with such expectation. All of a sudden, the writ petitioner came to learn that the respondent authorities had taken a decision to cancel the bidding process initiated by the Re-Sale Notice dated 28.01.2016 and to initiate a fresh bidding process for the Sand Mahal. The respondent authorities thereafter, issued a fresh Short Re-Sale Notice dated 09.08.2016, which was published in Page No.# 4/10

two local newspapers on 11.08.2016. Aggrieved thereby, the petitioner has preferred this writ petition.

3. Heard Mr. G.J. Sharma, learned counsel for the petitioner and Mr. D. Gogoi, learned Standing Counsel, Forest Department for all the respondents.

4. Mr. Sharma, learned counsel for the petitioner has submitted that when the bid of the petitioner submitted in response to the Re-Sale Notice dated 28.01.2016 was found valid and proper and when it was the highest offered bid amongst the three bidders the Sand Mahal ought to have been settled with the petitioner. Without cancelling the Re-Sale Notice dated 28.01.2016, the respondent authorities have issued the Short Re-Sale Notice dated 09.08.2016 which action is ex-facie, arbitrary and unjust, he submits. Referring to the Short Re-Sale Notice dated 09.08.2016, he has submitted that by the said Short Re- Sale Notice, two Sand Mahals viz. (i) Nakhula Beat Sand Permit Area no. 3 of 2016-18 (Rev. Portion) and (ii) Chaparmukh-Kopili Nodi Sand Permit Area Part-1 (B) of 2016-18 (Rev. Portion) were put to sale. When the fresh Short Re-Sale Notice dated 09.08.2016 was issued in respect of Chaparmukh-Kopili Nodi Sand Permit Area Part-1 (B) of 2016-18 (Rev. Portion) without cancelling the bidding process initiated earlier in respect the said Sand Mahal, the same was challenged by the highest bidder in the earlier process by way of a writ petition, W.P.(C) no. 4889/2016. He has submitted that the said writ petition, W.P.(C) no. 4889/2016 was allowed, by setting aside the Short Re-Sale Notice dated 09.08.2016, with a direction to the Principal Chief Conservator of Forests & Head of Forest Force, Assam to consider the matter afresh and take a decision of the matter in its own merits in accordance with law within a stipulated time period. He has submitted that the writ petitioner is similarly situated with the Page No.# 5/10

writ petitioner in W.P.(C) no. 4889/2016 and as such, he is entitled to similar relief.

5. Mr. Gogoi, learned Standing Counsel, Forest Department has submitted that the writ petition has been filed with suppression of material facts. The petitioner, after publication of the Short Re-Sale Notice dated 09.08.2016, had approached this Court by a way of writ petition, W.P.(C) no. 5141/2016 seeking a direction to bring the bidding process initiated by the Re-Sale Notice dated 28.01.2016 to a conclusion and not to act upon the fresh Short Re-Sale Notice dated 09.08.2016 and with an interim prayer not to give effect to the Short Re- Sale Notice dated 09.08.2016, published on 11.08.2016. The said writ petition, W.P.(C) no. 5141/2016 was disposed of on 25.07.2017. The facts of filing a writ petition earlier in respect of the same Sand Mahal and disposal of the same have not been disclosed by the writ petitioner in the present writ petition, he submits. He has further submitted that after disposal of the writ petition, W.P. (C) no. 5141/2016 on 25.07.2017, the writ petitioner did not approach the appropriate authority in terms of the liberty granted to him by the order dated 25.07.2017. Instead, he might have waited for disposal of the writ petition, W.P. (C) no. 4889/2016. It was only after disposal of the writ petition, W.P.(C) no. 4889/2016 with a favourable outcome, he has preferred this writ petition on 05.09.2018 without explaining the reason for delay and without assigning any ground for not availing the liberty he was granted by the order dated 25.07.2017. He has, thus, submitted that this writ petition deserves to be dismissed.

6. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record.

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7. The facts leading to the institution of this writ petition have already been stated above. It transpires from the communication dated 19.03.2016 written by the Additional Principal Conservator of Forests (T), Upper Assam Zone to the Principal Chief Conservator of Forests & Head of Forest Force, Assam that three bidders participated in the competitive bidding process initiated by the Re-Sale Notice dated 28.01.2016. The writ petitioner emerged as the first highest bidder amongst the three valid bids received in response to the Re-Sale Notice dated 28.01.2016.

8. A copy of the order dated 25.07.2017 passed in the writ petition, W.P.(C) no. 5141/2016 has been placed before the Court. From the copy of the order, it is noticed that the writ petitioner had earlier approached this Court when the respondent authorities in the Forest Department did not settle the Sand Mahal in favour of the writ petitioner pursuant to the Re-Sale Notice dated 28.01.2016 and after publication of the Short Re-Sale Notice dated 09.08.2016 in two local newspapers on 11.08.2016. In the said writ petition, the writ petitioner has sought for a direction to finalise the bidding process initiated by the Re-Sale Notice dated 28.01.2016 for settlement of the Sand Mahal, in view of his emerging as the highest valid bidder and for an interim direction not to give effect to the fresh Short Re-Sale Notice published on 11.08.2016 for settlement of the same Sand Mahal. Thus, it is evident that the writ petitioner has preferred the said writ petition having knowledge of the fact that the Short Re- Sale Notice was published on 11.08.2016.

9. On perusal of the averments made in this writ petition, it is seen that not a whisper has been made by the petitioner in this writ petition that he had earlier preferred a writ petition and the same had been disposed of by an order Page No.# 7/10

dated 25.07.2017. In the writ petition, W.P.(C) no. 5141/2016, an affidavit-in- opposition was filed on behalf of the respondent Forest Department. It was averred therein that the Principal Chief Conservator of Forests & Head of Forest Force, Assam after perusal of the tender papers submitted to him pursuant to the Re-Sale Notice dated 28.01.2016, had ordered that the process was not to be acted upon further. Accordingly, the subsequent Short Re-Sale Notice dated 09.08.2016 was published in the local newspapers on 11.08.2016.

10. The Court taking note of the stand of the respondent authorities in their affidavit-in-opposition, had in its order dated 25.07.2017 observed as under :

"9. In view of such stand of the respondent authorities in their affidavit, it is an accepted situation that the earlier tender process pursuant to re-sale notice dated 28.01.2016 have been abandoned by the respondent authorities and further subsequent short re-sale notice dated 09.08.2016 for the purpose had also issued.

10. In such view of the matter, the prayer made in this writ petition for a direction to make settlement in favour of the petitioner pursuant to the re- sale notice dated 28.01.2016 cannot be acceded to. However, the petitioner is given liberty to approach the appropriate authority against the aforesaid decision of the respondent authority not to further continue with the re-sale notice dated 28.01.2016 and also against the subsequent short re-sale notice dated 09.08.2016, if so advised.

In view of the above, writ petition stands closed."

11. The High Court exercises discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India. It is also a Court of equity. It has Page No.# 8/10

been emphasized time and again that when a party approaches a High Court he should approach by placing all the facts before the Court without any kind of suppression of the relevant and material, facts which are necessary for adjudication of the issues raised by such a party. In Prestige Lights Ltd. vs. State Bank of India, reported in [2007] 8 SCC 449, the Hon'ble Supreme Court of India has observed that if there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. A party should make the full and fair disclosure of all the material facts. A party, whose hands are soiled, cannot hold the writ of the Court. The Hon'ble Supreme Court has further observed as under :

"35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to defer unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

12. The writ petition is found to have been filed on 05.09.2018 by suppressing the material facts of approaching this Court earlier by way of a writ petition, W.P.(C) no. 5141/2016 and closure of the same by denying the relief, Page No.# 9/10

which he has also sought in this writ petition. Thus, this writ petition clearly suffers from suppression of the material facts.

13. Further, a perusal of the operative part of the order dated 25.07.2017 [supra] makes it evident that the prayers made by the writ petitioner to finalise the bidding process initiated by the Re-Sale Notice dated 28.01.2016 was declined. The petitioner was, however, given liberty to approach the appropriate authority against the decision of the respondent authorities not to further continue with the Re-Sale Notice dated 28.01.2016 and also against the subsequent Short Re-Sale Notice dated 09.08.2016, if so advised.

14. There is also no whisper in this writ petition as to whether the writ petitioner had approached the appropriate authorities in the Forest Department after closure of the writ petition, W.P.(C) no. 5141/2016 on 25.07.2017. The petitioner has sought to rely on the direction made in the judgment and order rendered in the writ petition, W.P.(C) no. 4889/2016 wherein the highest valid bidder pursuant to the Short Re-Sale Notice dated 09.08.2016 in respect of Chaparmukh-Kopili Nodi Sand Permit Area Part-1 (B) was the writ petitioner, who raised a similar issue like the present petition in his earlier writ petition, W.P.(C) no. 5141/2017.

15. On perusal of the judgment and order passed in writ petition, W.P.(C) no. 4889/2016, it is found that the said writ petition was disposed of on 31.05.2018 whereas the writ petition, W.P.(C) no. 5141/2016 preferred by the writ petitioner was disposed of on 25.07.2017. No appeal has been preferred by the writ petitioner against the order dated 25.07.2017 and as such, the order has attained finality. This writ petition has been preferred only on 05.09.2018 i.e. more than 3 (three) months after the disposal of the writ petition, W.P.(C) no.

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4889/2016. Thus, it clearly appears that the writ petitioner is a fence-sitter who has approached this Court when the writ petition, W.P.(C) no. 4889/2016 was disposed and was allowed with a direction, mentioned above. In the above fact situation obtaining in the case in hand, the writ petitioner is not entitled to relief in the form of a similar direction passed in another writ petition, W.P.(C) no. 4889/2016 where he was not a writ petitioner and when a writ petition preferred by him, seeking similar kind of direction, was closed at an earlier point of time. The writ petition is also not entertainable because of such fence-sitting position taken by the writ petitioner in view of the fact situations mentioned above.

16. For the reasons mentioned above, the writ petition is found devoid of any merit and accordingly, the same is dismissed. The interim order, if any, stands recalled. There shall, however, be order as to cost.

JUDGE

Comparing Assistant