Gauhati High Court
Page No.# 1/8 vs The State Of Assam And 10 Ors on 18 July, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/8
GAHC010030432024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/766/2024
JAGADISH CH BRAHMA AND 3 ORS
S/O NEHRU BRAHMA
RESIDENT OF GAMBHIKARAKHATA PART I, PO AND PS KAZIGAON, DIST
KOKRAJHAR, BTC, ASSAM 783339
2: BISWAJIT BRAHMA
S/O LATE BINOD BRAHMA
RESIDENT OF KOKRAJHAR WARD NO. 4
PO AND PS KOKRAJHAR DIST KOKRAJHAR
BTC
ASSAM 783370
3: SAHADEV BRAHMA
S/O LATE BABURAM BRAHMA
RESIDENT OF VILLAGE AND PO BASHBARI
DIST KOKRAJHAR
BTC
ASSAM 783337
4: ABUL SK
S/O LATE RAHAM ALI SK
RESIDENT OF KHORAGHAT
PO AND PS BAGRIBARI
DIST KOKRAJHAR
BTC
ASSAM 78334
VERSUS
THE STATE OF ASSAM AND 10 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT,
Page No.# 2/8
DISPUR, GHY 6
2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ASSAM ARANYA BHAWAN
PANJABARI
GUWAHATI 37
3:THE BODOLAND TERRITORIAL COUNCIL (BTC)
REPRESENTED BY THE PRINCIPAL SECRETARY
BTC
KOKRAJHAR
ASSAM 783370
4:THE SECRETARY
BTC KOKRAJHAR
ASSAM 783370
5:THE ADDLL. PRINCIPAL CHIEF CONSERVATOR OF FOREST -CUM-
COUNCIL HEAD OF DEPARTMENT (CHD)
FOREST
BTC
KOKRAJHAR
ASSAM
PIN - 783370
6:THE DIVISIONAL FOREST OFFICER
PARBATJHORA DIVISION
SUPERIGHAT
KOKRAJHAR
BTC
ASSAM
PIN 783339
7:THE FOREST RANGE OFFICER
KHORAGHAT RANGE OFFICE
KHORAGHAT
BAGRIBARI
KOKRAJHAR
BTC
ASSAM
PIN - 783349
8:THE SECRETARY
STATE EXPERT APPRAISAL COMMITTEE (SEAC) AND STATE
ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA)
ASSAM BAMUNIMAIDUM
Page No.# 3/8
GHY 21
9:THE DIRECTOR OF GEOLOGY AND MINING
ASSAM
BHU-BIGYAN BHAWAN
DAKHINGAON
KAHILIPARA
GHY 19.
10:MANOJ NARZARY
S/O. DAMON NARZARY
VILL. SHYAMTHAIBARI
P.O. KHUNGRING
P.S. RUNIKHATA
DIST. CHIRANG
BTC
ASSAM
PIN NO. 783375
11:THE BODOSA NEWS PAPER
REPRESENTED BY ITS EDITOR
R/O. WARD NO. 5
MAIBONG NWGWR
J.D. ROAD
P.O. KOKRAJHAR
DIST. KOKRAJHAR
BTC
ASSAM
PIN 78337
Linked Case : WP(C)/768/2024
JAGADISH CH BRAHMA AND 4 ORS
S/O NEHRU BRAHMA RESIDENT OF GAMBHIKARAKHATA PART I
PO AND PS KAZIGAON
DIST KOKRAJHAR
BTC
ASSAM 783339
2: BISWAJIT BRAHMA
S/O LATE BINOD BRAHMA
Page No.# 4/8
RESIDENT OF KOKRAJHAR WARD NO. 4
PO AND PS KOKRAJHAR DIST KOKRAJHAR
BTC
ASSAM 783370
3: SAHADEV BRAHMA
S/O LATE BABURAM BRAHMA
RESIDENT OF VILLAGE AND PO BASHBARI
DIST KOKRAJHAR
BTC
ASSAM 783337
4: ABUL SK
S/O LATE RAHAM ALI SK
RESIDENT OF KHORAGHAT
PO AND PS BAGRIBARI
DIST KOKRAJHAR
BTC
ASSAM 783349
5: MAHADEV BRAHMA
S/O LATE DWARENDRA NATH BRAHMA
RESIDENT OF THAISOGURI
PO GONGIA
PS KACHUGAON
DIST KOKRAJHAR
BTC
ASSAM 783350
VERSUS
THE STATE OF ASSAM AND 10 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
ENVIRONMENT AND FOREST DEPARTMENT
DISPUR
GHY 6
2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
ASSAM ARANYA BHAWAN
PANJABARI
GUWAHATI 37
3:THE BODOLAND TERRITORIAL COUNCIL (BTC)
REPRESENTED BY THE PRINCIPAL SECRETARY
BTC
KOKRAJHAR
ASSAM 783370
Page No.# 5/8
4:THE SECRETARY
BTC KOKRAJHAR
ASSAM 783370
5:THE ADDLL. PRINCIPAL CHIEF CONSERVATOR OF FOREST -CUM-
COUNCIL HEAD OF DEPARTMENT (CHD)
FOREST
BTC
KOKRAJHAR
ASSAM
PIN - 783370
6:THE DIVISIONAL FOREST OFFICER
PARBATJHORA DIVISION
SUPERIGHAT
KOKRAJHAR
BTC
ASSAM
PIN 783339
7:THE FOREST RANGE OFFICER
KHORAGHAT RANGE OFFICE
KHORAGHAT
BAGRIBARI
KOKRAJHAR
BTC
ASSAM
PIN - 783349
8:THE SECRETARY
STATE EXPERT APPRAISAL COMMITTEE (SEAC) AND STATE
ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA)
ASSAM BAMUNIMAIDUM
GHY 21
9:THE DIRECTOR OF GEOLOGY AND MINING
ASSAM
BHU-BIGYAN BHAWAN
DAKHINGAON
KAHILIPARA
GHY 19.
10:MANOJ NARZARY
S/O. DAMON NARZARY
VILL. SHYAMTHAIBARI
P.O. KHUNGRING
P.S. RUNIKHATA
DIST. CHIRANG
Page No.# 6/8
BTC
ASSAM
PIN NO. 783375
11:THE BODOSA NEWS PAPER
REPRESENTED BY ITS EDITOR
R/O. WARD NO. 5
MAIBONG NWGWR
J.D. ROAD
P.O. KOKRAJHAR
DIST. KOKRAJHAR
BTC
ASSAM
PIN 783370
For the petitioner (s) : Mr. D. Das, Sr. Advocate
Mr. H. R. Ahmed, Advocate
For the respondent (s) : Mr. S. Bora, Advocate
Mr. J. Ahmed, Advocate
Ms. M. Bhattacharjee, Advocate
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
18.07.2024 Heard Mr. D. Das, the learned senior counsel assisted by Mr. H. R. Ahmed, the learned counsel for the petitioners in both the writ petitions. Also heard Mr. S. Bora, the learned counsel appearing on behalf of the BTC ; Mr. H. Ahmed, the learned counsel appearing on behalf of the private respondents as well as Ms. M. Bhattacharjee, the learned counsel appearing on behalf of the respondent No.11.
2. The matter was heard at length on 16.07.2024 and on that date, the argument which was placed by Mr. D. Das, the learned senior counsel for the petitioners was as regards infraction to Rule 34 of the Assam Minor Mineral Concession Rules, 2013 (for short, 'the Rules of 2013').
Page No.# 7/8
3. This Court while perusing the said Rules, more particularly Sub-Rules (1) & (2) finds an apparent conflict post amendment made to Sub-Rule (2) of Rule 34 of the Rules of 2013 w.e.f. 26.10.2018. It transpires that in the case of any settlement of tender by open auction, public notice of 21 days is to be issued in terms with Sub-Rule (1) to Rule 34 of the Rules of 2013. The word "inviting bids/holding open auction" though still continues to remain in Sub- Rule (1) of Rule 34 of the Rules of 2013, but the words "inviting bids/holding open auction" was substituted by the word "e-auction' vide the amendment carried out on 26.10.2018. In view of the amendment, it prima-facie appears that in respect of e-auction to be carried out, the gist of such notice along with the Schedule for e-auction has to be published in one daily newspaper having circulation in the area. It also prima-facie appears that the e-auction becomes a species of the terms "inviting bids or conduct of open auction" or in other words, in respect of inviting bids or conducting open auction other than e-auction, there seems to be no requirement of publication of the gist of such notice in a daily newspaper having circulation in the area.
4. This Court also finds it very pertinent to take note of the Assam Public Procurement Act, 2017 and from a perusal of the definition of the term 'procuring entity', it also prima-facie appears that the BTC may come within the ambit of the said Act.
5. This Court also takes note of the Assam Public Procurement Rules, 2020 and more particularly to Rule 24 which stipulates the mode of procurement. In addition to that, today during the course of hearing, certain notifications have also been placed which shows that e-procurement through e-market place has been made mandatory save and except those entities as well as tenders which have been exempted in the said notification. Taking into account that these notifications have been issued by the Finance Page No.# 8/8 Department of the Government of Assam and for an interpretation to Rule 34 of the Rules of 2013, this Court finds it relevant to seek opinion from the Finance Department of the Government of Assam as to whether the Assam Public Procurement Act, 2017, its Rules and various notifications issued therein would apply to the tender in question which pertains to settlement of mining contracts of minor minerals. Under such circumstances, this Court requested Mr. R. Borpujari, the learned Standing Counsel of the Finance Department to assist the Court in this regard.
6. Upon hearing Mr. R. Borpujari, the learned Standing Counsel of the Finance Department, this Court finds it relevant that an affidavit from the Commissioner and Secretary to the Government of Assam, Finance Department be placed before this Court as the same in the opinion of this Court would aid in the adjudication of the instant proceedings in so far as an interpretation to Rule 34 of the Rules of 2013. Mr. R. Borpujari, the learned Standing Counsel of the Finance Department submits that he requires 7 days time to file the affidavit.
7. Accordingly, this Court fixes the matter again on 01.08.2024.
8. The affidavit be filed on or before the next date.
9. The Registry shall show the name of Mr. R. Borpujari, the learned Standing Counsel of the Finance Department in the cause list.
10. The interim order passed earlier shall continue till the next date.
JUDGE Comparing Assistant