Gauhati High Court
Page No.# 1/9 vs The State Of Assam And 10 Ors on 21 August, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/9
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.# 2/9
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.# 3/9
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
Advocate for the Petitioner : MR. D DAS SR. ADV, MR A MALEK,MD H R AHMED
Advocate for the Respondent : SC, FOREST, MR. R BORPUJARI, SC FINANCE,MS M BHARATI
(R-11),MS. M BHATTACHARJEE (R-11),MR. J AHMED (R-10),MR M AHMED (R-10),MRS R
BEGUM (R-10),FOR CAVEATOR,MR R A AHMED,SC, BTC
Linked Case : WP(C)/768/2024
Page No.# 4/9
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
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
Page No.# 5/9
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
GHY 21
Page No.# 6/9
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 783370
------------
Advocate for the Petitioner(s) : Mr. D Das, Senior Advocate
Mr. A. Bhatra
Advocate for the Respondent(s): Mr. R. Borpujari, SC,Finance Department
Mr. N. Goswami, Junior Government Advocate
Mr. S. Bora, SC, BTC
Ms. M. Bhattacharjee(R-11)
Mr. B. Sinha,
Page No.# 7/9
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 21.08.2024 This Court vide an order dated 18.07.2024 had sought for instruction(s) from the Finance Department of the Government of Assam as to whether the Assam Public Procurement Act 2017, which makes it mandatory for going for E- Procurement through an E-Market place would be applicable in respect to the dispute involved in the instant proceedings. Taking into account that in respect to the tender which is the subject matter of the instant proceedings and which in turn would aid in interpretating Rule 34 of the Assam Minor Minerals Concession Rules 2013 (for short, the Rules of 2013).
2. Mr. R. Borpujari, the learned Standing Counsel, Finance Department submitted that due to a communication gap he could not prepare the affidavit. However the instruction issued by the Under-Secretary to the Government of Assam, Finance (ECI) Department dated 17.08.2024 was placed. In the said instruction which is kept on record with the letter 'X'.
3. It is seen that the Assam Public Procurement Act 2017, its Rules and various Notifications issued therein under would not apply to the auction/tender in question as it is does not amount to public procurement. Taking into account the said stand it, therefore, transpires that E-tender would not E-auction could not only be the mode as regards the Rule 34 of the Rules of 2013.
4. Be that as it may, a conjoint reading of Sub-Rule (1) and Sub-Rule (2) of Rule 34 would show that while Sub-Rule (1) stipulates that a public notice of 21 days shall be published for inviting weights of conduct of portal auction for grant of mineral leases/contract of permits as the case may be, it is also mandated that in addition to that public notice in terms with Sub-Rule (1) of Rule 34 the zest of such notice along with the Schedule 4 E-auction shall also be published in one daily newspaper having circulation in the area. The language of Sub-Rule (22) of Rules 34 of the Rules 2013 after the amendment so carried out vide Notification dated 26.10.2018 though somewhat is unsatisfactory taking into account the Sub-Rule (2) of Rule 34 mentions only as regards E-auction post amendment and competitive bids/open auction which Page No.# 8/9 was previously there has been omitted.
5. Be that as it may, this Court is of the opinion that in view of Article 14 of the Constitution and the well settled principles of law in view of the various judicial pronouncements which mandates a fair and transparent procedure while distributing State larger. It is the opinion of this Court that the publication of the notice inviting bid or conduct of open auction for grant of mineral leases/contracts/permits as the case may cannot only be confined to E- auction, but has also to be extended for all types of inviting bids or conducting of open auction.
6. It is a well settled principle of law that a Court while interpreting the provision is required to interpret the provisions in such a manner which not only harmonizes the said provision with the other provisions of the said statue, but also is constitutionally valid. Under such circumstances this Court is of the opinion that there is a requirement for publication of the public notice in respect to all inviting bids or conduct of open auction for grant mineral leases/Contracts/permits irrespective of whether it is carried as per E-auction or any other form and this publication has to be carried out in one daily newspaper having wide circulation in the area. Having opined so the next question as regards the factual adjudication as to which of the newspaper the reliance has been placed by the petitioner or the respondents have been is the actual one inasmuch as it is the case of the petitioner that this very advertisement was not published in the newspaper namely Sanseyari Bodosa published by the respondent No. 11 in its edition dated 09.12.2023 where as the respondents submits that it was duly published in page No. 3 of the said edition of the newspaper.
7. This court further finds it relevant to take note at this stage the provisions of the Delivery of Books And Newspapers (Public Libraries) Act, 1954 which mandates that there is a requirement of delivery of in terms with Section 3(a) to each such public library as may be notified in that behalf by the Central Government in the Official Gazette.
8. The learned counsel appearing on behalf of the respondent no. 11 submitted that copies of the newspapers are provided to the BTC Secretary, the Assam Legislative Assembly, the director of public relations of Government Assam as well as the Directorate of Library, BTC. Taking into account the above this Court, had request to Mr. N. Goswami, the learned Junior Government Advocate who is present in the Court to asked the Director of public relations of the Government of Assam to verify as to whether in the newspaper namely Sanseyari Bodosa of the edition of 09.12.2023 volume 33 Issue No. 253 there is Page No.# 9/9 an advertisement at page No. 3 issued by the divisional forest officer Parbatijhora Division, Suparighat. The said information be provided to this court positively on the next date.
9. List the matter again 05.09.2024, at the top of the list.
10. Interim order shall continue till the next date.
JUDGE Comparing Assistant