Gauhati High Court
Page No.# 1/18 vs The State Of Assam And 10 Ors on 5 September, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/18
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.# 2/18
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.# 3/18
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
Page No.# 4/18
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
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
Page No.# 5/18
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
9:THE DIRECTOR OF GEOLOGY AND MINING
ASSAM
BHU-BIGYAN BHAWAN
DAKHINGAON
KAHILIPARA
GHY 19.
10:MANOJ NARZARY
Page No.# 6/18
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
------------
For the Petitioner(s) : Mr. D. Das, Sr. Advocate
: Mr. H. R. Ahmed, Advocate
For the Respondent(s) : Mr. S. Bora, Standing Counsel
: Mr. N. Goswami, Jr. Government Advocate
: Mr. J. Ahmed, Advocate
: Ms. M. Bhattacharjee, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 05.09.2024 Heard Mr. D. Das, the learned Senior counsel assisted by Mr. H. R. Ahmed, the learned counsel appearing on behalf of the Petitioners in Page No.# 7/18 both the writ petitions. Mr. S. Bora, the learned Standing counsel appearing on behalf of the BTC; Mr. J. Ahmed, the learned counsel appearing on behalf of the Respondent No.10 in both the writ petitions and Ms. M. Bhattacharjee, the learned counsel appearing on behalf of the Respondent No.11 in both the writ petitions. I have also heard Mr. N. Goswami, the learned Junior Government Advocate appearing on behalf of the State.
2. WP(C) No.766/2024 has been filed by four writ petitioners challenging the Sale Notice dated 05.12.2023 as well as the approval dated 10.01.2024 granted by the Secretary, Bodoland Territorial Council, Kokrajhar in favour of the Respondent No.10 pertaining to Falakata Mahal under Parbatjhora Forest Division, Superighat.
3. WP(C) No.768/2024 is a writ petition filed by five writ petitioners challenging the Sale Notice dated 05.12.2023 as well as the communication dated 10.01.2024 issued by the Secretary, Bodoland Territorial Council, Kokrajhar granting approval in favour of the Respondent No.10 in respect of Jalabil Sand Mahal under Parbatjhora Forest Division, Superighat.
4. The case set out by the petitioners in both the writ petitions are similar in nature. As per the Petitioners, both the Mahals in question, i.e. Falakata Mahal and Jalabil Mahal under Parbatjhora Forest Division, Superighat were earlier settled in favour of the Respondent No.10 in both the writ petitions in pursuance to a sale notice dated 29.11.2021. However, subsequently the said settlements were cancelled by the Respondent Authorities and this cancellation was not challenged by the Respondent No.10 in both the writ petitions. The petitioners on coming Page No.# 8/18 to learn about the cancellation of the settlement were expecting that the said settlement process would be initiated afresh. However, to the utter surprise of the Petitioners, the petitioners could come to learn on the basis of information under the Right to Information Act, 2005 that both these Mahals were put to sale vide a sale notice dated 05.12.2023. The Petitioners also came to learn from the said information provided under the Right to Information Act, 2005 that the said tender notice was published in a Kokrajhar based local daily newspaper, namely Bodosa. It was informed to the Petitioners that six bidders participated in the tender process and the date of the tender was on 26.12.2023.
5. In addition to that, the Petitioners had also come to learn that on 10.01.2024, the Secretary of the Bodoland Territorial Council, Kokrajhar had granted approval in favour of the Respondent No.10 in both the writ petitions for settlement of the Falakata Sand Mahal as well as the Jalabil Sand Mahal. Being aggrieved by the secret manner in which the said two Sand Mahals were sought to be settled in favour of the Respondent No.10 in both the writ petitions, the instant two writ petitions were filed before this Court.
6. The record reveals that this Court vide two separate orders dated 19.02.2024 directed that the Respondents should not settle the Falakata Sand Mahal as well as the Jalabil Sand Mahal with any of the bidders pursuant to the Sale Notice dated 05.12.2023. The said interim order has been extended from time to time.
7. From the materials on record, it transpires that the grievance of the petitioners in both the writ petitions were in the manner in which the settlement process was initiated and steps were taken to settle the said Page No.# 9/18 two Mahals in favour of the Respondent No.10 in both the writ petitions. It was the specific case of the petitioners that there was no wide publication as required under Rule 34 of the Assam Minor Mineral Concession Rules, 2013 (for short, "the Rules of 2013"). It was also the case of the Petitioners that the Petitioners could come to learn under the Right to Information Act, 2005 that on 09.12.2023, there was a paper publication in the newspaper namely Sanseyari Bodosa which is a Bodo Language Daily belonging to the Respondent No.11. It was the specific case of the petitioners that at page 3 of the newspaper Sanseyari Bodosa, there was no advertisement for sale of the Mahals in question.
8. This Court has also taken note of the records wherein the Respondent No.6 had filed an affidavit-in-opposition dated 06.05.2024 wherein it has been categorically mentioned that the said advertisement dated 09.12.2023 was published in the Bodo news daily namely Bodosa on 09.12.2023 pursuant to the press notice dated 08.12.2023. It was also mentioned that the said advertisement was not published in Assamese and English daily as in the area of concern, there is no circulation of Assamese and English daily. It was specifically mentioned that in terms with Rule 34(2) of the Rules of 2013 publishing in one daily newspaper having circulation in the area was duly adhered to by the Respondent Authorities.
9. The Respondent No.10 in both the writ petitions have filed similar affidavits wherein there is no reference to the publication of the advertisement in the newspaper dated 09.12.2023. However, in paragraph No.6 of their affidavits, they had adopted the stand so taken by the Respondent No.6 in their affidavit-in-opposition.
Page No.# 10/18
10. It is further interesting to take note of the affidavit filed by the Respondent No.11 on 30.05.2024 wherein at paragraph No.4 it has been categorically mentioned that the advertisement was published in the daily edition of the newspaper on 09.12.2023 in the same format as was supplied to the office of the newspaper. In paragraph No.4 of the said affidavit, there was a specific denial to the contention of the petitioners that there was variation between the paper collected by them. Annexure- 1 of the said affidavit is the communication issued by the Regional Officer and CHD, Information and Public Relations, BTC, Kokrajhar dated 08.12.2023. The records further reveals that there has been various replies being filed to the affidavit-in-opposition filed by Respondent Nos. 6, 10 as well as 11 reiterating the stand that there was no advertisement published in the newspaper Sanseyari Bodosa on 09.12.2023.
11. This Court has duly heard the learned counsels appearing on behalf of the parties on the said aspects.
12. Before further proceeding, this Court finds it relevant to take note of Rule 34 of the Rules of 2013 which is reproduced herein under:
"34. Public notice for inviting expressions of interest/bids/open auctions.-
(1) A public notice of 21 days shall be published for inviting bids or conduct of open auctions for the grant of mineral leases/contracts/permits, as the case may be.
(2) In addition to the publication of notice in writing, [e-auction] under sub-rule (1) above, the gist of such notice, alongwith the Page No.# 11/18 schedule for [e-auction] shall also be published in one daily newspaper having circulation in the area.
(3) A copy each of the said public notice shall also be sent to the Deputy Commissioner and others as decided by the competent authority for giving wide publicity in the area."
13. This Court vide a detailed order dated the 21.08.2024 after hearing all the parties opined that publication of the notice inviting bid or conduct of open auction for grant of mineral leases/contracts/permits, as the case may be, cannot be confined to e-auction, but has also to be extended for all types of inviting bids or conducting of open auction. This Court further opined that there is a requirement for publication of public notice in respect of all inviting bids or conduct of open auction for grant of 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.
14. This Court while hearing the matter on 21.08.2024 and taking into account the provisions of the Delivery of Books and Newspapers (Public Libraries) Act, 1954 inquired with the counsel appearing on behalf of the Respondent No.11 as to who are the authorities to whom the copies of the newspapers are sent. It was submitted before this Court that the copies of the newspaper Sanseyari Bodosa are provided to the BTC Secretary, the Assam Legislative Assembly, the Director of Public Relations of the Government of Assam as well as the Directorate of Library, BTC.
15. Taking into account the said aspect of the matter, this Court Page No.# 12/18 requested Mr. N. Goswami, the learned Junior Government Advocate who was present in the Court to ask 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 an advertisement at Page No.3 issued by the Divisional Forest Officer of Parbatjhora Forest Division, Superighat. This Court further directed that the said information be provided to this Court positively on the next date. This Court further fixed the matter on 05.09.2024.
16. Today, when the matter was taken up, Mr. N. Goswami, the learned Junior Government Advocate placed before this Court an instruction issued by the Director of Information and Public Relations, Assam dated 02.09.2024. The said instruction is kept on record and marked with the letter "Y". The contents of the said instruction is reproduced herein under:
"GOVERNMENT OF ASSAM DIRECTORATE OF INFORMATION AND PUBLIC RELATIONS ASSAM, DISPUR, GUWAHATI-6 No.E.338126/653 Dated Dispur, the 2nd September, 2024 From : Shri Manabendra Dev Ray, APS Director of Information and Public Relations Assam, Dispur, Guwahati-6 To The Jr. Govt. Advocate, Assam, Page No.# 13/18 Gauhati High Court, Guwahati Sub : WP(C) No.766/2024 (Jagadish Ch. Brahma & Ors V/s The State of Assam & 10 Others) Sir, With reference to the subject cited above, I have the honour to inform you that there is no record available in the published copy provided to the office of the undersigned by the Hawker on behalf of the publication house regarding publication of the matter in the newspaper Sanseyari Bodosa of the edition 9/12/2013, volume 33, issue No.253, page No.3 issued by the Divisional Forest Officer, Parbatjhora Division, Suparighat with reference to the Gauhati High Court, Guwahati Case No. WP(C) No.766/2024 (Jagadish Ch. Brahma & 3 Ors Vs. The State of Assam & 10 Ors.) This is for favour of your kind information and necessary action.
Enclo: Photocopy of Sanseyari Bodosa newspaper Yours faithfully Director of Information and Public Relations Assam, Dispur, Guwahati-6"
17. From the above quoted instruction, it is apparent that in the newspaper Sanseyari Bodosa of the edition of 09.12.2023, Volume 33, Issue No. 253, Page No.3, there was no publication of any advertisement issued by the Divisional Forest Officer, Parbatjhora Forest Division, Superighat. It is further pertinent to take note of that a photocopy of the Page No.# 14/18 said newspaper which was provided to the Director of Information and Public Relations, Government of Assam was also provided to this Court. The same is kept on record and marked with the letter "Z". From a perusal of the said photocopy of the newspaper so provided, it is clear that the allegations so made by the Petitioners that there was no publication of the advertisement in the edition dated 09.12.2023, Volume 33, Issue No.253 at Page 3 of the newspaper Sanseyari Bodosa which was issued by the Divisional Forest Officer, Parbatjhora Forest Division, Superighat is correct.
18. The Director of Information and Public Relations is directed to file an affidavit in support of the instructions so provided today before this Court on the next date to be fixed by this Court hereinafter.
19. During the course of the hearing, this Court was further informed by Mr. D. Das, the learned Senior counsel that the newspaper namely Sanseyari Bodosa also publishes an e-paper. During the course of the hearing, it was shown that the e-paper which is available in the website of the newspaper Sanseyari Bodosa of the edition 09.12.2023 does not contain any advertisement at Page 3. The URL of the edition 09.12.2023 is available in the website of the said newspaper being http:/ /bodosanenewspaper.com/wp-ontent/uploads/2024/09/ Bodosa-09-12- 2023_compressed.pdf
20. From the above, it is clear that the Respondent Authorities in the Forest Department of the BTC in concert and in collusion with certain persons with vested interest had manufactured an edition of the newspaper Sanseyari Bodosa dated 09.12.2023 wherein at page 3 there is an advertisement. It is further clear that the said advertisement was Page No.# 15/18 published in a selective manner which was only privy to three persons along with certain officials of the BTC. This aspect of the matter can be seen from Annexure-14 of both the writ petitions which is the comparative chart prepared on 26.12.2023 of Jalabil Mahal and Falakata Mahal wherein the Respondent No.10 along with two others, namely Mr. Jamidar Narzary and Mr. Rajib Basumatary had participated.
21. At this stage, if this Court takes note of Rule 34 of the Rules of 2013 as quoted hereinabove, it is mandated that the publication of the gist of the notice has to be in one daily newspaper having circulation in the area. As in the instant case, the sale notice dated 05.12.2023 was published selectively only in a few copies of the newspaper Sanseyari Bodosa which was otherwise not to the notice of all concerned, the very mandate of Sub-Rule (2) of Rule 34 of the Rules of 2013 was violated.
22. Accordingly, the impugned sale notice dated 05.12.2023 in respect to the Sand Mahals namely Jalabil Sand Mahal and Falakata Sand Mahal are set aside and quashed. The consequential effect, therefore, is that the approvals so granted by the Secretary, BTC on 10.01.2024 impugned in the instant two writ petitions are also required to be set aside and quashed and accordingly the same are set aside and quashed.
23. In view of the above, the instant writ petition could have been disposed of. However, it is the opinion of the Court that merely disposing of the writ petition in this manner would send a very wrong signal inasmuch as the concerned Respondent Authorities in the BTC in concert and in collusion with the persons had tried to fraudulently settle the two Mahals in favour of the Respondent No.10. This not only effects the rights of other eligible tenderers but also taking into account the specific Page No.# 16/18 stands taken in the affidavits by the Respondent Nos.6 and 11, it is clear that these Respondents had made all attempts to hoodwink this Court by playing fraud upon this Court.
24. The Respondent No.6 who is working in the capacity of the Divisional Forest Officer, a position of trust had misled this Court by filing a false affidavit as it appears. The Manager of the Respondent No.11 had the audacity to file an affidavit before this Court on 30.05.2024 that too stating on oath that the advertisement was published in the daily edition of the newspaper Sanseyari Bodosa on 09.12.2023 in the format as was supplied to the office of the newspaper. The Manager of the newspaper Sanseyari Bodosa further denied the contention on oath that the newspaper Sanseyari Bodosa in its edition dated 09.12.2023 did not contain the advertisement.
25. The above acts on the part of both the Respondent Nos.6 and 11 amounts to filing false affidavits making statements knowing it to be false and with an intent to deceive this Court which also prima facie appears to be contemptuous. At this stage, this Court further finds it relevant to take note of the submission of Mr. S. Bora, the learned Standing counsel for the BTC who tried to justify the stand of the Divisional Forest Officer under Parbatjhora Forest Division, Superighat in filing the false affidavit. The justifications so forwarded were on the basis of a bunch of documents placed before this Court issued by the Deputy Secretary, Bodoland Territorial Council dated 03.09.2024 as well as another communication dated 03.09.2024 issued by the Regional Officer-cum- CHC, Information and Public Relations Department, BTC. However, these instructions are only dated 03.09.2024 but the affidavit was filed by the Page No.# 17/18 Respondent No.6 on 06.05.2024. The said justification do not in any manner inspire any confidence of this Court.
26. Be as it may, this Court is of the opinion that before passing any appropriate orders against the Divisional Forest Officer under Parbatjhora Forest Division, Superighat as well as the Respondent No.11, an opportunity should be given to them calling for their explanation. Accordingly, this Court directs Sri Ranjit Konwar, the Divisional Forest Officer, under Parbatjhora Forest Division, Superighat who is the deponent of the affidavit dated 06.05.2024 to file an affidavit and explain as to how such a false affidavit was filed. In addition to that, the deponent of the affidavit filed on behalf of the Respondent No.11 i.e. the Manager of Sanseyari Bodosa is also directed to file an affidavit explaining his conduct. Both the deponents who have been asked to file their affidavit shall also state in their affidavit as to why this Court should not take appropriate action against the said deponents.
27. This Court further directs that these affidavits be filed on or before the 20.09.2024.
28. It is further observed and directed that in the circumstance, such affidavits are not filed, this Court would be constrained to pass appropriate orders to ensure the appearance of the deponents of the affidavits dated 06.05.2024 and 30.05.2024 before this Court.
29. This Court having set aside the Sale Notice dated 05.12.2023 and the consequential approvals dated 10.01.2024 granted by the Secretary, BTC directs the BTC Authorities to issue a fresh advertisement in a newspaper having wide circulation in the area thereby keeping in mind Page No.# 18/18 that the Respondent Authorities are issuing the said sale notice in the interest of the State and not in the interest of certain private individuals. The said aspect be brought to the notice of this Court on the next date.
30. List the matter again on 24.09.2024.
JUDGE Comparing Assistant