RADHA MOHAN PATHAK Vs. UPENDRA PATOWARY AND ORS.

JUDGEMENT

(1.) A preliminary objection has been taken on behalf of the Respondents to the maintainability of the present appeal.

(2.) THE Sub divisional Officer Barpeta by his notification dated the 22nd December 1959 invited sealed tenders for settlement of the Fishery No. 23 Chilochi Group of the Barpeta Town for the years 1960 -61, 1961 -62 and 1962 -63. A number of persons gave their tenders. Sri Radha Mohan Pathak gave Ms tender for Rs. 31,005/ - and Upended Patowary gave his tender for Rs. 31,005/ - and by his order dated the 5th February 1960 with the advice of the Advisory Board the Sub divisional Officer sent the name of Upendra Patowary for approval to the Commissioner of Plains Division. The Commissioner refused to accept the (sic) and ordered resale of the fishery. This order was set aside by the High Court. The matter went to the Commissioner for consideration of the settlement made by the Sub divisional Officer on comparative merits of the tenderers. Ultimately the Commissioner of Plains Division on the accepted the proposal of the Subdivisional Officer for settlement with Radha Mohan Pathak.

(3.) REGARDING the third point raised by the counsel for the Respondent it is sufficient to point out that that is a point which deals with the merits of the appeal and if we accept the contention of the Respondent on the other two points, the third question does not arise. If we reject the preliminary objection, the question whether the decision by the Supreme Court bars the hearing of the present appeal on principles of res judicata, will have to be considered at the time of the hearing of the appeal. I therefore propose first to deal with the first two submissions made by the Respondents.