CHARAN MUCHAHARY Vs. STATE OF ASSAM

JUDGEMENT

(1.) A learned Single Judge of this Court having negatived the challenge made by the present appellant, as the writ petitioner, as against a re-sale notice dated 4.9.2004 published in the newspaper on 17.9.2004 in respect of the Khagrabari Sand and Stone Mahal (hereinafter referred to as the 'Mahal'), the present appeal has been filed.

(2.) The brief facts that would be necessary for us to effectively adjudicate the rival projections, may be set out as hereunder: The term of the previous lessee of the Mahal, one Monojit Goswami, being due to expire on 11.2.2004, a sale notice dated 27.1.2004 was issued under Rule 4 of the Assam Sale of Forest Produce, Coupes and Mahal Rules, 1977 (hereinafter referred to as the 'Rules') fixing 27.2.2004 as the last: date for submission of tenders for a fresh term of 2 years. The previous lessee, who had filed; an application for extension of his lease, aggrieved by the issuance of the sale notice; dated 27.1.2004, instituted a writ proceeding before this Court, i.e., WP(C) No. 709/ 04, wherein this Court by an order dated 3.2.2004 directed the authority to decide on the entitlement of the said previous lessee for extension prior to finalization of the tenders for the ensuing term. Thereafter on 15.2.2004, the Government passed an orden extending the term of the previous lessee by a period of 6 months. In view of the aforesaid development W.P. (C) No. 709/04 was withdrawn on 20.2.2004. The extension granted to the previous lessee by order dated 15.2.2004 was subsequently reduced from 6 to 3 months by another order dated 6.5.2004 whereafter the said previous lessee again approached this Court by instituting a writ proceeding, i.e., WP(C) No. 3654/04. By an interim order dated 28.5.04, this Court suspended the reduction of the extended term of the previous lessee made by order dated 6.5.04 and while the aforesaid writ proceeding, i.e., WP(C)3654/04 remained pending, the extended term of the lease of the previous lessee expired on 15.8.04 whereafter possession of the Mahal was handed over by the previous lessee to the State authority. It must also be noticed at this stage that while the aforesaid development had been taking place, are-sale notice dated 30.6.04 was issued inviting tenders for settlement of the Mahal for the fresh period. However, no effect to the aforesaid notice dated 30.6.04 could be given in view of the pendency of WP(C) No. 3654/04. After the extended term of 6 months granted to the previous lessee had expired on 15.8.04, the impugned re-sale notice dated 4.9.04 signed by the authority on 8.9.04, was published in the newspaper on 17.9.04 fixing 24.09.04 as the last date for submission of tenders. According to the petitioner-appellant, he could come to know of the re-sale notice dated 4.9.04 only after publication of the same in the newspaper and thereafter he had approached the concerned authority for the tender forms. The same were made available to him on 23.9.04. According to the petitioner-appellant, the required formalities for submission of tender could not be completed by him within the time available and, therefore, he could not submit his tender by the last date fixed, i.e. 24.9.04. In these circumstances, the appellant, as the writ petitioner, instituted the proceedings out of which this appeal has arisen, contending, inter alia, that the re-sale notice dated 4.9.04 was for the first time published in the newspapers on 17.9.04 thereby violating the mandatory period of 15 days notice stipulated by the proviso to Rule 4 of the Rules for resale of a Mahal. Alternatively and additionally, it was contended that as there was no sale of the Mahal pursuant to the initial sale notice dated 27.1.04, the authority could not have proceeded to re-sell the mahal under the provisions of Rules, particularly Rule 17 thereof and, therefore, the re-sale notice dated 4.9.04 published in the newspaper could not have formed the basis for the initiation of the fresh process of settlement of the Mahal. The learned Single Judge, by the impugned judgment and order dated 4.3.05, having negatived the aforesaid challenge on the grounds and reasons assigned, the present appeal has been filed. It must be noticed at this stage that though in the writ proceeding, the learned Single Judge by an interim order dated 8.11.2004 had stayed the process of final settlement of the Mahal pursuant to the re-sale notice dated 4.9.04, the authority by an order dated 8.12.04 had provisionally settled the Mahal with the Respondent No. 5. After the writ proceeding instituted by the petitioner was disposed of by the judgment and order dated 4.3.05 passed by the learned Single Judge, the authority by another order dated 8.3.05 has confirmed the settlement made in favour off the Respondent No. 5 and has permitted the said Respondent to complete the requisite formalities including payment of kist money so as to enable the said respondent to take possession of the Mahal in question.

(3.) We have heard Shri N. Dutta, learned senior counsel for the appellant, Dr. Y.K. Phukan, learned senior counsel appearing for Respondent No, 5 and Shri P.K. Musahary, learned Senior Government Advocate, Assam appearing for the official respondents.