P.K. Goswami, C.J. -
(1.) THE dispute In this writ application centres round the settlement of Khoraghat Sand cum Gravel Mahal No. 1 of Dhubri division for the years 1969 -71. A sale notice dated 27th August, 1969 issued by the Divisional Forest Officer, Goalpara West Division under the provisions of the Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1967, inviting sealed tenders for settlement of the said Mahal was published in the Assam Gazette on 17th September, 1969. The Petitioner along with two others submitted their tenders. The Petitioner was the highest bidder offering outright price of Rs. 87,227/ - for the Mahal and Respondent No. 5 offered a sum of Rs. 71,750/ -. As the Mahal was for more than Rs. 50,000/ -, the Governor was the final settling authority and by order dated 13th November, 1969, the said Mahal was settled with the Respondent No. 5 at the highest bid offered by the Petitioner, namely, Rs. 87,227/ - for the entire period. The Petitioner made a review application to the Governor against the settlement order and the same was rejected on 5th January, 1970. Hence this writ application under Article 226 of the Constitution, challenging the settlement order in favour of the Respondent No. 5.
(2.) SETTLEMENT of forest coupes and mahals by tender system is now governed by Rules framed under Sections 33, 34 and 72(e) of the Assam Forest Regulation, VII of 1891, on 25th September, 1967 and published in the Assam Gazette on 8th November, 1967. These Rules are called "the Assam Settlement of Forest Coupes and Mahals by Tender System Rules, 1967, hereinafter referred to as 'the Rules'. We should now notice some material provisions of these Rules. Rule 3 provides for a notice calling for tender for settlement of mahal and it shall be published in the official gazette not less than 15 days before the last date fixed for submission of tender. Rule 4 provides for particulars to be included in the said notice. Rule 5 relates to earnest money. Rule 6, which is important, may be set out:
6. Tender and its enclosures:
(1) There shall be a separate tender for each coupe or mahal with the requisite court -fee affixed to it.
(2) Each tender shall be In the tender form prescribed in Schedule A below and the tenderer shall state in the tender his full name and address and his father's name (or husband's name if the tenderer is a woman) and full address with post office and telegraph office.
(3) The tenderer shall also state in the tender the maximum outright price or the monopoly fee per rupee of royalty, as the case may be, which is (sic) prepared to pay for each coupe, or mahal, and shall also make a declaration as follows:
I agree that I will not withdraw the tender offered by me during the time that will be required for intimation of acceptance of the tender for coupe/mahal being given to me: nor will I withdraw it afterwards, should my tender be accepted. If I withdraw the tender, then I am liable to pay the whole sum of the tender or such amount on account of deficiency as in the opinion of the Conservator of Forests, Assam may be considered necessary to make good the whole of the loss and damages that may be suffered by Government in consequence thereof, and I shall pay the same, and if I fail to pay It, then it will be recovered from me as arrear of land revenue.
(4) The tender shall be accompanied with the following documents, namely -
(i) A copy of the treasury challan or a bank draft evidencing deposit of the prescribed earnest money.
(ii) An up -to -date income tax clearance certificate.
(iii) & (iv) are not material for our purpose.
(v) Documents evidencing financial soundness of the tenderer;
Provided that such documentary evidence shall not be necessary in case of a tenderer who has been registered under any rule prescribed by the State Government for registration of forest contractors, but in such case he shall furnish the particulars of his registration.
Rule 7: "Any other conditions not inconsistent with the rules. The Authority calling for tender may call for any other particulars from the intending tenderer with a view to identifying the tenderer or to eliciting information about his financial soundness.
Rule 8: "Procedure for dealing with the tenders: (1) After the scrutiny of the tenders, the orders for acceptance of any tender shall be passed by the respective competent authorities whose competency shall be according to the delegation of financial powers under the Assam Delegation of Financial Powers Rules, 1960.
(2) Where, according to the limit of financial power under the Delegation of financial Powers Rules, 1960, the officer receiving the tenders is not competent to pass order of acceptance of tender, he shall forward the tender papers with his comments to his next higher authority for necessary action.
Rule 9: "Appeal and review: (1) An appeal shall lie, within 15 days from the date of issue of the order or acceptance of tender as follows:
(a) against the order passed by the Divisional Forest Officer, to the Conservator whose order in appeal shall be final.
(b) against the order passed by the Conservator to the Governor of Assam, whose order in appeal shall be final.
(2) A petition shall lie to the Governor for review of his original order within 15 days from the date of issue of such order but no petition for review of appellate order of Governor shall lie.
(3) x x x.
Rule 10: "No obligation to accept highest or any tender: There shall be no obligation on the part of the competent authority to accept the highest or any tender or to assign any reason for rejecting any tender.
The above are the material provisions which need consideration in deciding the present controversy between the parties.
It is clear that settlement is to be regulated by the above Rules which it is not disputed are statutory. Under Rule 6(4), it is necessary that the tender shall be accompanied with certain documents mentioned therein. Neither the Petitioner nor the Respondent No. 5 submitted any documents evidencing their financial soundness as required under Rule 6(4)(v). The Petitioner, on the other hand, submitted an affidavit testifying to his financial condition before the Minister, Revenue and Forest, on 13th November 1969, on which date the impugned order of settlement was made in favour of the Respondent No. 5. It appears that neither in the order granting the settlement nor in the order rejecting the review application any question was raised about the defects in the tender on account of non -compliance with Rule 6(4) (v). At any rate, both the Petitioner and the Respondent No. 5 are on the same boat on this score. It is, no doubt, true that the Respondent No. 5 was the sitting lessee, but he has not submitted any certificate of registration as forest contractor as required under the proviso to Rule 6(4) (v).
(3.) THE main question, which Is canvassed before us, is whether the Governor is entitled to settle the mahal in favour of Respondent No. 5, not on his tender, but accepting the price mentioned in the tender of the Petitioner which is the highest price offered for the mahal.;