ABDUL KHALEK Vs. STATE OF ASSAM

JUDGEMENT

(1.) AS Choudhury, learned senior counsel assisted by Mr. R. Hussain. Also heard Mr. KC Mahanta, learned State counsel appearing on behalf of State-respondents as well as Mr. U. Bhuyan, learned counsel for the private respondent No.5.

(2.) The communication dated 25.5.99 issued by the Joint Secretary to the Govt of Assam, Forest Department, Dispur, to the Chief Conservator of Forests (Territorial) Assam, Panbazar, Guwahati 1, reproducing the order dated 21.5.99 of the Minister, Forest passed after hearing the matter relating to the settlement of Pabha Game Reserve Fishery Mahal No. 1 (for short, the fishery) on 6.5.99 in terms of the order dated 18.2.99 passed by this High Court in WA No.282 of 1998 (Annexure 12 to the writ petition) has been assailed in this writ petition. The challenge has been made mainly on two grounds: (1) Failure to give reasons for cancelling the extension order of the petitioner and (2) Violation of the Assam Rules of the Executive Business, 1968 (for short. the Business Rules).

(3.) The impugned communication dated 25.5.99 may be read as follows : "Govt of Assam :: Forest Department: Dispur No. FRS-37/92/PI/128, dated Dispur, the 25th May, 1999. From : Shri AB Md Eunus, ACS, Joint Secretary to the Govt of Assam. To, The Chief Conservator of Forests (Territorial) Assam, Panbazar, Guwahati 1 Sub : Settlement of Pabha Game Reserve Fishery Mahal No.1 Lakhimpur Forest Division Sir, I am directed to reproduce below the order dated 21.5.99 of the Minister, Forest in connection with the hearing dated 6.5.99 as per direction of the Hon'ble Gauhati High Court's order dated 18.2.99 in WA No.282 of 1998. "Heard both the parties through their Advocates on 6.5.99. The learned Advocate for the petitioner (Sri Abdul Khaleque) submitted that since the matter has already been adjudicated upon by the Hon'ble High Court on 18.2.99 in WA No.282 of 1998, the possession of the fishery should be restored to him. On the other hand, the learned Advocate for Sri Sunanda Das submitted that the Govt order dated 8.5.98 cancelling Govt order dated 27.4.98 i.e., extension of the period of Mahal in favour of Sri Abdul Khaleque was in line with the provision under Rule 21 of the Assam Sales of Forest Produce (Coupes and Mahal) Rules, 1977. The learned Advocate for the petitioner stated that the power of the Govt in extending the Mahal period was discretionary. But his contention is that cancelling the extension of the Mahal without giving opportunity to the Mahaldar of being heard was against the principle of natural justice. On hearing the arguments put forward by both the parties, it is clear that giving extension of the Mahal falls within the discretionary power of the Government and the present extension in favour. Sri Abdul Khaleque had been void ab initio. The only snag left in cancelling the extension order has been that the same was done "without affording opportunity of hearing." The above quoted observation of the Hon'ble Gauhati High Court has put no restrictions on the Govt to pass suo-motu orders in the matter hence onward. The observation has, in effect, buttressed the same contention. Be that as it may, after both the parties having been heard keeping in view the order dated 18.2.99 of the Hon'ble Gauhati High Court, Govt is pleased to set aside the prayer made by Sri A. Khaleque for reviving extension of the Mahal in his favour, for reasons of safeguarding Govt revenue. The Govt, is pleased to go ahead with the settlement of the Mahal in favour of Sri Sunanda Das as conveyed vide order No. FRS. 266/897 129, dated 8.5.98. You are requested kindly to communicate the above order to the parties concerned and ask the Divisional Forest Officer, Lakhimpur Division to take necessary action for its implementation." Yours faithfully, Joint Secretary to the Govt of Assam, Forest Department, Dispur."