Orissa High Court
WP(C)/20976/2020 on 5 October, 2020
Author: B.R. Sarangi
Bench: B.R. Sarangi
W.P.(C) No. 20976 of 2020
04. 05.10.2020 HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
Mr. A. Dash : for petitioner
Mr. P.K. Mohanty, Sr. Advocate
along with Mr. P. Mohanty : for opposite party no.4
Mr. M.S. Sahoo, AGA : for State-opposite parties
ORDER
Heard learned counsel for the parties through video conferencing.
2. The petitioner has filed this writ petition seeking direction to opposite parties no.1, 2 and 3 not to issue work order against the bid for grant of lease of Sahupada and Dumuda Sand quarry by original tender notice dated 14.03.2020 and subsequent notice dated 28.05.2020, by quashing the Form-F issued in favour of opposite party no.4.
3. The factual matrix, of the case, in hand is that on 14.03.2020, vide letter no. 1582 dated 14.03.2020, a notice inviting applications for grant of quarry under Rule 27 (2) of OMMC Rules, 2016, regarding a long-term lease of five years of Sahupada and Dumuda sand quarry, was published in the office of Tahasildar, Remuna-opposite party no.3 followed by publication in Odia daily newspaper dated 15.03.2020. As the process could not be progressed because of Covid-19, vide notice dated 28.05.2020 applications were invited to be presented 2 from 29.05.2020 to 13.06.2020, followed by publication in Odia daily newspaper. But, by subsequent notice dated 12.06.2020, for Covid-19 shutdown, the last date of application was extended till 17.06.2020 further intimating that those would be opened on 18.06.2020. The petitioner applied for the lease of the said sand quarry, as was issued by the competent authority vide "Form-M" in triplicate accompanied by documents and particulars as mandated under Rule 27(4) of OMMC Rules, 2016. On opening of the tender bids, it was appeared that 10 applications were received, out of which 8 were rejected as invalid. The petitioner had quoted the highest rate of additional charge, priced at Rs.69 per c.m., whereas opposite party no.4 remained as second highest bidder offering price of Rs.46.50 per c.m., and it was found on opening of the tender on 18.06.2020. The petitioner was not intimated with the result, therefore, he approached the Collector vide letter dated 25.06.2020 enquiring about the said non-intimation of successful bidder by the respective competent authority. On 25.06.2020, the petitioner was handed over the "Form-F"
by the Tahasildar in which the date was found to have been interpolated as 22.06.2020, instead of 25.06.2020. After receiving the "Form-F" intimation from the Tahasildar as per the Rule 27(7) of OMMC Rules, 2016, he was to submit his acceptance and deposit the security deposit amount within 15 days. If the date of intimation is calculated from the date of receipt noted above, which 3 is 25.06.2020, the last date of submitting acceptance would be 10.07.2020. Even if the date of receipt of the intimation is taken to be 22.06.2020, then the date of intimation of last due date would be 07.07.2020. When the petitioner tried to comply the requirements as per "Form-F" conveying his acceptance to the Tahasildar- opposite party no.3, it is alleged that none have received the amount offered to be deposited. Therefore, on 02.07.2020, the petitioner approached the Sub-Collector and also to the Collector about the inaction of the Tahasildar regarding non-acceptance of the bid amount. On 10.07.2020, the Sub-Collector instructed the Tahasildar to take necessary steps for his failure to accept the bid amount from the petitioner and take necessary steps as per provisions of law to avoid loss of any government revenue. At this point of time, on 25.06.2020, the second highest bidder was asked to deposit her bid amount. On 14.07.2020, the petitioner again approached the Collector regarding non-acceptance of the bid amount by the Tahasildar. Consequentially, finding no other way out, the petitioner has approached this Court by filing this application.
4. Mr. A. Das, learned counsel for the petitioner contended that though the petitioner is the higher bidder and willing to comply the necessary requirements of law by making necessary deposit as directed, but due to some plea or other, the same has not been accepted causing harassment to the petitioner and, as such, there is huge 4 loss of revenue for non-acceptance of the amount offered by the petitioner, whereas the bid of opposite party no.4, being the second highest bidder, has been accepted at a lower rate causing loss to the State exchequer. To substantiate his case, he has relied upon the judgment of the apex Court in New Horizons Limited v. Union of India, 1995 1 SCC 478 and Reliance Energy Ltd. v. Maharashtra State Road Development Corp. Limited, 2007 8 SCC 1. It is further contended that the petitioner has preferred an appeal before the appellate authority. Therefore, instead of going into the merits of the case, the petitioner may be granted liberty to pursue his appeal before the appellate forum in accordance with law.
5. Mr. M.S. Sahoo, learned Addl. Government Advocate appearing for the State opposite parties contended that if the source has already been settled in favour of opposite party no.4 and the petitioner alleges that some illegalities and irregularities have been committed with regard to settlement of the source and for that he has got remedy by way of appeal before the appropriate forum and, as such, he has already preferred appeal, which is pending for consideration, in that view of the matter, no useful purpose would be served keeping the matter pending, instead of directing the appellate authority to decide the matter as expeditiously as possible.
6. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P. Mohanty, learned counsel for 5 opposite party no.4 contended that admittedly, pursuant to auction notice, 10 nos. of bidders participated in the bid, but except two bidders, namely, opposite party no.4, who is the caveator herein, and the writ petitioner, the bids of the other bidders were invalid. The petitioner, being the successful highest bidder, was called upon by notice dated 22.06.2020 to convey his acceptance to the terms and conditions and to deposit the amount as prescribed under rules of the OMMC Rules, 2016. As the petitioner remained quiet and declined to convey his acceptance by filing an additional affidavit dated 24.06.2020, sworn before the Additional Tahasildar and Executive Magistrate, Remuna, as per the provision contained under Rule 27(7) of the OMMC Rules, 2016, the opposite party no.4, being the second highest bidder, was given notice in letter dated 25.06.2020 to convey her acceptance and to deposit the amount as prescribed under the rules and also the proof of the deposit. In response to the same, the opposite party no.4, in her letter dated 29.06.2020 addressed to the Tahasildar, conveyed her acceptance and requested to intimate the amount to be deposited. She was intimated by the Tahasildar, vide letter dated 30.06.2020, to deposit an amount of Rs.11,41,000/- out of total amount of Rs.12,24,000/-. However, the EMD amount of Rs.83,000/-, already being deposited at the time of participating in the auction, the same was to be adjusted. She has also been given the acknowledgment receipt of 6 the amount received by the authority concerned. Consequentially, the opposite party no.4 having accepted the bid and deposited the requisite amount, direction was issued to settle the source in her favour. It is contended that this fact has not been brought to the notice of this Court, while filing the writ petition and, therefore, the writ petition is to be dismissed for suppression of facts. But if the learned counsel for the petitioner contends that he has already preferred appeal, the opposite party no.4 has no objection to dispose of the writ petition permitting the petitioner to pursue the appeal pending before the appropriate forum.
7. Having heard learned counsel for the parties, instead of going into the merits of the writ petition itself, since the learned counsel for the petitioner has made an innocuous prayer stating that he has already preferred appeal before the appellate authority against the allotment of sairat source in favour of opposite party no.4, he may be permitted to pursue his remedy before the said forum, to which the opposite parties have no objection. Accordingly, this Court disposes of this writ petition permitting the petitioner to pursue his remedy before the appellate forum in the interest of justice, equity and fair play and the appellate forum shall dispose of such appeal in accordance with law within a period of four weeks from the date of communication/production of this order.
Needless to say that if the petitioner wants some 7 interim relief, he is at liberty to file an application to that extent and in such event the same shall also be considered by the appellate authority in accordance with law.
With the liberty aforesaid, the writ petition stands disposed of.
As Lock-down period is continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this order available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587 dated 25.03.2020.
(DR. B.R. SARANGI) (MOHAMMAD RAFIQ) GDS/ Ajaya JUDGE CHIEF JUSTICE