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Madhya Pradesh High Court

Ma Siddheshwari Kishan Filling Station ... vs The Madhya Pradesh State Mining ... on 9 January, 2019

 1                                                          Writ Petition No.12267/2018


     THE HIGH COURT OF MADHYA PRADESH
                     Writ Petition No.12267/2018
  (Ma Siddheshwari Kishan Filing Station Tikamgarh Vs. The Madhya Pradesh State Mining
                               Corporation Ltd. & others.)


Jabalpur, dated 09.01.2019
      Shri      Praveen         Dubey,        learned        counsel        for     the
petitioner.

      Shri Aditya Khandekar, learned counsel for the
respondents.

Heard on the question of admission.

This petition has been listed today for admission and with the consent of the learned counsel for the parties, the matter is heard and decided finally.

This petition has been filed by the petitioner praying for a writ of certiorari for quashing the order dated 05.05.2018 (Annexure-P/1) passed by the respondent No.1 cancelling the e-auction proceedings initiated by them on 22.02.2018.

The learned counsel for the petitioner submits that the petitioner is a proprietorship firm with a single proprietor and is involved in the sale of all petroleum products. It is submitted that the respondent/authorities issued an e-auction notice on 22.02.2018 for lifting 625 metric ton of Pyrophyllite Mineral per month from Kari Mine, District Teekamgarh, M.P. It is submitted that the petitioner applied for award of the aforesaid contract and his name was shortlisted alongwith two other bidders. It is submitted that though the petitioner was the most qualified among all the bidders who got shortlisted, however, as the authorities did not enter into a contract/agreement with the petitioner, the petitioner approached the respondent/authorities for doing the 2 Writ Petition No.12267/2018 same but the authorities, instead of entering into a contract/agreement with the petitioner, has issued the impugned order cancelling the entire e-auction proceedings initiated on 22.02.2018. It is submitted that while doing so, the respondent/authorities have referred to the eligibility criteria with reference to the petitioner and have held that the petitioner, being a person dealing in petroleum products, is not eligible to participate in the tender proceedings but was wrongly empanelled. The authorities after recording the aforesaid findings have cancelled the tender proceedings, hence this petition.

The learned counsel for the petitioner submits that a bare perusal of the eligibility criteria notified by the authorities in the e-auction notice makes it clear that the tenderer must have a total turnover of production/sale of all minerals of not less than Rupees One Crore in any of the last three years as per the audited balance-sheet. The learned counsel for the petitioner submits that the petroleum products and minerals oils are included in the term "minerals" and therefore, the petitioner being a person dealing in the sale of petroleum products which is a mineral, is eligible to participate in the proceedings. It is submitted that the authorities, without looking into or examining the fact that the word mineral includes the petroleum products and mineral oils, have held the petitioner ineligible on account of the fact that he is dealing in mineral oils and not in minerals which is contrary to law. It is submitted that in such circumstances, the impugned order dated 05.05.2018 (Annexure-P/1) be set aside and the respondent/authorities be directed to proceed ahead with the grant of contract/signing of agreement pursuant to the tender proceedings initiated on 22.02.2018.

The respondents per contra, have filed a return and have stated that the petitioner is not dealing in minerals but is dealing in the sale of petroleum products. It is submitted that the petitioner is operating a petrol pump and is involved in the sale of petrol and diesel and thus cannot be said to be a person dealing in production or sale of minerals and mines and in such circumstances, the impugned order dated 05.05.2018 cannot be found fault with as the authorities, by mistake had empanelled the petitioner as an eligible bidder alogwith two others. It is stated that the expert in the field namely; the Director, Geology and Mining has examined the matter and has given an opinion that a person involved in the sale of petrol and diesel cannot be said to be a person dealing in the production or sale of the minerals and on the basis of the aforesaid expert's opinion, the authorities have taken a decision.

The learned counsel for the respondents has placed reliance on the decision rendered in Writ Petition No.4472/2018 [M/s Anil Gambhir (Engineer's & Govt. Contractor) Vs. Union of India & others] decided on 28.02.2018 to submit that the decision of the expert bodies should not be interfered with by the Courts especially in relation to eligibility criteria prescribed for a particular contract.

We have heard the learned counsel for the parties at length.

From a bare perusal of the record, it is apparent that the e-tender was issued by the respondent/authorities for lifting the Pyrophyllite Mineral. It is also apparent that the eligibility criteria prescribed in the e-tender notice, which is relevant for the purposes of the issue involved in the present petition, is in the following terms:

"(i) Total turnover of production/sale of all minerals (including 31 converted into minor minerals) should not be less than 1.00 Cr.(One Crore) in any of the last three years as per the Audited Balance Sheet."

The issue that arises for consideration before this Court is as to whether the sale of petrol and diesel amounts to dealing with production/sale of minerals.

Section 3(aa) of the Mines and Minerals (Development and Regulation) Act, 1957 (in short the 'Act of 1957') defines "minerals" in the following terms:-

"3(aa) "minerals" includes all minerals except mineral oils."

Section 3(b) of the Act, 1957 defines the "mineral oils"

in the following terms:-

"3(b) "mineral oils" includes natural gas and petroleum."

From a bare perusal of the definitions of minerals and mineral oils contained in Sections 3(aa) and 3(b) of the Act of 1957, makes it clear that the term mineral includes all minerals except mineral oils and that petroleum falls within the definition of mineral oil.

In view of the aforesaid statutory provisions, when the term "mineral" used in the eligibility criteria notified by the respondents in the e-tender notice dated 22.02.2018 is examined, it is apparent that the same relates to production and sale of minerals excluding mineral oils and, therefore, the production and sale of the petrol and diesel would not fall within the eligibility criteria prescribed in the tender notice.

Quite apart from the above, it is also apparent that the respondent/Corporation is dealing with minerals and not with the production or sale of petroleum products like 5 Writ Petition No.12267/2018 petrol and diesel and in such circumstances, the eligibility conditions mentioned in the tender notice have to be read with reference to the work being undertaken by the M.P. State Mining Corporation and should be read in reference to the work relating to mining operations and, therefore, it is clear that the word "mineral" mentioned in the eligibility criteria cannot be expanded to include the sale of petrol and diesel. It is also clear that the expert authority namely; the Director, Geology and Mining has also given an opinion to the effect that the sale of petrol and diesel is not included in the term production/sale of minerals.

Thus, we do not find any perversity or patent glaring illegality in the impugned order warranting interference in the present proceedings.

In view of the aforesaid, as the order passed by the authorities dated 05.05.2018 (Annexure-P/1) is in accordance with the provisions of law namely the Act of 1957, and is also in tune with the expert opinion of the Director, Geology and Mining, it does not call for any interference by this Court.

The petition, filed by the petitioner, being meritless is, accordingly, dismissed.

                                         (R.S. JHA)                       (SANJAY DWIVEDI)
                                          JUDGE                                JUDGE


 Devashish

DEVAS
        Digitally signed by
        DEVASHISH MISHRA
        DN: c=IN, o=HIGH COURT
        OF MADHYA PRADESH

HISH    JABALPUR,
        postalCode=482001,
        st=Madhya Pradesh,


MISHR
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A       cn=DEVASHISH MISHRA
        Date: 2019.01.14 11:21:53
        +05'30'