Orissa High Court
Sunakar Sahoo vs State Of Odisha And Others on 17 July, 2017
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 6434 OF 2015
In the matter of an application under Article 226 of the Constitution of
India.
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Sunakar Sahoo ...... Petitioner
-Versus-
State of Odisha & others ...... Opp. Parties
For Petitioner : M/s. Bigyan Ku. Sharma
& A.U. Senapati
For Opp. Parties : M/s. D.R. Mohapatra,
S.R. Mohapatra, K.K. Jena
& B.D. Biswal
(For O.P. No.3)
Mr. P.K. Muduli,
Addl. Government Advocate
(For O.Ps.1& 2)
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Date of Judgment: 17.07.2017
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI VINEET SARAN
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.This writ petition has been filed seeking for a direction to consider the application filed by the petitioner in Form-J of Orissa Minor Mineral Concession Rules, 2004 (as amended in 2014) (for short 'the Rules') pursuant to the notice inviting application for settlement of different Sand Sairats vide Notice No. 467 dated 2 19.02.2015, including 'Kusabhadra River Sand Source in village Bhubanpur in the district of Khurda' (for short, 'Kushabhadra Sand Sairat'), for which the petitioner had applied.
2. Pursuant to the advertisement dated 19.02.2015 published in two local daily newspapers, namely, 'Dharitri' and 'Samaj' on 24.2.2015 inviting applications for settlement of various sand sairats, 5 numbers of applications were received by the Tahasildar, Balianta-opposite party no.2 for Kushabhadra Sand Sairat, out of which 3 (three) applications were received through registered post/speed post and 2 (two) applications, including that of the petitioner and one Smt. Baijayantimala Baliarsingh, were received through ordinary post. It was made clear in the notice itself that the application should be sent by registered/speed post. The relevant portion of the Notice is reproduced hereunder:
"As per Orissa Minor Minerals Concession Rules, 2004 and Odisha Minor Minerals Concession (Amendment) Rules, 2014, this is for the information of the General Public that Revenue and Disaster Management Department of Government of Odisha invites application as described below from the interested parties for long term lease of Sairat Sources (Minor mineral) mentioned below under Balianta Tahasil from the financial year 2015-2016 to 2019-2020 for 5 years. Interested parties/ companies can apply according to OMMC (Amendment) Rules 2014 in prescribed Form J with required documents and certificates like Treasury challan of Rs. 1000.00 (Rupees One Thousand Only) (Head of The Account-0853-Non-ferrous mining and metallurgical industries-102-mineral concession fees, rent and royalties). Name of the sairat source applied and its tahasil name with boundary details. An 3 affidavit stating that no mining due payable under the Act and the Rules made thereunder, is outstanding against the applicant. Solvency certificate and a list of immovable properties and any other required information which the applicant intends to furnish, such as, technical knowledge, experience, machinery under possession, financial position etc. in a sealed cover to the office of the undersigned Tahasil office through registered post/speed post......................"
(emphasis supplied)
3. Although the application of the petitioner and that of Smt. Baliarsingh were received by the opposite party no. 2 in time i.e. on 10.03.2015, the last date of submission of the application, the said two applications were not considered for the reason that the same were not sent through registered post/speed post. Accordingly, the other three applications, which were received through registered post/speed post, were taken into consideration and the offer of opposite party no. 3, namely, Shri Sunakar Pradhan, who had quoted the highest royalty @ Rs. 42/- per cum, was accepted and long term lease was settled in his favour on 11.3.2015. Assailing the action of the opposite party no.2 in not considering the application of the petitioner, he has filed this writ petition for the aforesaid relief.
4. Mr. B.K. Sharma, learned counsel for the petitioner strenuously argued that the Rules do not provide for any mode of submission of the application for settlement of long term lease of minor minerals including sand sairat. Hence, prescribing a 4 condition to send the application through registered post/speed post was contrary to the provisions of the Rules. The petitioner had, in fact, posted his application by ordinary post, which reached the opposite party no. 2 within the stipulated time. On 11.3.2015, the sealed covers of the applications, received through registered/speed post, were opened in presence of the petitioner as well as other applicants. The petitioner had also signed in the minutes of the proceeding. But, application cover of the petitioner was not opened solely on the ground that it was not sent by registered post/speed post. The petitioner had quoted the highest rate of royalty of Rs.44/- per cum. As per sub-rule (3) of Rule 26 of the Rules, the query lease should have been settled in favour of the petitioner, who had quoted the highest rate of royalty. He further submitted that the condition of sending application by registered post/speed post cannot be treated as an essential condition and the same can, at best, be treated to be an ancillary condition for determining the eligibility of the applicants.
5. Mr. P.K. Muduli, learned Addl. Government Advocate for the State referring to the separate counter affidavits filed by opposite parties no. 2 and 3 submitted that instruction in the advertisement was very specific which stipulated that the applications of intending applicants should be sent in sealed cover 5 to the office of Tahasildar, Balianta through registered post/speed post. The said condition was incorporated in the advertisement with an intention to maintain fairness and sanctity in the process for settlement of Kusabhadra Sand Sairat. The application of petitioner was sent by ordinary post which violates the conditions of the advertisement. Since the condition for sending the application through registered post/speed post was consciously incorporated in the advertisement for maintaining fairness and sanctity in the process of settlement of Kusabhadra Sand Sairat, the same cannot be said to be an ancillary condition. On the other hand, it was an essential condition and non-compliance of the same has rendered the petitioner ineligible to participate in the process of settlement of Kusabhadra Sand Sairat. He further submitted that amongst the eligible applicants, the opposite party no.3 had quoted the highest rate of royalty of Rs.42/- per cum and accordingly, the long term lease of sand sairat in question was settled in favour of opposite party no.3 vide order dated 11.3.2015. Subsequently, the Collector, Khurda, has already approved the settlement of Kusabhadra Sand Sairat in favour of opposite party no.3. The opposite party no.3 has already deposited the EMD of Rs.4,08,000/- pursuant to the approval of settlement of long term lease in his favour. He, therefore, submitted that no fault can be found with the opposite 6 parties in not considering the application of the petitioner. Hence, he prayed for dismissal of the writ petition.
6. Mr. D.R. Mohapatra, learned counsel for the opposite party no.3, supporting the arguments advanced by Mr. Muduli, learned Addl. Government Advocate, prayed for dismissal of the writ petition.
7. Having heard learned counsel for the parties and on perusal of the records, the only question which arises for consideration is as to whether non-compliance of the condition in the advertisement with regard to sending the application through registered post/speed post, would render the petitioner ineligible to participate in the selection process for settlement of Kusabhadra Sand Sairat. The Hon'ble Supreme Court in the case of M/s. Poddar Steel Corporation -v- M/s. Ganesh Engineering Works, reported in AIR 1991 SC 1579 held that the requirement in a tender notice can be classified into two categories, i.e. firstly those which lay down the essential eligibility conditions and the other, which are merely ancillary or subsidiary with the main object to be achieved by the condition.
8. In the instant case, it is the specific case of opposite parties 1 and 2 that in order to maintain fairness and sanctity in the selection process for settlement of Kusabhadra Sand Sairat, the 7 authorities have consciously decided that persons interested to participate in the proceeding for settlement of Kusabhadra Sand Sairat should send their applications by registered post/speed post. Admittedly, the application of petitioner was received through ordinary post on the last date of receipt of the application, i.e., on 10.03.2015. It is submitted by Mr. Muduli, learned Addl. Government Advocate that the application of the petitioner was posted on the very same day, i.e., on 10.03.2015 at the local post office and the same was also not disputed by Mr. B.K. Sharma, learned counsel for the petitioner. Sending an application through registered post/speed post is more secured than sending it by ordinary post. Envelop or cover sent through registered post/speed post are always sealed, which cannot be secured if the envelop or cover is sent through ordinary post. There is every likelihood of tampering with the application sent by ordinary post, which can be avoided in a postage through registered post/speed post. Moreover, postage of application of the petitioner on 10.03.2015, i.e., on the last date of receipt of application and reaching the addressee on the very same day, castes a reasonable doubt on the conduct of petitioner. No doubt, the provision of the Rules does not provide for submission of the application for settlement of minor minerals in a particular mode, i.e., through registered post/speed post. But, the 8 authorities inviting applications from the intending persons can impose/incorporate the conditions to secure the documents sent by applicants as well as to maintain fairness and sanctity in the process of settlement of minor minerals, as long as it is not opposed to the statutory provisions of the Rules.
9. In the case of Poddar Steel Corporation (supra), the Hon'ble Apex Court while distinguishing an 'essential condition' from 'ancillary/subsidiary condition, held as follows:-
"6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause no. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non- compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in GJ Fernandez v. State of Karnataka 7 Ors., [1990] 2 SCC 488 a case dealing with tenders. Although not in an entirely identical situation as the present one, the 9 observations in the judgment support our view. ................"
10. Taking into consideration the discussions made above, there cannot be any second opinion that the condition of sending the application through registered post/speed post was an essential condition and not an ancillary or subsidiary one, as contended by Mr. Sharma, learned counsel for the petitioner. In that view of the matter, the submission of Mr. Sharma in that regard does not hold good.
11. Scope of judicial review in the matters of commercial transactions and contracts, has been a subject matter of scrutiny in number of occasions before the Hon'ble Apex Court. In the case of Jagadish Mandal Vs. State of Orissa, reported in (2007) 14 SCC 517, the Hon'ble Apex Court taking into consideration the ratio decided in Sterling Computers Ltd. -v- M & N. Publication Ltd., reported in (1993) 1 SCC 455, Tata Cellular -v- Union of India, reported in AIR 1996 SC 11, Raunaq International Ltd. -v- I.V.R. Construction Ltd., reported in (1999) 1 SCC 492 and several other case laws came to the following conclusion.
"19. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial 10 review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'
ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving 11 black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
12. The authority inviting applications for settlement of minor minerals is the best judge to decide the eligibility conditions and the same cannot be waived by Court or cannot be a subject matter for judicial review unless the same falls within any of the categories as laid down in Jagdish Mandal (supra). The petitioner has not made out a case under any of the aforesaid categories which would warrant a judicial review.
13. We, therefore, find no infirmity in the decision of the opposite party no. 2 in not considering the application of the petitioner for settlement of Kusabhadra Sand Sairat. Thus, this writ petition being devoid of any merit is accordingly dismissed, but in the circumstances, there shall be no order as to cost.
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(VINEET SARAN) CHIEF JUSTICE ................................
(K.R. MOHAPATRA) JUDGE Orissa High Court, Cuttack Dated the 17th July, 2017/bks