Orissa High Court
Krishna Oram vs State Of Orissa And Others ..... Opp. ... on 25 July, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 21534 OF 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Krishna Oram ..... Petitioner
-Versus-
State of Orissa and others ..... Opp. Parties
For petitioner : M/s. Sidheswar Mallik,
P.C. Das, M. Mallik,
S. Mallick and A.P. Mohanty,
Advocates.
For opp. parties : Mr. P.P. Mohanty,
Addl. Government Advocate
(O.P. Nos. 1 to 3)
M/s U.C. Patnaik, S. Patnaik,
M.R. Sahoo and R. Kumar,
Advocates (O.P. No.4)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing: 21.07.2023:: Date of Judgment: 25.07.2023 DR. B.R. SARANGI, J. The petitioner, who was one of the bidders pursuant to the advertisement dated 13.04.2022 issued by Tahasildar, Bisra for grant of "Dumerta Stone Quarry-I" on lease, has filed this writ petition with a prayer to reject the tender application of opposite party no.4 for not depositing the security amount within the statutory period of 15 days, since it violates Rule 27(7) of the Orissa Minor Mineral Concession Rules, 2016, and to direct opposite party no.3 to settle the quarry in his favour, being the next higher bidder, as per the provisions contained under Rule 27 (9) of the said Rules, 2016.
2. The factual matrix of the case, in brief, is that Tahasildar Bisra-opposite party no.3 issued an advertisement on 13.04.2022 inviting applications from the intending bidders for grant of lease for a period of five years in respect of minor minerals under Orissa Minor Mineral Concession (Amendment) Rules, 2016 and called upon them to apply in prescribed Form-M by dropping the same in the drop box of the Tahasil office from 9.00 a.m. to 1.00 p.m. on 29.04.2022. It was stipulated therein that after expiry of that period, no application will be entertained. The drop box will be opened on 30.04.2022 at 9.00 a.m. in the Page 2 of 17 Tahasil office to finalise the lease. Incomplete applications will be rejected. In the event the lease could not be possible in the first date, i.e,. on 30.04.2022, it will be held for the second time on 04.05.2022 and also for the third time on 05.05.2022 at the same time and place. So far as the conditions of lease are concerned, one can see the same in any working day except holidays in the office of the Tahasildar. The application shall be filed along with fees of Rs.1000.00 to be deposited by way of treasury challan and the applicant shall also provide the entire description of the lease land along with the map and also furnish an affidavit that he has no dues so far as any mining is concerned. 2.1 In compliance to such provision, so far as Dumerta Stone Quarry-I is concerned, the drop box was opened on 29.04.2022 as per the provisions contained in the OMMC Rules, 2016 and it was found that there were three number of bidders participated in the auction of the said stone quarry, details of them are quoted as under:-
Sl. Name of the participant Quoted Amount No. in Rs.
1 Sri Pramod Kumar 81.00 Page 3 of 17 Pandey
2. Krishna Oram 74.00
3. Hrushikesh Oram 73.00 2.2 From the above, it is made clear that one Pramod Kumar Pandey, S/o- Late Bijay Shankar Pandey, resident of Bisra Dahar Road, Rourkela-12, Dist-Sundargarh has offered Rs. 81.00 per cubic meter towards additional charges against the offset price of Rs.70/-. All documents attached by him with the application were also found in order. He having quoted highest price and his application was in order, he was declared as successful bidder for the Dumerta Stone Quarry-I. The petitioner, who was the 2nd highest bidder for having quoted Rs.74.00 per cubic meter, was found to have not submitted the land schedule and trace map of the auctioned quarry, i.e., Dumerta Stone Quarry-I, which was the requirement as per the advertisement issued. Therefore, his application was rejected. But the petitioner contended that the highest bidder, i.e., opposite party no.4, having incurred a disqualification by not furnishing the affidavit, his bid should have been rejected and the petitioner, being the 2nd Page 4 of 17 highest bidder, should have been called upon for allotment of the quarry in his favour. Hence, this writ petition.
3. Mr. S. Mallick, learned counsel appearing for the petitioner vehemently contended that due to non-
compliance of the provisions contained under the provisions of Rule 27(7) of the OMMC Rules, 2016, the opposite party no.4 should not have been allotted with the quarry in his favour, rather the petitioner, being the 2nd highest bidder, should have been called upon as per the provisions contained under Rule 27(9) of the OMMC Rules, 2016 and allotted with the quarry. The same having not been adhered to, opposite party no.3 has acted arbitrarily and unreasonably. Therefore, he seeks for interference of this Court. To substantiate his contention, reliance has been placed on Bhagirathi Mantri v. State of Odisha & Ors., 2022 Latest Caselaw 5968 Ori.
4. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that the contention raised by learned Page 5 of 17 counsel for the petitioner is absolutely not correct. Rather, the petitioner himself had incurred a disqualification by not furnishing the land schedule and trace map along with the application form, as he is required to submit the same as per the conditions stipulated in the advertisement. Same having not been adhered to, his application having been rejected, he cannot claim that he is the 2nd highest bidder and entitled to get the source in his favour as the opposite party no.4 had incurred a disqualification. It is further contended that opposite party no.4 had not incurred any disqualification, rather he had quoted highest price, for which the source was settled in his favour. Consequentially, he seeks for dismissal of the writ petition.
5. Mr. S. Patnaik, learned counsel appearing for opposite party no.4 also contended that the allegation made by the petitioner, that opposite party no.4 having deposited the security amount beyond 15 days period his bid should not have been accepted, cannot be accepted. Since the application made by opposite party no.4 was in order, he was directed to deposit the balance security amount of Page 6 of 17 Rs.1,11,836/- within seven days from the date of receipt of the letter and to submit the lease agreement paper in respect of Dumerta Stone Quarry-I. On receipt of the said letter on 17.05.2022, opposite party no.4 deposited the balance security amount of Rs.1,11,836/- on the very same day, vide Money Receipt No. 40/0426099 dated 17.05.2022, which was duly acknowledged by opposite party no.3 on the very same day. Therefore, there was no violation of any of the statutory provisions, as contemplated under the OMMC Rules, 2016, as the security deposit was made within the time prescribed under Sub-rule (7) of Rule 27 of the OMMC Rules, 2016. Thus, opposite party no.4 had not incurred any disqualification so as not to allow him to operate the stone quarry and to call upon the 2nd highest bidder, i.e., the petitioner, as claimed by him, to allot the quarry in his favour. Rather, the petitioner had incurred disqualification as his application was defective one. Therefore, opposite party no.3 was well justified in rejecting the application of the petitioner. As a consequence thereof, the approach of the petitioner to this Court by filing the Page 7 of 17 present writ petition is absolutely based on suppression of material fact and misleading statements. Therefore, the writ petition should be dismissed with cost.
6. This Court heard Mr. S. Mallick, learned counsel appearing for the petitioner; Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State- opposite parties; and Mr. S. Patnaik along with Mr. U.C. Patnaik, learned counsel appearing for opposite party no.4 in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
7. On the basis of the factual matrix, as discussed above, the only question to be considered by this Court at this point of time is whether the bid submitted by opposite party no.4 incurred a disqualification for not depositing the security amount within the time specified under Rule 27 (7) of the OMMC Rules, 2016.
Page 8 of 17
8. In exercise of the powers conferred by Sub- section (1) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) and in supersession of the provisions contained in the Odisha Minor Mineral Concession Rules, 2004, except as respects things done or omitted to be done before such supersession, the State Government, for regulating the grant of mineral concessions in respect of minor minerals and for the purposes connected therewith, made the rules, namely, "The Odisha Minor Mineral Concession Rules, 2016".
Chapter-IV thereof deals with grant of quarry leases. For a just and proper adjudication of the case, the relevant provisions of Rule-27 are extracted hereunder:-
"27. Grant of quarry lease:-
xxx xxx xxx
(7) Within fifteen days of such intimation,
the selected bidder shall be required to convey his acceptance of the terms and conditions and to deposit an amount which shall be calculated in such a way that it shall be equivalent to one-fourth of the total amount of royalty and additional charge and the amount of contribution payable to the District Mineral Foundation on the annual minimum guaranteed quantity, taken together, reduced by the amount of earnest money, which, Page 9 of 17 along with the earnest money, shall be held as interest-free security deposit.
xxx xxx xxx
(9) In the event of default by the selected
bidder, the Competent Authority may issue intimation as specified in sub-rule (6) to the next highest bidder who shall then be required to convey his acceptance and to make the security deposit calculated in the manner mentioned in sub rule (7)."
9. On perusal of the provisions contained in Rule 27(7) of OMMR Rules, 2016, it is made clear that within fifteen days of such intimation, the selected bidder shall be required to convey his acceptance of the terms and conditions and to deposit an amount which shall be calculated in such a way that it shall be equivalent to one- fourth of the total amount of royalty and additional charge and the amount of contribution payable to the District Mineral Foundation on the annual minimum guaranteed quantity, taken together, reduced by the amount of earnest money, which, along with the earnest money, shall be held as interest-free security deposit. Thereby, it is incumbent upon the successful bidder to comply the provisions contained in Rule 27(7) by depositing the security amount Page 10 of 17 within a period of 15 days from the date of its intimation. In the event, the same is not complied with by the successful bidder or in the event, there is default by the selected bidder, then the competent authority, may issue intimation as specified in Sub-rule (6) to the next highest bidder who shall then be required to convey his acceptance and to make the security deposit calculated in the manner mentioned in Sub-rule (7). Thereby, the right of the 2nd highest bidder would accrue in the event the successful bidder did not comply with the provisions contained in Rule 27 (7) by depositing security amount within a period of 15 days from the date of intimation.
10. Applying the above mentioned provision to the present case, as it reveals from the record and from the argument advanced by learned Addl. Government Advocate appearing for the State-opposite parties as well as learned counsel appearing for opposite party no.4 that after opening the drop box on the date fixed, i.e., on 29.04.2022 in the schedule time, it was found that opposite party no.4 having quoted the highest price of Rs. 81.00 per cubic meter Page 11 of 17 towards additional charges against the offset price of Rs.70.00 and his document attached with the application form was found correct, he was declared as successful bidder. Accordingly Form-F was issued in his favour vide office order no. 861 dated 30.04.2022. He conveyed his acceptance on the very same day, i.e. on 30.04.2022. On receipt of such acceptance, the demand for security deposit of Rs.1,11,836.00 was issued vide office order dated 07.05.2022. But due to his health issue he was out of station and unable to receive the demand notice of security deposit. But, he received the demand notice of security deposit on 17.05.2022 and deposited the same on the very same day vide money receipt no. 40/0426099 dated 17.05.2022. Thereby, opposite party no.4 has complied with the statutory requirement by depositing the security amount on 17.05.2022, which has also been duly acknowledged by opposite party no.3.
11. It is apt to refer here the legal maxim "Expressio Unius est exclusion alterius" i.e. if a statute provides for Page 12 of 17 a thing to be done in a particular manner, then it has to be done in that manner and any other manner are barred.
12. In Nazir Ahmed v. King Emperor, AIR 1936 PC 253, law is well settled "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." The said principles have been followed subsequently in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512, Chandra Kishore Jha v. Mahabir Prasad, AIR 1999 SC 3558, Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR 2008 SC 1921, Ram Deen Maurya v. State of U.P., (2009) 6 SCC 735.
13. In Subash Chandra Nayak v. Union of India, 2016 (I) OLR 922, similar question had come up for consideration before this Court and this Court in paragraph-8 observed as follows:-
".............the statute prescribed a thing to be done in a particular manner, the same has to adhered to in the same manner or not at all. The origin of Page 13 of 17 the Rule is traceable to the decision in Taylor v. Tailor, (1875) LR I Ch D 426, which was subsequently followed by Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253(2). But the said principle has been well recognized and holds the field till today in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422, and Zuari Cement Limited v. Regional Director, Employees' State insurance Corporation, Hyderabad and others, (2015) 7 SCC 690 and the said principles has been referred to by this Court in Manguli Behera v. State of Odisha and others (W.P.(C) No. 21999 of 2014 disposed of on 10.03.2016)".
Similar view has also been taken in Rudra Prasad Sarangi v. State of Orissa and others, 2021 (I) OLR 844; Bamadev Sahoo v. State of Orissa, 132 (2021) CLT 927 and in Shaswata Pratika Pradhan v. State of Odisha and others, 2022 (Supp.) OLR 601.
14. In view of such position, it is made clear that opposite party no.3 has not acted in any manner contrary to the provisions of law, so as to draw an adverse inference against opposite party no.4 to extend the benefit to the petitioner.
15. No doubt the petitioner, being the 2nd highest bidder, had offered Rs.74.00 per cubic meter, but during verification of his application, it was found that he had not Page 14 of 17 submitted the land schedule and trace map of the auctioned quarry of Dumerta Stone Quarry-I, which was the requirement in the advertisement and also mentioned in sl. no.2 of the notice dated 13.04.2022 requiring the documents to be attached along with the application form. But suppressing this fact, the petitioner has tried to mislead this Court and has not come to the Court with clean hands. Thereby, at his instance, the present writ petition cannot be sustained.
16. In R. v. Kensington, Income Tax Commissioner, (1971) 1 KB 486 at page 506, it was held as follows:-
"The prerogative writ is not a matter of course; the applicant must come in the manner prescribed and must be perfectly frank and open with the Court."
17. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant had misled the Court.
18. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to Page 15 of 17 be dismissed on the ground that the petitioner did not approach the Court with clean hands.
19. Taking into consideration the above judgments, this Court, in Netrananda Mishra v. State of Orissa, 2018 (II) OLR 436, came to a conclusion in paragraph-26 of the said judgment and held as under:-
"...........For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view............"
20. Similar view has also been taken by this Court in State of Odisha and others v. Lalat Kishore Mohapatra and another, 2022 (Supp.) OLR 970 and Bhagirathi Mantri (supra). So the reliance which has been placed by learned counsel for the petitioner, i.e. the decision in the case of Bhagirathi Mantri (supra) has no assistance to the case of the petitioner, rather it supports the stand of the opposite parties.
21. In view of the fact and law, as discussed above, this Court is of the considered view that the relief sought by Page 16 of 17 the petitioner is not admissible and, as such, the writ petition merits no consideration and the same stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 25th July, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court Date: 25-Jul-2023 17:00:47 Page 17 of 17