Orissa High Court
Unknown vs Hon'Ble The Chief Justice Mr. Mohammad ... on 8 October, 2020
Bench: Mohammad Rafiq, B.R. Sarangi
W.P.(C) No.25680 of 2020
HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
02. 08.10.2020 Mr. P.C. Jena : For the Petitioner
Mr. A.R. Dash, A.G.A. : For the State-Opp. Parties
ORDER
Heard learned counsel for the parties by Video Conferencing mode.
The petitioner has filed this writ petition challenging the arbitrary action of the opposite parties insisting him to deposit bank guarantee in respect of stone quarry situated at Mouza-Sorada, under Khata No.318, Plot No.1616/1833, Kisam- Parbata-3, measuring Ac.2.00 acres bearing Sairat Case No.7 of 2020 in respect of tender call notice No.1671 dated 17.08.2020.
The factual matrix of the case, in hand, is that Tahasildar, Nuagaon on 17.08.2020 invited a tender call notice for auction of different sairats including the Sairat Case No.7 of 2020 of Sorada stone quarry situated at Mouza-Sorada, Khata No.318, Plot No.1616/1833, Kisam- Parbata-3 measuring Ac.2.00 acres. Clause-4 of the said tender call notice prescribed that the participant has to furnish bank guarantee which must be valid for a period of 18 months along with a solvency certificate from the Revenue Authority. The petitioner submitted his tender on 05.09.2020 along with all relevant documents -2- as per the terms and conditions of the tender call notice, as well as solvency certificate obtained from the Revenue Authority on 30.09.2019 having solvency of Rs.2,88,86,641/- and also quoted the rate of additional charge (per cubic meter) Rs.869/- in the prescribed Form-"M" in respect of the aforesaid sand quarry. On the very same day, i.e., 05.09.2020 in presence of the participants including the petitioner, the tender papers were opened and the Tahasildar declared the petitioner as L-1, but it was stated that the tender of the petitioner may not be accepted, as they are giving priority to those who are submitted bank guarantee not solvency certificate. Even though the petitioner submitted solvency certificate before the Tahasildar as per the Rule 27 (4) (iv) of the Odisha Minor and Mineral Concession Rules, 2016 which provides that a solvency certificate or bank guarantee both can be taken into consideration not in priority basis, the Tahasildar has not adhered to the said provision and directed to settle the tender in favour of others though they have quoted higher price than the petitioner. The petitioner also submitted representation to the Tahasildar requesting him not to give priority for final selection of bidder on the basis of bank guarantee in respect of Sairat Case No.7 of 2020 and also furnished a letter of the Revenue & Disaster Management Department, Govt. of Odisha dated 30.07.2020 in a similar type of case regarding clarification and acceptance of solvency certificate for finalization of bidder in pursuance of the order passed by this Court in the -3- case of Sarat Pradhan v. State of Odisha, by which it has been clarified by the Government that solvency may be accepted as alternative to bank guarantee in finalization of bids for lease of Minor Mineral sources till OMMC Rules, 2016 is amended. Due to non-acceptance of L-1 tender submitted by the petitioner, he has already moved the Tahasildar on 08.09.2020 under Annexure-3 to consider his bid. Since no action has been taken, the petitioner has approached this Court by filing the present writ petition.
Mr. P.C. Jena, learned counsel for the petitioner contended that as per Rule-27(4)(iv) of the OMMC Rules, 2016, the tenderer can submit a solvency certificate or bank guarantee valid for a period of eighteen months for an amount not less than the amount of additional charge offered and the royalty payable for the minimum guaranteed quantity for one whole year and a list of immovable properties from the Revenue Authority and, as such, the same has to be accompanied with Form-M. It is contended that in view such provisions, two types of documents can be submitted in prescribed form, namely, solvency certificate or bank guarantee. But when the applicant is wiling to submit solvency certificate, in that case, there should not be any insistence to submit bank guarantee. The petitioner having submitted solvency certificate and he being L-1 in the bid itself, his tender should be taken into consideration by the authority for selection in respect of the quarry in question. Due to -4- inaction of the authority, the petitioner has already moved the Tahasildar under Annexure-3 dated 08.09.2020, but the same has not yet attended to. Therefore, the petitioner has approached this Court by filing the present writ petition.
Mr. A.R. Dash, learned Addl. Government Advocate contended that if Rules prescribed for
submission of documents, namely, solvency certificate or bank guarantee, then in that case, if the participant submitted solvency certificate, he should not be insisted upon to produce bank guarantee in view of the clarification issued by the Government with regard to pending finalization of amendment of OMMC Rules, 2016. Since the petitioner has already moved the Tahasilar by filing representation in Annexure-3, direction may be given to the Tahasildar to consider the same in accordance with law, as expeditiously as possible.
Having heard learned counsel for the parties and after going through the records, admittedly the petitioner is an applicant in pursuance of the tender call notice issued by the Tahasildar under Annexure-1 and he has submitted solvency certificate instead of bank guarantee. But, the authority has insisted upon the petitioner to produce the bank guarantee and, as such, preference has been given to others those who have submitted bank guarantee.
-5-For better appreciation of the case itself, Rule- 27(4)(iv) of OMMC Rules, 2016 is extracted hereunder:-
"(iv) a solvency certificate or bank guarantee valid for a period of eighteen months for an amount not less than the amount of additional charge offered and the royalty payable for the minimum guaranteed quantity for one whole year and a list of immovable properties from the Revenue authority."
On perusal of the aforementioned provision, it appears that the participant must submit a solvency certificate or bank guarantee valid for a period of eighteen months for an amount not less than the amount of additional charge offered and the royalty payable for the minimum guaranteed quantity for one whole year and a list of immovable properties from the Revenue Authority. Thereby, option has been left to the applicant to submit the solvency certificate or bank guarantee and, as such, the authority cannot insist upon the applicant to submit bank guarantee when another option lies to submit solvency certificate. More so, Government of Odisha in Revenue and Disaster Management Department vide letter dated 30.07.2020 referring to the order dated 19.03.2020 passed by this Court in W.P.(C) No.9726 of 2020 (Sarat Pradhan v. State of Odisha), clarified that the bid of the highest bidder supported by solvency certificate cannot be invalidated merely on the ground of non-submission of bank guarantee since OMMC Rules, 2016 provides for submission of solvency certificate or bank guarantee. Solvency certificate may be accepted as alternative to bank guarantee in finalization -6- of bids for lease of minor mineral sources till OMMC Rules, 2016 is amended. Thereby, the solvency certificate submitted by the petitioner has to be accepted and the petitioner should be allowed to participate in the bid instead of insisting upon him to produce the bank guarantee.
In the matter of Excise Department, similar question had come up for consideration in Gopinath Sahu v. State of Orissa, (W.P.(C) No. 12518 of 2020 disposed of on 03.08.2020) wherein this Court has already held that the opposite party can act upon the solvency certificate without insisting upon production of bank guarantee. Referring to the judgment passed in Gopinath Sahu mentioned supra, in Narayan Chandra Udgata v. State of Orissa (W.P.(C) No. 17069 of 2020 disposed of on 06.10.2020), this Court also taken a similar view holding that even if the parties do not submit any bank guarantee but submit a solvency certificate, the assessment can be made on the basis of said document. Applying the same to the present context, the Tahasildar, Nuagaon instead of insisting upon the petitioner to produce bank guarantee, should act upon the solvency certificate submitted by him and proceed with the process of tender in pursuance of the tender call notice under Annexure-1 so far it relates to Sairat Case No.7 of 2020 of Sorada stone quarry situated at Mouza- Sorada, Khata No.318, Plot No.1616/1833, Kisam- Parbata -3 measuring Ac.2.00 acres. Consequentially, the -7- representation under Annexure-3 dated 08.09.2020 submitted by the petitioner to the Tahasildar, Nuagaon is to be considered in the light of the order passed by this Court in the above noted cases, as expeditiously as possible, preferably within a period of three weeks from the date of receipt of a copy of this order before finalization of tender in favour of anybody.
With the aforesaid observations and directions, the writ petition stands disposed of.
As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.
Alok/Ashok
(Dr. B.R. Sarangi) (Mohammad Rafiq)
Judge Chief Justice