Orissa High Court
Arun Kumar Ray vs State Of Odisha And Others ..... Opp. ... on 24 April, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
A.F.R.
W.P(C) NO. 21183 OF 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Arun Kumar Ray ..... Petitioner
-Versus-
State of Odisha and Others ..... Opp. Parties
For petitioner : Mr. Jagannath Pattnaik,
Senior Advocate along with
M/s. N.K. Sahu, T.K. Pattanayak,
S. Patnaik and A. Patnaik,
Advocates.
For opp. parties : Mr. P.P. Mohanty,
Addl. Government Advocate
[O.Ps. No.1 to 4]
M/s. Sanatan Das,
(Mrs.) P.P. Mohanty, S.K. Swain
and M.K. Sahu, Advocates
[O.P. No.5]
M/s. Dayananda Mohapatra,
M.R. Pradhan, J. Barik and
P.K. Singh Deo, Advocates.
[O.P. No.6]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE M.S. RAMAN
Date of hearing and judgment : 24.04.2023
DR. B.R. SARANGI, J. The petitioner, by way of this writ petition, seeks to quash the order dated 27.07.2022 passed in OMMC Appeal No. 1/2021 under Annexure-14, by which the Sub-Collector, Dhenkanal-opposite party no.3, while rejecting the appeal preferred by opposite party no.5- Tripurari Sahoo, directed the Tahasildar Gondia-opposite party no.4 to take steps to cancel the notification no. 4297 dated 23.10.2020 and call for fresh auction of the Dallar Sand Quarry for the period 2020-21 to 2024-25 in accordance with Orissa Minor Mineral Concession Rules, 2016 (hereinafter to be referred as "OMMC Rules, 2016"). The petitioner has further prayed to direct the opposite parties to allow him to operate the said sand quarry in terms of the letter under Annexure-6 dated 12.01.2021.
2. The facts leading to filing of the writ petition are that Tahasildar, Gondia-opposite party no.4 issued a notification bearing no. 4297 dated 23.10.2020 inviting bids in respect of Dallar Sand Quarry for a period of five Page 2 of 21 years from 2020-21 to 2024-25. Pursuant to such notification, including the petitioner as well as opposite parties no. 5 and 6, 14 of bidders submitted their bids in prescribed Form-M. The bid/application submitted by the petitioner was in order and in consonance with the provisions of the OMMC Rules, 2016. The bids submitted by opposite parties no. 5 and 6 were not in order, inasmuch as the material documents were lacking in support of the statements made in their applications. After the bid applications were received, the same were scrutinized by the Tahasildar, Gondia-opposite party no.4. The opposite party no.5 was found to be ineligible due to submission of less amount of solvency certificate as per the provisions stipulated under Rule 27(4)(iv) of OMMC Rules, 2016. Similarly, the bid of one Dillip Kumar Singh was held to be ineligible due to shortage of solvency as per the provisions of OMMC Rules 2016. Consequentially, the bids of opposite party no.5 and Dillip Kumar Singh were rejected by the Tahasildar, who is the competent authority and, therefore, their bids were not available to be considered. The opposite Page 3 of 21 party no. 5 had submitted solvency certificate for a sum of Rs.1,38,27,670/-, instead of Rs. 1,55,04,000/-, whereas Dillip Kumar Singh had submitted solvency certificate of Rs. 1,00,00,000/-, instead of Rs.1,08,24,000/-, as required under the provisions of OMMC Rules, 2016. After rejection of the bids of opposite party no.5 and that of Diilip Kumar Singh, the residual bids of twelve numbers, including that of the petitioner and opposite party no.6, held to be in order. Thereafter, the said bids were scrutinized and it was found that opposite party no.6 had quoted Rs.482/- per cum as additional charges and, accordingly, he was treated as highest successful bidder. The rate quoted by the petitioner, being Rs.425/- per cum, he was treated to be the 2nd highest successful bidder. Consequentially, the Tahasildar issued letter dated 27.11.2020 in favour of opposite party no.6 requiring him to deposit security money to the tune of Rs.33,04,200/-.
2.1 Challenging such letter dated 27.11.2020 calling upon opposite party no.6 to deposit security money, the petitioner filed an appeal before the Sub-Collector which Page 4 of 21 was registered as OMMC Appeal No.2 of 2020. The Sub- Collector, after hearing the parties, allowed the appeal vide order dated 23.12.2020 and set aside the order dated 27.11.2020 passed by Tahasildar, Gondia. Consequentially, the Sub-Collector, Dhenkanal directed the Tahasildar, Gondia to dispose of quarry lease in question in accordance with the provisions of the OMMC Rules, 2016. Thereafter, the Tahasildar intimated the petitioner, vide letter dated 12.01.2021, that he has been selected as the successful bidder for the "Dallar Sand Quarry" for the period from 2020-21 to 2024-25. It was also stated in the said letter that the amount of additional charge quoted by the petitioner, i.e. Rs.425/- per cum was accepted. Accordingly, the petitioner was directed to execute the lease deed in respect of the quarry in question within the period specified in Rule-43(1) of the OMMC Rules, 2016. This order was passed taking into consideration the fact that the rate quoted by the petitioner was the highest after opposite party no.5 lost in the appeal. Consequentially, the petitioner deposited the required security amount of Page 5 of 21 Rs.30,36,000/-, which was inclusive of the earnest money, vide receipt dated 18.01.2021 .
2.2 However, opposite party no.5 approached this Court challenging the letter dated 27.11.2020 issued by the Tahasildar, Gondia by filing W.P.(C) No.1905 of 2021. The said writ petition was disposed of vide order dated 22.01.2021 with a direction to file statutory appeal under Rule-46 of the OMMC Rules, 2016. Accordingly, opposite party no.5, challenging the letter dated 27.11.2020, filed an appeal before the Sub-Collector, Dhenkanal which was registered as OMMC Appeal No.1/2021. The said appeal was presented before the Sub-Collector on 29.01.2021, by which time the petitioner had already deposited the security amount on 18.01.2021 under Annexure-7 on the basis of letter dated 12.01.2021 issued by Tahasildar, Gondia. 2.3 In OMMC Appeal No. 01/2021 filed by opposite party no.5 before opposite party no. 3, the petitioner was not impleaded as a party. However, opposite party no.6 was impleaded in the appeal as respondent no.2. The said Page 6 of 21 appeal bearing OMMC Appeal No.1/2021, which was filed by opposite party no.5, was allowed by order dated 12.05.2021 subject to production of fresh solvency certificate/ bank guarantee to the tune of Rs.20,27,330/- towards deficit solvency amount. Accordingly, direction was given to the Tahasildar, Gondia to lease out "Dallar Sand Quarry" in favour of opposite party no. 5, who was the highest bidder, on production of the deficit solvency certificate amounting Rs. 20,27,330/-. After the order dated 12.05.2021 was passed in OMMC Appeal No. 1/2021, the Tahasildar, Gondia, issued Form-F in favour of opposite party no. 5 vide its letter dated 21.05.2021 as a successful bidder.
2.4 The petitioner, challenging the order dated 12.05.2021 passed by the Sub-Collector, Dhenkanal in OMMC Appeal No. 1/2021 and consequential letter issued by the Tahasildar, Gondia on 21.05.2021, whereby Form-F was issued in favour of opposite party no.5, filed W.P.(C) No. 19779 of 2021, which was disposed of vide order dated 29.04.2022 by setting aside the order dated 12.05.2021 Page 7 of 21 passed by the Sub-Collector, Dhenkanal in OMMC Appeal No. 1/2021 and remitting the matter back to the Sub- Collector, Dhenkanal with a direction to give opportunity of hearing to the parties, including the petitioner, and dispose of the same afresh in accordance with law within a period of two months.
2.5 On production of the order dated 29.04.2022 passed by this Court in W.P.(C) No. 19779 of 2021 by the petitioner before opposite party no.3, the petitioner was impleaded in the appeal as respondent, who filed his reply refuting the allegations made in the appeal memo. In course of hearing, the petitioner filed an affidavit stating that the petitioner was ready and willing to deposit the amount on the basis of the rate quoted by the opposite party no.5-Tripurari Sahoo. It was submitted during the course of hearing before the Sub-Collector that the bid of opposite party no.5 was rejected at the threshold since the bid application was not accompanied with required amount of solvency certificate. The solvency certificate furnished by opposite party no.5 was deficit to the tune of Page 8 of 21 Rs.20,27,330/- at the time of submission of bid and, therefore, the bid of opposite party no.5 was rejected in terms of Clause-5 of the tender conditions under Annexure-
1. The opposite party no.6 was refunded with the total bid amount of Rs.34,12,200/- by the Tahasildar in its letter dated 17.05.2021 and, therefore, the bid of opposite party no.6 was also not available to be considered. It was also submitted that after the order dated 23.12.2020 under Annexure-5 was passed by opposite party no.3 in OMMC Appeal No. 2 of 2020, the petitioner, being the successful bidder, was asked to deposit the security amount in terms of letter dated 12.01.2021 issued by the Tahasildar, Gondia and, accordingly, the petitioner deposited the amount in question on 18.01.2021. In view of the affidavit filed by the petitioner in OMMC Appeal No. 1/2021 that the petitioner was ready and willing to deposit the amount at the rate quoted by opposite party no.5, who was the highest bidder, i.e. Rs.611/- per cum, the Sub-Collector disposed of OMMC Appeal No. 1 of 2021, vide order dated 27.07.2022, rejecting the appeal filed by opposite party no.5. The Sub- Page 9 of 21 Collector while rejecting the appeal of opposite party no.5 cancelled the tender notice bearing no.4297 dated 23.10.2020 and directed the Tahasildar to issue fresh auction notice in respect of Dallar Sand Quarry in accordance with the OMMC Rules, 2016. Hence, this writ petition.
3. Mr. Jagannath Patnaik, learned Senior Advocate appearing along with Mr. T.K. Pattanayak, learned counsel for the petitioner vehemently contended the order dated 27.07.2022 passed by the Sub-Collector-opposite party no.3 in OMMC Appeal No. 1 of 2021 cancelling the tender notice dated 23.10.2020 and directing the Tahasildar to issue fresh auction notice in respect of "Dallar Sand Quarry" is absolutely illegal, arbitrary and has been passed in colourable exercise of power. It is further contended that the appellate authority has travelled beyond the scope and ambit of the powers conferred upon him to decide the appeal. According to him, the appellate authority, having rejected the appeal, is denuded of its power to issue further directions for cancellation of notification and holding of a Page 10 of 21 fresh auction for the same quarry in question, when the petitioner has complied all the formalities to operate the quarry, even if he has filed an affidavit to match to the highest price offered by opposite party no.5 at Rs.611/- per cum. He further contended that the solvency certificates dated 01.10.2020, 16.11.2020 and 03.11.2020 submitted by opposite party no. 5 at the time of submission of bid were of Rs. 63,000/-, Rs.32,91,000/- and Rs. 60,10,5001/- by giving the property list and out of the said property list, 6 plots were sold to one Jyotin Kumar Sahoo, after issuance of aforesaid solvency certificate dated 01.10.2020. Prior to issuance of above certificates, the opposite party no. 5 had sold some patch of land to an outsider vide sale deeds dated 02.09.2020 and 11.09.2020. Averment to that effect was taken by the petitioner in paragraphs-17 and 18 of his reply in OMMC Appeal No. 01/2021. Therefore, he contended that the impugned order so passed by the Sub- Collector for issuance of fresh tender cannot be sustained in the eye of law and liable to be set aside. To substantiate his contention reliance has been placed on the judgment of Page 11 of 21 this Court in the case of Dinakrushna Pattanaik v. State of Odisha and others, 2023 (I) OLR 301.
4. Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties, while not disputing the above mentioned factual position, contended that out of 14 bidders who submitted their bids, pursuant to the tender notice issued by the Tahasildar, Gondia, the opposite party no.5-Tripurari Sahoo was the highest bidder, who had quoted a sum of Rs.611/- as the additional charges per cubic meter, followed by opposite party no.6 at Rs. 482/- and the petitioner at Rs.425/- per cum as additional charge. Though opposite party no.5 was the highest bidder for having quoted Rs.611/- as the additional charges per cubic meter, but his bid was rejected by the competent authority due to shortfall in solvency certificate, as per the provisions of Rule-27(4)(iv) of the OMMC Rules, 2016. Similarly, the bid of Sri Dillip Kumar Singh was also rejected due to shortfall in solvency certificate. All other balance twelve bids remained valid under the provisions of OMMC Rules, 2016. M/S PREMEX- opposite party no.6 Page 12 of 21 was declared as the highest bidder, as it had quoted a sum of Rs. 482/- as additional charges and accordingly Form-F was issued in favour of opposite party no.6. Being aggrieved by issuance of Form-F in favour of opposite party no.6, the petitioner filed an appeal under Rule-46 of the OMMC Rules, 2016 before the Sub-Collector, Dhenkanal. The said appeal was registered as OMMC Appeal No. 02/2020 and was disposed of on 23.12.2020 by rejecting the order dated 18.11.2020 passed by the Tahasildar, Gondia to award the source in favour of opposite party no.6 and directing the Tahasildar, Gondia to dispose of the quarry lease of "Dallar Sand Quarry" in accordance with the provisions of the OMMC Rules, 2016.
4.1 The petitioner, who was selected as next successful bidder, was issued intimation slip by the Tahasildar, Gondia because of defective document of opposite arty no.6, whose bid was rejected. The opposite party no.5 filed a writ petition bearing W.P (C) No. 1905 of 2021. This Court disposed of the said writ petition vide order dated 22.01.2021 with a direction to file statutory Page 13 of 21 appeal under the provisions of the OMMC Rules, 2016. Consequentially, opposite party no.5 filed an appeal before the Sub-Collector, Dhenkanal, which was registered as OMMC Appeal No. 01 of 2021. Vide order dated 27.07.2022, the Sub-Collector, Dhenkanal quashed the tender notice and directed the Tahasildar to go for fresh tender. He thus contended that the Sub-Collector is well justified in passing the order impugned and the writ petition is liable to be dismissed.
5. Mr. Sanatan Das, learned counsel appearing for opposite party no.5 vehemently contended that the Sub- Collector, Dhenkanal is well justified in passing the order impugned, which does not require interference by this Court. Therefore, dismissal of the writ petition is also sought for by him.
6. Mr. Dayananda Mohapatra, learned counsel along with his associates though had entered appearance on behalf of opposite party no.6 by filing vakalatnama, but none appeared on behalf of the said opposite party no. 6, Page 14 of 21 presumably, as because he has already taken back the security amount deposited by him and in this process has relinquished his right to participate in the proceeding.
7. This Court heard Mr. Jagannath Patnaik, learned Senior Advocate along with Mr. T.K. Pattanayak, learned counsel appearing for the petitioner, Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties no.1 to 4 and Mr. Sanatan Das, learned counsel appearing on behalf of opposite party no.5 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.
8. The above being the factual scenario and contentions of the respective parties, the short question that falls for consideration of this Court is, whether the order dated 27.07.2022 passed by the Sub-Collector, Dhenkanal in rejecting the OMMC Appeal No. 1 of 2021 and directing the Tahasildar, Gondia to cancel the tender Page 15 of 21 notification no.4297 dated 23.10.2020 and to call for fresh auction for the self same "Dallar Sand Quarry" is justified or not.
9. Admittedly, the Tahasildar, Gondia, for auction of "Dallar Sand Quarry", had issued a tender call notice on 23.10.2020, pursuant to which all total 14 bidders, including the petitioner as well as opposite party nos. 5 and 6, had participated. During the course of scrutiny, so far as bid of opposite party no.5 is concerned, though he had quoted highest additional charge of Rs.611/- per cum, but it was found that there was shortfall of solvency certificate, for which he was not qualified. Similarly, opposite party no.6, though had quoted Rs. 482/- as additional charge per cum, but its application was also found to be defective, as a consequence thereof, opposite party no.6 withdrew the security amount deposited by it and did not participate by relinquishing its right. As a consequence thereof, the petitioner having quoted Rs.425/- as additional charge per cum, his bid was accepted and he was issued with necessary Form-F and called upon to deposit the balance Page 16 of 21 dues, which he complied. But, all of a sudden, opposite party no.5 preferred an appeal, which was registered as OMMC Appeal No. 1/2021, before the Sub-Collector, Dhenkanal, who, without application of mind, passed the order impugned, even though the petitioner filed an affidavit before the appellate authority that the petitioner is ready and willing to match the rate quoted by opposite party no.5, i.e. Rs.611/- per cum as additional charge.
10. A counter affidavit was filed by the Sub- Collector-opposite party no.3 in W.P.(C) No. 19779 of 2021, wherein in paragraph-6 it was stated as follows:-
"The highest bidder Sri Tripurari Sahoo, opposite party No.5 who quoted the highest additional charges of Rs.611.00 was found ineligible by the Tahasildar, Gondia in view of shortage of solvency certificate submitted him."
Therefore, since the highest bidder, i.e., opposite party no.5 was disqualified due to shortage of solvency certificate and the petitioner was willing to match with the highest bid offered by opposite party no.5, in view of the affidavit filed by the petitioner before the Sub-Collector, Dhenkanal in OMMC Appeal No. 1/2021, in course of hearing, this Court Page 17 of 21 reiterated the same fact by making a query, to which Mr. Jagannath Patnaik, learned Senior Advocate appearing for the petitioner contended that the petitioner is willing to operate the quarry with the highest price offered by the opposite party no.5 at Rs.611/- per cum towards additional charges. Mr. P.P. Mohanty, learned Addl. Government Advocate agreed to such proposal and contended that if the petitioner matches with the highest price offered by opposite party no.5, i.e. Rs.611/- per cum as additional charge, it will not cause prejudice to the Government or affect the revenue in any manner, since all other formalities have already been complied with by the petitioner.
11. The scope and power of the Court to interfere with a contractual matter is well justified in various judgments of the apex Court rendered in the cases of Tata Cellular v. Union of India, AIR 1996 SC 11; Master Marine Service (P) Ltd. v. Metcafe & Hodgkinson (P) Ltd., (2005) 6 SCC 138; Sterling Computers Ltd. v. M & N Publications Ltd., (1993) 1 SCC 445; M/s. B. S. N. Joshi and Sons Ltd v. Nair Coal Services Ltd., AIR 2007 Page 18 of 21 SC 437; Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 and Siemens Public Communication Networks Private Limited v. Union of India, (2008) 15 SCR 585 : (2008) 16 SCC 215.
12. In view of the judgments of the apex Court in M/s Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd., (1990) 3 SCC 280; Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601; and Mahabir Auto Stores v. Indian Oil corporation, AIR 1990 SC 1031, which have been referred to in D.K. Engineering and Construction v. State of Odisha, 2016 (II) ILR CUT 515 and BMP and Sons Private Limited v. State of Odisha, 2016 (II) ILR CUT 272, in which this Court observed that the rights of citizens are in the nature of contractual rights. The manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non- discrimination in the type of the transactions and nature of Page 19 of 21 the dealing, as in the present case. Therefore, this Court has every justified reason to exercise the power of judicial review in the present case.
13. In Dinakrushna Pattanaik (supra), this Court, taking into consideration the fact that the second highest bidder was ready to match the price offered by the highest bidder, settled the quarry lease in favour of the second higher bidder at the highest price of the successful bidder. The ratio laid down by this Court in Dinakrushna Pattanaik (supra) is applicable to the present case.
14. In the facts and circumstances, as well as the settled principles of law, as discussed above, since opposite parties no. 5 and 6, who are respectively the highest and second highest bidder, failed to perform their part of the contract and, as such, they are disqualified, the petitioner having already been chosen as the next highest bidder and also given affidavit to match with the highest price offered by opposite party no.5, i.e., Rs.611/- per cum towards additional charge, in the interest of justice, equity and Page 20 of 21 keeping in view the fact that no loss will be caused to the State Government, the order impugned dated 27.07.2022 passed in OMMC Appeal No. 1 of 2021 is hereby quashed. Accordingly, Tahasildar, Gondia-opposite party no.4 is directed to take necessary follow up action for execution of the lease deed with the petitioner by awarding the "Dallar Sand Quarry" in accordance with provisions contained in the tender notice as well as the OMMC Rules, 2016 as expeditiously as possible, preferably within a period of 15 days from the date of communication/production of certified copy of this judgment.
15. The writ petition is thus allowed, but, however, 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 24th April, 2023, Arun Page 21 of 21