Orissa High Court
Techno Global Services Pvt. Ltd vs Additional Chief Secretary on 27 September, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.25127 of 2023
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
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Techno Global Services Pvt. Ltd.
represented by its Authorized Person and Project Head Sri Dillip Kumar Sahoo son of Prafulla Kumar Sahoo Plot No.746, 1st Floor, Sahidnagar Bhubaneswar 3 751 007 District: Khordha ... Petitioner
-VERSUS-
1. Additional Chief Secretary Revenue and Disaster Management Department Government of Odisha Bhubaneswar, District: Khordha 3 751 001
2. Chairman State Environment Impact Assessment Authority (SEIAA), Odisha Qr. No.5RF-2/1, Unit 3 IX Bhubaneswar, District: Khordha 3 751 022
3. The Collector-cum-District Magistrate Jagatsinghpur
4. Sub-Collector Jagatsinghpur
5. Tahasildar, Tirtol Jagatsinghpur W.P.(C) No.25127 of 2023 Page 1 of 45
6. Avian Infrastructure and Energy Pvt. Ltd. represented through its Authorised Signatory Sri Ranjan Kumar Pattanaik son of Dhruba Charan Pattanaik Plot No.1103/4101, Ratna Villa Soubhagyanagar (MC), Baramunda Colony, Bhubaneswar District: Khordha ... Opposite Parties Counsel appeared for the parties:
For the Petitioner : Mr. Surya Prasad Mishra, Senior Advocate with Mr.Ananta Narayan Pattanayak and Ms. Gayatri Patra, Advocates for the petitioner For the Opposite Parties : Mr. Prabhu Prasad Mohanty, Additional Government Advocate for the opposite party Nos.1 to 5;
Mrs. Pami Rath, Senior Advocate with M/s. Jnanesh Mohanty, Pratyasish Mohanty and Ms. Sucheta Gumansingh, Advocates for the opposite party No.6 M/s. Rabi Narayan Behera, L.K. Padhi, S. Dora, Advocates for the opposite party No.7 P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.25127 of 2023 Page 2 of 45 Date of Hearing : 18.09.2023 :: Date of Judgment : 27.09.2023 MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Aggrieved by Order dated 14.07.2023 passed by the Tahasildar, Tirtol-opposite party No.5 cancelling the quarry lease, notwithstanding deposit of an amount of Rs.1,65,73,784/- (Rupees One Crore Sixty Five Lakhs Seventy Three Thousands Seven Hundred eight four) towards interest free security deposit reduced by the amount of earnest money being made, and consequently, allowing the second highest bidder long term quarry lease in respect of <Bilashpur Paikanadi Sand Sairat= at much lesser price in purported exercise of power under Rule 27(10) of the Odisha Minor Minerals Concession Rules, 2016, the petitioner, the highest bidder, having participated in pursuance of the auction notice dated 04.03.2023, has questioned the propriety of the opposite party Nos.1 to 5 in the present writ petition filed under Articles 226 and 227 of the Constitution of India.
2.1. Further challenge is laid by the petitioner to the effect that without taking into consideration its application, as directed vide Order dated 26.06.2023 of this Court passed in W.P.(C) No. 19169 of 2023, in proper perspective, whereby request was made to the opposite W.P.(C) No.25127 of 2023 Page 3 of 45 party No. 5, Tahasildar, Tirtol, to provide the Environment Clearance Certificate (<ECC=, for short) in order to enable it to deposit the annual sairat value on the basis of approval of State Environment Impact Assessment Authority (abbreviated, <SEIAA=) for operating the sairat, Order dated 14.07.2023 came to be passed by said opposite party allowing the opposite party No.6, the second highest bidder, to deposit the security amount at much less value than the offer of the petitioner indicating that the opposite party No.6 has become successful second highest bidder in the sairat.
Such action of Opposite Party No.5 cancelling the quarry lease of the petitioner, the highest bidder, without following due procedure of law even after deposit of entire sairat value as per demand of the authority being made, and allowing the second highest bidder (opposite party No.6) to go for grant of Bilashpur Paikanadi Sand Sairat on long term quarry lease, suffers vice of arbitrariness.
2.2. In the writ petition, the petitioner has made fervent prayers as follows:
<*** to issue rule Nisi in the nature of a writ of certiorari/mandamus calling upon the opposite parties to show cause as to why;
(i) The order dated. 14.07.2023 under Annexure-21 passed by the opposite party No.5 (Tahasildar, W.P.(C) No.25127 of 2023 Page 4 of 45 Tirtol) shall not be quashed being declared as illegal, arbitrary and contrary to law.
(ii) The action of the opposite party No.3 (Collector-Cum-
District Magistrate, Jagatsinghpur) and opposite party No. 5 (Tahasildar, Tirtol) declared the opposite party No.6 as the Second highest bidder and asked to submit his acceptance and to deposit the security amount shall not be declared being illegal, arbitrary and unsustainable in the eyes of law.
(iii) The Letter dated 23.06.2023 under Annexure-22 issued by the opposite party No.5 in favour of the opposite party No.6 shall not be quashed being declared as illegal, arbitrary and unsustainable in the eyes of law.
(iv) A direction shall not be issued to opposite party No.2 (State Environment Impact Assessment Authority), Odisha and opposite party No.5 (Tahasildar, Tirtol) to provide the Environmental Clearance Certificate to the petitioner in respect of Bilashpur Paikanadi Sand Sairat and execute the lease deed for smooth operation of the said sand sairat.
(v) And if the opposite parties fail to show cause or show insufficient cause to make the said rule absolute by issuance of an appropriate writ (s), order(s), direction(s) as this Hon9ble Court may deem fit and proper; ***= THE FACTS:
3. The opposite party No. 5 issued Notification bearing No. 757 dated. 04.03.2023 for auction of the Bilashpur Paikanadi Sand Sairat under Tirtol Tahasil for the period W.P.(C) No.25127 of 2023 Page 5 of 45 2023-24 to 2027-28 (<sairat=, for brevity). Having participated in the auction, the petitioner was selected as successful bidders in the said auction amongst the other bidders in respect of Bilashpur Paikanadi Sand Sairat under Khata No. 289, Plot No.1004 measuring an area of Ac. 13.00 (5.26Ha) for a period of 5 years. The petitioner accepted the terms and conditions as specified by the opposite party No.5 in Letter dated 28.03.2023 and Letter dated 20.02.2017 issued by the opposite party No.2. However, the petitioner pointed out by a Letter dated 05.04.2023 that the detail of calculation breakup for all the dues along with security deposit was not made known. It has also brought to notice of the authority concerned that though sairat has been permitted for excavation of 15,149 CuM per year, the ECC was issued in the year 2017 permitting 6000 CuM of sand per year. It is also further stated that the petitioner is entitled to pay the amount basing on the permit granted by the opposite party No.2 to the extent of quantity allowed for excavation of sand, i.e., 6000 CuM. Therefore, it was stated that the petitioner would pay off the revised amount, if any, after the completion of replenishment study report.
3.1. The SEIAA, Odisha issued a Letter dated 20.02.2017 to the Thasildar, Tirtol (opposite party No.5) wherein ECC was issued in respect of sairat in favour of the previous W.P.(C) No.25127 of 2023 Page 6 of 45 lessee, namely Narahari Mishra, allowing excavation of sand for only 6000 CuM per year from the aforementioned sand sairat and the total quantum of sand excavation would remain within the mineable reserve, taking into account the replenishment study from year to year.
3.2. The petitioner has issued a Letter dated 10.04.2023 to the opposite party No.5 (Tahasildar, Tirtol), indicating requisite deposit of Rs.68,77,000/- calculating the amount as per Letter dated 28.03.2023 as well as Letter dated 20.02.2017, i.e., Rs.4,133/- (per CuM) taking into account total quantity of 6000 CuM of sand per year and praying for allowing to deposit security deposit (25% of the total amount including EMD) as per Rule 27(7) of the Odisha Minor Minerals Concession Rules, 2016 (for convenience referred to as <OMMC Rules=).
3.3. In response thereto, the opposite Party No.5 issued a Letter on 12.04.2023 intimating that as per Rule 27(7) of the OMMC Rules, the petitioner has to deposit an amout of Rs.1,65,73,784/- in respect of the royalty and additional charges immediately, which is without proper calculation.
3.4. In reply, the petitioner pointed out that the SEIAA (opposite party No.2) issued ECC with respect to the sand sairat on 20.02.2017 and as per Clause 2 of the W.P.(C) No.25127 of 2023 Page 7 of 45 Operating Conditions of said ECC the permitted quantity is subject to replenishment study report conducted year to year. In the said ECC, permission was granted to the extent of sand of 6000 CuM per year and said ECC was not in accordance with the mining plan. Further, though the petitioner had already deposited Rs.68,77,000/- including EMD and sought for time to deposit revised amount after completion of replenishment study report (pre-monsoon and post-monsoon). Nevertheless, the opposite party No.5 issued a letter to the petitioner granting seven days' time to deposit the security money amounting to Rs.1,65,73,784/- by 20.04.2023 in respect of allotment of the sand sairat. Said fact was brought to the notice of Sub-Collector, Jagatsinghpur on 17.04.2023 by way of letter explaining that it has been clearly mentioned in Para 2 of Letter No.1197, dated 12.04.2023 of Tahasildar, Tirtol that <the annual lease value shall be deposited as per quantity of sand which will be approved by SEIAA in the EC for the first year before execution of lease deed=.
3.5. By Letter dated 17.04.2023, the petitioner had given a detailed calculation so far as the security deposit is concerned as per Rule 27 of the OMMC Rules, 2016 and requested to advise the Tahasildar, Tirtol that before granting of the ECC there can be no insistence for deposit of any further amount as the amount to be W.P.(C) No.25127 of 2023 Page 8 of 45 deposited would depend on the quantity of sand approved by SEIAA. The petitioner had already deposited Rs.68,77,000/-, which was accepted. It was clarified that further amount would be deposited immediately after the ECC is granted and the execution of lease deed as per law.
3.6. As nothing resulted, the petitioner again wrote a letter to the opposite party No.5 (Tahasildar, Tirtol) describing the entire facts with regard to the quantity of materials as mentioned in the ECC, dated 20.02.2017 so also the Government Notification dated 09.02.2022. It is, thereafter, clarified by the Government that the selected bidder is to deposit the first year security amount as per the quantity permitted in EC granted by the SEIAA but not as per the quantity in the approved mining plan. Therefore, the petitioner sought time to deposit the balance amount, if any, after adjudication by the Sub- Collector, Jagatsinghpur (opposite party No.4) where the grievance of the petitioner was still pending.
3.7. That the reason for which the petitioner has approached the Tahasildar and the Sub-Collector for grant of the ECC after depositing the requisite amount of Rs.68,77,000/-, i.e., 25% of the statutory amount is that the same has been calculated on the basis of existing EC prior to the auction. It has further been clarified by the Deputy Director Tech. (Geology), Government of Odisha, W.P.(C) No.25127 of 2023 Page 9 of 45 Revenue and Disaster Management Department, Directorate of Minor Minerals, who issued Letter bearing No. 4074/R&DM, dated 09.02.2022 instructing the Additional District Magistrate, Mayurbhanj, that collection of royalty and other Government dues of newly auctioned minor mineral sources would be realized from the selected bidder taking into account the quantity permitted in the EC granted by the SEIAA for the first year, but not as per the quantity in the approved mining plan. It is also stated that the replenishment study must be conducted by the project proponent as per the guideline issued by the Department. In response to the letter, the Collector, Mayurbhanj complied with the same and intimated accordingly.
3.8. It is also referred to by the petitioner that on prior occasion the Environmental Scientist, SIEAA, Odisha issued Letter on 08.02.2022 to the Deputy Collector, Touzi, Dhenkanal clarifying the manner of lifting the sand sairat and requested to allow the quantity of sand mentioned in the ECC, but not in the mining plan for first year only and after submission of replenishment study report the next year actual quantity of sand is to be allowed accordingly.
3.9. The opposite party No.5 issued Letter on 25.04.2023 to the Petitioner stating therein that since the source has been auctioned fresh and fresh mining plan has been W.P.(C) No.25127 of 2023 Page 10 of 45 prepared and approved by the Directorate of Mines and Geology, Steel and Mines Department, Government of Odisha, fresh EC is required to be applied by the lessee which would require approval of SEIAA. Contrary to aforesaid position as clarified, the opposite party No.5 directed to deposit balance security money of Rs.1,04,86,784.00 within seven days as per quantity of sand approved in the mining plan vide Letter No.2890/DoMG, dated 22.12.2022.
3.10. Challenging such action, the petitioner approached this Court by way of filing writ petition, being W.P.(C) No.13419 of 2023, with a prayer to direct the opposite party No.5 to provide ECC. Though this Court did not entertain the writ petition, nevertheless observed the following in the Order dated 17.05.2023 while disposing off the matter:
<Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that pursuant to auction notice issued, the petitioner participated in the process of auction in respect of Bilashpur Paikanadi Sand Sairat under Tirtol Tahasil and was declared successful bidder, as per letter dated 28.03.2023 under Annexure-2. Accordingly, the petitioner accepted the terms and conditions for the said source.
Though the mining plan obtained permits 15000 cum of excavation, the EC issued in 2017 permitted to extract 6000 cum. Therefore, the petitioner is liable to pay the statutory dues, which has been calculated as Rs.1,65,73,784/- vide Annexure-6. Since the W.P.(C) No.25127 of 2023 Page 11 of 45 determination has been made for payment of Rs.1,65,73,784/-, the petitioner has made grievance before this Court. Once the sairat source has been settled in favour of the petitioner, if for some reason or other it did not operate the said source, the same will cause loss to the State Exchequer. Apart from the same, the contentions raised by learned counsel for the petitioner, that due to non-grant of environment clearance certificate the petitioner has not been able to operate the sand sairat, has been refuted by learned Additional Government Advocate by contending that SEIAA, Odisha has already approved the environment clearance and the petitioner has to collect the same.= 3.11. The petitioner, therefore, had to approach the Tahasildar in view of the statement made by the Additional Government Advocate before this Court that <SEIAA, Odisha has already approved the environment clearance and the petitioner has to collect the same= and, therefore, requested the Tahasildar, Tirtol by filing representation dated 20.05.2023 for providing the ECC in order to enable it to deposit the annual sairat value as approved by SEIAA for operating the sand sairat with a copy to SEIAA. Since no reply was received, the petitioner again wrote Letter dated 03.06.2023 and approached the Tahasildar for providing it with the ECC which was stated to be with him, but despite approaches made to the Opposite Party No.5, the authority did not provide the necessary ECC nor did he inform anything.
W.P.(C) No.25127 of 2023 Page 12 of 453.12. The Petitioner could deposit the security money as calculated by him as per the earlier ECC granted in respect of sand sairat but subsequently deposited remaining security amount.
3.13. As per Rule 29 of the OMMC Rules, 2016, the environment clearance is to be obtained for operation of sand quarry. Rule 29(2) provides that the competent authority may apply for and obtain the ECC. Rule 29(3) provides that in case environment clearance under sub- rule (2) is not obtained by the competent authority, the selected bidder shall obtain the same before executing the lease deed. In the instance case, the Tahasildar, Tirtol (opposite party No.5) neither applied to obtain the ECC from SEIAA nor did he provide the necessary required documents to the petitioner for making application to obtain the ECC from SEIAA for execution of the lease deed even after several requests.
3.14. Due to lackadaisical attitude of the opposite party No.5, the petitioner again approached this Court by way of filing writ petition bearing W.P.(C) No. 19169 of 2023, which was disposed off on 26.06.2023, with the following direction(s):
<4. In course of hearing, learned senior counsel appearing for the petitioner states that highlighting its grievance, the Petitioner has made representation/application to Opposite Party No.5 W.P.(C) No.25127 of 2023 Page 13 of 45 vide Annexure-16 and the same may be directed to be considered within a stipulated time, to which learned counsel for the State has no objection.
5. As agreed by learned counsel for the parties and after going through the records, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing opposite party No.5 to consider the representation/application filed by the petitioner vide Annexure-16 and pass appropriate order in accordance with law within a period of four weeks from the date of production of certified copy of this order.= 3.15. Such direction of this Court was brought to notice of the authority concerned on 26.06.2023 and to avoid entire controversy finally the petitioner has deposited the remaining sairat value for a sum of Rs.1,04,87,000/- on 30.06.2023. Fact of such deposit being made is acknowledged by the Tahasildar, Tirtol on the very date, i.e., 30.06.2023.
3.16. It is alleged by the petitioner in the writ petition that even though such fact of deposit of entire amount on 30.06.2023 was within the knowledge of the opposite party No.5, yet he passed an Order dated 14.07.2023 by rejecting the application of the petitioner and indicated as follows:
<*** the petitioner has time and again insisted to allow him to deposit security amount basing on EC granted earlier. In spite of being intimated twice and allowed W.P.(C) No.25127 of 2023 Page 14 of 45 ample time, he did not deposit the required amount within stipulated period. The second highest bidder M/s. Avian Infrastructure & Energy Pvt. Ltd. has been granted auction following due procedure. Also the process of obtaining Environment Clearance is under process.
Considering the above facts, the representation of the petitioner vide Annexure-16 being devoid of merit is hereby rejected.= 3.17. The petitioner further submitted that it has deposited initially Rs.60,87,000/- instead of entire sairat value of Rs.1,65,73,784/- as directed by the authority. However on a later date it deposited remaining amount of Rs.1,04,87,000/-. Even that is the position as at 30.06.2023, the opposite party No.5 has allowed the opposite party No.6, the second highest bidder, to go for deposit of an amount of Rs.1,08,33,070/- by calculating value @ Rs.2,155/- per CuM as per decision of Controlling Authority (Collector, Jagatsinghpur) vide Order dated 13.06.2023, which was intimated to the opposite party No.6 by letter dated 23.06.2023 issued by the opposite party No.5.
3.18. It is brought to the notice that the opposite party No.6 having deposited the security amount, online application has been made to the opposite party No.2 (SEIAA), dated 21.07.2023 for issuance of ECC in its favour in order to enable it to operate the Bilashpur Paikanadi River Sand Sairat.W.P.(C) No.25127 of 2023 Page 15 of 45
3.19. Questioning the propriety of the decision and the action of the authority concerned in rejecting grievance of the petitioner after having received the entire required amount and allowing the opposite party No.6-second highest bidder to deposit an amount, calculated at much lower value, the petitioner has proceeded to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, by way of the present writ petition.
RIVAL CONTENTIONS:
4. Counter-Affidavit has been filed by the opposite party Nos.3 to 5 by justifying action of the opposite party No.5 and said opposite parties contended that the petitioner was the highest bidder in the auction of sand sairat source held on 27.03.2023 and was asked vide Office Letter No. 1046, dated 28.03.2023 in Form F prescribed under the OMMC Rules, 2016 to convey his acceptance and deposit an amount as prescribed under Rule 27(7) towards security within a period of 15 days. The petitioner conveyed his acceptance vide Letter dated 05.04.2023 with request to specify calculation breakup. He was again requested vide Letter No. 1197, dated 12.04.2023 with details break up to deposit Rs.1,65,73,784.00 towards interest free security amount reduced by the amount of earnest money deposited. But he deposited Rs.60,87,000.00 on 12.04.2023 in bank W.P.(C) No.25127 of 2023 Page 16 of 45 account of the opposite party No. 5 (Tahasildar, Tirtol) through RTGS by calculating erroneously the amount on the basis of quantity of sand mentioned in EC of previous auction of this sairat source obtained during 2017, and the period of said EC has already been expired since 06.04.2022. The petitioner was requested vide Letter No. 1257, dated 17.04.2023 to deposit total amount within stipulated time period as intimated vide Letter No.1197, dated 12.04.2023 and Letter No.l257, dated 17.04.2023. As per request vide Letter No.TGS/TTL/06/23-24, dated 19.04.2023, it was further allowed seven days more time. As the time allowed elapsed and the selected bidder failed to deposit the full amount, file was moved to Controlling Authority- the Collector, Jagatsinghpur on 04.05.2023 for according appropriate order in this regard.
4.1. The Collector, Jagatsinghpur-the Controlling Authority vide Order dated 17.06.2023 has allowed the second highest bidder, namely M/s. Avian Infrastructure and Energy Pvt. Ltd., for settlement of auction in its favour. Accordingly, the second highest bidder was asked to submit its acceptance and to deposit an amount of Rs.1,08,33,070.00 (One Crore eight lakh thirty three thousand and seventy) towards security deposit in Form F vide Office Letter No. 1729, dated 23.06.2023. Having furnished bid acceptance vide Letter No.02, dated W.P.(C) No.25127 of 2023 Page 17 of 45 26.06.2023, the second highest bidder-opposite party No.6 deposited an amount of Rs.1,08,33,070.00 (One Crore eight lakh thirty three thousand and seventy) towards security deposit in the bank account of Tahasildar, Tirtol on 04.07.2023. Meanwhile, the petitioner deposited the rest amount of Rs.1,04,87,000 on 30.06.2023 in the Bank Account of Tahasildar, Tirtol and intimated the same vide Letter No. TGS/TTL/15/23- 24, dated 30.06.2023. The quantity of sand allowed by SEIAA for lifting of sand from the source has nothing to do with payment of security deposit amount which is calculated as per provision under Rule 27(7) of the OMMC Rules, 2016. The rule clearly states <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=. The petitioner was intimated twice and allowed ample time, but as it did not deposit the required amount within stipulated period, the second highest bidder M/s. Avian Infrastructure & Energy Pvt. Ltd. was granted W.P.(C) No.25127 of 2023 Page 18 of 45 auction following due procedure. The process of obtaining ECC is under process. By the time the petitioner deposited the entire amount on 30.06.2023, the opposite party No. 6-second highest bidder was intimated about the security amount required to be deposited and was selected as successful bidder following due procedure.
4.2. The security amount was required to be deposited as per provision under Rule 27(7) of the OMMC Rules, 2016. It is submitted in the Counter-Affidavit that quantity allowed for excavation in the ECC has nothing to do with this. But the petitioner has misinterpreted the rule and wrongly calculated the security amount basing on the amount allowed in the ECC which expired in the year 2022. The intimation to the successful bidder-petitioner was sent vide Letter No. 1046, dated 28.03.2023 in prescribed Form F under the OMMC Rules, 2016. Again on request the petitioner was intimated the total amount to be deposited along with detail break up vide Letter No. 1197, dated 12.04.2023.
4.3. The petitioner did not deposit the required security amount within the stipulated period and has never approached for any document for applying for ECC. The opposite party No.5 has never remained silent over the matter.
W.P.(C) No.25127 of 2023 Page 19 of 454.4. As the petitioner did not deposit the security amount as per Rule 27(7) of the OMMC Rules, 2016 in spite of repeated communication and being provided ample opportunity, the Controlling Authority (Collector, Jagatsingpur) was requested to provide necessary instruction in this regard. After obtaining necessary instruction from the Controlling Authority on 13.06.2023, the second highest bidder was intimated vide Letter No. 1729, dated 23.06.2023 to submit acceptance and deposit security amount. The petitioner deposited total required amount after issue of intimation to the second highest bidder-opposite party No.6. Thus, the claim of the petitioner could not be allowed. It is affirmed by the opposite party Nos.3 to 5 that in Letter No. 1046, dated 28.03.2023 it was mentioned that unless the required amount as per Rule 27(7) of the OMMC Rules, 2016 is deposited within the stipulated period of 15 days, the intimation to successful bidder shall stand automatically revoked without any further notice and the earnest money will be forfeited.
5. By way of Counter-Affidavit, the opposite party No.6, the second highest bidder, contends that the petitioner having quoted Rs.4,133/- per CuM and the royalty at Rs.35/- per CuM, the excavated quantity being fixed at 15,159 CuM per year, it was required to deposit in addition to District Mineral Fund, the security deposit in W.P.(C) No.25127 of 2023 Page 20 of 45 accordance with the Minimum Guaranteed Quantity as per Approved Mining Plan. Since the petitioner failed to discharge its liability, the opposite party Nos.3 to 5 were right in exercising power under Rule 27(9) of the OMMC Rules, 2016.
5.1. The opposite party No.6 being issued with Form F and it having complied with the terms thereof in tune with Rule 27(7) of the OMMC Rules, 2016, there is no scope for the opposite party Nos.3 to 5 to back out. It is further submitted that the petitioner did not deposit the entire amount on the reason that the EC allowed in the previous lease had permitted only 6000 CuM per year. But it is pertinent to mention that the said EC had expired on 06.04.2022. Therefore, the petitioner was required to calculate the security deposit on the basis Minimum Guaranteed Quantity.
ARGUMENTS:
6. This Court at the stage of admission, on consent of all the parties heard the matter finally as the pleadings have been completed and exchanged among the parties. Heard Sri Surya Prasad Mishra, Senior Advocate with Sri Ananta Narayan Pattanayak Advocate for the petitioner; Sri Prabhu Prasad Mohanty, Additional Government Advocate for the opposite party Nos.1 to 5; Smt. Pami Rath, Senior Advocate with Ms. Sucheta Gumansingh, W.P.(C) No.25127 of 2023 Page 21 of 45 Advocate for the opposite party No.6; Sri Rabi Narayan Behera, Advocate for the opposite party No.7.
7. Sri Surya Prasad Mishra, learned Senior Advocate appearing for the petitioner urged that the Tahasildar, Tirtol, opposite party No.5, having not acted fairly, but rather connived with the opposite party No.6, second highest bidder, attempted to frustrate the writ of mandamus issued by this Court on earlier occasions. Referring to Letters dated 10.04.2023, 12.04.2023, 17.04.2023 and 19.04.2023, being assisted by Sri Ananta Narayan Pattanayak, Advocate, Sri Surya Prasad Mishra, learned senior counsel vehemently submitted that time and again representations were made to the Tahasildar, Tirtol to clarify the position with regard to ECC granted with respect to previous lease allotted to Sri Narahari Mishra, which expired on 06.04.2022, wherein excavation was allowed for 6,000 CuM per year whereas current lease was for 15,149 CuM. Further, the petitioner has been insisting for ECC, which was required to be furnished by the Tahasildar, Tirtol. Since he did not deny to procure ECC as per Rule 29(2) of the OMMC Rules, the petitioner had no scope to apply and it is permissible for recovery of cost from the selected bidder-petitioner. Such a fact is not disputed and cannot be disputed in view of observation that <Apart from the same, the contentions raised by learned counsel for the W.P.(C) No.25127 of 2023 Page 22 of 45 petitioner that due to non-grant of Environment Clearance Certificate the petitioner has not been able to operate the sand sairat, has been refuted by learned Additional Government Advocate by contending that SEIAA, Odisha has already approved the environment clearance and the petitioner has to collect the same= made in the Order dated 17.05.2023 in W.P.(C) No.13419 of 2023. However, the Tahasildar, Tirtol being approached, even if said order is cited before him, he has not issued the same. Rather he insisted for deposit of security amount. Even after much persuasion when the same was not granted, the petitioner discharged entire amount of security deposit which fact has been acknowledged by said authority-opposite party No.5 on 30.06.2023. In spite of receipt of entire requisite deposits, the opposite party No.5 acted at his whims and fancy by proposing to settle the sairat in favour of the second highest bidder, who was allowed to deposit the amount on 04.07.2023.
8. Per contra, refuting the contention of Sri Surya Prasad Mishra, learned senior counsel, Sri Prabhu Prasad Mohanty, learned Additional Government Advocate has vehemently objected and submitted that as the petitioner did not deposit the amount of security within the period specified, the second highest bidder was offered to comply with the terms, which it did by making W.P.(C) No.25127 of 2023 Page 23 of 45 deposit. Since there was non-compliance even after intimation to deposit, the petitioner has been insisting for issue of ECC so as to enable it to operate the sairat. The matter being placed before the Controlling Authority much prior to deposit of entire amount stated to have been made on 30.06.2023 by the petitioner, there is no infirmity in settling the auction with the second highest bidder-opposite party No.6. In the intimation letters, it was clearly mentioned that in the event of failure to deposit the amount of security within the stipulated period, the amount so deposited would stand forfeited. Such a step to settle the sairat with the second highest bidder is in consonance with the statutory prescription under Rule 27(9) of the OMMC Rules.
9. Being ably assisted by Ms. Sucheta Gumansingh, learned Advocate, Smt. Pami Rath, learned Senior Advocate appearing for the opposite party No.2, second highest bidder, in her erudite style supported the contentions of Sri Prabhu Prasad Mohanty, learned Additional Government Advocate appearing for the Tahasildar, Tirtol and argued that there was no prohibition for the petitioner to obtain ECC as per Rule 29(3) of the OMMC Rules, had the competent authority not obtained the same. Therefore, availability of ECC has no bearing with the requirement to deposit of security amount which is calculated on the Minimum W.P.(C) No.25127 of 2023 Page 24 of 45 Guaranteed Quantity as stipulated in Rule 27(7) and such deposit was to be made within fifteen days of intimation being given by the Competent Authority in Form F. Therefore, no infirmity in the decision of the Tahasildar, Tirtol (opposite party No.5) and for that matter the decision of the Controlling Authority, the Collector of Jagatsinghpur (opposite party No.3), can be imputed.
9.1. Amplifying her submission, Smt. Pami Rath, learned Senior Advocate vehemently contended that whereas the petitioner was required to deposit the additional charge quoted at Rs.4,133/- and failed to discharge within the period specified under Rule 27(7), the opposite party No.6-second highest bidder having quoted Rs.2,755/- was instructed to deposit Rs.1,08,33,070/- which it had complied in due time. Therefore, the Tahasildar, Tirtol, having received said amount, cannot now resile.
9.2. Nonetheless, the opposite party No.6 has filed an Additional Affidavit on 15.09.2023 by stating thus:
<That however, the petitioner had quoted the additional charge as Rs.4,133/-. In that view of the matter, the present opposite party is ready to match up the price of additional charge quoted by the petitioner, i.e., 4,133/-, and accordingly, ready to pay the residue amount before the authority as calculated in terms of additional charge of Rs.4,133/-.= W.P.(C) No.25127 of 2023 Page 25 of 45
10. Sri Surya Prasad Mishra, learned Senior Counsel appearing for the petitioner alleged that the conduct of the opposite party Nos.3 and 5 can be inferred from the circumstances. He laid emphasis on the fact that the opposite party No.5 having instructed the Additional Government Advocate at the time of disposal of writ petition being W.P.(C) No.13419 of 2023 on 17.05.2023 that <the petitioner has to collect= the ECC which has already been approved, and received/accepted entire amount towards security deposit on 30.06.2023, there was no occasion for him to further proceed with the matter qua the opposite party No.6 by allowing it to make deposit on 04.07.2023.
10.1. Sri Surya Prasad Mishra, learned Senior Advocate developed his argument by stemming on the Order dated 26.06.2023 passed in W.P.(C) No.19169 of 2023, wherein considering the prayer(s) inter alia for a direction to the SEIAA and the Tahasildar, Tirtol to provide ECC to the petitioner in respect of Bilashpur Paikanadi Sand Sairat and execute lease deed, this Court disposed of the writ petition <to consider the representation/ application filed by the petitioner= and <pass appropriate order in accordance with law within a period of four weeks from the date of production of certified copy= of said order. Though the petitioner had brought to the notice of said Tahasildar about the orders W.P.(C) No.25127 of 2023 Page 26 of 45 of this Court and deposited the entire amount towards security on 30.06.2023, the opposite party No.5 should not have accepted the amount deposited by the second highest bidder later to that date.
DISCUSSIONS AND ANALYSIS:
11. This Court taking cognizance of the fact that the opposite party No.5 has blown hot and cold in the same breath.
11.1. At the outset it may be necessary to have reference to the Clarification bearing No.40744BDM-DRTMM-MISC-
0002-2022/R&DM, dated 09.02.2022 of the Government of Odisha in Revenue and Disaster Management, the text of which is extracted herein below:
<In inviting a reference to your Letter No.02 dated 03.01.2022 on the above mentioned subject and enclosing herewith a copy of the clarification issued by SEIAA to Dhenkanal District in a similar matter, I am directed to intimate the clarifications as below:
1) The Govt. dues like royalty, additional Charge, DMF, EMF etc. may be realised from the selected bidder taking into account the quantity permitted in the environmental clearance granted by SEIAA for the first year and not as per the quantity in the approved Mining Plan.
2) The replenishment study must be conducted by the project proponent as per the guidelines issued by this Dept. vide Lr. No. 35499 dtd. 25.11. 2021 at the W.P.(C) No.25127 of 2023 Page 27 of 45 earliest and study report is to be submitted to SEIAA for revision and enhancement of the permitted quantity.
3) It should be ensured that no excess mining in the quarry is made beyond the quantity approved by SEIAA in the EC.= 11.2. Exception in the Counter-Affidavit has been taken by the opposite party Nos.3 to 5. At paragraph 9 thereof it has been categorically stated that the petitioner deposited Rs.68,77,000.00 <wrongly calculating the total lease amount=. It is admitted by said opposite parties that <rather security amount is calculated strictly as per Rule 27(7) of the OMMC Rules, 2016 on Minimum Guaranteed Quantity (MGQ), which the petitioner did not comply. Application for environmental clearance is under process with SEIAA=. It is manifest that the opposite parties have proceeded in contrast with aforesaid Clarification, dated 09.02.2022. It transpires from reading of Rule 27(7) that the selected bidder <shall be required ... 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=.W.P.(C) No.25127 of 2023 Page 28 of 45
Thus, the calculation of <interest-free security deposit= comprises of very many categories of deposits <taken together= and in terms of clarification dated 09.02.2022 to the effect that <the quantity permitted in the Environmental Clearance granted by SEIAA for the first year and not as per the quantity in the approved Mining Plan=.
11.3. In such view of the matter, the contention of the opposite parties, that the deposit to be made by the <newly= selected bidder does not depend on the issue of ECC, deserves to be repelled.
12. This Court while disposing of W.P.(C) No.13419 of 2023 vide Order dated 17.05.2023 made specific remark that the learned Additional Government Advocate apprised this Court with regard to ECC having been approved by the SEIAA and it is for the petitioner to obtain the same from the Tahasildar, Tirtol. Such being factual position, which remained unchallenged at any stage by the opposite parties, it was expedient for the opposite party No.5 to comply with by providing ECC obtained from SEIAA. Therefore, the Counter-Affidavit dated 21.08.2023 filed by the opposite party Nos.3 to 5 asserting at paragraph 10 thereof that the petitioner <has never approached for any document for applying for Environment Clearance= cannot be countenanced.
W.P.(C) No.25127 of 2023 Page 29 of 4512.1. At this juncture this Court may notice the following provisions of Rule 29 of the OMMC Rules, 2016:
<29. Environment Clearance for grant of quarry lease.4 (1) *** (2) The Competent Authority may apply for and obtain the environmental clearance.
(3) In case the clearance under sub-rule (2) has not been obtained by the Competent Authority, the selected bidder shall obtain the environmental clearance before executing the lease deed.= 12.2. The submission of Smt. Pami Rath, learned Senior Counsel referring to paragraph 7 of the Counter-Affidavit of the opposite party No.6 to the effect that <both the parties acted in terms of Rule 29(3) which the petitioner did not allow to happen by withholding the security deposit=, does not stand to reason inasmuch as clear admission of the opposite party No.5 through Additional Government Advocate as reflected in the Order dated 17.05.2023 passed in W.P.(C) No.13419 of 2023.
Further, in the second writ petition in connection with the instant tender, being W.P.(C) No. 19169 of 2023, disposed off vide Order dated 26.06.2023, the Tahasildar, Tirtol was directed to consider the case of the petitioner. Having accepted the security deposit in entirety on 30.06.2023, instead of providing necessary ECC from SEIAA, which is stated to have been approved W.P.(C) No.25127 of 2023 Page 30 of 45 by the said opposite party before this Court, the Tahasildar, Tirtol, being public authority should not have played dirty game with the citizen.
12.3. Furthermore, the action of the opposite party No.5 is calculated to cause loss to the exchequer when it has made up to settle the sairat at a very low price (Rs.2,755/- per CuM) quoted by the second highest bidder having accepted the deposit on 04.07.2023 from the opposite party No.6 in comparison to Rs.4,133/- per CuM quoted by the highest bidder-petitioner.
13. Another intriguing factor which is felt expedient to be discussed is that when it was within the knowledge of the opposite parties that the earlier ECC granted in favour of the previous lessee, namely Sri Narahari Mishra, expired on 06.04.2022, which related to excavation of 6,000 CuM per year as against present sairat of 15,159 CuM per year raises reasonable apprehension that unless ECC is granted on fresh consideration by SEIAA, the operation of sairat would not be conducive. Even though the petitioner has been persistently seeking clarification in this regard by way of letters addressed to the appropriate authority including the opposite party No.5, such a fact has never been replied in specific terms; rather the opposite party No.5 by enclosing Annexures-B/5, C/5, D/5 to the Counter- Affidavit demonstrated that he has asked the petitioner W.P.(C) No.25127 of 2023 Page 31 of 45 to deposit the security amount calculated on the basis specified in Rule 27(7) of the OMMC Rules, but remained silent about ECC. It only has stated in Letter dated 25.04.2023 vide Annexure-D/5, that <the fresh EC shall be applied by lessee and shall be approved by the SEIAA=. It is apparent on perusal of Letter in File No.SEIAA-74/08-2023, dated 03.08.2023 vide Annexure-23 enclosed to the writ petition that:
<*** Subsequently, Environment Clearance (EC) was issued vide Letter No.2595/SEIAA, dated 20.02.2017 in favour of Sri Narahari Mishra for extractio of 2520 cum of sand per annum as per the approved mining plan with condition that the validity of EC is up to lease period granted by lease granting authority and coterminous with lease period but it is not known when the lease period is expired. Thereafter no EC was issued by SEIAA, Odisha for this project for the period of 2022-23 to 2027-28. Whereas, an online application is received by SEIAA, Odisha vide Application No. SIA/OR/MIN/437670/2023 dated 21.07.2023 for the same source apply by Sri Ranjan Pattanaik, the successful bidder selected vide Letter No.1729, dated 23.06.2023 in Form F issued competent authority. Presently, the proposal is pending at project proponent end due to some clarification raised by SEIAA, Odisha.= 13.1. This Court wishes to take cognizance of the fact that such a fact intimated in Annexure-D/5 runs counter to what was apprised by the Government Counsel by way of submission to the Court on 17.05.2023 while disposing of W.P.(C) No.13419 of 2023. Serious view of W.P.(C) No.25127 of 2023 Page 32 of 45 the matter is taken by this Court in this regard particularly so in absence of ECC, no excavation work can be undertaken; yet the Tahasildar, Tirtol insisted for security deposit by the petitioner. It is unwholesome on the part of the opposite party No.5 not to act in accordance with Rule 29(2) of the OMMC Rules.
13.2. Relevant provisions of Rule 27 of the OMMC Rules reads thus:
<CHAPTER 3 IV Grant of Quarry Leases
27. Grant of quarry lease.4 (1) *** (2) The notice inviting applications for grant of quarry lease shall be issued by the Competent Authority and shall specify the minimum guaranteed quantity of the minor mineral to be extracted in a year by the applicant and the minimum amount of additional charge payable for the same as determined under sub-rule (14).
(3) In case the mining plan or Environment Clearance for the proposed lease has been obtained by the Competent Authority, this fact, along with the cost of obtaining thereof shall be recoverable from the selected bidder which shall also be mentioned in the notice.
(4) *** W.P.(C) No.25127 of 2023 Page 33 of 45 (5) Subject to the provisions of these rules, the quarry lease shall be granted in favour of the applicant who has quoted the highest rate of additional charge:
Provided that, if more than one applicant have quoted the highest rate of additional charge, then the applicant shall be selected by draw of lots.
(6) *** (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, along with the earnest money, shall be held as interest-free security deposit.
(8) The selected bidder shall also deposit the costs of obtaining the mining plan and environmental clearance approvals, in case those have been obtained by the Competent Authority (non-
refundable) before executing the lease deed.
(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).
W.P.(C) No.25127 of 2023 Page 34 of 45(10) If the second highest bidder has quoted unusually low price in comparison to the highest bidder of the same source or other sources in the vicinity, the competent authority may bring it to the notice of the Controlling Authority, who after proper verification and with due justification may cancel the bid and direct for fresh auction.
(11) If the second highest bidder does not convey the acceptance within the time stipulated for such acceptance, or if the Controlling Authority has cancelled the bid under sub-rule (10), fresh notice inviting application for grant of quarry lease shall be issued with the approval of the next higher authority.
(12) Immediately after compliance of the foregoing provisions by the selected bidder, the earnest money of the unsuccessful bidders shall be refunded and the bank guarantees, if any, furnished by them, shall stand discharged.
(13) The selected bidder shall be required to execute quarry lease in Form-N within three weeks from the date of intimation of his selection, if the approval of the mining plan and environment clearance has been obtained before auction, and in other cases, three months from the date of intimation, failing which, the intimation shall stand cancelled and the security deposit shall stand forfeited:
Provided that the Controlling Authority may, for genuine and sufficient reasons, extend the said period, if it is satisfied that the delay in execution of lease deed is not due to reasons attributable to the selected bidder.W.P.(C) No.25127 of 2023 Page 35 of 45
(14) Security deposit shall be refunded after expiry of the lease period if the lessee has fulfilled all conditions of lease and in case of violation of any of the conditions of lease, the security deposit shall be forfeited in whole or in part by the Competent Authority.
(15) The minimum amount of additional charge to be quoted shall be such as the Competent Authority, in consultation with the Controlling Authority, decide and specify in the notice inviting applications for grant of quarry lease:
Provided that the minimum amount of additional charge so fixed should not be less than 5% of the rate of royalty.
(16) *** (17) ***= 13.3. It is noticed that the note sheet of Assistant Collector vide Note No.70, dated 13.06.2023 though recorded certain observations with regard to quotation of price by the second highest bidder at much lower price than the highest bidder in terms of Rule 27(10), the Controlling Authority appears to have not applied his independent mind to such fact.
13.4. It seems realizing such lacuna in allowing the second highest bidder to exercise its option, by way of Additional Affidavit dated 14.09.2023 (filed on 15.09.2023), the opposite party No.6 has made a statement before this W.P.(C) No.25127 of 2023 Page 36 of 45 Court that it is <ready to match up the price of additional charge quoted by the petitioner=. Such a statement in the considered opinion of this Court would not cover up illogical and fanciful device adopted by the opposite party No.5 to extend the benefit to the opposite party No.6, particularly so in the presence of Clarification dated 09.02.2022 issued by the Government in Revenue & Disaster Management Department.
13.5. The statement of the Additional Government Advocate as stands recorded in the Order dated 17.05.2023 passed in W.P.(C) No.13419 of 2023, that <SEIAA, Odisha has already approved the environment clearance and the petitioner has to collect the same=, cannot be put under cloud by taking a subsequent stand in the Counter- Affidavit filed by the opposite party Nos.3 to 5 that the petitioner <has never approached for any document for applying for environment clearance=.
13.6. In view of the aforesaid discussion, it is but clear that deposit as required to be made in the present case does depend on the basis of approval by SEIAA and as per fact contained in ECC in respect of fresh selected bidder (in the first year).
14. Gleaning through the documents enclosed to the pleadings of respective parties, it is noticed that the W.P.(C) No.25127 of 2023 Page 37 of 45 Tahasildar, Tirtol-opposite party No.5 made a note marked to the Additional District Magistrate on 02.06.2023, vide Annexure-E/5 to the Counter-Affidavit of the opposite party Nos.3 to 5, which is to the following effect:
<The Tahasildar, Tirtol has stated in his order (Page- 30/C) that the selected highest bidder of Bilashpur Paikanadi Sand Saitat source with bidding price of Rs.4133/- has not deposited the balance amount even after time extension was allowed. The Tahasildar has also stated that the 2nd highest bidding price of the above source comes to Rs.2755/- which is low from the first highest bidding price i.e. Rs.4133/-. Besides, 2nd highest bidding price of Bilashpur Pajkanadi Sand Saitat source is also higher in comparison to the highest bidding price of the sources in the vicinity, i.e., Arilo Jaipur, Paikanadi Sand Sairat Source-Rs.1007/-.
As, the second bidding price is more than the highest bidding price of the sources in the vicinity, the Tahsildar, Tirtol has requested to consider the price quoted by the second bidder for grant of lease of Bilashpur Paikanadi Sand Saitat source to avoid delay in operationalization of the source.
In view of the above, the file is submitted for kind perusal of the above facts and endorsing the file to the Collector & DM for kind instructions.= 14.1. Subsequently on 06.06.2023, the Collector & District Magistrate having instructed to put up with guidelines, on 13.06.2023, SO (Revenue) placed the following note W.P.(C) No.25127 of 2023 Page 38 of 45 before the Additional District Magistrate, in the following fashion:
<As per sub-rule (10) of Rule 27 of OMMC Rules 2016 8If the second highest bidder has quoted unusually low price in comparison to the highest bidder of the same source: or other sources in the vicinity, the competent authority may bring it to the notice of the Controlling Authority, who after proper verification and with due justification may cancel the bid and direct for fresh auction9 (puc-66/c) In the matter of auction of Bilashpur Paikanadi Sand Sairat source, 2nd highest bidding price of the said source is Rs.2755/ i.e. Rs. 1378/ less than the first bidder (with bidding price Rs.4133) but higher in comparison to the highest bidding price of the sources in the vicinity. The highest bidding price in the vicinity was Rs.1007/- per cum for Arilo Jaipur Paikanadi Sand Sairat Source as mentioned in the order sheet of the Tahasildar (pg.32/c) Hence, the Tahasildar, Tirtol has brought the above issue to the notice of the Collector & DM-cum-Controlling Authority as per Rule-2(g) Schedule-III of OMMC Rules, 2016 (pg-139) for necessary instructions.
In view of the above, the file is submitted for kind perusal of the above facts and endorsing the file to the Collector & DM for kind instructions.= 14.2. On 17.06.2023, the Collector & District Magistrate has simply stated <As proposed=. This shows sheer non-
application of mind on the part of the opposite party No.3. Glance at Rule 27(10) of the OMMC Rules, 2016, admits of no ambiguity that the <Competent Authority=-
W.P.(C) No.25127 of 2023 Page 39 of 45opposite party No.5 was required to <bring it to the notice of the Controlling Authority=. Further reading of said provision reveals that the Controlling Authority, <after proper verification and with due justification may cancel the bid and direct for fresh auction=. The notes of the officers as extracted herein above indicate that the Collector & District Magistrate, as the Controlling Authority has not taken his independent decision. Definition contained in Section 2(g) of the OMMC Rules, 2016 shows that <Controlling Authority means officer mentioned in column (3) of Schedule-III=. Schedule-III appended to the OMMC Rules inter alia reads as follows:
Sl. Type of Minerals Controlling
No. Authority
(1) (2) (3)
*** *** ***
2. Ordinary clay, silt,
rehmatti, ordinary sand
other than used for
industrial and prescribed
purposes, brick-earth,
ordinary earth, moorum,
laterite slabs, ordinary
boulders, road metals
including ballasts, chips,
bajri and rock fines
generated from stone
crushers, gravels of
ordinary stones and river
shingles and pebbles:
W.P.(C) No.25127 of 2023 Page 40 of 45
(a) When occurring in Collector of the
non-forest land District
(b) When available in Principal Chief
any forest area Conservator of
Forests, Odisha
14.3. Careful reading of Rule 27(10) of the OMMC Rules, 2016 shows that it is the <Competent Authority= who is to bring it to the notice of the <Controlling Authority= regarding <low price= quoted by the second highest bidder in comparison to the highest bidder of the same source. Both the terms, namely <Competent Authority=4 as per Rule 2(f) of the OMMC Rules, <Tahasildar= is described under Schedule-IV to be the Competent Authority in respect of minor minerals other than specified minor minerals4 and <Controlling Authority=4 Section 2(g) read with Schedule-III4 are defined. Plain reading of said definitions contained in the OMMC Rules indicates that the Tahasildar and the Collector of the District are conceded with powers in that capacity and they are the persons designated for the purpose of discharging functions as are conferred under the OMMC Rules.
14.4. The word <officer= used in singular in the definition of <Controlling Authority= vide Rule 2(g) is unequivocal to hold that it is the officer whose designation finds mentioned in Schedule-III and he alone is competent to W.P.(C) No.25127 of 2023 Page 41 of 45 invoke Rule 27(10), and none other. This is all the more clarified from the definition of <Sub-Collector= given in clause (bb) of Rule 24 <officer-in-charge of a Revenue Sub-division= and definition of <Tahasildar= given in clause (cc) of Rule 2 which lays down that <Tahasildar means the officer so appointed by the Government and includes an Additional Tahasildar=. Neither definition of the term <Controlling Authority= nor the officer mentioned in Schedule-III appended to the OMMC Rules specifies <any other officer= and no specific words like <such other officer= have been employed in the rules. Rule 27 does not authorize the Controlling Authority to delegate his essential power or to entrust his function under said sub-rule to any other officer. Thus, this Court is of the considered view that once provision of Rule 27(10) of the OMMC Rules is invoked, the decision thereunder is required to be taken by the <Controlling Authority=-Collector of the District (opposite party No.3). Note-sheet at Annexure-E/5 clearly demonstrates different officers, namely, Additional District Magistrate, Assistant Collector and Section Officer dealt with the file. The Controlling Authority-opposite party No.3 simply stating <As proposed= would not suffice to comply with the mandate of Rule 27(10) of the OMMC Rules. Hence, the Letter No.1729, dated 23.06.2023 issued by the Tahasildar, Tirtol (opposite party No.5) addressed to Ranjan Kumar Pattanaik, M/s. Avian Infrastructure and W.P.(C) No.25127 of 2023 Page 42 of 45 Energy Pvt. Ltd.-opposite party No.6 vide Annexure-F/5 directing it to make the security deposit on the basis of Rs.2,755/- per CuM cannot be held to be valid.
15. As the Controlling Authority-Collector of the District Jagatsinghpur has not taken decision as envisaged under Rule 27(10) of the OMMC Rules, 2016, but has merely stated <as proposed=, the subsequent action of the Tahasildar, Tirtol-opposite party No.5 cannot be held to be sustained.
16. Another aspect, which this Court does take into consideration, is that as per notes extracted herein above, on 17.06.2023 the Controlling Authority has stated to have taken decision under Rule 27(10) of the OMMC Rules on the requisition of the Tahasildar, Tirtol. But on 26.06.2023, when this Court disposed off the matter in W.P.(C) No.19169 of 2023, it was agreed by both the sides that the Tahasildar, Tirtol would consider the representation/application filed by the petitioner and pass appropriate order. Never ever such order has been questioned nor reviewed. As the records would reveal, without complying with the said direction, the Tahasildar, Tirtol has proceeded to accept the deposit made by the opposite party No.6 on 04.07.2023. Without adhering to the course as directed by this Court in Order dated 26.06.2023, the opposite party No.5 is not justified to accept the amount stated to have been W.P.(C) No.25127 of 2023 Page 43 of 45 deposited by the opposite party No.6 and allow it to succeed in the tender as second highest bidder.
17. Whereas this Court has already held in the foregoing paragraphs that the Controlling Authority-opposite party No.5 having not taken decision as envisaged in Rule 27(10) of the OMMC Rules and in the teeth of the Order dated 26.06.2023 passed by this Court in W.P.(C) No.19169 of 2023, reference to the decision rendered by the Hon'ble Supreme Court in the case of Padia Timber Company Private Limited Vrs. Board of Trustees of Visakhapatnam Port Trust through its Secretary, (2021) 3 SCC 24 = (2021) 1 SCR 229 as made by Smt. Pami Rath, learned Senior Counsel would not be of any aid to buttress her contention that there being unfructified offer and acceptance between the Tahasildar, Tirtol (opposite party No.5) and the petitioner, the action of the Competent Authority in revoking the bid of the highest bidder is justified.
18. Now that the petitioner, highest bidder, has made entire security deposit as required on 30.06.2023 prior to 04.07.2023, i.e., the date of deposit being made by the opposite party No.6-second highest bidder, the Order dated 14.07.2023 of the Tahasildar, Tirtol (Annexure-21) is liable to be set aside and consequentially, the intimation vide Letter No.1729, dated 23.06.2023 (Annexure-22) is liable to be made ineffective.
W.P.(C) No.25127 of 2023 Page 44 of 45CONCLUSION:
19. For the discussions made and reasons stated supra, the Order dated 14.07.2023 of the Tahasildar, Tirtol (Annexure-21) is set aside and as a consequence thereof, the intimation vide Letter No.1729, dated 23.06.2023 (Annexure-22) is not to be given effect to.
19.1. The Tahasildar, Tirtol is directed to take further steps in accordance with law with regard to sairat and withdraw the Letter No.1729, dated 23.06.2023 issued to the opposite party No.6, the second highest bidder.
19.2. In the result, with the above observation and direction the writ petition is allowed, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI) JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: PA(SECRETARY-IN-CHARGE) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 27-Sep-2023 16:14:44 Orissa High Court, Cuttack The 27th September, 2023//Aswini/MRS W.P.(C) No.25127 of 2023 Page 45 of 45