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2. The factual matrix of the case, in a nutshell, is that the Tahasildar, Gunupur-opposite party no.4, issued a notice on 08.09.2020 inviting applications for grant of Turukaniguda Sand Bed under Gunupur Tahasil on long term lease of five years through auction. Pursuant to such auction notice, seven bidders submitted their applications in sealed cover within the time specified. Opposite party no.5, having quoted highest price, was found as successful bidder, whereas the petitioner was found as second highest bidder. Consequentially, opposite party no.4 issued notice in Form-F to opposite party no.5, vide letter dated 25.09.2020, for conveying the acceptance of the terms and conditions and for depositing the required amount within a period of 15 days. Though the said letter was received on 08.10.2020 by opposite party no.5, but he neither deposited the required amount nor did convey // 3 // the acceptance of the terms and conditions within a period of 15 days, as provided under Rule-27(7) of the Odisha Minor Mineral Concession Rules, 2016 (for short "OMMC Rules, 2016"). Therefore, opposite party no.4 issued a letter to opposite party no.2, on 29.10.2020, requesting for necessary order to issue intimation to the second highest bidder to convey the acceptance, as per Rule-27(9) of the OMMC Rules, 2016. As no reply was received thereto, again opposite party no.4 issued another letter on 10.11.2020 to opposite party no.2 requesting him for necessary order to issue intimation to the second highest bidder, the petitioner herein. Thereafter, opposite party no.5, vide letter dated 12.11.2020, intimated opposite party no.4 that he has deposited the amount, as per the notice dated 25.09.2020, and that the payment was made on 02.11.2020, i.e., much after expiry of the stipulated period, which was duly acknowledged by the office of the opposite party no.4. But, in the meantime, the petitioner represented opposite party no.4, vide letter dated 12.11.2020, requesting for permission to deposit the bid amount, as he was the second higher bidder.

3. Mr. Tanmay Mishra, learned counsel for the petitioner vehemently contended that admittedly opposite party no.5 was the highest bidder but he did not comply with the provisions contained under Rule-27(7) of the OMMC Rules, 2016 by conveying his acceptance of the terms and conditions and depositing the amount calculated therein within 15 days. Since the amount was not deposited within the stipulated period of 15 days, no right accrued in favour of opposite party no.5 to get the lease. It is further contended that as per Rule-27(9) of the OMMC Rules, 2016, on default of opposite party no.5, who is the highest bidder, the petitioner, being the next highest // 6 // bidder, the competent authority should have issued him intimation, in terms of Sub-rule (6) of Rule-27, calling upon him to convey his acceptance. As such, pursuant to such provision, there was no intimation to the petitioner and, therefore, the petitioner, being the second highest bidder, filed appeal before the appellate authority and also undertook to match the bid price offered by opposite party no.5, who is the highest bidder. But the same was not taken into consideration and the appeal preferred by the petitioner was dismissed, in view of Rule-27(10) of the OMMC Rules, 2016. It is contended that the highest bidder, having failed to comply the provisions contained under the OMMC Rules, 2016 within the time specified, cannot be granted the lease and, on the other hand, the petitioner, being the second highest bidder, has a right to be considered for allotment of the lease in his favour. But the appellate authority, without considering the same and only relying upon the observation of the Collector-cum- Controlling Authority, dismissed the appeal, which cannot sustain in the eye of law.

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4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-opposite parties contended that at the instance of the petitioner, who is claiming to be the second highest bidder, the writ petition is not maintainable, as because he was not intimated in terms of the provisions contained in Rule-27(9) of the OMMC Rules, 2016 to convey his acceptance and to make the security deposit calculated in the manner mentioned in Sub-rule (7). Therefore, when no intimation was given to the petitioner, no right accrued in his favour and, more so, cancellation of lease due to non-compliance of the provisions contained under Rule-27(7) of the OMMC Rules, 2016 is not automatic. It is contended that as per Rule-27(10) of the OMMC Rules, 2016, it is the duty and responsibility of the Controlling Authority to cancel the bid and direct for fresh auction, after proper verification and with due justification. As such, in the present case, the Controlling Authority, on verification, did not find any justification to cancel the bid or to direct for fresh auction, in view of the fact that the highest bidder had already deposited the amount, which was duly accepted. Mr. // 8 // Muduli, learned Addl. Govt. Advocate makes a comparison with regard to Rule-27(7) of OMMC Rules, 2004 vis-à-vis Rule-27(9) of OMMC Rules, 2016, where right of the second highest bidder is not mandatory. Rather, it is stated that the same is mandatory in Rules, 2004 by using the word "shall" instead of "may". Thus, it is contended that the petitioner has no locus standi to claim the benefit for settlement of the quarry in his favour.

(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."

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7. A cursory glance over the materials available on record would make it clear that pursuant to auction notice issued by opposite party no.4, all total seven bidders had submitted their bids for grant of Turukaniguda Sand Bed under Gunupur Tahasil on long term lease of five years. Opposite party no.5, having quoted highest price, was found to be successful bidder and, as such, as provided under Rule-27(7) of OMMC Rules, 2016, he was to convey his acceptance of the terms and conditions within a period of 15 days. Although he failed to do so within the time stipulated, but, however, within a short time thereafter, he deposited the entire amount, in the manner it is calculated in Sub-rule (7), and conveyed his acceptance as per the terms and conditions, which was also duly acknowledged by the competent authority. But, after the lapse of 15 days period, the petitioner, who is claiming to be the second highest bidder, approached the authority by stating that once opposite party no.5 failed to comply with the requirements of Rule-27(7) of OMMC Rules, 2016 within the time stipulated, he lost his right and, as such, a right accrued in favour of the petitioner and // 11 // consequentially the lease should be settled in his favour. But fact remains, even though conveyance of acceptance of terms and conditions and deposit of security amount was not made by opposite party no.5 within 15 days of intimation, that ipso facto cannot create a right in favour of the petitioner unless he is duly intimated by the competent authority in prescribed form, as provided under Rule-27(9) of OMMC Rules, 2016.