Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 877 (ORI)

Mukunda Singh v. Harekrushna Jena

2014-12-17

A.K.RATH, AMITAVA ROY

body2014
JUDGMENT : Dr.A.K.Rath, J. Challenging, inter alia, the action of the Tahasildar, Jaleswar directing the opposite party no.1 to pay 75% of the bid amount after expiry of thirty days from the date of auction of sairat and allowing him to operate Kantapal sand sairat under Jaleswar Tahasil without environmental clearance, the petitioner has filed this present writ petition. 2. The short facts of the case of the petitioner is that the Tahasildar, Jaleswar, opposite party no.2 issued a public notice on 22.2.2014 for auction of various sand sairats fixing the date of auction to 26.3.2014 and 29.3.2014, vide Annexure-1. Due to unavoidable circumstances, the auction was kept in abeyance and, accordingly, another notice was published in daily newspaper “the Samaj” on 25.3.2014. Again a notice was issued on 22.4.2014 fixing the date of auction to 30.4.2014, 1.5.2014 and 2.5.2014 respectively, vide Annexure-2. It is further stated that in Sairat Case No.37 of 2014-15, which pertains to Kantapal Sand Source in respect of plot no.1662, area Ac.2.00 and plot no.1289, area Ac.8.85 under khata no.483 of mouza Kantapal. Opposite party no.2 had fixed the upset price at Rs.20,11,900/-for the year 2014-15. But due to notification of Election Commissioner, the matter was postponed. Finally by order dated 22.4.2014, it was decided to put the sairat in auction on 30.4.2014. While the matter stood thus, on 30.4.2014, the Sub-Collector conducted the auction. The opposite party no.1 was the highest bidder. The sairat was finalized in his favour for Rs.46,03,500/-. Thereafter, opposite party no.1 deposited an amount of Rs.11,56,930/-on 30.4.2014, which was 10% of the upset price and 25% of the bid amount. He was directed to deposit the rest 75% of the bid amount i.e. 34,46,500/-within thirty days from the date of auction. But the opposite party no.2 had extended time beyond thirty days. On 7.7.2014 and 12.8.2014, the opposite party no.2 had extended time to opposite party no.1 to deposit the balance amount. 3. Pursuant to issuance of notice, the opposite party no.2 filed its counter affidavit. It is stated that Kantapal Sand Source appertaining to khata no.483, plot nos.1662 and 1289, area Ac.10.85 dec of mouza-Kantapal is a permanent sairat source, which was taken up on auction sale on annual basis under the Orissa Minor Minerals Concession Rules, 2004 (hereinafter referred to as “Rules, 2004”). It is stated that Kantapal Sand Source appertaining to khata no.483, plot nos.1662 and 1289, area Ac.10.85 dec of mouza-Kantapal is a permanent sairat source, which was taken up on auction sale on annual basis under the Orissa Minor Minerals Concession Rules, 2004 (hereinafter referred to as “Rules, 2004”). The annual upset price for the year 2014-15 was fixed at Rs.12,11,900/-, which was duly approved by the opposite party no.3 on 22.2.2014. Thereafter, notice was widely published in daily newspaper fixing the auction to 26.3.2014, 29.3.2014 and 4.4.2014 respectively. But due to unavoidable circumstances and code of conduct for general election, the auction was postponed to 30.4.2014 and, accordingly notification was published. Therefore, no irregularities were committed by the opposite party no.2. It is further stated that the auction of Kantapal sairat source in respect of the Sairat Source Case No.37/14-15 was taken up on the schedule date i.e. 30.4.2014 by the opposite party no.3. The opposite party no.1 offered Rs.46,03,500/-and was adjudged as the highest bidder. He deposited earnest money and 25% of the bid amount on the sale date before opposite party no.2. It is the specific case of the opposite party no.2 that the opposite party no.1 has cleared up the full dues against the bid in the meantime. 4. The opposite party no.1, who is the highest bidder, has also filed a counter affidavit taking the similar stand to that of the opposite party no.2. 5. Heard Mr.L.Pradhan, learned counsel for the petitioner, Mr.D.K.Dey, learned counsel for the opposite party no.1 and Mr.R.K.Mohapatra, learned Government Advocate for the opposite parties 2 to 6. 6. The tender call notice, vide Annexure-1, stipulates that the intending bidders had to deposit 10% of the upset price in the shape of account payee demand draft or bankers cheque payable at S.B.I., Jaleswar with application. The auction holder was required to deposit 1/4th of the auction amount on the date of auction. The rest 75% of the bid amount was required to be deposited within thirty days from the date of action, failing which, the auction will be cancelled and the EMD and 25% of the bid amount will be forfeited. 7. Admittedly, the opposite party no.1 is the highest bidder. He had deposited 10% of the bid amount of the upset price and 25% of the bid amount on the date of auction. 7. Admittedly, the opposite party no.1 is the highest bidder. He had deposited 10% of the bid amount of the upset price and 25% of the bid amount on the date of auction. So far as deposit of rest 75% of the bid amount is concerned, the opposite party no.1 was allowed time by the opposite party no.2 to deposit the same, whereafter he had deposited the said amount. In the meantime, the entire amount has been deposited by the opposite party no.1. 8. The question does arise whether the opposite party no.2 under the Rules, 2004 has jurisdiction to grant extension of time to deposit the rest 75% of the bid amount. Rules 47 and 48 of the Rules, 2004, which are relevant, are quoted hereunder:- “47.Successful bidder – The successful bidder shall deposit twenty five percent of the bid amount immediately after the bid is knocked down by the competent authority. If the successful bidder fails to deposit the amount, the earnest money deposited shall be forfeited to Government and the bid offered by him shall be treated as null and void. 48. Payment of bid amount-The successful bidder on receipt of the confirmation shall deposit the balance seventy five percent of the bid amount within thirty days from the date of confirmation of the bid.” 9. The legal position that emerges from the combined reading of the Rules 47 and 48 of Rules, 2004 is that the successful bidder shall deposit 25% of the bid amount immediately after the bid is knocked down. Failure to deposit the same will entail forfeiture of earnest money and bid offered by him shall be null and void. After confirmation, he shall deposit the balance 75% within thirty days from the confirmation of the bid. But then, Mr.Dey, submits that under Rule 78 of the Rules, 2004, the Tahasildar has jurisdiction to extend time to deposit the balance 75% of the amount. 10. For reference, Rule 78 of the Rules, 2004 is quoted hereunder:- “78. Power of Government to relax the rules-The Government may in the interest of mineral development, relax any of the provisions of these rules in deserving cases in such manner as they deem proper. 11. 10. For reference, Rule 78 of the Rules, 2004 is quoted hereunder:- “78. Power of Government to relax the rules-The Government may in the interest of mineral development, relax any of the provisions of these rules in deserving cases in such manner as they deem proper. 11. On a cursory perusal of the Rule, 78, it is beamingly clear that the Government may in the interest of the mineral development, relax any of the provisions of the rules in deserving cases. “Government” has been defined in Rule 2(k) of the Rules, 2004 means the Government of Orissa. Under Section 3 (60) of the General Clauses Act, 1897, the word “State Government” has been defined. Clause (c) of Section 3 (60) is applicable to the present case and, therefore the “State Government” is to mean the Governor of the State. Article 166 (1) of the Constitution of India provides that all executive action of the Government shall be expressed to be taken in the name of the Governor. Clause (3) of Article 166 further provides that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. The Orissa Government Rules of Business has been made by the Governor of Orissa in exercise of power conferred by Clause (3) of Article 166 of the Constitution of India. Rules 11 and 12 are the relevant. The same are quoted hereunder:- “11. All orders or instruments made or executed by order or on behalf of the Government of Orissa shall be expressed to be made by or by order of or executed in the name of the Governor of Orissa. 12. Every order or instrument of the Government of the State shall be signed either by a Principal Secretary, a Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary or an Under-Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument. Every order or instrument of the Government of the State shall be signed either by a Principal Secretary, a Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary or an Under-Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument. Explanation-In this rule the references to a Principal Secretary, a Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary and an Under-Secretary shall include references, respectively to an Additional Principal Secretary, an Additional Secretary, an Additional Joint Secretary, an Additional Deputy Secretary and an Additional Under-Secretary.” 12. On a conspectus of the aforesaid Rules, it is evident that all orders or instruments made or executed by order or on behalf of the Government of Orissa shall be expressed in the name of Governor of Orissa and every order or instrument of the Government of Orissa shall be signed by the functionaries mentioned in Rule 12. Thus, by no stretch of imagination, the Tahasildar has power under Rule 78 of the Rules, 2004 to relax any of the provision of the Rules. To wit, the provisions of the Rule can be relaxed by the Governor of Orissa. Thus reliance placed on Rule, 78 of the Rules, 2004 is totally misplaced. 13. The next question survives for our consideration is as to whether the opposite party no.1 can be permitted to operate the sand sairat. It is admitted by the opposite party no.1 as well as the opposite party no.2 that till yet the opposite party no.1 has not obtained the environmental clearance from the appropriate authority and is operating the sand sairat. This Bench, in Collector, Cuttack and others Vrs. Bharat Chandra Bhuyan, RVWPET No.324 of 2012, relying on the decision of the apex Court in the case of Deepak Kumar etc. Vrs. State of Haryana and Ors. etc., AIR 2012 SC 1386 , held that environmental clearance is a sine qua non for executing the lease deed and operation of the sand sairat. It is really a sad state of affairs that the functionaries of the State Government are not aware of the decision of the apex Court in the case of Deepak Kumar etc. and allowing unauthorized operation of sand sairat by the auction holder without any environmental clearance. It is really a sad state of affairs that the functionaries of the State Government are not aware of the decision of the apex Court in the case of Deepak Kumar etc. and allowing unauthorized operation of sand sairat by the auction holder without any environmental clearance. Though the opposite party no.2 has no power to extend the deposit of 75% of the balance amount and the opposite party no.1 has not obtained environmental clearance but then he allowed the opposite party no.1 to pay the said amount after one month and allowed him to operate the sand sairat. However, the opposite party no.1 has deposited the entire amount as has been admitted by the opposite party no.2. 14. Under such circumstances, we dispose of this writ petition with a direction to the Tahasildar, Jaleswar, opposite party no.2 to allow the opposite party no.1 to operate the sairat in question after obtaining the environmental clearance from the appropriate authority. Till and until the environmental clearance is obtained by opposite party no.1, he shall not be allowed to operate the sand sairat. In no case, the opposite party no.1 shall be allowed to operate the said sairat beyond 31st March, 2015. In the event, the opposite party no.1 fails to obtain the environmental clearance, the proportionate amount of money shall not be refunded to him keeping in view the fact that he has operated the sand sairat illegally.