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2018 DIGILAW 656 (ORI)

Rajkishore Mishra v. State of Odisha

2018-07-12

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - Kharasrota River sand at Ghantiali was settled in favour of Sri Smruti Ranjan Jena, S/o-Surendra Kumar Jena of village-Kiaena under Binjharpur Tahasil on long term basis for a period of 5 (five) years from 2015-16 to 2019-20 vide Sairat Case No.6/2015-16 as per Orissa Minor Minerals Concession Amendment Rules, 2014. Mining plan was prepared by the lessee and the same was approved by the Member Secretary, SEIAA, Bhubaneswar vide letter dated 26.04.2016. After approval of mining plan, the lessee is to obtain the consent to Establishment and Operate order from the Regional Officer, State Pollution Control Board, Jajpur Road for operation of quarry. The petitioner submitted on line application before the Regional Officer, State Pollution Control Board for the said purpose but the lessee had not complied by filing required documents. Consequentially the Regional Officer rejected on line application dated 18.02.2017 and on receipt of such letter, the lease was cancelled on 08.01.2018 vide Sairat Case No.6/2015-16 and communicated to the lessee vide letter dated 19.01.2018. 2. After cancellation of lease, a fresh tender was invited on 02.02.2018 in Annexure-2 for settlement of Kharasrota River Sand at Ghantiali on long term basis for a period of 5 years (from 2018-19 to 2022-23). Accordingly, an advertisement was issued and published in the daily newspaper “The Sambad” and “The Dharitri” on 05.02.2018. A copy of the notice for auction of Sairat source was also sent to B.D.O., Binjharpur, Sarapanch, Ghantiali G.P., DIPRO, Jajpur and DIO, NIC, Jajpur with a copy to office Notice Board for wide publicity fixing the last date for first phase on 19.02.2018 which would be opened on 20.02.2018, second phase on 26.02.2018 which would be opened on 27.02.2018 and the third phase on 06.03.2018 which would be opened on 07.03.2018. 3. As per the advertisement, the sealed Tender Box was opened in the Office chamber of the Tahasildar, Binjharpur on 20.02.2018 at 3.00 P.M. in the presence of Tahasildar, Addl. Tahasildar, Revenue Supervisor, Head Clerk including the bidders participants. After opening of Tender box, it was found that only three applications were found in the box. Out of three applications, two applications, i.e., Mitambini Mishra, W/o- Madhu Sudan Mishra of village Rudhia and Sri Raj Kishore Mishra, S/o-Madhu Sudan Mishra of village Rudhia found to be in order. Tahasildar, Revenue Supervisor, Head Clerk including the bidders participants. After opening of Tender box, it was found that only three applications were found in the box. Out of three applications, two applications, i.e., Mitambini Mishra, W/o- Madhu Sudan Mishra of village Rudhia and Sri Raj Kishore Mishra, S/o-Madhu Sudan Mishra of village Rudhia found to be in order. Out of the two applicants, Mitambini Mishra had quoted the highest rate, i.e., Rs.77.77 per Cub.Meter and Raj Kishore Mishra had quoted Rs.37.77 per Cub. Meter as the second highest bidder. 4. During scrutiny of the application, it was found that both the applicants had submitted solvency certificate for Rs.5.00 lakhs. But, during advertisement, it was asked to submit solvency certificate for Rs.15.00 lakhs. On second date i.e. on 27.02.2018, the sealed Tender Box was opened in the Office chamber of the Tahasildar, Binjharpur at 3.00 P.M. in the presence of Tahasildar, Addl. Tahasildar, Revenue Supervisor, Head Clerk of Tahasil Office, Binjharpur and no application was found in the Tender box. Therefore, the Committee decided to wait for another date i.e. on 07.03.2018. 5. On the third date of tender, i.e., 07.03.2018, when the sealed Tender box was opened in the Office chamber of the Tahasildar, Binjharpur at 3.00 P.M. in the presence of Tahasildar, Addl. Tahasildar, Revenue Supervisor, Head Clerk of Tahasil Office, Binjharpur, no applications were quoted for tender. But, the bidders participated in the first date i.e. on 20.02.2018 and Sri Smruti Ranjan Jena, the last auction holder was present. Therefore, the Committee decided to give scope to the highest bidder of the first date of tender, i.e. 20.02.2018 to Mitambini Mishra for settlement of source. But, she submitted her application stating therein that she was not interested to take the sairat source due to her illness. Thus, the petitioner being the second highest bidder, who had quoted Rs.37.77 Cub. Meter, expressed his willingness to take the Sairat. But, Smruti Ranjan Jena on 07.03.2018 requested for settlement of Sairat Source in his favour as he had spent a huge amount of money during the time of preparation of mining plan for obtaining Environment Clearance from SEIAA, Bhubaneswar in which the lease was cancelled on 08.01.2018. Meter, expressed his willingness to take the Sairat. But, Smruti Ranjan Jena on 07.03.2018 requested for settlement of Sairat Source in his favour as he had spent a huge amount of money during the time of preparation of mining plan for obtaining Environment Clearance from SEIAA, Bhubaneswar in which the lease was cancelled on 08.01.2018. Eventually, both Raj Kishore Mishra and Smruti Ranjan Jena had submitted an agreement requesting therein to settle the Source in favour of the petitioner herein, who was the second highest bidder of the first auction dated i.e. 20.02.2018. 6. During scrutiny of the application, it was found that the petitioner had submitted Solvency Certificate for Rs.5.00 lakhs, but at the time of advertisement, it was asked to submit Solvency Certificate for Rs.15.00 lakhs. Subsequently, since the petitioner did not deposit the Solvency Certificate of Rs.15.00 lakhs, the authority decided to cancel the tender on 02.07.2018 in Annexure-8 and issued a fresh tender for the self-same Sairat source on 05.07.2018 in Annexure-9. Hence this application is filed. 5. Learned counsel for the petitioner strenuously urged that the petitioner being the second highest bidder, and as the first bidder had relinquished her right to continue the source, he may be permitted to allow to operate the source for solvency of Rs.5.00 lakhs. Without considering the grievances of the petitioner, a fresh advertisement was issued, which would cause prejudice to him, for which the petitioner approached this Court by filing this writ petition. 6. Mr B.P. Pradhan, learned Additional Government Advocate argues with vehemence contending that the first bidder quoted 77.77 Cub. Meter whereas the second highest bidder (petitioner) quoted 37.77 Cub. Meter and subsequently the first highest bidder relinquished to take the source and allow the second highest bidder to have the source for a long term for a period of five years, that itself indicates that there must be unholy alliance between the highest and second highest bidder. Apart from the same it is contended that the petitioner had deposited solvency of Rs.5.00 lakhs in place of Rs.15.00 lakhs thereby the authority was justified to cancel the tender by issuing a fresh tender. It is further contended that the first lessee Sri Smrutiranjan Jena having agreed with the second highest bidder to continue the source, that also indicates that the petitioner had not come to the Court with a clean hand. It is further contended that the first lessee Sri Smrutiranjan Jena having agreed with the second highest bidder to continue the source, that also indicates that the petitioner had not come to the Court with a clean hand. Therefore, the claim made by the petitioner in this writ petition cannot sustain in the eye of law. Accordingly, the same should be dismissed. 7. We have heard learned counsel for the petitioner as well as learned Additional Government Advocate for opposite parties and perused the records. With the consent of the parties, the matter was heard and disposed of at the stage of admission. 8. The facts narrated are not in dispute. The petitioner who quoted 37.77 Cub. Meter, wanted to take the source as against highest offer made by the first bidder at the rate of Rs.77.77 Cub.Meter. On an arithmetical calculation, the price quoted by the second bidder is just half of the bid price of the first bidder. More so, the petitioner has not deposited the enhanced solvency amount of Rs.15.00 lakhs, which was directed to be paid pursuant to intimation issued to him, thereby the conditions stipulated in the advertisement had not been complied with. The conduct of the petitioner also creates another doubt to the extent that he entered into an agreement with the highest bidder for the year 2015-16 to 2019-20, namely, Sri Smrutiranjan Jena whose lease was cancelled because of non-compliance of the requirement of the provisions of law. The sum total of conduct of the petitioner as discussed above, clearly indicated that he tried to take up the sources at a limited price, that too without complying the conditions of tender documents. 8. The basic concept of the word “tender” is an offer. It is something which invites, and is intended to invite acceptance. Sometimes, in the case of large contracts a list is prepared, tabulated, and show the name of all contractors who have tendered; and opposite each name, the total price tendered and also any observations made by the contractor or any peculiar conditions which the contractor wishes to govern his execution of the work, are stated. 9. In Meerut Development Authority v. Assn. of Management Studies, (2006) SCC 171, the apex Court held that a “tender” is an offer. It is something which invites and communicates to notify acceptance. 9. In Meerut Development Authority v. Assn. of Management Studies, (2006) SCC 171, the apex Court held that a “tender” is an offer. It is something which invites and communicates to notify acceptance. Broadly stated, it must be unconditional; must be in proper form, the person by whom tender is made must be able to and willing to perform his obligations. The invitation of tender is in the realm of contract. 10. Applying this principle to the present context, the petitioner having not satisfied the conditions of the tender itself by furnishing the enhanced solvency of Rs.15.00 lakhs and quoting the price just half of the rate of the first bidder, the authority is well justified in cancelling the tender on 02.07.2018 in Annexure-8 and issuing a fresh tender on 05.07.2018 in Annexure-9 inviting fresh application for a long term lease source in question for the period from 2018- 19 to 2022-23 is well justified, which does not warrant interference of this Court. Therefore, we are of the opinion that the writ petition lacks merits, accordingly, the writ petition is hereby dismissed. Petition dismissed.