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2024 DIGILAW 744 (RAJ)

Ecosafe Infraprojects LLP v. State of Rajasthan

2024-05-07

NUPUR BHATI

body2024
ORDER : 1. Though the matters are listed in the fresh category, however, on the joint request of the counsel for the parties, the matters are being heard today itself. 2. These two writ petition have been filed under Article 226 of the Constitution of India with the prayer to set aside the impugned e-auction notices dated 08.03.2024 and 06.03.2024 (Annex.2) respectively and to issue suitable clarification in respect of the issues raised by the petitioner and to conduct the-auction afresh after issuance of clarification sought. The petitioner has also sought a direction to the respondents to conduct auction afresh only after issuance of suitable clarification and allow competitive participation of maximum of participant on the basis of clarity in the terms and conditions. 3. The facts illustratively are taken of SBCWP No. 6087/2024. In the writ petition, it is inter-alia stated that petitioner M/s Ecosafe Infraprojects is a Limited Liability Partnership (LLP) duly registered under the provisions of Limited Liability Partnership Act 2008 who participated in the e-auction process floated by the respondents for 14 plots of minor mineral Bajri (river Sand), wherein 7 plots pertained to District Bhilwara and 7 plots to that of District Sirohi as evident from the Resolution dated 27.03.2024 (Annex.1). The e-auction was scheduled for the dates 27.03.2024 and 28.03.2024 as per e-auction notice dated 06.03.2024 (Annex.2) for ML Bajri II/2024/E-05502 and ML Bajri III/2024/E-05654 by which the petitioner is aggrieved to the extent that it has ambiguous and contradictory terms and conditions, which are against the Rajasthan Minor Mineral Concession Rules 2017 (hereinafter referred to as ‘Rules of 2017’) and thereby vitiates the whole tender process. 4. An order dated 19.02.2020 (Annex.3) was passed by Hon’ble Apex Court in SLP No. 10587/2019 by which the Central Empowered Committee (‘CEC’) was directed to deal with the issue related to the sand mining in the State of Rajasthan and submit a report regarding problems relating to Sand Mining. Thereafter the CEC submitted a report dated 23.12.2020 (Annex.4) before the Hon’ble Apex Court with regard to aforementioned order. Furthermore vide judgment dated 11.11.2021 (Annex.5) passed in SLP No. 10587/2019, the recommendations of the CEC were approved by the Hon’ble Apex Court. 5. The petitioner furnished a letter dated 11.03.2024 to the respondents through mail dated 12.03.2024 (Annex.6) seeking clarifications on the contradictory and ambiguous terms and conditions of the e-auction notice dated 06.03.2024. Furthermore vide judgment dated 11.11.2021 (Annex.5) passed in SLP No. 10587/2019, the recommendations of the CEC were approved by the Hon’ble Apex Court. 5. The petitioner furnished a letter dated 11.03.2024 to the respondents through mail dated 12.03.2024 (Annex.6) seeking clarifications on the contradictory and ambiguous terms and conditions of the e-auction notice dated 06.03.2024. A reminder letter dated 20.03.2024 (Annex.7) to the respondents requesting the respondents to issue clarifications of the e-auction notice dated 06.03.2024. 6. The petitioner meanwhile remitted an amount of Rs 11,800/-as application fee and Rs.41,00,000/- as bid security on 22.03.2024 through RTGS under batch No. 0122032410650 in anticipation of clarification to be issued by the respondents, however, no clarification was given by the respondents and thus, the petitioner sent a legal notice dated 27.03.2024 (Annex.9) stating therein that the mining lease be granted through a transparent and fair process however, no clarification was given by the respondents and the petitioner being aggrieved of the impugned e-auction notice dated 06.03.2024 preferred this writ petition. 7. Learned counsel for the petitioner submitted that the date of registration of lease deed shall be determined as laid down in the conditions of the NIT that the period of mining lease shall be five years from the date of registration of the lease and the same is ambiguous for the reason that as per Rule 16 (3) of the Rules of 2017, the mining lease shall be granted by the competent authority with a condition that lessee shall commence the mining operation after obtaining Environment Clearance (‘EC’). Learned counsel for the petitioner also submitted that though the mining lease would be granted in favour of lessee, however, no mining activities can be carried out until and unless the EC can be obtained from the concerned authority. Learned counsel also submitted that it takes about one-two years in obtaining the EC and thus the said condition in the NIT that the validity period of five years counted from the date of registration creates an ambiguity as the mining activities can be carried only after obtaining the EC. He also submitted that there can be a situation that the EC could not be granted in favour of the lessee for a period of five years and in such case, the lease period would expire without operating the mining lease and the lessee would suffer an irreparable loss. He also submitted that there can be a situation that the EC could not be granted in favour of the lessee for a period of five years and in such case, the lease period would expire without operating the mining lease and the lessee would suffer an irreparable loss. He also submitted that in the light of directions given by the Hon’ble Apex Court in the case of Deepak Kumar v. State of Maharashtra, (2012) 4 SCC 629 , the lease for minor mineral shall be granted by the respondent State only once the EC has been obtained by the concerned person. He further submitted that until and unless the respondent State clarifies the commencement of the lease period of five years, the petitioner being an interested bidder could not have participated in the said auction process. 8. Learned counsel for the petitioner also submitted that in the NIT as per conditions laid down, the maximum sale price of mineral Bajri is fixed by the respondent State, which shall not be more that five times of the royalty and the said sale price shall be inclusive of all the taxes, royalty, District Mineral Foundation Trust (DMFT–10% of royalty), Rajasthan State Mineral Exploration Trust (RSMET-2% of royalty), Excavation expenses, labour and loading etc. He submitted that in the said condition, it is mentioned that the maximum sale price shall be applicable on the sale of Bajri at mouth pit of the river, which makes the petitioner assume that Bajri is to be sold at mouth pit on the maximum sale price fixed by the respondents. He also submitted that the said condition as laid down in the NIT is supported by the provision of Rule 13 (6) of the Rules of 2017, which lays down that in the case of mineral Bajri, the State Government may specify the maximum sale price at pit mouth of the lease and the successful bidder shall deliver or sale Bajri on such specified price. 9. Learned counsel for the petitioner further submitted that as per Condition No. n (2) of the NIT, the lease holder has to identify and install two stockyards within two KM radius of river where Bajri has to be stored and sold out through weighing on weigh-bridge. 9. Learned counsel for the petitioner further submitted that as per Condition No. n (2) of the NIT, the lease holder has to identify and install two stockyards within two KM radius of river where Bajri has to be stored and sold out through weighing on weigh-bridge. He further submitted that as per condition No. n (20) laid down in the NIT, the lease-holder is bound to comply with the said conditions, wherein it has been laid down the lease-holder shall have to comply with paragraph 11 (III) of the report submitted by Central Empower Committee (CEC) dated 23.12.2020 and the Guidelines of 2016 and 2020 issued by MoEFCC, which specifically restricts the lease-holder from sale of Bajri from pit mouth. He thus submitted that on the one hand the Bidder is not permitted to sell Bajri from the pit mouth and on the other hand, the maximum sale price of Bajri is applicable on the sale of Bajri at pit mouth. Thus, the respondents have created an ambiguity, inasmuch as when the Bidder cannot sell the Bajri from the pit mouth of the river, the maximum sale price for Bajri cannot be specified by the State Government from the pit mouth of the river. Learned counsel for the petitioner also submitted that the petitioner has submitted before the respondents various letters and e-mails seeking clarification on the contradictory and ambiguous terms and conditions, however, the respondents chose to sit tight over the matter, whereas, they were under obligation to respond to the ambiguity and contradictory situations created by them. Learned counsel for the petitioner also drew the attention of the Court towards the reply filed by the respondent State and submitted that the respondents did not respond to letter submitted by the petitioner, however, in the reply they have taken a stand that the mining lease will be granted only after obtaining the EC and the mining lease holder will get complete five years’ working in the area put for e-auction. He thus submitted that on account of the fact that the respondents did not clear the ambiguous conditions in the NIT, the petitioner was deprived of participating in the NIT. 10. He thus submitted that on account of the fact that the respondents did not clear the ambiguous conditions in the NIT, the petitioner was deprived of participating in the NIT. 10. Learned counsel for the petitioner submitted that in the light of Section 29 of the Contract Act, the agreements meaning of which is not certain or capable of being made certain, are void and thus in the present case, once the condition in the NIT are having ambiguity and contradictions to each other, then in such circumstances, the NIT itself deserves to be quashed and set aside as the agreement if any entered would itself be void and the respondents are required to issue NIT afresh with clear and unambiguous conditions. Learned counsel for the petitioner also submitted that as per Section 93 of the Indian Evidence Act, when the language used in a document is on its face ambiguous or defective, then in such case, the evidence may not be given of facts which would show its meaning or supply its defect; and in the present case the language used in the NIT is ambiguous and defective, and therefore, the NIT is required to be quashed and set aside. 11. Learned Counsel for the Petitioner placed reliance on the judgments passed by Hon’ble Apex court in the case of Dutta Associates (P) Ltd. v. Indo Merchantiles (P) Ltd. (1997) 1 SCC 53 ; Tata Cellular v. Union of India, (1994) 6 SCC 651 ; Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 171 and the judgment passed by the Hon’ble Himachal Pradesh in the case of Rashmi Metaliks Limited vs. State Of Himachal Pradesh, (2022) 0 Supreme (HP) 419. 12. Per contra, learned AAG submitted that the petitioner has deposited non-refundable application fees of Rs.10,000/- and Bid security amount as well and therefore, the petitioner once has participated in the NIT cannot challenge the conditions at a belated stage. He also submitted that as per Condition No. l (2) of the NIT, it is clear that after depositing application fees and Bid security, the Bidder becomes a participant of e-auction proceedings and in such case, the petitioner is bound by the conditions that have been laid down in the NIT. He also submitted that as per Condition No. l (2) of the NIT, it is clear that after depositing application fees and Bid security, the Bidder becomes a participant of e-auction proceedings and in such case, the petitioner is bound by the conditions that have been laid down in the NIT. He also submitted that in the light of the fact that the petitioner has duly participated in the-auction proceedings with open eyes and after going through the conditions laid down in the NIT, cannot invoke jurisdiction of this Court under Article 226 of the Constitution of India and thus the present writ petition is not maintainable and deserves to be dismissed. Learned AAG also submitted that as per Rule 15 (9) of the Rules of 2017, it shall be deemed that by submitting a Bid, the Bidder has accepted the risk of inadequacy, error of mistake in the information provided by or on behalf of Government relating to any matters related to e-auction process and thus the petitioner cannot raise any objection by way of filing the present writ petition challenging the conditions of the NIT. Rule 15 (9) of the Rules of 2017 reads as under: “15. Guidelines for submitting any bid on e-auction platform: xxx (9) It shall be deemed that by submitting a bid, the bidder has: (i) made a complete and careful examination of rules or guidelines for e-auction and unconditionally and irrevocably accepted the terms thereof. (ii) reviewed all relevant information provided by the Government, as may be relevant to the bid. (iii) accepted the risk of inadequacy, error or mistake in the information provided by or on behalf of the Government relating to any of the matters related to the e-auction process. (iv) satisfied itself about all matters regarding the e-auction process for submitting an informed bid, in accordance with the rules. (v) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of information or ignorance of any of the matters related to the e-auction process hereinabove shall not be a basis for any claim for compensation, damages, extension of time for performance of its obligations, loss of profits etc. from the Government.” 13. (v) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of information or ignorance of any of the matters related to the e-auction process hereinabove shall not be a basis for any claim for compensation, damages, extension of time for performance of its obligations, loss of profits etc. from the Government.” 13. Learned AAG also submitted that the conditions as laid down in the NIT that the duration of the mining lease shall be for a period of five years commencing from the date of registration of the mining lease, is strictly as per the provisions of Rule 9 (1) and 21 (6) of the Rules of 2017. Learned AAG further submitted that the apprehension expressed by the petitioner that in case the EC is obtained at a belated stage i.e. much after registration of the mining lease the petitioner would not get complete five years period for mining activity, is wholly misconceived as in the light of proviso of Rule 21 (4) of the Rules, the petitioner or the lease-holder can submit application seeking extension of time for bonafide delay when the grantee fails to complete the formalities. He submitted that in the eventuality if the EC is obtained by the petitioner at belated stage, then he can always seek extension of time in the light of proviso to Rule 21 (4) of the Rules of 2017. Learned AAG submitted that there is no contradictions or ambiguity in Condition No. n (5) vis-a-vis Condition No. n (2) of the NIT/e-auction, which mentions about the sale price of Bajri at stockyard situation within a distance of 2 KM from the river site where Bajri has to be stored. He submitted that Condition n (5) of the NIT is strictly in accordance with the recommendations of the CEC as approved by the Hon’ble Apex Court vide order dated 11.11.2021 and thus the contention of the petitioner that the condition is in contravention of the recommendations of CEC is without any force. He also submitted that as per Condition No. n (5), the mining lease holder is required to dispatch the mineral Bajri from the stockyard weighing through E-Transit Pass, which is generated through online mode and the maximum sale price of Bajri at stockyard shall be a multiplication of quantity and royalty of Bajri as per 2nd Schedule of the Rules of 2017 and as amended from time to time. He thus submitted that petitioner itself is creating confusion, whereas the conditions in the NIT are self-explanatory as Condition No. n (2) very specifically lays down that the lease-holder shall select two stock sites within 2 KM of river where the account holder will establish a register incoming outgoing register. He further submitted that there is no such condition which permits the lease-holder to excavate the mineral Bajri from pit mouth of river as the same is in contravention of the Report submitted by CEC and duly approved by the Hon’ble Apex Court. He further submitted that as far as Condition No. n (5) is concerned, the pit mouth of river is taken into consideration only for the purpose of determining the maximum price of mineral Bajri as the said condition also specifically restrains the lease holder from selling Bajri at a higher sale price than the more rate prescribed and such condition is only to the extent of putting restraint from selling the Bajri at a higher sale price than the price prescribed at pit mouth. He thus submitted that as the conditions laid down in the NIT were and are absolutely in accordance with order dated 11.11.2021 passed by the Hon’ble Apex Court, and are self-explanatory, there was no requirement for the respondents to respond to the letters submitted by the petitioner. Learned AAG submitted that as many as about 132 Bidders have participated in the NIT without raising any objection, which again fortifies the fact that there is no ambiguity or contradiction in the conditions laid down in the NIT. 14. Learned counsel for the respondents further submitted that in present auction proceedings number of prospective bidders participated and successful bidders have been declared as per the provisions of the Rajasthan Minor Mineral Concession Rules (RMMCR), 2017. Furthermore after deposition of first installment being 40% of offered premium and submission of other documents, department had already issued Letter of Intents in favour of the successful bidders. 15. Learned counsel for the respondents placed reliance on the judgments passed by Hon’ble Apex court in the case of National High Speed Rail Corpn. Furthermore after deposition of first installment being 40% of offered premium and submission of other documents, department had already issued Letter of Intents in favour of the successful bidders. 15. Learned counsel for the respondents placed reliance on the judgments passed by Hon’ble Apex court in the case of National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd. (2022) 6 SCC 401 ; Bajri Lease Loi Holders Welfare Society vs. State of Rajasthan and Others; Uflex Ltd. v. State of Tamil Nadu, (2022) 1 SCC 165 ; Sam Built Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176 ; Montecarlo Ltd. v. NTPC Ltd. (2016) 15 SCC 272 ; N.G. Projects Ltd. v. Vinod Kumar Jain, (2022) 6 SCC 127 . 16. I have heard learned counsel for the parties at length and have perused the material available on record and judgments cited at Bar. 17. This Court finds that the objection of the petitioner that the condition in the NIT is having ambiguity, as on the one hand it has been said that duration of mining lease shall be for a period of five years from the date of registration and on the other hand, as per the provision of Rule 16 (3) of the Rules of 2017, the mining lease shall be granted by the competent authority on condition that the lessee shall commence the mining operation after obtaining the EC and thus the petitioner does not have clarity that what would be the actual date of commencement of the mining lease, is not sustainable for the reason that Rule 16 (3) of the Rules of 2017 specifically lays down that the mining lease shall be granted by the competent authority with the condition that the lessee shall commence the mining operation after obtaining EC and thus there is no iota of doubt that the mining operations can be commenced only after grant of EC. As per Rule 16 (3) of the Rules of 2017, the lessee shall have to commence mining operation after obtaining EC, and there was no requirement for the respondents to clarify the date of commencement of the mining lease to the petitioners. Rule 16 (3) of the Rules of 2017 reads as under: “16. As per Rule 16 (3) of the Rules of 2017, the lessee shall have to commence mining operation after obtaining EC, and there was no requirement for the respondents to clarify the date of commencement of the mining lease to the petitioners. Rule 16 (3) of the Rules of 2017 reads as under: “16. Grant of mining lease: xxx (3) The area shall be granted by the competent authority, if the applicant or successful bidder, as the case may be, complies with the conditions within the stipulated or extended period of time and applicant or successful bidder, as the case may be, shall be intimated by registered post and e-mail.” The relevant Condition v (1) of the NIT reads as under: 18. Further, submission of the petitioner that the conditions viz. v (2) and (5) as laid down in the NIT, are ambiguous and contradictory in nature, as on the one hand the respondents have said that the maximum sale price of mineral Bajri would be fixed by the respondents, which shall be applicable on the sale of Bajri at pit mouth, which shows that Bajri is to be sold at pit mouth on the maximum sale price fixed by the respondents; and on the other hand, the Condition No. n (2) mandates the lease-holder to select two stock sites within 2 KM radius of river, on which it will stock gravel as per Rules, which shows that the sale of Bajri is to be done at the pit mouth of the river, is not sustainable for the reason that said Condition n (2) in the NIT has been mentioned in the light of proviso (6) of Rule 13 of the Rules of 2017, which empowers the State Government to specify the maximum sale price at pit mouth of the lease and the same is reproduced herein-below: “13. Bidding parameters for e-auction: (6) In case of mineral bajri, the State Government may specify the maximum sale price at pit mouth of the lease and the successful bidder shall deliver or sale the Bajri on such specified price.” Condition n (2) of the NIT reads as under: Condition n (5) of the NIT reads as under: 19. Bidding parameters for e-auction: (6) In case of mineral bajri, the State Government may specify the maximum sale price at pit mouth of the lease and the successful bidder shall deliver or sale the Bajri on such specified price.” Condition n (2) of the NIT reads as under: Condition n (5) of the NIT reads as under: 19. Therefore, in view of above the petitioner’s apprehension based on Condition n (5) of the NIT that the lessee can excavate the mineral Bajri from the pit mouth is not acceptable, as the condition does not project that the lease-holder has been permitted to excavate the mineral Bajri from the pit mouth, rather the State Government has been empowered under Rule 13 (6) of the Rules of 2017 to determine the sale price at the pit mouth of the river, rather the lessee is restricted to sell the mineral Bajri at the pit mouth at a higher rate than the prescribed maximum rate. As the State Government is empowered to specify the maximum sale price at pit mouth of the lease and the successful Bidder is required to sell the Bajri at such specified price, the later condition in NIT i.e. n (5) only refrains the lessee to sell the Bajri at a higher rate than specified by the Government. It is important to note that the maximum sale price of mineral Bajri is specified at the pit mouth of the lease in the light of Rule 16 (3) of the Rules, and therefore, in the later condition of NIT i.e. n (5) it refrains the lessee to sell the mineral Bajri at a higher rate than the maximum sale price at pit mouth specified by the State Government. Thus, it cannot be said that the Condition n (2) and (5) are ambiguous and contradictory to each other. It is also important to note that as per the submission of the learned AAG, as many as 132 Bidders have participated in the NIT in question without raising any objection and the successful Bidder/s have also been declared by the respondents, which also reflects that there is no ambiguity/contradiction in the conditions laid down by the respondents in the NIT and are self-explanatory. 20. In view of above discussion, there is no force in the writ petitions, the same are, therefore, dismissed. Stay Petitions as also misc. applications, if any, are also dismissed.