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2025 DIGILAW 59 (JK)

Mohit Singh v. U. T. of J&K

2025-02-21

RAJNESH OSWAL

body2025
JUDGMENT : 1. The petitioner has impugned e-Auction Notice bearing No. DMO/J/e- Auction/2024-25/2198-2205 dated 24.01.2025, whereby the minor minerals blocks No. 34/JG “Jandial Khad at Village Aghore [34/JG](for short "the block 34/JG?) and 37J “Jad/Dhok Khad upstream Taroti Jourian Bridge near Taroti Jourian, Jammu (for short "the block 37J?), have been put to auction, to the extent that it fixes the Earnest Money Deposit (EMD) amounting to Rs. 13,23,945/- and Rs. 17,01,000/- for the blocks mentioned above respectively, in contravention to the procedure prescribed under the Jammu and Kashmir Minor Mineral Concession Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 (for short "the Rules of 2016?). 2. The petitioner has stated that he has been participating in various Government contracts for the last more than 2 to 3 years and has been awarded various contracts by the Government. He further claims to have successfully completed the contracts allotted to him to the satisfaction of the Government. It is further stated that the fixation of the amount of EMDs of Rs. 13,23,945/- and Rs. 17,01,000/- for auctioning of both the aforesaid blocks 34/GJ and 37/J at Village Aghore and Village Taroti Jourian, Jammu respectively is contrary to Rule 55 of the Rules of 2016, as Rule 55 provides for earnest money not less than Rs. 1.50 lacs or 15% of the minimum bid amount whichever is higher in the shape of CDR pledged to Officer In-charge of the district. It is also stated that the blocks mentioned above were put for e-Auction vide No. DIP/J-7039 dated 18.11.2024 and in that e-Auction notice, EMD for the block 34/GJ and 37/J was fixed for an amount of Rs. 2,64,789/- and Rs. 3,40,200/- respectively and the respondents without taking e-Auction notice dated 18.11.2024 to a logical conclusion despite having wider participation, by means of impugned e-Auction notice, are again auctioning the same blocks. It is also stated by the petitioner that the respondent No. 2 in terms of communication dated 21.11.2024 has communicated to all the Deputy Commissioners of the Union Territory of Jammu and Kashmir, the revised documents required for participation and the conditions prerequisite for the grant of Mining Lease and Licenses and as per important instruction (b) of the said communication, the concessionary is required to deposit a sum of Rs. 1,00,000/- per hectare as security deposit in the shape of a fixed deposit in favour of the Director for due observation of the terms and conditions of lease. 3. In a nutshell, the contention of the petitioner is that the respondents have fixed the EMDs for both the blocks as mentioned above in an arbitrary manner and without adhering to the Rule 55 of the Rules of 2016. 4. The respondents have raised the preliminary objection with regard to the maintainability of the writ petition by urging that the owner or the employer of the project, who has authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The right of an aggrieved party in respect of any condition of tender, to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India for the purpose of assailing the conditions of tender is very limited. 5. It is further stated that the extraction of minerals? licenses is regulated in terms of the Rules of 2016 as amended upto 24.12.2021 and in terms of Rule 55(3)(a) of the Rules of 2016, the amount of earnest money can be prescribed by the Government from time to time. It is further stated that e- Auction notice dated 18.11.2024 was floated for the same blocks as in the tender impugned with the requirement of EMDsof Rs. 2,64,789/- and Rs. 3,40,200/- respectively but the amounts of those EMDs were fixed erroneously and inadvertently and it was not in accordance with the procedure, rules, regulations in vogue and prescribed. Taking advantage of the meager EMD prescribed, various non serious bidders participated in the bidding and made fake biddings. One Vinod Kumar came to be the highest bidder for both the aforementioned blocks and as per para C(11) of the auction document, he failed to deposit 50% of the bid amount within 48 hours and accordingly, the respondent No. 4 made a recommendation to the Director, Geology and Mining Jammu for debarring him for a period of five years from participation in all e-Auction of the department vide letter dated 13.12.2024. 6. It is also stated that even the CDRs of the said Vinod Kumar were also forfeited and the Senior Superintendent of Police, Jammu, has been requested vide letter dated 13.12.2024 by respondent No. 3 for lodging of FIR. 7. 6. It is also stated that even the CDRs of the said Vinod Kumar were also forfeited and the Senior Superintendent of Police, Jammu, has been requested vide letter dated 13.12.2024 by respondent No. 3 for lodging of FIR. 7. It is further stated that before floating the earlier as well as the present tender, proposal for fixation of Reserve Price for e-Auction of Minor Minerals of Jammu District came to be crystallized and criteria for calculation of Reserve Price also came to be decided in a meeting held under the Chairmanship of Joint Director, Jammu comprising of Senior Officers of the department including Geologist Grade-I, District Mineral Officer, Jammu, Assistant Mining Engineer and Geologist Grade-III. The decision of the Committee has been placed on record by the respondents. It is further averred, that as per Enforcement and Monitoring Guidelines for Sand Mining, 2020 under the heading Mining Plan in Clause 4.3 Sub- Clause(r), it has been specifically stated that the area for removal of minerals shall not exceed 60% of the mine lease area and any deviation or relaxation in this regard shall be adequately supported by the scientific report. Further, in Schedule-I of Rates of Royalty of Minor Minerals, the rate for the Nallah Muck(RBM) is at S. No. 4.1.3, which is Rs. 25.00 only. The respondents have also placed on record the formula for calculating the Earnest Money Deposit(EMD). 8. Mr. Karman Singh Johal, learned counsel for the petitioner has argued that though the respondents have admitted that the EMDs in e-Auction dated 18.11.2024 were mentioned erroneously but the said e-auction notice was never cancelled and the respondents proceeded ahead with the tendering process. If the e-Auction notice was wrongly issued, the same ought to have been cancelled which clearly shows the mala fide on the part of the respondents. 9. Per contra, Mr. Ravinder Gupta, learned AAG appearing for the respondents has argued that the petitioner has concealed the material fact with regard to the amendment made in Rule 55 of the Rules of 2016 as such, he is not entitled to any relief. He has further argued that in terms of amended Rules, the amount of EMDs may be prescribed from time to time and it is not obligatory on the part of the respondents to fix the amount of EMD in terms of un-amended Rule 55 of Rules of 2016. He has further argued that in terms of amended Rules, the amount of EMDs may be prescribed from time to time and it is not obligatory on the part of the respondents to fix the amount of EMD in terms of un-amended Rule 55 of Rules of 2016. He has further drawn the attention of this Court towards the formula employed by the respondents for the purpose of calculating the amount of EMD mentioned in the impugned e-Auction notice. 10. Heard and perused the record. 11. The respondents have raised the issue of maintainability of this writ petition with regard to the scope of jurisdiction under Article 226 of the Constitution while determining the validity of the tender conditions. In this context, it would be appropriate to refer to the decision of the Apex Court in Afcons Infrastructure Limited v Nagpur Metro Rail Corporation Limited and another , [ (2016) 16 SCC 818 ] , in which , the Apex Court has held as under: “15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given . 12. The Apex Court in Uflex Limited v Government of Tamil Nadu , [2022) 1 SCC 165] , held as under: “2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. 13. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. 13. It would also be apt to take note of the judgment the Hon'ble Apex Court in ' Silppi Construction Contractors vs. Union Of India , 2019 SCC Online SC 1133 , wherein it has been held as under: "20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case." 14. From the aforesaid law laid down by the Hon'ble Apex Court, it is evident that the owner and the employer of the project having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents and the Court should not interfere merely because it is not satisfied with the interpretation of the tender documents by the owner/employer and further that the Court can interfere only if the decision of the employer is arbitrary and perverse. Taking into consideration the above in mind, this Court would consider the contentions raised by the petitioner. 15. The contention of the petitioner is that the amount of the EMDs fixed by the respondents is contrary to Rule 55 of the Rules of 2016. Taking into consideration the above in mind, this Court would consider the contentions raised by the petitioner. 15. The contention of the petitioner is that the amount of the EMDs fixed by the respondents is contrary to Rule 55 of the Rules of 2016. It is contended by learned AAG that the petitioner has concealed the fact of amendment of Rule 55 from this Court. A perusal of the amended Rules of 2016 reveals that Rule 55(3) of Rules of 2016 stands amended and the Government has retained the liberty to fix the amount of EMD from time to time. 16. In view of the aforesaid amended Rule, this Court is of the considered view that the contention of the petitioner that the amount of EMDs was required to be fixed in terms of Rule 55(3) of the Rules of 2016 as mentioned in the petition, is misconceived and the same deserves to be rejected. 17. The respondents have given the mode of calculation for determination of the amount of EMD. The respondents have relied upon the Mining Plan i.e. Enforcement and Monitoring Guidelines for Sand Mining, 2020 wherein Clause 4.3 Sub-Clause (r) provides that the area for removal of minerals shall not exceed 60% of the mine lease area and as per S. No. 4.1.3 of the Schedule-I of Rates of Royalty of Minor Minerals, the rate for the Nallah Muck (RBM)is Rs. 25 only per metric ton. The record further depicts that the depth of mining is restricted to 1 meter and the respondents have considered 1.89 as specified gravity while determining the amount of EMD. The learned counsel for the petitioner has raised the dispute only with regard to the specific gravity but has not been able to demonstrate that what should be the specific gravity. The respondents have calculated an amount EMDs of Rs. 13,23,945/- for block 34/GJ. The amount of EMDs determined by the respondents has been calculated on the basis of royalty payable for one year. There is neither any arbitrariness nor mala fide on the part of the respondents in fixing the EMDs mentioned above, rather they have been able to demonstrate before this Court successfully, the mode and manner in which the amount of the EMDs has been determined by the respondents. 18. There is neither any arbitrariness nor mala fide on the part of the respondents in fixing the EMDs mentioned above, rather they have been able to demonstrate before this Court successfully, the mode and manner in which the amount of the EMDs has been determined by the respondents. 18. It is also contended by the petitioner that in terms of communication dated 21.11.2024 the respondent No. 2 has communicated to all the Deputy Commissioners of the Districts of the U.T. of Jammu and Kashmir, the revised documents required participation and the conditions prerequisite for the grant of Mining Lease and Licenses. A perusal of the said communication would reveal that in terms of important instruction (b) the bidder, whosoever, becomes a Mineral Concessionary under the said Rules is required to deposit a sum of Rs. 1,00,000/- per hectare or part as security in the shape of a fixed deposit in favour of Director or in any other form/manner as may be prescribed by the Government for the due observance of the terms and conditions of lease/quarry license. This condition will come into operation only after the bidder has become mineral concessionary, meaning thereby he is granted license. The petitioner himself has placed on record the important instruction (b) prescribing the eligibility conditions for participation and in the said conditions, wherein reference to amended Rule 55 of the Rules of 2016 has been made. There appears to be an attempt on the part of the petitioner to conceal the fact of amendment of Rules of 2016, as the petitioner despite knowing that the Rule 55 of the Rules 2016 has been amended, in his petition, has extracted the unamended Rule 55 of Rules of 2016. 19. For all what has been said, observed and discussed hereinabove, the instant writ petition is found to be without merit and the same deserves to be dismissed with costs, but taking a lenient view of the matter, the same is dismissed without costs, but with a caution to the petitioner to remain careful in future and not to indulge in such tactics just to obtain the favourable orders from the court. 20. Interim direction, if any, shall stand vacated.