DUSMANT MALLICK Vs. STATE OF ODISHA
LAWS(ORI)-2020-8-14
HIGH COURT OF ORISSA
Decided on August 26,2020

Dusmant Mallick Appellant
VERSUS
STATE OF ODISHA Respondents

JUDGEMENT

MOHAMMAD RAFIQ,B.R.SARANGI,JJ. - (1.) Dusmant Mallick, the petitioner in W.P.(C) No.12879 of 2018 has approached this Court seeking following reliefs:- "It is therefore most respectfully prayed that Your Lordships would be graciously pleased to issue a Rule Nisi calling upon the Opp. Parties to show cause as to:- A) why the action of the opposite party no.4 in not settling the tender in favour of the petitioner shall not be declared as illegal and arbitrary in the eye of law. B) why the opp.party no.4 shall not be directed to settle the source in favour of the petitioner as per Annexure-2, he being the highest bidder. C) why the petitioner shall not be issued with the work order to operate the source. D) Why the order no.1104/dated 20.03.2020, Annexure-3(Annexure-A/4 to the counter affidavit) shall not be quashed being illegal and arbitrary. E) Why the issuance of Form-F in favour of the opp. Party no.5 on 26.05.2020 shall not be treated as illegal and void and contrary to the provisions contained in the OMMC Rules, 2016." F) why such other order/orders, direction/directions shall not be passed to secure the ends of justice, equity and fair play; If the opposite parties fail to show cause or show insufficient cause the Hon'ble Court may be pleased to make the rule absolute and issue writ in the nature of writ of mandamus by declaring the action of the opp.party no.4 as illegal and arbitrary with further prayer to direct the opp.party no.4 to settle the tender in favour of the petitioner with further prayer to direct for issuance of the work order in favour of the petitioner to operate the source as per Annexure2 in the facts and circumstances of the case; And/or pass any other order/orders as this Hon'ble Court may deem fit and proper to secure the ends of justice and equity. And for this act of kindness, the petitioner shall as in duty bound ever pray." Janardan Nath filed I.A. No.7316 of 2020 in W.P.(C) No.12879 of 2020 for impleadment of party and the said I.A. was disposed of vide order dated 13.07.2020 granting him liberty to file separate writ petition, which would be considered on its own merit. Accordingly, W.P.(C) No.17640 of 2020 has been filed by Janardan Nath seeking following reliefs:- "It is therefore prayed that, this Hon'ble Court may graciously be pleased to issue RULE NISI directing the Opp. Parties to show cause as to why the auction sale notice No.815 dt.29.02.2020 (annexure-1) and all subsequent decisions/actions taken thereto or any act furtherance thereto shall not be quashed; If the opposite parties fail to show cause or show insufficient cause the Rule NISI may be made absolute and the auction sale notice No.815 dt.29.2.2020 (annexure-1) & the entire auction process may be quashed; AND Further prays to pass any other order/orders as deemed fit and proper; And for this act of kindness the petitioner as in duty bound shall ever pray;" Similarly, one Sanjay Mishra filed I.A. No. 7429 of 2020 in W.P.(C) No.12879 of 2020 for impleadment of party in the writ petition and vide order dated 13.07.2020, the said I.A. was disposed of granting him liberty to file separate writ petition which would be considered and decided on its own merit in accordance with law. Accordingly, W.P.(C) No.17766 of 2020 has been filed by Sanjay Mishra seeking following reliefs:- "The petitioner therefore most humbly prays that this Hon'ble Court be graciously pleased to admit the writ application, issue rule Nisi calling upon the Opposite parties to show cause as to why the tender process vide Annexure-1 conducted by Tahasildar, Opp. Party No.3 and the consequential settlement if any, in favour of the private Opp. Party and others if any shall not be quashed and as to why there shall not be a direction to initiate fresh tender process so as to enable the petitioner & others to participate in a fair tender process. And if the opposite parities fail to show cause or show insufficient cause to make the rule absolute by issuance of an appropriate writ(s), order(s), direction(s) as this Hon'ble Court deems fit and proper. And for this act of kindness the petitioner shall as in duty bound ever pray". All the above three writ petitions, having similar cause of action and arisen out of one tender call notice with regard to selfsame sairat source, were heard together and are disposed of by this common judgment.
(2.) The factual matrix of the case, in hand, is that Tahasildar, Gondia-opposite party no.4 published a tender notice on 29.02.2020 vide Annexure-1 inviting bids for auction sale of Gopalpur sand quarry, Kasipur sand quarry, Ambapada-I sand quarry, Ambapada-II sand quarry, Dallar sand quarry and Chhatia quarry on a long term lease basis for a period of five years from the year 2020-21 to 2024-25. The present writ petitions relate to 'Dallar sand quarry', which was published according to the provisions of Orissa Minor Minerals Concession Rules, 2016, fixing minimum charge of Rs.35/- per cm., additional charge of Rs.55/- per cm, total fixed price per cm. as Rs.90/-, minimum guaranteed quantity as 24,000 cum. per year, EMD as Rs.1,08,000/- and bank guarantee/IT return as Rs.21,60,000/-. The last date of submission of bid was 19.03.2020 and date of opening of bid was 20.03.2020. The date of publication of result of bid was 21.03.2020. In response to such notice, the petitioners along with three others, namely, Dusmant Mallick, Janardan Nath, H.K. Sahoo, N. Dhir, Jena Minerals and Tripurai Sahoo submitted their bids within the time specified. The bids were opened on 20.03.2020 by the Tahasildar, Gondia and a comparative chart was published vide Annexure-2 wherein Dusmant Mallick, the petitioner in W.P.(C) No.12879 of 2020 though shown as H-3, but his tender was allowed as highest bidder. So far as Jena Minerals is concerned, though shown as H-5, its tender was allowed as second highest bidder. Tripurari Sahoo-Opposite party no.5 in WP(C) Nos. 12879 and 17640 of 2020, though shown as H-1, his tender was rejected due to non-furnishing of required bank guarantee. Similarly, the tenders submitted by Janardan Nath and H.K. Sahoo were rejected on the ground of non-submission of required bank guarantee, though they had been shown as H-2 and H-6 respectively. So far as N. Dhir is concerned, his tender was rejected on the ground of non-submission of relevant documents, though he was shown as H-4. 2.1 Dusmant Mallick, the petitioner in W.P.(C) No.12879 of 2020 asserts that by following due process his tender having been considered highest, necessary follow up action should have been taken by awarding the work order in his favour by executing the agreement for operation of the sand quarry, but the same having not been done, he has approached this court by filing the aforesaid writ petition. 2.2 Janardan Nath filed W.P.(C) No.17640 of 2020 against rejection of his H-2 bid due to non-submission of required bank guarantee and consideration of bid of opposite party no.5-Tripurari Sahoo, whose bid though was shown as H-1 but was rejected due to similar ground of non-furnishing of required bank guarantee. 2.3 So far as W.P.(C) No.17766 of 2020 is concerned, the same has been filed by Sanjay Mishra, whose bid was not taken into consideration and thereby his name was not found placed in the list of applicants published under Annexure-2. His case is that though he submitted documents by e-mail, but the same were not taken into consideration due to COVID-19 pandemic, as result of which he was not able to participate in the process of tender. Therefore, he seeks for quashing of the tender process initiated pursuant to Annexure-1 with further direction to the opposite parties to conduct fresh tender so as to enable him to participate in the tender process.
(3.) Mr. Asok Mohanty, learned Senior Counsel appearing along with Mr. T.K. Mishra, learned counsel for the petitioner in W.P.(C) No.12879 of 2020 strenuously urged that petitioner-Dusmant Mallick, who was shown as H-3 and whose tender was allowed treating to be highest bidder, as he had complied the requirements in Annexure-1, he should have been issued with work order in accordance with Odisha Minor Mineral Concessions Rules, 2016 to operate the sand quarry. But instead of issuing any work order in favour of the petitioner-Dusmant Mallick, opposite party no.4-Tahasildar, Gondia cancelled the tender vide notice no.1104 dated 20.03.2020 by affixing the same in the notice board of the Tahasil Office, Gondia which has been annexed as Annexure-4 to the writ petition and Annexure A/4 to the counter affidavit filed by opposite party no.4. It is contended that after cancelling the tender on 20.03.2020, opposite party no.4 wrote letter dated 21.03.2020 to the Collector-cumControlling Authority, Dhenkanal for cancellation of the tender, as it was not done in order and therefore, sought permission for fresh auction as per law to avoid further litigation and legal complicacies in future. In response to same, the Collector, Dhenkanal vide letter dated 19.05.2020 called for an explanation as to why suitable action would not be taken against opposite party no.4 in accordance with law in the matter of negligence in duty, lack of revenue rules and regulations, carelessness in tender process for which there was controversial situation which resulted in loss of revenue. Thereafter, opposite party no.4 immediately accepted the deposit of bank guarantee filed by opposite party no.5- Tripurari Sahoo and selected him for awarding tender in his favour. Such action of opposite party no.4 to settle the auction in favour of opposite party no.5 is arbitrary, unreasonable and contrary to the provisions of law, therefore, the petitioner seeks interference of this Court. To substantiate his contentions, learned Senior Counsel appearing for the petitioner has relied upon Monarch Infrastructure (P) Limited v. Commissioner, Ulhasnagar Municipal corporation, 2000 5 SCC 287; West Bengal State Electricity Board v. Patel Engg. Co. Ltd, 2001 2 SCC 451; Sorath Builders v. Shrejikrupa Buildcon Limited, 2009 11 SCC 9; and Vidarbha Irrigation Development Corporation v. Anoj Kumar Garwala,2019 SCCOnlineSC 89.;


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