M/S. Daksha Traders, Thr. ... vs State Of Maha., In The Ministry Of ...
2023 Latest Caselaw 4162 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                            WRIT PETITION NO. 7417 OF 2022

        M/s. Daksha Traders,
        Trough its Proprietor-Shri Vijay s/o Mulchand Shadija
        Aged about 35 years, Occupation-Business,
        R/o Nehru Ward, Sindhi Colony, Bhandara,
        Tahsil and District Bhandara.            ..... PETITIONER

                ...V E R S U S...

1.      State of Maharashtra,
        In the Ministry of Revenue and Forest,
        Mantralaya, Mumbai-32.
        Through its Secretary.

2.      The District Collector, Chandrapur.
        Tahsil and District Chandrapur.

3.       The Additional District Collector,
         Chandrapur, Tahsil and District Chandrapur. .......RESPONDENTS
---------------------------------------------------------------------------------------------------------
Shri Sunil Manohar, Senior Advocate with Ms Rama V. Kukday, Advocate for
petitioner.
Shri Amit Madiwale, Assistant Government Pleader for respondents.
---------------------------------------------------------------------------------------------------------

CORAM :-        A.S.CHANDURKAR AND M. W. CHANDWANI, JJ.

DATE :-         25th APRIL, 2023

ORAL JUDGMENT (Per A.S.CHANDURKAR, J.)

             Rule.      Rule made returnable forthwith and heard the learned

counsel for the parties.

2. Challenge raised in this writ petition filed under Article 226 of the

Constitution of India is to the communication dated 25.11.2022 issued by

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the third respondent-Additional Collector, Chandrapur, calling upon the

petitioner to deposit 75% of the bid amount pursuant to acceptance of the

petitioner's bid for excavation of sand ghat at Mouza Soundri, Taluka

Bramhapuri, District Chandrapur.

3. The facts relevant for considering the aforesaid challenge are that

it is the case of the petitioner that on 01.11.2022 the second respondent-

Collector, Chandrapur conducted auction of various ghats located in

Chandrapur District. In the said auction, the petitioner's bid for sand ghat at

Mouza-Soundri, Taluka Bramhapuri, District Chandrapur was found to be

highest and a letter of acceptance was accordingly issued to the petitioner.

Though the period of excavation under the terms of the tender notice was till

30.09.2023, the environment clearance had been obtained only till

28.02.2023. In response to the communication dated 25.11.2022, the

petitioner on 26.11.2022 issued a communication to the third respondent

seeking clarification in the matter as the petitioner was required to deposit

75% of the bid amount in terms of the tender conditions. There being no

reply to the aforesaid communication, this writ petition came to be filed on

29.11.2022 raising a challenge to the communication dated 25.11.2022 by

which the petitioner was called upon to immediately deposit the aforesaid

75% bid amount. Besides challenging that communication, the petitioner

has sought setting aside of the e-auction notice with regard to the said sand

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ghat since there was no environment clearance from 01.03.2023 till expiry of

the lease period on 30.09.2023.

4. On 30.11.2022 while issuing notice in the writ petition the

following order was passed:

"According to the petitioner, its bid for the period from 01.10.2022 to 30.09.2023 for excavation of sand has been accepted. However, the environment clearance in question is valid only up to 28.02.2023. The petitioner has thus challenged the demand of 3/4th amount in terms of tender notice that has been made on 25.11.2022 on the ground that though excavation is permissible till 30.09.2023, the environment clearance obtained is only till 28.02.2023.

Issue notice returnable in four weeks.

Learned Additional Government waives notice for the respondents.

The petitioner shall deposit the amount as demanded under the impugned notice without prejudice to the challenges raised in the writ petition. The consequence of failure to obtain the environment clearance from 01.03.2023 will be taken into consideration at the appropriate stage. The respondents to indicate whether the environment clearance has been sought from 01.03.2023 onwards."

Since it was informed on 05.04.2023 that no decision with regard

to grant/refusal of environment clearance had been taken by the appropriate

Authority, further time was granted till 18.04.2023 to consider passing of an

appropriate order in that regard. It was accordingly informed on the said

date that environment clearance had been granted on 11.04.2023. In the

aforesaid backdrop, the aforesaid writ petition has been heard.

WP-7417-22(J).odt 4/8

5. Shri Sunil Manohar, learned Senior Advocate for the petitioner

submitted that while issuing the auction notice the prospective bidders were

not put to any notice that the environment clearance had been obtained only

till 28.02.2023. Only after the said sand ghat was allotted to the petitioner it

was informed that the environment clearance was valid for the said sand

ghat till 28.02.2023. Since total quantity of 3887 brass of sand was liable to

be excavated during the contractual period and as the environment clearance

had been obtained only till 28.02.2033, the petitioner's challenge to the

auction notice ought to be upheld. It was not possible for the petitioner to

excavate the total quantity of sand in the absence of such environment

clearance. It was further submitted that as per policy of the respondents the

work of excavation is not permissible in the rainy season and such

excavation would be permissible only till 10.06.2023. Thus in effect the

petitioner could excavate the sand only from 02.11.2022 to 28.02.2023.

This relevant aspect was required to be disclosed prior to issuing the auction

notice. The petitioner had on 26.11.2022 brought to the notice of the third

respondent these relevant facts but no steps whatsoever were taken till

11.04.2023 when the environment clearance was further obtained. It was

thus submitted that in these facts, the tender notice was liable to be set aside

having been issued without clearly disclosing the aforesaid relevant aspects.

In the alternate, it was submitted that in the light of the

environment clearance now received on 11.04.2033, the petitioner can

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excavate sand within permissible period till 10.06.203 and for the balance

un-excavated sand the petitioner may be refunded the amount after

deducting the value of the sand that has been excavated.

6. Shri Amit Madiwale, learned Assistant Government Pleader for the

respondents relied upon the affidavit in reply and opposed the aforesaid

submissions. He submitted that having been successful in the auction

process, it was necessary for the petitioner to have deposited 75% amount as

per the relevant terms and conditions of the tender notice. The environment

clearance was valid till 28.02.2023 and till that period, the petitioner had

excavated sand in question. Though the respondents had sought necessary

environment clearance, the necessary decision by the State Environment

Impact Assessment Authority - SEIAA was taken only on 10.03.2023 in its

meeting after which the environment clearance certificate came to be issued.

The petitioner having participated in the tender process, it was not

permissible now to seek to raise a challenge to the tender notice. In view of

grant of environment clearance, it was open for the petitioner to excavate

the sand till 10.06.2023 in accordance with the auction process. Hence no

interference in writ jurisdiction was called for.

7. We have heard the learned counsel for the parties at length and we

have perused the documents placed on record. Perusal of the tender notice

issued by the third respondent indicates that the auction process was to be

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conducted for about forty sand ghats including the present sand ghat located

at Soundri, Taluka Bramhapuri District Chandrapur. The said notice does not

indicate that the environment clearance for the said sand ghat had been

granted only till 28.02.2023 while the period of excavation was to be till

30.09.203. The said notice merely states that the successful bidders would

be bound by the directions issued by the SEIAA. It is not in dispute that the

petitioner's bid for the said sand ghat was accepted and initial amount as

required was deposited. In the third week of November, 2022, as pleaded by

the petitioner, he got knowledge that the environment clearance had been

granted only till 28.02.2023. On making further enquiries, the order of

environment clearance dated 25.07.2022 was obtained which indicated that

the validity of the environment clearance was only till 28.02.2023. In that

backdrop the petitioner sought clarification from the third respondent on

23.11.2022 but without issuing any clarification, the impugned

communication dated 25.11.2022 requiring the petitioner to deposit the

balance 75% amount came to be issued.

8. We find from the aforesaid that since the respondents were aware

of the fact that environment clearance had been obtained and granted only

till 28.02.2023 while the period of excavation under the tender notice was

till 30.09.2023, it was incumbent upon the respondents to have informed

this factual fact to the prospective bidders. It is also to be noted that as per

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prevailing policy, excavation is not permissible from 10.06.2023 onwards due

to onset of monsoon. Thus the effective period of excavation under the

tender notice would have been till 09.06.2023. However for want of

environment clearance from 01.03.2023, excavation has not been possible to

be undertaken at the said sand ghat. There is no justification indicated by the

respondents in the affidavit in reply as to why these material aspects were

not made known to the prospective bidders while issuing the tender notice.

The averments made by the petitioner have not been denied by the

respondents and their reply in that regard is totally silent. We therefore find

that had the respondents informed the prospective bidders of this factual

aspect that the environment clearance was valid only till 28.02.2023, it

would have been open for a bidder to have considered the said aspect prior

to participating in the tender process. The same has however not been done.

There is also no explanation put-forward in that regard.

9. In the aforesaid factual backdrop, we find that the interest of

justice would be served by permitting the petitioner to excavate sand in

accordance with the terms of the contract pursuant to acceptance of the

petitioner's bid. Total quantity permissible to be excavated is stated to be

3887 brass of sand. If the petitioner is unable to excavate the entire

permissible sand till 30.09.2023, we find that the petitioner would be

entitled for refund of the value of the remaining quantity of sand that would

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remain to be unexcavated. This is for the reason that the period from

01.03.2023 till 11.04.2023 during which the petitioner could have excavated

sand under the contract has been lost for want of environment clearance.

10. It is accordingly directed that on 30.09.2023, the second and third

respondent shall take into account the exact quantity of sand excavated by

the petitioner in terms of the contract entered into by the petitioner. If it is

found that the petitioner has excavated lesser amount of sand than what was

permissible under the terms of the contract, the petitioner would be entitled

to refund of the proportionate value of sand that remains unexcavated after

deducting the value of the sand actually excavated from the permissible

quantity of sand as per the terms of the contract. If the petitioner is found

entitled to refund of any such amount, the same shall be made over to the

petitioner at the contractual rates on completing necessary formalities. The

entire exercise be completed within a period of eight weeks from

01.10.2023. Needless to state that any grievance of the petitioner with

regard to determination of such balance quantity of sand that remains to be

excavated would furnish a fresh cause of action to the petitioner and he is

free to take such steps as are permissible in law in that regard.

Rule is made absolute in aforesaid terms with no order as to costs.

                      (M. W. CHANDWANI, J.)                     (A.S.CHANDURKAR, J.)
Andurkar..