WP(C)/16433/2020
2021 Latest Caselaw 925 Ori

                               W.P.(C) NO.16433 OF 2020




10. 28.01.2021   1. The matter is taken up by video conferencing mode.

                 2. The Petitioner seeks the quashing of an advertisement dated
                 12th June, 2020 issued by the Opposite Party No.3-Tahasildar,
                 Pipili for long term lease of Sand Sairat Sources as indicated
                 therein at Annexure-1.

                 3. Facts

of the case necessary for the purpose are as follows:-

(a) On 12th June, 2020, the Opposite Party No.3 issued an advertisement for long term lease six sand sairat sources for a period of five years as per the list provided therein (Annexure-1). This was followed by the corrigendums as at Annexure-2.

(b) The Petitioner challenges the said advertisement and corrigendums on the ground that those have been issued in contravention of the provisions of Orissa Mining Minerals Concession Rules, 2016 (hereinafter called as 'the Rules').

(c) The first challenge is as to the violation of sub-rule 2 of Rule 9 of the said Rules and the next one is with regard to the contravention of the Rule 31 of the said Rules.

(d) As an addendum to the first one, it is further stated that some mandatory requirements as envisaged in Rule 10 have not been adhered to.

(e) The Petitioner contends that Opposite Party No.3 has issued said advertisement followed by the corrigendums in violation of the Rules in order to show favoritism to some persons in abuse of the powers under the Rules.

4. The Collector, Puri and Tahasildar, Pipili who are the Controlling and Competent Authority under the Rules (Opposite Party Nos.2 and 3 respectively) in the counter affidavit, first of all have questioned the locus-standi of the Petitioner to challenge the said advertisement and the corrigendums issued thereto as at Annexurres-1 and 2. It is stated that the Petitioner being a non- participant in the auction which took place and as such being in no way affected by the auction process has no locus-standi to call in question the legality and propriety of the said advertisement and corrigendums concerning long term lease of the sand sairat sources. According to them, the present writ application has been filed by the Petitioner at the behest of the persons having vested interest as by somehow thwarting the process of auction, they would succeed in their mission in continuing with their activity of illegal lifting of sand from those sources to their pecuniary gain causing huge loss to the revenue.

5. It is further stated by the Opposite Party Nos.2 and 3 that the advertisement i.e. auction sale notice inviting applications for long term lease of those six sand sairat sources has been issued strictly in accordance with the provisions of the Rules. The

corrigendums were thereafter issued as the situation then so required. According to them, the long-term lease of sand sairat sources is governed by Rule 27 of the said Rules which provides that the area of the quarry lease shall be delineated and the notification inviting the applications for grant of quarry leases through auction shall be made and published in two daily newspapers, at least one of State level and the other having wide circulation in the area where the lease is located. Such notification shall be published at least 15 days before the intended date of inviting applications and shall contain the date and time within which the applications shall be received.

6. It is pointed out by Opposite Party Nos.2 and 3 that the provisions of sub-rule 2 of Rule 9 of the Rules has no application here as it deals with the grant of prospecting license-cum-mining lease for specified minor minerals as categorized in Rule 2(aa) providing therein that the specified minor minerals means all the minor minerals including decorative stones other than the minor minerals listed at sl. No.2 of schedule-III of the Rules. The expression 'Sand', according to the Opposite Party Nos.2 and 3, is not a specified minor mineral as per Schedule III of the Rules. It is next contended that as per sub-rule 1 of Rule 27 of the Rules, a notification has to be published at least 15 days before the intended date of inviting applications. In the instant case, a longer period has been provided for.

7. In reply to the contention of the Petitioner regularly to violation of Rule 31 of the Rules, as regards deviation from the Cluster approach' in small quarries, it Opposite Party Nos.2 and 3 state that it is not possible to cluster the sources as those are not situated in a development block. Each source is far away from the other at a distance of 12 to 15 kilometers. Therefore, they do not fulfill the criteria of a cluster. It is stated that even if a cluster is made, independent sources can be leased out separately from the cluster in view of their location. Therefore, in view of the fact that in the given case each source is at a different location and distantly situated, there has been no violation of the relevant Rule.

8. Referring to sub-rule 3 of Rule 31, it is contended by Opposite Party Nos.2 and 3 that even if after obtaining the environmental clearance for the entire cluster of sources, the lease can either be granted for all the sources as single source or those sources may be leased out separately. The discretion in this regard is with the Competent Authority, regard being had to the environmental clearance. Therefore, it is contended that well within the terms and conditions of the respective environmental clearance, the Competent Authority can decide to lease out the cluster as a single source or the individual sources separately.

9. It is pointed out by Opposite Party Nos.2 and 3 that in the instant case, pursuant to the auction sale notice, no bidder has

come forward to challenge the legality and propriety of the said process. The Petitioner is in no way affected. He too does not claim any infringement of his right in any manner.

10. As regards non-mention of the mandatory criteria as to the submission of documents by the Applicants as provided under Rule 10 of the Rules, it has been stated by Opposite Party Nos.2 and 3 that in terms of sub-rule 4 of Rule 27(iv) and consistent with the judgment dated 9th March, 2020 of this Court in W.P.(C) No.9726 of 2020 the corrigendums have been issued which have again been published in local newspapers having wide circulation in the area. Thus the said ground of attack is misconceived. Opposite Party Nos.2 and 3 accordingly submit that the writ petition is devoid of merit.

11. In the rejoinder affidavit filed by the Petitioner, while reiterating the averments in the writ petition, it has been asserted that the entire process undertaken by Opposite Party No.3 as to the grant of long term lease in respect of those six sand sairat sources, as finds mention in the advertisement under Annexure-1, is in violation of the statutory Rules governing the field.

12. We have heard Ms. S. Mohapatra, learned counsel for the Petitioner and Ms. S. Patnaik, learned Additional Government Advocate on behalf of Opposite Party Nos.2 and 3.

13. The first ground of attack of the Opposite Parties is as to the locus-standi of the Petitioner in filing this writ petition with the prayer as advanced therein. A careful reading of the averments in the writ petition reveals that while the Petitioner has on numerous occasions raised the question as to violation of the statutory Rules, in the matter of the processing and grant of long-term leases of the sand sairat sources, the Petitioner does not explain how he is affected by the process. It has also not been pleaded that for violation of said Rules, the Petitioner has been deprived of his right to participate therein though he had so intended; and that for the said contravention of the Rules, he could not avail the opportunity of tendering his application apart from asserting that he met all criteria as to eligibility and possessed all the required documents for standing as a prospective bidder.

14. In that view of the matter, the objection of the Opposite Parties on the locus-standi of the Petitioner is sustained.

15. Nevertheless, turning to the merits as regards non-adherence of in sub-rule 2 of Rule 9 of the Rules, it is seen that it finds the place under Chapter 2 of the Rules which deals with the grant of prospecting license-cum-mining lease for specified minor minerals. Clause-(aa) of Rule 2 defines the 'Specified minor minerals'. It means minor minerals including decorative stones other than the minor minerals listed at sl. No.2 of Schedule III.

Clause-(t) of said Rules defines the prospecting license-cum- mining lease to mean two stage concessions granted for the purpose of undertaking prospecting operation in respect of specified minor minerals followed by mining operation over a compact area. So, it is clear that grant of prospecting license- cum-mining lease comes into play in relation to the specified minor minerals as under Schedule-III of the Rules whereas sand comes in sl. No.2 of Schedule-III to the Rules.

16. Accordingly, this Court finds that the challenge from the side of the Petitioner to the advertisement as at Annexure-1 inviting applications for grant of long term lease of five years for those six sand sairat sources on the ground of violation of sub-rule 2 of Rule 9 of the said Rules is without merit. Consequently, this answers the contention as to non-compliance of Rule 10 of the Rules which envisages the procedure for auction of prospecting license-cum-mining lease.

17. On deviation of cluster approach in small quarries as provided in Rule 31 of the said Rules, keeping in view the justification provided by the Opposite Parties and taking into account the legislative intent behind the enactment of the said Rule, the decision of the Competent Authority in that regard is not found to be arbitrary or unreasonable, warranting interference in exercise of the extraordinary writ jurisdiction.

18. Thus, this Court finds the writ application to be devoid of merit and the same is hereby dismissed.

19. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.

( Dr. S. Muralidhar ) Chief Justice

( D. Dash ) Judge N. Ho/PA