Afr Bhagirathi Mantri vs State Of Odisha & Ors
2022 Latest Caselaw 5968 Ori

                   ORISSA HIGH COURT: CUTTACK

                         W.P(C) NO. 7354 OF 2020

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                               ---------------

AFR Bhagirathi Mantri ..... Petitioner

-Versus-

State of Odisha & Ors. ..... Opp. Parties

For Petitioner : M/s. H.N. Mohapatra and A. Samantaray, Advocates

For Opp. Parties : Mr. P.P. Mohanty, Addl. Govt. Advocate [O.Ps.No.1-4]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE B.P. SATAPATHY

DECIDED ON : 28.10.2022

DR. B.R. SARANGI,J. The petitioner, by means of this writ

petition, seeks to quash the auction notice/tender notice

dated 03.02.2020 under Annexure-10 issued by the

Tahasildar, Banki in respect of Tentulia Sand Sairat and

further to issue direction to the Tahasildar, Banki to // 2 //

lease out the said Sairat in favour of the petitioner, after

complying with all formalities as per law, within a

stipulated period and allow him to operate the said

Sairat for five years, pursuant notification made under

Orissa Minor Mineral Concession Rules, 2016 (for short

"OMMC Rules, 2016").

2. The factual matrix of the case, in brief, is that

the Tahasildar, Banki issued an advertisement bearing

no.694 dated 23.02.2015 under Annexure-1 inviting bids

from the intending bidders to lease out 4 Sand Sairats,

including Tentulia Sand Sairat, lying under Mouza-

Gadadharpur of Banki Tahasil. Pursuant to such

advertisement, the petitioner and others submitted their

bids in respect of Tentulia Sand Sairat. The petitioner

was considered to be the highest bidder, as the highest

bidder had no eligibility to apply for the said auction.

2.1 One Ganeswar Rout approached this Court by

filing W.P.(C) No.3419 of 2015 challenging the action of

the opposite parties directing to close the operation of

Tentulia Sand Sairat and sought direction to allow him // 3 //

to operate the said Sand Sairat for a period of one year

from the date of obtaining the environmental clearance

and settle the source for a period of five years as per

conditions stipulated in OMMC Rules, 2016 and this

Court passed an interim order, for which the grant of

lease in favour of the petitioner was stalled and the

process of getting environmental clearance and execution

of agreement so also mining plan could not be made.

2.2. The petitioner filed W.P.(C) No.18373 of 2015

challenging the action of the opposite parties in not

giving the lease of Tentulia Sand Sairat, even if he was

the highest bidder of the same. Before disposal of W.P.(C)

No.18373 of 2015, the interim order passed by this

Court in W.P.(C) No.3419 of 2015 was vacated.

Therefore, W.P.(C) No.18373 of 2015 filed by the

petitioner was disposed of on 04.12.2017 with the

following order:

"Learned counsel for the petitioner has stated that the grant of lease in favour of the petitioner was stalled because of the interim order granted in W.P.(C) No.3419 of 2015. The said writ petition was disposed of by order passed today.

// 4 //

Learned counsel for the petitioner thus states that since the interim order in the aforesaid W.P.(C) NO.3491 of 2015 has been vacated in view of the disposal of the said writ petition, the case of the petitioner may be considered in accordance with law.

Prayer is granted.

Let the case of the petitioner be considered by the appropriate authority in accordance with law.

Writ petition is disposed of."

By this process, three years period was expired from the

date of auction notice till the order is passed in W.P.(C)

No.18373 of 2015. Pursuant to order of this Court, the

Tahasildar, Banki, settled Tentulia Sand Sairat in favour

of the petitioner for operating the remaining period of two

financial years, i.e., from 01.04.2018 to 31.03.2020

subject to obtaining mining plan from the Director,

Mines and Geology, Odisha, Bhubaneswar and

environmental clearance from the State Environment

Impact Assessment Authority, Odisha, Bhubaneswar at

an early date and the Tahasildar, Banki also informed

the petitioner, vide letter dated 26.03.2018, for execution

of agreement after deposit of royalty and other Govt.

dues as per OMMC Rules, 2016 for operating the source.

2.3 In compliance of the letter dated 26.03.2018

issued by the Tahasildar, Banki, the petitioner got // 5 //

mining plan after getting it approved by the Deputy

Director, Directorate of Geology, Bhubaneswar for

Tentulia Sand Sairat as per Rule-28(4) of the OMMC

Rules, 2016. The Deputy Director of Geology and

Authorized Officer, Directorate of Geology wrote letter to

the petitioner that the mining plan submitted on

04.05.2018 by P.K. Sahoo, RQP appointed by the

petitioner is approved and the petitioner was required to

apprise the local administration about the

replenishment/erosion of sand resources during post-

monsoon and pre-monsoon seasons in the area under

consideration in the plan and in case of additional

production than the commitment within the plan period,

the mining plan may be modified and approved by the

competent authority, which was sent to Tahasildar,

Banki vide memo no.8166 dated 09.05.2018.

2.4 On receipt of the mining plan in respect of

Tentulia Sand Sairat, the Tahasildar, Banki, wrote letter

no.1809 dated 19.06.2018 to the Member Secretary,

SEIAA, Odisha requesting him to issue environmental

clearance in respect of Tentulia Sand Sairat of village // 6 //

Tentulia under Banki Tahasil. Since the petitioner was

allowed to operate the said Sand Quarry for remaining

period of two years and required documents were

submitted by him for consideration of grant of

environment clearance, at this point of time, the Ministry

of Environment, Forest and Climate Change issued the

notification dated 14.08.2018 regarding procedure to be

followed for giving environmental clearance by the

appropriate authority according to the lease area of the

Sand Sairat.

2.5. On receipt of the letter issued by the

Tahasildar, Banki, the Environmental Engineer, State

Environment Impact Assessment Authority, Odisha,

wrote letter dated 10.10.2018 to the Tahasildar, Banki

requesting him to submit the application along with the

District Survey Report for sand mining or river bed

mining, as mandated vide notification dated 14.08.2018.

On the request made by the Environmental Engineer

dated 10.10.2018, the Tahasildar, Banki did not

resubmit the application for environment clearance

through online for further consideration of // 7 //

environmental clearance, but wrote a letter dated

25.10.2018 to the petitioner to submit environmental

clearance and also to deposit the EMD. In spite of

request made by the Environmental Engineer, the

Tahasildar, Banki did not submit the District Survey

Report along with the EC application, for which the

Environmental Engineer further wrote a letter on

24.07.2019 requesting him to submit the District Survey

Report, along with the proposal afresh, through online by

25.08.2019, and also stating therein that in the event of

failure to submit District Survey Report, the proposal will

be delisted in accordance with Office Memorandum File

No.J-11013/5/2009-IA-II (Part) dated 30.10.2012 of

MoFF, Govt. of India from the pending proposals with

SEIAA, due to non-submission of the desired information

even after lapse of six months period, without any

further intimation. But the same was not complied with

by the Tahasildar, Banki and, on the other hand, he

published a fresh tender by issuing advertisement

no.411 dated 03.02.2020 for auction of the aforesaid

Sand Sairat. Hence, this writ petition.

// 8 //

3. Mr. H.N. Mohapatra, learned counsel

appearing for the petitioner contended that the

Tahasildar, Banki did not submit the District Survey

Report, in spite of letters dated 10.10.2018 and

24.07.2019 being communicated by the Environmental

Engineer, State Environment Impact Assessment

Authority, Odisha. Thereby, the default/negligence is

attributable to the Tahasildar, Banki and, as such, no

fault is attributable to the petitioner for obtaining

environment clearance certificate, as required to allot the

Sand Sairat in favour of the petitioner. Therefore, the

tender notice issued by the Tahasildar, Banki cannot

sustain in the eye of law and the same is liable to be

quashed and, as such, the petitioner should be allowed

to continue with the Sand Quarry, as decided by the

Tahasildar, after grant of no objection by the State

Environment Impact Assessment Authority, Odisha. It is

further contended that pursuant to advertisement

No.694 issued under Annexure-1 dated 23.02.2015, the

petitioner, being the second highest bidder, was awarded

with Tentulia Sand Quarry, as the highest bidder, having // 9 //

no solvency, was not eligible, and that since three years

were passed from the date of auction notice, the

Tahasildar, Banki settled the Sand Sairat in favour of the

petitioner for operating the remaining period of two

financial years, i.e., from 01.04.2018 to 31.03.2020, the

said period should have been extended without going for

fresh tender, pursuant to notification issued on

03.02.2020. As per requirement, pursuant to letter dated

26.03.2018, the petitioner had already submitted mining

plan in due time and because of negligence on the part of

the Tahasildar, Banki, who had to submit required

papers before the State Environment Impact Assessment

Authority, Odisha for environmental clearance, the

period having been expired, pursuant to letter dated

30.10.2012, now the petitioner is deprived of getting the

benefit of operating the Sand Quarry. Therefore, the

fresh tender issued on 03.02.2020 should be quashed

and the petitioner may be allowed to continue to operate

the Sand Quarry for the period granted by the

Tahasildar, Banki pursuant to letter dated 26.03.2018.

// 10 //

4. Mr. P.P. Mohanty, learned Additional

Government Advocate appearing for the State-opposite

parties, at the outset, contended that since the lease was

granted to the petitioner for a period of five years, i.e.,

from 2015 to 2020, the writ petition has become

infructuous. It is further contended that the petitioner

has not approached this Court with clean hands and he

has suppressed the true state of affairs, for which he is

not entitled to get any relief. It is also contended that the

petitioner has failed to comply with the mandatory

requirements, as provided under OMMC Rules, 2016 and

has not produced necessary clearance as well as not

deposited statutory dues. Thereby, the Tahasildar, Banki

has not committed any illegality or impropriety in issuing

a fresh tender notice on 03.02.2020. It is further

contended that pursuant to auction sale notice dated

23.02.2015 in respect of Tentulia Sand Sairat for a

period of five years, i.e., from 2015-2020 with certain

terms and conditions enumerated therein to be fulfilled

by the participants, three bidders including the

petitioner participated in the process of bid. In the said // 11 //

auction, one Amarnedra Behera had quoted the highest

rate of Rs.68/- per Cum as additional charge whereas

the petitioner had quoted Rs.57/- per Cum as additional

charge. Since the highest bidder had no solvency, as

required in the tender documents, it was decided to

settle the quarry in favour of the second highest bidder.

One Ganeswar Rout, who was granted with the source

and was operating the same, filed W.P.(C) No. 3419 of

2015 and this Court, vide order dated 25.03.2015,

passed interim order directing that the auction in respect

of Tentulia Sand Ghat under Banki Tahasil may take

place, but no final decision shall be taken without leave

of this Court. Because of the interim order, the auction

sale notice dated 23.02.2015 could not be finalized till

2018. But the petitioner filed W.P.(C) No.18373 of 2015,

which has been disposed of vide order dated 04.12.2017

with an observation that since the interim order passed

by this Court in W.P.(C) No.3419 of 2015 has been

vacated, in view of disposal of the said writ petition, the

case of the petitioner may be considered by the

appropriate authority in accordance with law. Therefore, // 12 //

the case of the petitioner was considered by issuing

notice to give his willingness by way of undertaking to

operate the source for a period of two years only (2018-

19 and 2019-20) till 23.03.2020 subject to fulfillment of

conditions contained in the letter dated 26.03.2018

under Annexure-2. But the same having not been

complied with, as the petitioner failed to obtain

environment clearance certificate from the competent

authority, after expiry of the period, the same was

cancelled and fresh notice was issued on 03.02.2020.

Thereby, no illegality or irregularity has been committed

by the Tahasildar, Banki in issuing fresh auction notice

and, therefore, seeks for dismissal of the writ petition.

5. This Court heard Mr. H.N. Mohapatra, learned

counsel appearing for the petitioner and Mr. P.P.

Mohanty, learned Additional Government Advocate

appearing for the State-opposite parties in hybrid mode.

Pleadings have been exchanged between the parties and

with the consent of learned counsel for the parties, the

writ petition is being disposed of finally at the stage of

admission.

// 13 //

6. On the face of the factual matrix, as discussed

above, the admitted fact is that an advertisement was

issued on 23.02.2015 under Annexure-1 by the

Tahasildar, Banki for grant of long term lease for minor

minerals for a period of five years from the year 2015-16

to 2019-20. As such, the period of lease, for which the

notification had been issued, has already been over long

since. Therefore, the writ petition no more survives for

adjudication.

7. Be that as it may, even delving into the merits

of the case this Court finds that Chapter-IV of the

OMMC Rules, 2016 provides for grant of quarry lease

and it enumerates the procedures to be followed. Rule-

27(13) of the OMMC Rules, 2016 reads as follows:

"that the selected bidder shall be required to execute quarry lease in Form-N within three weeks from the date of intimation of his selection, if the approval of the mining plan and environment clearance has been obtained before auction, and in other cases, three months from the date of intimation, failing which, the intimation shall stand cancelled and the security deposit shall stand forfeited".

On perusal of the aforementioned provision, it is made

clear that the selected bidder is required to execute the // 14 //

quarry lease in Form-N within three weeks from the date

of intimation of his selection, failing which, the

intimation shall stand cancelled and the security deposit

shall stand forfeited. Therefore, the petitioner was

required to complete the entire process, i.e., by obtaining

environment clearance from the competent authority

within three months. Admittedly, the same has not been

complied with. Furthermore, the Tahasildar, Banki, vide

letter dated 26.03.2018, directed the petitioner to submit

required documents within the period stipulated in the

said letter. More so, the notification dated 14.08.2018

issued by the Ministry of Environment, Forest and

Climate Change, provided the procedure to be followed

for environment clearance by the appropriate authority

according to the lease area. As such, there was no

requirement of District Survey Report before the said

notification and the fact remains that despite the

issuance of the letter dated 26.03.2018, the sole

responsibility of the petitioner was to obtain necessary

environment clearance from the competent authority

within three months, as per Rule-27(13) of the OMMC // 15 //

Rules, 2016, but he failed to do so before issuance of the

notification dated 14.08.2018. This material fact has

been suppressed in the pleadings of the writ petition and

the petitioner has tried to shift the responsibility on the

Tahasildar, Banki. Thereby, the petitioner has not

approached this Court with clean hands and, as such,

he is not entitled to get any relief on that ground also.

8. As regards expressing distorted facts before

the Court and not approaching with clean hands, in R.

v. Kensington, Income Tax Commissioner, (1917) 1

KB 486 at page 506, it has been held as follows:

"The prerogative writ is not a matter of course; the applicant must come in the manner prescribed and must be perfectly frank and open with the Court."

9. In State of Haryana v. Karnal Distillery,

AIR 1977 SC 781, the apex Court refused to grant relief

on the ground that the applicant has misled the Court.

10. In Chancellor v. Bijayananda Kar, AIR

1994 SC 579, the apex Court held that a writ petition is // 16 //

liable to be dismissed on the ground that the petitioner

did not approach the Court with clean hands.

11. Taking into consideration the above

judgments, this Court, in Netrananda Mishra v. State

of Orissa, 2018 (II) OLR 436, came to a conclusion in

paragraph-26 of the said judgment and held as under:-

"............. For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view. ........"

12. Undisputedly, the concept of District Survey

Report came into existence after issuance of the

notification dated 14.08.2018, which would take a long

time to complete the process in the entire district. But

fact remains, the petitioner was called upon vide letter

dated 26.03.2018 to comply with the same and go for

settlement and due to failure on his part to comply with

the same within the statutory period of three months, as

per Rule-27(13) of OMMC Rules, 2016, the Tahasildar,

Banki has not committed any illegality or impropriety in // 17 //

issuing fresh notice of auction, so as to cause

interference of this Court.

13. It is of relevance to note that since under the

OMMC Rules, 2016 specific procedures to be followed for

operating the Sand Source have been provided, it was

obligatory on the part of the petitioner to adhere to the

same. Non-fulfillment of the criteria laid down in the

statute would automatically disentitle a bidder to

operate the source. As the petitioner failed to comply

with the requirements contained in the letter dated

26.03.2018 issued by the Tahasildar, Banki, even after

lapse of five months, when the notification dated

14.08.2018 of the Ministry of Environment, Forest and

Climate Change, which introduced a new concept to be

followed in respect of the source to be put to auction

from that date, came into force, therefore, keeping in

view the provisions contained in Sub-rule (13) of Rule-27

of the OMMC Rules, 2016, the Tahasildar, Banki, vide

order dated 20.06.2019, cancelled the bid of the

petitioner and proceeded for fresh auction in respect of

Tentulia Sand Sairat for five years, vide notification // 18 //

dated 03.02.2020. Consequentially, steps so taken by

the Tahasildar, Banki cannot be said to be illegal,

arbitrary and contrary to the provisions of law, so as to

warrant interference of this Court.

14. The argument advanced by learned counsel

appearing for the petitioner, that due to negligence on

the part of the Tahasildar the petitioner cannot be

disentitled to get the benefit to operate the quarry,

cannot sustain in the eye of law.

15. In view of the facts and law, as discussed

above, since five years period of lease, i.e., from 2015-

2020 has been expired long since and the petitioner,

having not complied with the requirements, pursuant to

letter dated 26.03.2018 issued by the Tahasildar, Banki,

by providing necessary documents, such as,

environment clearance, etc. within the time stipulated,

in view of Rule-27(13) of the OMMC Rules, 2016, after

lapse of three months, the Sand Sairat settled in favour

of the petitioner has to be cancelled and the security

deposit has to be forfeited. Therefore, the steps taken by // 19 //

the Tahasildar, Banki, vide notification dated

03.02.2020 under Annexure-10, are held to be legally

justified.

16. There is thus no merit in this writ petition,

which is accordingly dismissed. However, there shall be

no order as to costs.

                                             (DR. B.R. SARANGI)
                                                  JUDGE


B.P.SATAPATHY, J.      I agree.


                                              (B.P. SATAPATHY)
                                                    JUDGE



          Orissa High Court, Cuttack
          The 28th October, 2022, Alok