Orissa High Court
Krishna Oram vs State Of Orissa And Others on 25 July, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 21534 OF 2022
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Krishna Oram ..... Petitioner
-Versus-
State of Orissa and others ..... Opp. Parties
For petitioner : M/s. Sidheswar Mallik,
P.C. Das, M. Mallik,
S. Mallick and A.P. Mohanty,
Advocates.
For opp. parties : Mr. P.P. Mohanty,
Addl. Government Advocate
(O.P. Nos. 1 to 3)
M/s U.C. Patnaik, S. Patnaik,
M.R. Sahoo and R. Kumar,
Advocates (O.P. No.4)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 21.07.2023:: Date of Judgment: 25.07.2023
DR. B.R. SARANGI, J. The petitioner, who was one of the bidders
pursuant to the advertisement dated 13.04.2022 issued by
Tahasildar, Bisra for grant of "Dumerta Stone Quarry-I" on
lease, has filed this writ petition with a prayer to reject the
tender application of opposite party no.4 for not depositing
the security amount within the statutory period of 15 days,
since it violates Rule 27(7) of the Orissa Minor Mineral
Concession Rules, 2016, and to direct opposite party no.3
to settle the quarry in his favour, being the next higher
bidder, as per the provisions contained under Rule 27 (9) of
the said Rules, 2016.
2. The factual matrix of the case, in brief, is that
Tahasildar Bisra-opposite party no.3 issued an
advertisement on 13.04.2022 inviting applications from the
intending bidders for grant of lease for a period of five years
in respect of minor minerals under Orissa Minor Mineral
Concession (Amendment) Rules, 2016 and called upon
them to apply in prescribed Form-M by dropping the same
in the drop box of the Tahasil office from 9.00 a.m. to 1.00
p.m. on 29.04.2022. It was stipulated therein that after
expiry of that period, no application will be entertained. The
drop box will be opened on 30.04.2022 at 9.00 a.m. in the
Tahasil office to finalise the lease. Incomplete applications
will be rejected. In the event the lease could not be possible
in the first date, i.e,. on 30.04.2022, it will be held for the
second time on 04.05.2022 and also for the third time on
05.05.2022 at the same time and place. So far as the
conditions of lease are concerned, one can see the same in
any working day except holidays in the office of the
Tahasildar. The application shall be filed along with fees of
Rs.1000.00 to be deposited by way of treasury challan and
the applicant shall also provide the entire description of the
lease land along with the map and also furnish an affidavit
that he has no dues so far as any mining is concerned.
2.1 In compliance to such provision, so far as
Dumerta Stone Quarry-I is concerned, the drop box was
opened on 29.04.2022 as per the provisions contained in
the OMMC Rules, 2016 and it was found that there were
three number of bidders participated in the auction of the
said stone quarry, details of them are quoted as under:-
Sl. Name of the participant Quoted Amount
No. in Rs.
1 Sri Pramod Kumar 81.00
Pandey
2. Krishna Oram 74.00
3. Hrushikesh Oram 73.00
2.2 From the above, it is made clear that one Pramod
Kumar Pandey, S/o- Late Bijay Shankar Pandey, resident
of Bisra Dahar Road, Rourkela-12, Dist-Sundargarh has
offered Rs. 81.00 per cubic meter towards additional
charges against the offset price of Rs.70/-. All documents
attached by him with the application were also found in
order. He having quoted highest price and his application
was in order, he was declared as successful bidder for the
Dumerta Stone Quarry-I. The petitioner, who was the 2nd
highest bidder for having quoted Rs.74.00 per cubic meter,
was found to have not submitted the land schedule and
trace map of the auctioned quarry, i.e., Dumerta Stone
Quarry-I, which was the requirement as per the
advertisement issued. Therefore, his application was
rejected. But the petitioner contended that the highest
bidder, i.e., opposite party no.4, having incurred a
disqualification by not furnishing the affidavit, his bid
should have been rejected and the petitioner, being the 2nd
highest bidder, should have been called upon for allotment
of the quarry in his favour. Hence, this writ petition.
3. Mr. S. Mallick, learned counsel appearing for the
petitioner vehemently contended that due to non-
compliance of the provisions contained under the
provisions of Rule 27(7) of the OMMC Rules, 2016, the
opposite party no.4 should not have been allotted with the
quarry in his favour, rather the petitioner, being the 2nd
highest bidder, should have been called upon as per the
provisions contained under Rule 27(9) of the OMMC Rules,
2016 and allotted with the quarry. The same having not
been adhered to, opposite party no.3 has acted arbitrarily
and unreasonably. Therefore, he seeks for interference of
this Court. To substantiate his contention, reliance has
been placed on Bhagirathi Mantri v. State of Odisha &
Ors., 2022 Latest Caselaw 5968 Ori.
4. Mr. P.P. Mohanty, learned Additional
Government Advocate appearing for the State-opposite
parties contended that the contention raised by learned
counsel for the petitioner is absolutely not correct. Rather,
the petitioner himself had incurred a disqualification by not
furnishing the land schedule and trace map along with the
application form, as he is required to submit the same as
per the conditions stipulated in the advertisement. Same
having not been adhered to, his application having been
rejected, he cannot claim that he is the 2nd highest bidder
and entitled to get the source in his favour as the opposite
party no.4 had incurred a disqualification. It is further
contended that opposite party no.4 had not incurred any
disqualification, rather he had quoted highest price, for
which the source was settled in his favour. Consequentially,
he seeks for dismissal of the writ petition.
5. Mr. S. Patnaik, learned counsel appearing for
opposite party no.4 also contended that the allegation made
by the petitioner, that opposite party no.4 having deposited
the security amount beyond 15 days period his bid should
not have been accepted, cannot be accepted. Since the
application made by opposite party no.4 was in order, he
was directed to deposit the balance security amount of
Rs.1,11,836/- within seven days from the date of receipt of
the letter and to submit the lease agreement paper in
respect of Dumerta Stone Quarry-I. On receipt of the said
letter on 17.05.2022, opposite party no.4 deposited the
balance security amount of Rs.1,11,836/- on the very same
day, vide Money Receipt No. 40/0426099 dated
17.05.2022, which was duly acknowledged by opposite
party no.3 on the very same day. Therefore, there was no
violation of any of the statutory provisions, as contemplated
under the OMMC Rules, 2016, as the security deposit was
made within the time prescribed under Sub-rule (7) of Rule
27 of the OMMC Rules, 2016. Thus, opposite party no.4
had not incurred any disqualification so as not to allow him
to operate the stone quarry and to call upon the 2nd highest
bidder, i.e., the petitioner, as claimed by him, to allot the
quarry in his favour. Rather, the petitioner had incurred
disqualification as his application was defective one.
Therefore, opposite party no.3 was well justified in rejecting
the application of the petitioner. As a consequence thereof,
the approach of the petitioner to this Court by filing the
present writ petition is absolutely based on suppression of
material fact and misleading statements. Therefore, the writ
petition should be dismissed with cost.
6. This Court heard Mr. S. Mallick, learned counsel
appearing for the petitioner; Mr. P.P. Mohanty, learned
Addl. Government Advocate appearing for the State-
opposite parties; and Mr. S. Patnaik along with Mr. U.C.
Patnaik, learned counsel appearing for opposite party no.4
in hybrid mode and perused the records. 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.
7. On the basis of the factual matrix, as discussed
above, the only question to be considered by this Court at
this point of time is whether the bid submitted by opposite
party no.4 incurred a disqualification for not depositing the
security amount within the time specified under Rule 27 (7)
of the OMMC Rules, 2016.
8. In exercise of the powers conferred by Sub-
section (1) of Section 15 of the Mines and Minerals
(Development and Regulation) Act, 1957 (67 of 1957) and in
supersession of the provisions contained in the Odisha
Minor Mineral Concession Rules, 2004, except as respects
things done or omitted to be done before such
supersession, the State Government, for regulating the
grant of mineral concessions in respect of minor minerals
and for the purposes connected therewith, made the rules,
namely, "The Odisha Minor Mineral Concession Rules,
2016".
Chapter-IV thereof deals with grant of quarry
leases. For a just and proper adjudication of the case, the
relevant provisions of Rule-27 are extracted hereunder:-
"27. Grant of quarry lease:-
xxx xxx xxx
(7) Within fifteen days of such intimation,
the selected bidder shall be required to convey his
acceptance of the terms and conditions and to
deposit an amount which shall be calculated in
such a way that it shall be equivalent to one-fourth
of the total amount of royalty and additional
charge and the amount of contribution payable to
the District Mineral Foundation on the annual
minimum guaranteed quantity, taken together,
reduced by the amount of earnest money, which,
along with the earnest money, shall be held as
interest-free security deposit.
xxx xxx xxx
(9) In the event of default by the selected
bidder, the Competent Authority may issue
intimation as specified in sub-rule (6) to the next
highest bidder who shall then be required to
convey his acceptance and to make the security
deposit calculated in the manner mentioned in sub
rule (7)."
9. On perusal of the provisions contained in Rule
27(7) of OMMR Rules, 2016, it is made clear that within
fifteen days of such intimation, the selected bidder shall be
required to convey his acceptance of the terms and
conditions and to deposit an amount which shall be
calculated in such a way that it shall be equivalent to one-
fourth of the total amount of royalty and additional charge
and the amount of contribution payable to the District
Mineral Foundation on the annual minimum guaranteed
quantity, taken together, reduced by the amount of earnest
money, which, along with the earnest money, shall be held
as interest-free security deposit. Thereby, it is incumbent
upon the successful bidder to comply the provisions
contained in Rule 27(7) by depositing the security amount
within a period of 15 days from the date of its intimation.
In the event, the same is not complied with by the
successful bidder or in the event, there is default by the
selected bidder, then the competent authority, may issue
intimation as specified in Sub-rule (6) to the next highest
bidder who shall then be required to convey his acceptance
and to make the security deposit calculated in the manner
mentioned in Sub-rule (7). Thereby, the right of the 2nd
highest bidder would accrue in the event the successful
bidder did not comply with the provisions contained in Rule
27 (7) by depositing security amount within a period of 15
days from the date of intimation.
10. Applying the above mentioned provision to the
present case, as it reveals from the record and from the
argument advanced by learned Addl. Government Advocate
appearing for the State-opposite parties as well as learned
counsel appearing for opposite party no.4 that after opening
the drop box on the date fixed, i.e., on 29.04.2022 in the
schedule time, it was found that opposite party no.4 having
quoted the highest price of Rs. 81.00 per cubic meter
towards additional charges against the offset price of
Rs.70.00 and his document attached with the application
form was found correct, he was declared as successful
bidder. Accordingly Form-F was issued in his favour vide
office order no. 861 dated 30.04.2022. He conveyed his
acceptance on the very same day, i.e. on 30.04.2022. On
receipt of such acceptance, the demand for security deposit
of Rs.1,11,836.00 was issued vide office order dated
07.05.2022. But due to his health issue he was out of
station and unable to receive the demand notice of security
deposit. But, he received the demand notice of security
deposit on 17.05.2022 and deposited the same on the very
same day vide money receipt no. 40/0426099 dated
17.05.2022. Thereby, opposite party no.4 has complied
with the statutory requirement by depositing the security
amount on 17.05.2022, which has also been duly
acknowledged by opposite party no.3.
11. It is apt to refer here the legal maxim "Expressio
Unius est exclusion alterius" i.e. if a statute provides for
a thing to be done in a particular manner, then it has to be
done in that manner and any other manner are barred.
12. In Nazir Ahmed v. King Emperor, AIR 1936 PC
253, law is well settled "where a power is given to do a
certain thing in a certain way the thing must be done in
that way or not at all. Other methods of performance are
necessarily forbidden." The said principles have been
followed subsequently in State of Uttar Pradesh v.
Singhara Singh, AIR 1964 SC 358, Dhananjay Reddy v.
State of Karnataka, AIR 2001 SC 1512, Chandra
Kishore Jha v. Mahabir Prasad, AIR 1999 SC 3558,
Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR
2008 SC 1921, Ram Deen Maurya v. State of U.P., (2009)
6 SCC 735.
13. In Subash Chandra Nayak v. Union of India,
2016 (I) OLR 922, similar question had come up for
consideration before this Court and this Court in
paragraph-8 observed as follows:-
".............the statute prescribed a thing to be done
in a particular manner, the same has to adhered
to in the same manner or not at all. The origin of
the Rule is traceable to the decision in Taylor v.
Tailor, (1875) LR I Ch D 426, which was
subsequently followed by Lord Roche in Nazir
Ahmad v. King Emperor, AIR 1936 PC 253(2).
But the said principle has been well recognized
and holds the field till today in Babu Verghese v.
Bar Council of Kerala (1999) 3 SCC 422, and
Zuari Cement Limited v. Regional Director,
Employees' State insurance Corporation,
Hyderabad and others, (2015) 7 SCC 690 and
the said principles has been referred to by this
Court in Manguli Behera v. State of Odisha and
others (W.P.(C) No. 21999 of 2014 disposed of on
10.03.2016)".
Similar view has also been taken in Rudra Prasad
Sarangi v. State of Orissa and others, 2021 (I) OLR 844;
Bamadev Sahoo v. State of Orissa, 132 (2021) CLT 927
and in Shaswata Pratika Pradhan v. State of Odisha
and others, 2022 (Supp.) OLR 601.
14. In view of such position, it is made clear that
opposite party no.3 has not acted in any manner contrary
to the provisions of law, so as to draw an adverse inference
against opposite party no.4 to extend the benefit to the
petitioner.
15. No doubt the petitioner, being the 2nd highest
bidder, had offered Rs.74.00 per cubic meter, but during
verification of his application, it was found that he had not
submitted the land schedule and trace map of the
auctioned quarry of Dumerta Stone Quarry-I, which was
the requirement in the advertisement and also mentioned
in sl. no.2 of the notice dated 13.04.2022 requiring the
documents to be attached along with the application form.
But suppressing this fact, the petitioner has tried to
mislead this Court and has not come to the Court with
clean hands. Thereby, at his instance, the present writ
petition cannot be sustained.
16. In R. v. Kensington, Income Tax
Commissioner, (1971) 1 KB 486 at page 506, it was 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."
17. In State of Haryana v. Karnal Distillery, AIR
1977 SC 781, the apex Court refused to grant relief on the
ground that the applicant had misled the Court.
18. In Chancellor v. Bijayananda Kar, AIR 1994
SC 579, the apex Court held that a writ petition is liable to
be dismissed on the ground that the petitioner did not
approach the Court with clean hands.
19. 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............"
20. Similar view has also been taken by this Court in
State of Odisha and others v. Lalat Kishore Mohapatra
and another, 2022 (Supp.) OLR 970 and Bhagirathi
Mantri (supra). So the reliance which has been placed by
learned counsel for the petitioner, i.e. the decision in the
case of Bhagirathi Mantri (supra) has no assistance to the
case of the petitioner, rather it supports the stand of the
opposite parties.
21. In view of the fact and law, as discussed above,
this Court is of the considered view that the relief sought by
the petitioner is not admissible and, as such, the writ
petition merits no consideration and the same stands
dismissed. However, in the facts and circumstances of the
case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 25th July, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court
Date: 25-Jul-2023 17:00:47
