BINAYAK BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The prayer in this writ petition is for the issue of a writ of certiorari to set aside or cancel the auction held in respect of the sand source pertaining to Khata No. 1902, Plot No. 4148, Area 45 acres under Mouza Pratapsasan, District- Khurda. The writ petition proceeds on the basis that it is in public interest. The main aspect projected before us at the time of hearing is that by auctioning the sand source and permitting the contractor to remove the sand away from the source, the embankment of the river in the concerned area will be severally damaged leading to danger to the public during floods. The petitioners placed strong reliance on the letters of two Executive Engineers of the Irrigation Department annexed as Annexures 1 and 2 to the original petition. Annexure-1 is the letter dated 5.11.2001 written by the Executive Engineer. Nimapara Irrigation Division, Nimapara to the Tahasildar, Bhubaneswar when the proposed auction of the sand source was not finalised. We think it appropriate to quote the said letter:

(2.) Learned counsel for the intervenor, the successful bidder in the auction raised a contention that the approach of the petitioners to this Court is motivated. Since they have not come to this Court with clean hands, this Court ought not to entertain this writ petition as a public interst litigation. According to the learned counsel, the petitioners are merely persons set up by the unsuccessful bidder at the auction. Learned counsel for the petitioners seriously refuted this contention. But, even assuming that there is some substance in the argument of learned counsel for the intervenor, we think that it will be inappropriate for this Court to throw away this writ petition on the ground that the petitioners were motivated, in the context of the danger to public pointed out in the communications from the two Executive Engineers marked Annexures 1 and 2 in the writ petition which we have quoted above. When the Officer-in-charge of the embankment has referred to a public danger and that fact is brought to the notice of this Court, even though the conduct of the persons who bring it to the notice of the Court may be questionable, it is the duty of the Court, in our view, to consider whether the danger apprehended is real and whether adequate steps have been taken to avoid that danger before the authorities decided to act one way or the other. Therefore, in the absence of sufficient material, we are not inclined to accept the objection of learned counsel for the intervenor that this Court should not entertain this writ petition as a Public Interest Litigation in view of the fact that the petitioners have come with unclean hands.

(3.) When responsible Engineers in charge of the embankment raise an objection to the auctioning of the sand source as proposed by the Tahasildar, the authority to do so, it appears to us that it behoves a higher authority to look into the objection with reference to the relevant materials and to take a decision thereon. It is unfortunate that in spite of Annexures 1 and 2 neither the Tahasildar nor the District Collector eared to seek an expert opinion on the question. If the Collector had applied his mind and taken a decision, that should be discernible from the file. Relevant materials had to be put down in writing so that it willbe apparent that he had considered the relevant aspects before taking a decision permitting the auction to go on. In our system of jurisprudence judicial review of administrative action has become the order of the day. In that context, it is necessary for the authority taking a decision on such matters to indicate the decision and the reasons for the decision. Then this Court can test the administrative action or decision of the authority within the confines of Arisminic or for Wednesbury unreasonableness. No such material is available in this case and that in our view is an unfortunate aspect of this particular case.