AJAY RASTOGI Vs. STATE OF JHARKHAND AND ORS.

JUDGEMENT

(1.) Challenging condition contained in Clause 16 of auction notice dated 15.4.2015, both the writ petitions have been filed. Mr. Indrajit Sinha, the learned Counsel for the petitioner states that issues involved in both the writ petitions are common. In both the writ petitions validity of Clause 16 in auction notice has been challenged. It is stated that facts in both the cases are also similar. Mr. Indrajit Sinha, the learned Counsel for the petitioner advanced his arguments referring to facts in W.P.(C) No. 1969 of 2015. Briefly stated, the facts of the case are that, the petitioner who intended to offer bids in response to notice dated 15.4.2015 for settlement of Sand Ghats in Ranchi district got 17 demand drafts prepared from HDFC Bank, Banka Branch. A bidder was required to deposit 10% of the reserve price as earnest money deposit and the intending bidder was also required to obtain and submit "no objection certificate" from Gram Sabha/Mukhia/Gram Panchayat/Authorized Officer. The petitioner approached Mukhia/Gram Pradhan of respective Gram Panchayats however, they declined to grant "no objection certificate" to the petitioner, as a consequence of which the petitioner was debarred from participating in the auction. It is stated that several intending bidders were also prevented from participating in the auction only because they could not obtain "no objection certificate" from Gram Sabha/Mukhia/Gram Panchayat/Authorised Officer.

(2.) The learned Counsel for the petitioner has submitted that, Clause 16 creates a disqualification for a bidder who may be otherwise qualified still, he would not be permitted to participate in auction if he fails to produce "no objection certificate". The learned Counsel for the respondents has referred to Rule 11 and Rule 34(4) of the amended Rules and submitted that, besides Rule 5(4) the aforesaid Rules also make it mandatory that "no objection certificate" of Gram Sabha must be obtained. Before dealing with the rival contentions, Rule 5(4) of the Jharkhand Minor Mineral Concessions Rules, 2004 needs to be noticed. The unamended Rule 5(4) of Jharkhand Minor Mineral Concession Rules, 2004 reads as under:

(3.) Vide notification dated 30.5.2014 published in Jharkhand Gazette, Rule 5(4) was amended to the extent that expression "prior approval" has been substituted by "no objection certificate". In my opinion, the amendment in Rule 5(4) does not change the prohibition contained under the said Rule. Rule 5(4) mandates that no mining lease or prospecting license for Minor Mineral in the schedule area would be issued without "no objection certificate" of the concerned Gram Sabha or appropriate Panchayat authority. Clause 16 provides that a bidder would not be permitted to participate in auction if "no objection certificate" from Gram Sabha/Mukhia/Gram Panchayat/Authorized Officer is not obtained. In my opinion, the prohibition contained in Rule 5(4), which mandates prior approval/"no objection certificate" from Gram Sabha/Mukhia/Gram Panchayat/Authorised Officer, has been mistaken by the petitioner as a disqualification to an intending tenderer. In view of specific prohibition contained under various provisions of 2004 Rules, Clause 16 has been incorporated in auction notice dated 15.4.2015. A bare reading of Clause 16 would indicate that Gram Sabha/Mukhia/Gram Panchayat/Authorised Officer is not required to assess the eligibility of an intending tenderer rather, in view of the bar imposed by 2004 Rules, a condition to obtain "no objection certificate" has been incorporated in Clause 16. Though, at the first glance condition incorporated under Clause 16 may give an impression of a disqualification however, when viewed in the context of bar under Jharkhand Minor Mineral Concession Rules, 2004, Clause 16 cannot be construed as a disqualification. Moreover, the terms of tender are not open to judicial scrutiny, the same being in the realm of contract. The Government must have a free hand in setting the terms of tender. In "Jagdish Mandal v/s. State of Orissa" : (2007) 14 SCC 517, the Hon'ble Supreme Court has observed, "evaluating tenders and awarding contracts are essentially commercial functions."