Vineet Saran, C.J.The petitioner, a private limited company represented through its Managing Director, participated in an auction proceeding pursuant to notice dated 29.07.2015 issued by the Sub-Collector-cum-Authorised Officer, Khurda for grant of long term lease in respect of different Sairat sources. The Sairat source with which the petitioner is concerned is mentioned at serial No. 14 of the tender notice dated 29.03.2015 under Annexure-2, i.e., Chhatrama Kabar building stone quarry "Kha" in the district of Khurda. Apart from all other statutory requirements, it was expressly provided that the bidder was to submit solvency certificate obtained from the Revenue Authorities. In the tender process, altogether six bidders, including the petitioner, participated by submitting their respective bids. As would be evident from the bid sheet dated 14.08.2015, the rates quoted by the bidders were as follows:

"Radhakanta Mishra Solvency.

......Rs. 401.00/CuM -Rejected due to fake

Pradipta Kumar Jena Bidder.

......Rs. 351.91/CuM - No Solvency of the

Rohit Kumar Barik

......Rs. 343.00/CuM - Dead.

Kukumina Constructions Pvt. Ltd.

......Rs. 337.00/CuM

MSL Pvt. Ltd.

......Rs. 189.00/CuM

Krishna Das

......Rs. 120.00/CuM"

2. As would be clear from the above, the auction for a long term lease of the mines in question belonging to opposite party No. 5-Shri Jagannath Temple Administration, Puri was held in August, 2015. The highest bidder had offered a price of Rs. 401/- per Cum, the second highest bidder-opposite party No. 4 had offered Rs. 351.91 per Cum, the third highest bidder had died, and the petitioner, who was the fourth highest bidder, had offered Rs. 337/- per Cum. Since the highest bidder was disqualified, the second highest bidder, being opposite party No. 4 was asked to match the highest bid, which was for Rs. 401/- per Cum. Since opposite party No. 4 accepted the same, approval for mining lease was granted in his favour vide order dated 15.3.2016.

3. Challenging the same, this writ petition has been filed, primarily on the ground that opposite party No. 4 was not qualified, as he had not given his solvency certificate but that of his wife, which could not have been accepted.

4. Mr. P.K. Rath, learned counsel for the petitioner has submitted that opposite party No. 4 incurred disqualification from participating in the auction in view of the fact that solvency certificate submitted does not belong to him and therefore, the auction bid submitted by him could not have been opened by the authority for consideration. The consideration having been made beyond the scope of the tender notice and acceptance thereof being made contrary to the conditions stipulated in the auction notice, the same should be quashed.

5. Mr. B.P. Pradhan, leaned Addl. Government Advocate appearing for the State-opposite party has submitted that in view of Section 37 of the Orissa Land Reforms Act, 1960 a "person" would include a family and further a "family" in relation to an individual would mean individual, as well as the husband or wife. Relying on that Section, learned Addl. Government Advocate states that solvency certificate issued in favour of wife of opposite party No. 4 would be sufficient for opposite party No. 4 to participate and to be qualified in the auction.

6. Mr. S. Pattnaik, learned counsel appearing for opposite party No. 4 also adopted the arguments advanced by learned Addl. Government Advocate.

7. Mr. S. Satpathy, learned counsel appearing for opposite party No. 5 states that since the auction has been held by Sub-Collector-cum-Authorised Officer for and on behalf of opposite party No. 5, in terms of the auction notice issued in Annexure-2, it has no role to play so far as auction is concerned, but augmentation of revenue being the prime consideration, the opposite party No. 5 is interested that the source should be settled in favour of the person, who can bid a better price.

8. On 22.07.2016, this Court issued notice to the opposite parties and passed an interim order in Misc. Case No. 10815 of 2016 to the following effect:

"In the meanwhile, opposite party shall not execute any lease deed/agreement in favour of opposite party No. 4 and if executed, the opposite party shall not permit the said opposite party No. 4 to operate the mines, provided the petitioner deposits a sum of Rs. 5,00,000/- (Rupees Five Lakhs) with the Registrar (Judicial) of the Court on or before 26.07.2016. On such deposit being made, the Registrar (Judicial) shall keep the same in the fixed deposit scheme of a Nationalized Bank."

In compliance of order passed by this Court, as quoted above, the petitioner deposited the said amount of Rs. 5.00 lakhs. The auction proceeding in favour of opposite party No. 4 has thus not been concluded. On perusal of the auction notice for long term lease of minor minerals cum stone quarry issued by opposite party No. 5 dated 29.07.2015 (in Annexure-2) under the heading "documents to be submitted along with the lease application", it stipulates in clause-5 as follows:

"A solvency certificate and a list of immovable properties from the Revenue authority. (Not less than the Required amount)"

In compliance of such condition stipulated in clause-5, the opposite party No. 4 submitted the solvency certificate of his wife, which could not have been accepted by the authority. Strictly in law, solvency certificate of the wife of opposite party No. 4 cannot be accepted in an auction in which opposite party No. 4 participates.

9. The arguments advanced by learned Addl. Government Advocate cannot sustain in view of the fact that the definition of family, as mentioned in Section 37 of the Orissa Land Reforms Act, 1960, is applicable with regard to ceiling and disposal of the surplus land, but not with regard to the auction proceeding. As such, the definition has been given relying upon the scheme of the itself, which may not have any application to the present context.

10. In course of hearing, leaned counsel for the petitioner made an offer that it would be prepared to pay higher price @ 451 per cum. Since the augmentation of revenue for opposite party No. 5 is of prime consideration for the Court, it called upon opposite party No. 4 to match with the highest price offered by the petitioner. At this stage, learned counsel for the parties have agreed that in view of the facts and circumstances of the case, if a fresh auction would be held giving opportunity to all the bidders fixing the base price at Rs. 451 per cum, which has been offered by the petitioner in Court today, there may be a possibility of getting higher offer than the fresh offer made by the petitioner.

11. In view of such position, we are of the considered opinion that the auction already held on 14.08.2015 pursuant to notice issued Annexure-2 deserves to be quashed, and is hereby quashed. The Sub-Collector-cum-Authorised Officer, Khurda is directed to hold fresh auction within a period of ten weeks from today, fixing the minimum price at Rs. 451 per Cum, which has been offered by the petitioner, by affording opportunity to other similarly situated bidders to participate in the fresh bid, who can also offer better price than that of the minimum price fixed by this Court.

12. The amount of Rs. 5,00,000/-, which has been kept in the account of the Registrar(Judicial) of the Court, shall remain so till the auction is held and in case, auction is successful, the same shall be released in favour of the petitioner.

13. It is further made clear that in case there is no offer made which is higher than Rs. 451/- per Cum, the petitioner shall be bound by its offer of Rs. 451/- per Cum and, in case the petitioner refuses to accept the same, the amount of Rs. 5,00,000/- kept in deposit with the Registrar(Judicial) of the Court shall be forfeited and transferred to the account of opposite party No. 5-Shri Jagannath Temple Administration, Puri.

14. Needless to say, any amount already deposited by opposite party No. 4 for grant of mining lease in terms of the earlier auction held, shall be refunded to him forthwith.

15. With the aforesaid observations/directions, the writ petition stands disposed of.

Final Result : Disposed Of