The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) NO.28781 of 2022 Mital Mallick …. Petitioner Mr. B.K. Mohanty, Adv. -versus- State of Odisha & Others …. Opposite Party Mr. A. Tripathy, AGA Mr. M.K. Mohanty, Adv. (for O.P. NO.7) Ms. D. Mohapatra, Adv. (for O.P. NO.6) Mr.S.K. Samantaray, Adv. (for O.P. No.8) COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 07.05.2025 20. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. The present Writ Petition has been filed inter alia with the following prayer. “Under the circumstances, it is therefore most humbly prayed that this Hon’ble Court would be graciously be pleased to admit this writ application and shall be pleased to issue notice to the Opp. Parties the Opp. Parties fails to file show cause as to why the writ application shall not be allowed if the Opp. Parties fails to file their show cause or files insufficient cause then shall be pleased to quash the auction dtd.08.09.2022 vide Annexure-5 and to direct the Opp. Parties, the Opp. Party No.3 & 4 for re- auction; And for this act of kindness, the Petitioner as in duty bound shall ever pray.” // 2 // 4. It is the case of the Petitioner that pursuant to the notice issued by the B.D.O-Opp. Party No.4 on 23.08.2022 under Annexure-3, date of auction of the Sairat in question was fixed to 08.09.2022 at 11 A.M. It is contended that since in the notice issued under Annexure-3, the date of auction was only indicated at 11 A.M without indicating therein as to when the bid will be held with due acceptance of the bid money and the earnest money, Petitioner though reached the place of bid around 11.20 A.M, his bid was not accepted and accordingly he could not participate in the said bid. 4.1. It is contended that because of the discrepancy issued in the notice dt.23.08.2022, Petitioner was deprived from participating in the bid which was accepted in favour of Opp. Party No.7 with bid amount of Rs.2,70,600/- on the face of the offset price fixed at Rs.2,70,500/-. It is contended that since because of the nature of notice issued under Annexure-3, Petitioner was deprived to participate in the bid and the bid of Opp. Party No.7 though was the only bid, it was accepted just at an excess of Rs.100/- above the offset price, the present Writ Petition was filed challenging the entire auction process. 4.2. It is contended that this Court while issuing notice of the matter vide order dt.09.11.2022, directed the Petitioner to deposit a sum of Rs.3,00,000/- before the Registry to show her bonafideness. Pursuant to the Page 2 of 11 // 3 // said order, an amount of Rs.3,00,000/- was not only deposited but it has been kept in a fixed deposit. It is accordingly contended that since the bid was not held in a transferrable manner and because of the discrepancy in the notice issued under Anneuxre-3, Petitioner could not participate in the bid, the entire auction process and the bid settled in favour of Opp. Party No.7 be declared as illegal. 4.3. It is also contended that even though the bid of Opp. Party No.7 was accepted with deposit of the bid money on 08.09.2022, but Opp. Party No.7 has not taken possession of the pond at any point of time and it
Legal Reasoning
was also never confirmed in terms of the provisions contained under Rule 48(9) of the Orissa Grama Panchayat Rules, 2014 (in short, Rules). Rule 48(9) of the Rules reads as follows: 48 (9) At the end of the bid, the officer conducting the auction shall send the records along with a report to the Block Development Officer or Sub-Collector, as the case may be, for confirmation of the bid. The Sub- Collector or Block Development Officer, as the case may be, shall intimate his order of confirmation within 30 days from the date of auction. IN case the Sub- Collector or Block Development Officer to communication his order of confirmation within 30 days from the date of auction, the bid shall be to have been confirmed: fails Provided that the Sub-Collector or the Block Development Officer, as the case may be, may, if the bid is inadequate or he receives a report that no bidders were forth coming, direct that the property be either re-auctioned or managed directly by the Grama Panchayat for a period to be specified by him. Page 3 of 11 // 4 //
Legal Reasoning
5. Mr. M.K. Mohanty, learned counsel appearing on behalf of Opp. Party No.7 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by him. It is contended that pursuant to the bid notice issued under Annexure-3, Opp. Party No.7 along with 13 others participated in the bid with deposit of the earnest money before the Grama Panchayat on the date of auction and also deposited the entire bid amount of Rs.2,70,600/- on the very same date under Annexure-5. 5.1. It is contended that since in terms of the notice issued under Anexure-3, Opp. Party No.7 participated in the bid and the same was settled in its favour with due deposit of the bid money, Opp.Party No.7 is required to be allowed to take the pond in question for the entire lease period. A further contention was also raised that Petitioner along with 13 other persons participated in the bid and the same is clearly reflected in the resolution of the Grama Panchayat dt.08.09.2022 under Annexure-D/7. 5.2. It is contended that since along with Opp. Party No.7, 13 persons participated in the bid, it cannot be held that Opp. Party No.7 was the sole bidder. It is also contended that Opp. Party No.2 who happens to be the B.D.O in his counter affidavit in para 10 & 12 admits the participation of Opp. Party No.7 in the bid in question and the acceptance of its bid by the Grama Page 4 of 11 // 5 // Panchayat. Para 10 & 12 of the counter affidavit filed by Opp. Party No.2 reads as follows: to in reply the averments made
Decision
10. That, in paragraph-7 of the Writ Petition, it is humbly and respectfully submitted that the time of auction was schedule at 11am on dtd.08.09.2022 the notice was duly and widely published in the notice board of the GP office, Block Office and Sub-Collector Office vide notice No.3227 dtd.23.08.2022 of the Block Office Balikuda. Therefore, the allegations in the writ petition that notice was never published is nothing but a false and fabricated statement. Notices were duly published in conspicuous locations. Moreover, the GP has also informed the people of the GP by the notice vide notice No-08 dtd-24.08.2022 of the Sarapanch, Krushndaspur and through beat of drum, the action process was stated at 11 AM as per scheduled time. The Balunkeswer SHG had deposited the SD money. The Auctioning Officer had allowed to wait one hour. But no other SHG did not reach the action-place. After 12 noon, the Auctioning Officer started further process and leased out the pond in favour of the Balunkeswer SHG. After close of the auction, the petitioner reached at the auction-place. to in reply the averments made 12. That, in paragraph-9 of the Writ Petition, it is humbly and respectfully submitted that the auction is being done as per procedure of law. Smt. Rajalxmi Rath, president of Balunkeswar SHG of village, Krushnadaspur has deposited full amount of auction value. 5.3. It is contended that in view of the admission made by the B.D.O in the counter and the resolution made by the Grama Panchayat on 08.09.2022 accepting the bid of Opp. Party No.7 under Annexure-D/7, Opp. Party No.7 be allowed to continue with the lease which is duly settled in its favour for the entire lease period. 5.4. Learned counsel for Opp. Party No.7also placed reliance on the provisions contained under Rule 49(9) of the Orissa Grama Panchayat Rules, 2014. It is Page 5 of 11 // 6 // contended that in terms of the decision taken by the Grama Panchayat on 08.09.2022, since the bid was never confirmed either by the B.D.O or by the Sub- Collector, in view of the deeming provision incorporated in the said Rule, it is to be deemed that the bid settled in favour of Opp. Party No.7 stands confirmed. 5.5. In support of the same, reliance was placed to a decision of the Hon’ble Apex Court rendered in the case of K. Kumara Gupta Vs. Sri Markendaya and Sri Omkareswara Swamy Temple and Others, reported in (2022) 5 SCC 710. Hon’ble Apex Court in para 18 & 26 of the said judgment has held as follows: 18. Further, the Division Bench of the High Court ought to have appreciated that the objector Shri L. Kantha Rao, who did not participate in the auction proceedings and submit any bid can be said to be a fence sitter having no stakes on his shoulder and had simply come forward just to nullify the registered sale deed executed in favour of the appellant by adopting an indirect method of making a public offer by way of filing a "public interest litigation" before the High Court. The so-called lucrative offer initially made by Shri Jagat Kumar and the subsequent offer made by Shri L. Kantha Rao appears to be made only to frustrate the auction proceedings with a mala fide intent. As observed hereinabove, if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India. 26. Similarly, the appeal preferred by the heirs of Shri L. Kantha Rao also ought not to have been entertained. Shri L. Kantha Rao never participated in the auction. He never submitted any offer. The proceedings initiated by Shri L. Kantha Rao were in the nature of a public interest litigation and therefore being heir of Shri L. Kantha Rao, his wife could not Page 6 of 11 // 7 // have been permitted to prosecute further with the public interest litigation. 6. Mr. S.K. Samantaray, learned counsel appearing on behalf of Opp. Party No.8 on the other hand contended that prior to going for auction of the Sairat with issuance of the notice on 23.08.2022, Opp. Party No.8 was already settled with the Sairat by the Grama Panchayat. It is contended that basing on the decision taken in the Grama Panchayat in its proceeding dt.28.07.2021 under Annexure-F/8 and further communication made in that regard, the sairat was settled in favour of Opp. Party No.8 and on the face of such settlement, no auction of the sairat could have taken place basing on Annexure-3. It is accordingly contended that Opp. Party No.8 be allowed to take the Sairat on lease. 7. Learned Addl. Govt. Advocate on the other hand contended that basing on the notice issued under Anenxure-3, Opp. Party No.7 only participated in the bid and the bid was accepted with bid amount of Rs.2,70,600/-. 8. Ms. D. Mohapatra, learned counsel appearing on behalf of the Grama Panchayat-Opp. Party No.6 on the other hand made her submission basing on the stand taken in the counter affidavit. Reliance was placed in the stand taken by Opp. Party No.6 in para 8 & 9 of the counter and the same reads as follows: Page 7 of 11 // 8 // 8. That it is true that at the time of auction the present Opp. Party No.6 being the Sarpanch was present including other authorities and the auction process was started at the schedule time and accordingly at about 11.15 A.M the Opp Party No.7 reached at the G.P. office and deposited the earnest money. It is true that the intervenor and the Petitioner as well as other SHG Group were reached at about 11.20 A.M to 11.40 A.M but by that time the opp. Party No.7 had already deposited the earnest money. Thereafter the Petitioner and present Opp. Party No.6 left the place in saying that the authorities did not allow them to participate n auction as the auction process has already been commenced at the schedule time. That after 11.45 A.M no other candidates except Opp. Party No.7 was present for which she was selected as lessee and after 12 Noon in completion of all the formalities of auction the authorities declared the Opp. Party No.7 as the auction holder and this Opp. Party No.6 prepared the resolution declaring the same. 9. That it is reiterated that like Petitioner and intervenor SHG group including other SHG group also reached at the G.P. office in between 11.20 to 11.40 A.M but were returned back as they were not allowed to participate in auction because they reached at late since upper time limit had not mentioned in the auction notice to be concluded within a particular period of time many intending WSHG group were confused to maintain the particular time period for participating in the auction and therefore reached at the auction place at different times and were deprived to participate in the auction. 8.1. Basing on the stand taken in para 8 & 9 of the counter affidavit, it is contended that though the time of the auction was fixed to 11 A.M, but Opp. Party No.7 reached the place of bid at about 11.15 A.M. and other SHG Group reached the place of auction in between 11.20 to 11.40 A.M. But since by that time Opp. Party No.7 had already deposited the earnest money and participated in the bid, the same was settled in its favour with due deposit of the bid money on 08.09.2022 under Annexure-5 It is however contended Page 8 of 11 // 9 // that the bid settled in favour of Opp. Party No.7 was never confirmed by the B.D.O or sub-Collector with due submission of the proposal by the Grama Panchayat in terms of the provisions contained under Rule 48(9) of the Rule. It is also contended that Opp. Party No.7 even though has deposited the bid amount, but it was never given possession of the lease nor Opp. Party No.7 has done any activity in the pond in question. 9. Having heard learned counsel for the parties and considering the submission made, it is found that basing on the notice issued by Opp. Party No.4 on 23.08.2022 under Annexure-3, the sairat in question was put to auction on 08.09.2022. As found from Annexure-3, the date of auction and time of auction was fixed to 08.09.2022 at 11 A.M. After conducting the auction, the Grama Panchayat passed a resolution on 08.09.2022 under Annexure-D/7 showing the acceptance of the bid of Opp. Party No.7 at Rs.2,70,600/- with deposit of the bid money by Opp. party No.7 on 08.09.2022 itself under Annexure-5. 9.1. The stand taken by Opp. Party No.7 that Opp. Party No.7 along with 13 others participated in the bid so reflected in Annexure-D/7 is not acceptable to this Court, as the same is not reflected in the resolution dt.08.09.2022. In the said resolution, some villagers have signed in token of their presence and it cannot be Page 9 of 11 // 10 // held that those villagers participated in the bid. It is also found form the record that bid of Opp. Party No.7 though was accepted with due acceptance of the bid money, but in terms of the provision contained under Rule 48(9) of the Rules, the bid was never confirmed either by the B.D.O or by the Sub-Collector, nor any such document is available in the case record. 9.2. Therefore, in absence of any such confirmation of the bid in favour of Opp. Party No.7 either by the B.D.O or Sub-Collector, it cannot be held that the bid settled in favour of Opp. Party No.7 has been accepted. Since the bid of Opp. Party No.7 has never been accepted either by the B.D.O and Sub-Collector, it is the view of this Court that Opp. Party No.7 has not taken the possession of the pond in question. It is also the view of this Court that the decision relied on by Mr. M.K. Mohanty is not applicable to the facts of the case, in view of the provisions contained under Rule 48(9) of the Rules. 9.3. However, since the auction is of the year 2022 and in the meantime, around 3 years is going to pass, this Court permits Opp. Party No.4 to go for fresh auction of the pond in question. Since Opp. Party No.7 on the face of the deposit made by it has not taken over the possession, the Grama Panchayat is directed to refund the entire bid money in faovur of Opp. Party No.7 Page 10 of 11 // 11 // within a period of four (4) weeks from the date of receipt of this order. 9.4. Registry is also directed to refund the deposit amount of Rs.3,00,000/-so made by the Petitioner on proper identification within a period of 2(two) weeks hence. But the interest as accrued thereon be released in favour of opp. Party No.7 also on proper identification as because of the filing of the writ petition, Opp. Party No.7 was deprived to take possession of the sairat with due approval of the bid. 9.5. This Court is unable to accept the contention of Opp. Party No.8, as Opp. Party No.8 never participated in the auction process not it was settled in its favour. Opp. Party No.4 however is directed to go for fresh auction of the sairat in accordance with law, in which this Court expresses no opinion. 9.6. The Writ Petition accordingly stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 08-Aug-2025 14:27:32 Page 11 of 11