The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.30562 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Jay Jagannath Self Help Group, Endulapur, Dist.-Kendrapara …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. M.K. Mohanty, Advocate For Opposite Parties : Mr. S. Ghose, A.G.A. Mr. A. Mishra, Advocate on behalf of Mr. B.P. Panda, Advocate for O.P. No.6 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 20th December, 2023 B.P. Routray, J. 1. Heard Mr. M.K. Mohanty, learned counsel for the Petitioner, Mr. S. Ghose, learned Additional Government Advocate for State- Opposite Party Nos.1 to 5 and Mr. A. Mishra on behalf of Mr. B.P. Panda, learned counsel for Opposite Party No.6. 2. The Petitioner challenges cancellation of the auction granted in respect of “Endulapur Grama Majhi Pokhari” in their favour. W.P.(C) No.30562 of 2022 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 3. The facts in brief are that, the Petitioner is a Women Self Help Group, namely, Jay Jagannath Self Help Group of village Endulapur in Rajnagar Block. Pursuant to the auction notice dated 10.10.2022, the Petitioner along with other SHGs participated in the auction process of various ponds under different Gram Panchayats, namely, Brahman Sahi, Mahisasura, Dera, Kandira, Kurunti, Hatini and Gusti. The Petitioner along with another SHG, namely, Tulasi SHG of village Endulapur competed for auction of Endulapur Village Middle Pond and he becoming the successful bidder was selected to take auction of the pond. The Petitioner was directed to deposit the auction price of Rs.49,850/- and it was deposited on the same day. The money receipt was also issued in his favour by the Panchayat Executive Officer. Subsequently, the Block Development Officer (BDO) in his Order No.3572, dated 19.10.2022 cancelled the auction granted in favour of the Petitioner on the ground that the said pond has been withheld for development under Amrit Sarovar Scheme and therefore, the auction for pisciculture cannot be granted in respect of the same. 4. Thereafter the Petitioner and the Sarpanch of the G.P. lodged their protest alleging that said order of cancellation of the B.D.O. dated 19.10.2022 (Annexure-6) has been antedated and in the meantime the subsidy for pisciculture has been released in favour of the Petitioner and further, the Petitioner has already invested fingerlings in the pond. But without adhering to their protest, the B.D.O. issued fresh auction notice in respect of same pond by subsequent order dated 11.11.2022 inviting applications from different participants. W.P.(C) No.30562 of 2022 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 5. Mr. M.K. Mohanty, learned counsel for the Petitioner submits that the cancellation of the auction held in favour of the Petitioner and subsequent notice for auction dated 11.11.2022 (Annexure-8) are illegal being politically motivated. He further submits that after the auction was declared in favour of the Petitioner, the Petitioner has deposited the auction price, received the subsidy and started pisciculture by investing fishlets in the pond. Therefore, cancellation of auction by putting back date in the order is grossly illegal and liable to be quashed. 6. The Block Development Officer has filed his counter affidavit stating that the auction was held without giving any prior information to him and violating the procedure. 7. Mr. S. Ghose, learned Additional Government Advocate for the State-Opposite Party Nos.1 to 5 submits that an enquiry was conducted by the B.D.O. through BPC of the Block and as per the enquiry report several irregularities were noticed in conducting the auction and therefore the auction was cancelled. 8. At the outset, it is important to remember that the cancellation of auction order dated 19.10.2022 of the B.D.O. under Annexure-6 speaks the reason that the auction was illegal since the pond was reserved for development under Amrit Sarovar Scheme. The language of Annexure- 6 is reproduced below: “XX .. xx .. It has come to the notice of the undersigned that the Endulapur Gaon Majhi Pokhari has been leased out to W.P.(C) No.30562 of 2022 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 WSHG on dated 19.10.2022 by the Auction Officer (Sri Sukumar Mandal, PEO, Hatina GP) deviating the notice of the undersigned, wherein the auction of the said pond was withheld for the purpose of development of Amrit Sarovar under MGNREGS as per report of the PEO, Hatina GP dated 13.09.2022. As per report, Endulapur Gaon Majhi Pokhari was approved in the GP Meeting to be developed as Amrit Sarovar under MGNREGS. Further basing on the enquiry report of the PEO, Hatina GP, the undersigned has reported to the Chief Minister’s Grievance cell for beautification of the said pond and no auction will be carried out before completion of Amrit Sarovar project under MGNREGS. Under the above circumstances, the lease out of the to WSHG held on Endulapur Gaon Majhi Pokhari 19.10.2022 is hereby cancelled until further orders. The leased amount received from the WSHG to be returned immediately under intimation to the undersigned.” 9. This reason for cancelling the auction as stated in Annexure-6 has not been specifically answered by the Block Development Officer in his counter. Admittedly, fresh auction notice has been issued subsequently on 11.11.2022 under Annexure-8. According to Annexure-6, since the pond was reserved for development under Amrit Sarovar Scheme, the same cannot be auctioned for pisciculture for one year. But the Block Development Officer avoided answering it in the counter affidavit. So the question arises that, if the auction was cancelled for development of the pond under Amrit Sarovar Scheme on 19.10.2022, then how could it be re-invited for fresh auction on 11.11.2022, i.e. after 20 days only. Had it been actually reserved for development under Amrit Sarovar Scheme, then it would not have been permitted for one year at least. The further admitted fact, as W.P.(C) No.30562 of 2022 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 reveals from Letter No.3396 dated 6.11.2023 of the B.D.O., remains that the subsidy amount for pisciculture has already been released in favour of the Petitioner after he took the pond in auction on 19.10.2022. Therefore, in the above context, the allegation made by the Petitioner that the auction was cancelled upon extraneous consideration is found justified. Further, the averment of the Petitioner that he has already invested in the pond by leaving fish seeds has not been answered by the B.D.O. in his counter affidavit. The B.D.O. has failed to show valid reasons in his counter affidavit for cancelling the auction. It is though observed in the counter affidavit that the auction was held without clear prior notice of 15 days, but it is seen from the affidavit filed by the Petitioner that all such auctions held in respect of all the G.Ps. as per the notice dated 10.10.2022 under Annexure-2 were not cancelled except the present one. The Petitioner has further averred that in no case as per the auction notice under Annexure-2, the auction was cancelled for lack of 15 days clear notice. This part of the averment has not been answered by the State-Opposite Parties, particularly, the B.D.O. 10. As stated above, cancelling the auction of the pond and putting the same for re-auction after 20/22 days shows the intention of the authority that the pond was never reserved for development under Amrit Sarovar Scheme and therefore, the reason assigned under Annexure-6 to cancel the auction is held bad in the eye of law. Consequently, the cancellation order dated 19.10.2022 under Annexure-6 is quashed and the consequent notice for re-auction dated 11.11.2022 under Annexure-8 is also quashed. The Petitioner is W.P.(C) No.30562 of 2022 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 12:36:51 declared as the rightful auction holder in respect of Endulapur Village Middle Pond in terms of the auction notice under Annexure-2.
Decision
11. The writ petition is disposed of as allowed. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.30562 of 2022 Page 6 of 6