The facts leading to the present appeal in nutshell are as under: 2.1 That an auction notice for grant of the lease in question was published on 08.01.2018. At this stage, it is required to be noted that an order was passed by the Sub-Collector, Athagarth on 06.12.2017 specifically stating that a solvency certificate be issued in favour of “Gurukrupa Charitable Trust, Chairman of Village Kendupali”. When the bids were opened, the highest bid was of one Sukanti Sahoo, the original writ petitioner was the second highest bidder and the appellant herein – original respondent no.5 – Debidutta Mohanty was the third highest bidder. That thereafter a second writ petition came to be filed by Sukanti Sahoo against the grant of lease in favour of the present original writ petitioner being Writ Petition (C) No.951 of 2020. In the said order, it was noted that on 08.03.2021, the Tehsildar, Narasinghpur had cancelled the solvency certificate produced by respondent no.1 herein with his bid and that against the said cancellation order, an appeal had been filed before the Collector. 4 Subsequently, another letter was sent by the Tehsildar on 08.03.2021 to the Collector, Cuttack stating that the earlier solvency certificate issued in favour of the original writ petitioner – Respondent no.1 herein stood cancelled and another certificate was asked to be issued in favour of the “Gurukrupa Charitable Trust, Chairman of Village Kendupali”.
That thereafter on the representation made by the appellant herein, the Collector cancelled the lease in favour of respondent no.1 herein -original writ petitioner by observing and concluding that the solvency certificate which was required to be issued in favour of the “Gurukrupa Charitable Trust Chairman of Village Kendupali”, was issued in the name of respondent no.1 and therefore, the solvency certificate had not been issued following the stipulated provisions of the law and hence, the utilization of the same by respondent no.1 herein – original writ petitioner in auction of the sairat is illegal.
6 Before the High Court it was the case on behalf of respondent no.1 herein – original writ petitioner that under the provisions of the OMMC Rules, 2016 the competent authority in regard to minor minerals is the Tehsildar and therefore, the lease deed could not have been cancelled by the Collector. 8
By the impugned judgment and order and having opined that the initial solvency certificate was issued in favour of the original writ petitioner which was issued in the name of the original writ petitioner, though required to be issued in the name of the Trust, was a bona fide error which subsequently came to be cancelled and even a fresh solvency certificate was issued in favour of the original writ petitioner, the Collector had erred in cancelling the lease deed in favour of the original writ petitioner. 9 The impugned judgment and order passed by the High Court quashing and setting aside the order passed by the Collector, Cuttack dated 24.03.2021 cancelling the lease in favour of the original writ petitioner – respondent no.1 herein is the subject matter of the present appeal at the instance of the original respondent no.5 – third highest bidder. 2 Shri Basant, learned Senior Advocate has further submitted that the High Court has materially erred in observing and holding that the initial subject solvency certificate which as such was in the name of Gurukrupa Charitable Trust, but was used by respondent no.1 in his individual capacity in order to participate in the tender was a genuine mistake and not a deliberate act and therefore a rectifiable defect.
4 It is submitted that the High Court has not properly appreciated the fact that it was the modus operandi of respondent no.1 to attempt to pass off the property of the Trust as his own property inasmuch as the self-same subject solvency certificate had been misused by respondent no.1 in another tender and detecting the fraud played, the Tehsildar and the Sub-Collector had disqualified him from the said tender. Basant, learned senior counsel appearing on behalf of the appellant has further submitted that the High Court has materially erred in taking into consideration the subsequent conduct on the part of respondent no.1 in obtaining the fresh solvency certificate. It is submitted that as rightly observed and held by the High Court the initial solvency certificate dated 07.12.2017 issued in favour of Respondent no.1 was by mistake and instead of Gurukrupa Charitable Trust, the same was issued in favour of Respondent no.1 being the Chairman of Trust. By the impugned judgment and order the High Court has set aside the order passed by the Collector, Cuttack dated 24.03.2021 cancelling the lease which was in favour of respondent no.1 herein inter alia on the grounds that: (i) the order passed by the Collector cancelling the lease deed was without authority under the law as under Rule 51(7) of the Rules, 2016 the Tehsildar is the competent authority to cancel the lease deed; (ii) That the original solvency certificate dated 07.12.2017 produced by respondent no.1, produced along with the bid was issued in his favour by mistake.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
Now so far as the finding recorded by the High Court that the order passed by the Collector dated 24.03.2021 cancelling the lease deed was without authority under the law inasmuch as the competent authority to cancel the lease deed under Rule 51(7) of the Rules, 2016 would be Tehsildar is concerned, it is required to be noted that the Rule 51(7) shall be applicable in case of breach of any condition of the lease deed.
Now so far as the findings recorded by the High Court that the original Solvency Certificate dated 07.12.2017 in favour of respondent no.1 was a mistake and there was no other mala fide intention is concerned, it is required to be noted that despite the fact that Gurukrupa Charitable Trust was the owner of the property and on the said basis the solvency certificate was claimed, the respondent no.1 made an application for issuance of the solvency certificate in his own name – in his individual capacity.
However, in the present case the Sub-Collector, Athagarh specifically directed not to issue the solvency certificate in favour of respondent no.1 herein in his individual capacity and specifically directed to issue the certificate in the name of Trust. Under the circumstances, the bid by using the solvency certificate dated 07.12.2017 by respondent no.1 was non-est and void ab initio and therefore, the lease in his favour on the basis of such solvency certificate was rightly cancelled by the Collector. 4 Now so far as the submission on behalf of respondent no.1 that subsequently respondent no.1 obtained the fresh solvency certificate which was sought to be substituted/exchanged is concerned, it is required to be noted that what is required to be considered is the solvency certificate produced along with the bid and not the subsequent solvency certificate.
Also Read: https://newslaw.in/case-type/civil/taxation-of-engineering-design-drawings-goods-or-services/
In view of the above and for the reason stated above, we are of the opinion that the High Court has committed a very serious error in quashing and setting aside the order dated 24.03.2021 passed by the Collector, Cuttack cancelling the lease deed which was in favour of respondent no.1.
However, in the facts and circumstances of the case, there shall be no order as to costs.
Case Title: DEBIDUTTA MOHANTY Vs. RANJAN KUMAR PATTNAIK (2023 INSC 203)
Case Number: C.A. No.-004939-004939 / 2022
