02. 18.01.2021

1. Heard learned counsel for the parties by video conferencing

mode.

2. This writ petition has been filed challenging the auction

Notice dated 13^th July, 2020 under Annexure-2 issued by the

Opposite Party No.3 fixing the criteria for the bidders to submit

the Bank Guarantee only and not the solvency certificate in

violation of Rule 27(4) of the Odisha Minor Mineral

Concession Rules, 2016. Petitioner has also challenged Clause-

6 of the Order No.465 dated 2^nd January, 2020 under Annexure-

3 issued by the Government of Odisha in Revenue and Disaster

Management Department whereby it has been directed that

none of the Departments shall ask for solvency certificate for

grant of licence for issuing license to storage agents, grant of

renewal of excise licence, quarry lease, etc. Instead, they will

file IT returns, Bank Guarantee etc. for issuing such licences.

3. Mr. K.A. Guru, learned counsel for the Petitioner submits

that the Opposite Party No.3 has issued the auction notice

dated 13^th July, 2020 under Annexure-2 for grant of lease of

Sand Sairat and Stone Sairat (minor minerals) in respect of

Brutang Sand Quarry, Guriabari, Gundapadu Stone Quarry,

Subalaya Stone Quarry, Poibadi Stone Quarry-II, Poibadi and

Poibadi Stone Quarry-III, Poibadi wherein it has been

specifically mentioned that the interested bidders can apply in

Form-‘M’ of the Odisha Minor Mineral Concession Rules,

2016. However, the authority has directed the intending bidders

W.P.(C) No.17639 of 2020

2

for

submission

of

Bank Guarantee

and

not

the

solvency certificate, as per the order under Annexure-3 of the

Government of Odisha, Revenue and Disaster Management

Department, which is in gross violation of the Rule 27 of the

Odisha Minor Mineral Concession Rules, 2016. It is further

submitted by the learned counsel for the Petitioner that the issue

of insisting for solvency certificate, as involved in this writ

petition, is no longer res-integra. This Court in Narayan

Chandra Udgata v. State of Orissa (W.P.(C) No.17069 of

2020, disposed of on 6^th October, 2020), has already quashed

Clause-6 of the Order dated 2^nd January, 2020 (supra) under

Annexure-3, holding that the authority cannot phase out

solvency certificate by way of a mere executive instruction

superseding the statutory provisions under the Rules. Therefore,

it is prayed that giving the benefit of the said judgment, the

Opposite Party No.3 may be directed to allow the Petitioner to

participate in the auction by submitting the solvency certificate

without insisting on a Bank Guarantee.

4. Mr. M.S. Sahoo, learned Additional Government Advocate

appearing for the State- Opposite Parties contends that if Rules

prescribed for submission of either solvency certificate or Bank

Guarantee, then in that case, if the participant submitted

solvency certificate, he should not be compelled to produce

Bank Guarantee, in view of the clarification issued by the

3

Government with regard to the same pending finalization of

amendment of Odisha Minor Mineral Concession Rules, 2016.

5. In the matter of the Excise Department, a similar question

had come up for consideration before this Court in Gopinath

Sahu v. State of Orissa & Ors, (W.P.(C) No. 12518 of 2020

and batch of writ petitions disposed of on 3^rd August, 2020),

reported in 2020(II) OLR 559, wherein this Court has already

held that the Opposite Party can act upon the solvency

certificate without insisting upon the production of a bank

guarantee.

6. This Court has already considered the question of validity of

Clause-6 of the order dated 2^nd January, 2020 under Annexure-

3, issued by the Government of Odisha in Revenue and Disaster

Management, in Narayan Chandra Udgata v. State of Orissa

(W.P.(C) No. 17069 of 2020 disposed of on 6^th October, 2020).

Referring to the judgment passed in Gopinath Sahu (supra),

and various other decisions o