Full Judgment
P.K. Balasubramanyan, C.J.
1. The prayer in this writ petition is for the issue of a writ of certiorari to set aside or cancel the auction held in respect of the sand source pertaining to Khata No. 1902, Plot No. 4148, Area -45 Acres under Mouza Pratapsasan, District - Khurda. The writ petition proceeds on the basis that it is in public interest. The main aspect projected before us at the time of hearing is that by auctioning the sand source and permitting the contractor to remove the sand away from that source, the embankment of the river in the concerned area will be severely damaged leading to danger to the public during floods. The petitioners place strong reliance on the letters of two Executive Engineers of the Irrigation Department annexed as Annexures 1 and 2 to the Original Petition. Annexure-1is the letter dated 5.11.2001 written by the Executive Engineer, Nimapara Irrigation Division, Nimapara to theTahasildar, Bhubaneswar when the proposed auction of the sand source was not finalised. We think it appropriate to quote the said letter:
'In inviting a reference to your above cited letter, it is to inform you that due to auction of above sand source in Mouza - Pratapsasan, the flood embankment will be damaged due to plying of loaded tractors and trucks at the time of lifting sand from the river bed for which it will be create problem to human life and public utility at the time of flood.
However, there is no objection for auction of sand sources, but it should be repaired before 10th of June positively and the Tahasildar should certify that the damage has been recuped, otherwise this Department will not be responsible for any damage occurs during the flood period. If it is considered to include a condition for realisation of cost of the repair from the highest bidder, you may do so and should send a copy of such Agreement to this office and ensure realisation of such amount after getting the sanctioned amount for restoration of the damage from this end.'
There is a further endorsement while submitting a copy to the District Collector for favour of information. The said endorsement reads thus;
'Due to leasing out of sand sources at different places, the auction holders usually cut the bank to pass the vehicle and even use embankment top for carriage of sand. Due to plying of heavy vehicles, as earthen bank, the bank generally settles the cracks are formed which pose lot of problems during flood. Suitable measures may please be taken to ensure the repair of such damage by the auctions and Tahaslldars may kindly be asked to ensure the same.'
The next letter dated 15.12.2001 is by the Executive Engineer of Puri Irrigation Division, Puri to the Tahasildar, Bhubaneswar. The said letter reeds thus ;
'Inviting a reference to the subject noted above, I am to Inform you that I have inspected the concerned site today i.e. on 15.12.2001 and found that carriage of sand as reposed to be settled at Pratapsasan will not be genuine from technical point of view. The mostimportant structure i.e. Bhargovi syphon which supplies water in Kharif season and Rabi season to most important canal systems in Sakhigopal Branch Canal, Kanas Branch Canal and Deiang Distributary with a view to irrigate major part of cultivable lands of Purl District is located very near to the proposed site. The loaded Trucks and Tractors which will be engaged at this site will not have their control and there is every apprehension of occurrence of unexpected severe damage to the above important structure. Moreover the river bank will be damaged due to continuous ply of sand loaded vehicles engaged for the purpose of carriage of sand.
Under the above circumstances I am to request you to kindly change the site to another suitable place instead of Pratapsasan as proposed by you.
This is for your information and necessary action please.'
Copy of this letter was also submitted to the Collector for information and necessary action. The file made available before us for our perusal by the learned Additional Government Advocate contains the reply of the Tahasildar, Bhubaneswar dated 20.12.2001 to the letter dated 15.12.2001 written by the Executive Engineer, Purl Irrigation Division. In that letter, the Tahasildar informed the Executive Engineer that the area to be auctioned which was originally proposed as 98.01 acres had been reduced to 45 acres. Hence, the important structure Bhargavi Syphon will be at a substantial distance from the proposed site and was not likely to be affected due to the removal of sand. The letter also shows that loaded trucks/tractors will not be engaged at the site near the syphon. The embankment referred to by the Executive Engineer was also used as a public road. Hundreds of other loaded trucks were normally plying every day on that embankment-cum-road carrying other items. Hence, it could not be apprehended that the river embankment will be damaged due to continuous plying of loaded vehicles carrying sand only. The tetter also says that the matter had been discussed with the Collector, Khurda and It had been decided that the source shall be put to auction/permit/lease to prevent unauthorised lifting and to realise Government revenue, but the area shall be reduced in consideration of the views of the Executive Engineer. The file made available to us does not contain any minutes of the meeting or discussion between the Tahasildar and the District Collector referred to in that letter. In fact there Is no material indicating that the District Collector did apply his mindto this aspect, in spite of receipt of Annexure-1 with the foot note addressed to him.
2. Learned counsel for the intervenes, the successful bidder in the auction, raised a contention that the approach of the petitioners to this Court is motivated. Since they have not come to this Court with clean hands, this Court ought not to entertain this writ petition as a public interest litigation. According to the learned counsel, the petitioners are merely persons set up by the unsuccessful bidder at the auction. Learned counsel for the petitioners seriously refuted this contention. But, even assuming that there is some substance in the argument of learned counsel for the intervenor, we think that it will be inappropriate for this Court to throw away this writ petition on the ground that the petitioners were motivated, in the context of the danger to public pointed out in the communications from the two Executive Engineers marked Annexures 1 and 2 in the writ petition which we have quoted above. When the Officer-in-charge of the embankment has referred to a public danger and that fact is brought to the notice of this Court, even though the conduct of the persons who bring it to the notice of the Court may be questionable, it is the duty of the Court, in our view, to consider whether the danger apprehended is real and whether adequate steps have been taken to avoid that danger before the authorities decided to act one way or the other. Therefore, in the absence of sufficient material, we are not inclined to accept the objection of learned counsel for the intervenor that this Court should not entertain this writ petition as a Public Interest Litigation in view of the fact that the petitioners have come with unclean hands.
3. When responsible Engineers in charge of the embankment raise an objection to the auctioning of the sand source as proposed by the Tahasildar, the authority to do so, it appears to us that it behaves a higher authority to look into the objection with reference to the relevant materials and to take a decision thereon. It is unfortunate that in spite of Annexures 1 and 2 neither the Tahasildar nor the District Collector cared to seek an expert opinion on the question. If the Collector had applied his mind and taken a decision, that should be discernible from the file. Relevant materials had to be put down in writing so that it will be apparent that he had considered the relevant aspects before taking a decision permitting the auction to go on. In our system of jurisprudence, judicial review of administrative action has become the order of the day, In that context, it is necessary for the authority taking a decision on such matters to indicate the decision and the reasons for the decision. Then this Court can test the administrative action or decision of the authority within the confines of Arisminic or for Wednesburyunreasonableness. No such material is available in this case and that in our view is an unfortunate aspect of this particular case.
4. That there is some substance in the objection raised in Annexures 1 and 2 is clear from Clause 15 of the agreement executed between the authority and the intervenor in whose favour the right to remove sand was knocked down. The said clause restrained the auction purchaser from using the embankment except for crossing over to the public road. We may quote Clause 15 in the agreement here :
'The lessee shall undertake repair damages, if any caused by him to the public road, embankment, etc. between 10th to 20th June. The lessee shall only use the embankment to cross over the public road.
5: In view of the specific restriction on the use of the embankment in Clause 15 of the Agreement between the Government and the intervenor produced by the intervenor along with the affidavit dated 21.6.2002 restricting it only to cross over to the public road, we do not think it necessary to interfere with the auction that has been held for the financial year 2002-2003. it is specifically stipulated that the embankment was liable to be repaired by the contractor between the 10th and the 20th of June, and we are now on the 21st of June of this year. The repair to the embankment if any, would have done by now especially in the context of the fact that the intervenor had also been restrained by the authorities in view of the interim order of this Court passed on 17.5.2002, from removing the sand from the source or from using the embankment. But, we think that it is necessary to direct the opposite parties to make an indepth study of the objections raised by the two Executive Engineers in Annexures 1 and 2, before deciding whether it is proper or in public interest to auction the sand source for the next financial year. There is also vagueness about the distance between Bhargavi syphon and the source since the Tahasildar in his letter dated 20.12.2001 has only chosen to describe it as 'substantial distance' and he has not specified the distance. There has also been no concern exhibited for the environment and ecology by continuously leasing out the sand source from the year 1993 onwards without any interruption or without any discontinuance. It is necessary in the interests of preservation of the river and the environment to allow the river to recoup. We are, therefore, satisfied that a proper study of the question whether the sand source involved can be exploited, and if so, to what extent and in what manner has to be made. For this purpose, we constitute a Committee consisting of the Secretary, Water Resources Department, theEngineer-in-Chief, Irrigation or a Superintending Engineer to be nominated by him, the concerned District Collector and a qualified representative of the State Pollution Control Board to undertake the study of the problems highlighted by the Executive Engineers and to take a decision on the question of exploitation of the sand source, whether it should be permitted and to what extent. The said Committee will also consider the impact on environment and ecology by continued and persistent exploitation of the sand source in the manner proposed. Only if a decision is taken in favour of auctioning of the source for the coming years, the right will be sold in public auction by the authorities to the extent and in the manner decided upon. If the decision of the Committee is that it is not in public interest, in the interest of irrigation and in the interest of environment to exploit the sand source, the opposite parties will desist from permitting the sand source to be exploited. It is necessary for the State Government to inform the Tahasildars concerned that they have also to be conscious of protection to irrigation works, public life and property and also the need to protect the environment as laid down by the Supreme Court in various decisions.
6. We, thus, allow this writ petition in part. Though we refuse to interfere with the agreement entered into for the financial year 2002-2003, we direct the opposite parties to have a study as indicated by us above before taking a decision on the question of exploitation of the sand source for the coming years. We also direct opposite party. Nos. 1 to 4 to ensure that the bidder, the intervenor before us, strictly implements Clause 15 of the Agreement (Annexure-4) and does not use the embankment for any purpose other than the purpose indicated in Clause 15 of the Agreement.
A.S. Naidu, J.
7. I agree.