'Advocate General Is Not A Mere Messenger': Orissa High Court Says AG Office Shouldn't Advise Non-Implementation Of Orders Without Stay

The Orissa High Court has expressed disappointment over a letter issued by the office of the Advocate General asking officials to refrain from implementing an authority's order merely because a writ petition was filed and pending against such order. [2026 LiveLaw (Ori) 88]

Clarifying the settled legal position that mere filing of a writ petition does not render the decision of lower authority unimplementable unless an express stay/prohibitory order is passed by the Court, the Division Bench of Chief Justice Harish Tandon and Justice Chittaranjan Dash remarked–

“We hope and trust that the Office of the learned Advocate General should not be a mere messenger but a meaningful advice is required to be given to the authorities to respect the law and to act within the precincts of the law and not to direct the non implementation of the order when there is no prohibitory order passed by the Court in the proceedings.”

The petitioner was adjudged as the highest bidder offering higher additional charges and accordingly, lease was granted in his favour by the tendering authorities for the balance period in respect of “Sabara Sand Bed”.

Subsequently, an objection was taken by the second-highest bidder by taking twin pleas. Firstly, the solvency certificate submitted by the highest bidder insufficient, as he applied for two sand sairats by using single solvency certificate and if the additional charges so offered are combined together, the solvency certificate falls short; secondly, the petitioner has committed an offence by lifting the sand without any permission from the sand sairats and, therefore, the authority should cancel the settlement made in his favour.

The authority found no merit in such allegations. Thus, the second-highest bidder took the matter before the appellate authority which did not find even an iota of evidence in relation to both the objections so raised, and directed the authorities to settle the quarry in favour of the highest bidder with all consequential benefits. The decision was challenged before the High Court.

However, a letter dated 05.12.2022 was issued by the Tahasildar, Bonai, purportedly upon receiving an advice from the office of the Advocate General in that regard, which asked the petitioner to stop his operations for the leased quarry with immediate effect. Thus, this writ petition was filed.

To substantiate the argument, the counsel appearing for the second-highest bidder referred to Rule 27(4)(iv) of the Odisha Minor Minerals Concession Rules, 2016 ('the Rules'). As per his argument, the authorities ought to have rejected the offer made by the successful bidder when the single solvency certificate does not meet the requisite amount offered as additional charges for the two sand sairats.

Rule 27(4)(iv) of the Rules says subject to other provisions of the Rules, the intending applicant may apply to the Competent Authority in a sealed cover for grant of quarry lease in Form-M in triplicate accompanied by a solvency Certificate or Bank guarantee valid for a period of eighteen months for an amount not less than the amount of additional charge offered and the royalty payable for the minimum guaranteed quantity for one whole year and a list of immovable properties from the Revenue Authority.

The Bench, speaking through the Chief Justice, construed the aforesaid Rule as follows–

“What it ordains is a solvency certificate or a Bank Guarantee covering an amount not less than an additional charge so offered by the intending bidder, which is inclusive of the royalty payable for a Minimum Guaranteed Amount for a whole year. It does not hover around nor engulf within itself a notion that in the event, the offer is made for grant of more than one sairat, there should be a separate solvency certificate or a Bank Guarantee.”

So far as the allegations of illegal lifting of sand was concerned, the Court held that had there been such lifting by employing vehicles, the Tahsildar and other revenue officers would not have let the persons go scot-free. Since there is neither any document regarding the seizure of vehicles for illegal lifting of the sand from the said sairat nor imposition of any penalty on the petitioner, it is difficult to sustain the allegation.

Therefore, the petition filed by the second-highest bidder was dismissed. Simultaneously, the writ petition of the petitioner was disposed of with a direction for implementation of the decision passed by the appellate authority with immediate effect. It also granted liberty to the petitioner to claim compensation for the loss of time as he could not use the quarry for a substantial period of time.

Before parting, the Court registered its dismay over the letter issued by the office of the Advocate General which had advised the relevant authorities to keep the decision of the appellate authority in abeyance during the pendency of the writ petition. The Bench reiterated that mere pendency of a writ petition does not bar implementation of the challenged order. It also observed –

“The Office of the learned Advocate General should be more responsive to the advancement of law and a proper decision to be taken in pursuit of understanding and a due implementation of law and should not act as a deterrent to the authorities to discharge their solemn duties or to act further thereupon.”

Case Title: Phakir Mohan Naik v. State of Odisha & Ors. and tagged matter

Case No: W.P.(C) No. 13562 of 2025 & W.P.(C) No.16738 of 2021

Date of Judgment: July 27, 2026

Counsel for the Petitioner: Mr. Jaydeep Pal, Advocate along with Ms. A. Pal, Advocate

Counsel for the Opposite Parties: Mr. Saswat Das, Additional Government Advocate; Mr. Sidharth Sahu, Advocate

Citation: 2026 LiveLaw (Ori) 88

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