M/S Kaypee Enterprises vs State Of Odisha &Others
2021 Latest Caselaw 8644 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.18784 of 2021

            M/s Kaypee Enterprises                  ....           Petitioner
                                             Mr. N. Hudda, Senior Advocate
                                             Mr. Sachin Ku. Sahu, Advocate


                                        -versus-
            State of Odisha &others                 ....     Opposite Parties
                                                    Mr. P.P. Mohanty, AGA


                      CORAM:
                      JUSTICE S.K. MISHRA
                      JUSTICE K.R. MOHAPATRA


                                       ORDER

18.08.2021 Order No.

04. 1. This matter is taken up through hybrid mode.

2. Heard Mr. N. Hudda, learned Senior Advocate for the petitioner and Mr. P.P. Mohanty, learned Addl. Government Advocate.

3. In this writ application, the petitioner, being a lessee of Iron Ore, namely, Thakurani Iron Ore Mines has prayed to quash Annexure-1 and 3 i.e. impugned order dated 01.10.2020 and consequent handing memo dated 27.11.2020 and grant an extension of reasonable period of not less than one month to the petitioner for removal of remaining ores already excavated till 31.03.2020 under its erstwhile mining lease and direct the

// 2 //

opposite parties not to take any coercive action against the petitioner to remove or create any 3rd party rights in respect thereof and also direct the opposite parties to restitute or compensate or reimburse the petitioner-company for any iron ore sold pursuant to the impugned order dated 01.10.2020.

4. This writ petition is filed on 28.06.2021. Before that, in a batch of writ applications, the lead case being Writ Petition (Civil) No. 26973/2020, M/s. KJS Ahluwalia vs. State of Odisha and others, decided on 22.12.2020, this Court, on question of force majeure event, remitted the matter back to the competent authority of the State Government and set aside the order dated 01.10.2020 and directed the opposite parties to grant transport passes/permit to the petitioner for removal of all plants and machineries etc. within seven days and the petitioner shall be granted 45 days time thereafter to remove all its plants, machineries, crushers, weighbridges and equipments etc.

5. The learned Senior Advocate appearing for the petitioner admitted that there has been a delay in filing this writ application and at present, he cannot take over lease hold property for mining purposes. He would argue that the petitioner has right in the property i.e. iron ore already excavated to sale the same in the market. He would further argue that the figures are not in dispute and as per Annexure-3 though the entire mine has been handed over to the Joint Director of Mines, Joda Circle on 27.11.2020, a total stock of

// 3 //

iron ore for a closing balance of 18151.620 MT is available at site and he wants to compensate for that. Mr. P.P. Mohanty, learned Addl. Government Advocate, on the other hand, argued that since the main prayer of the petitioner in this case are not possible to be granted to it, the prayer in the writ petition to restitute/compensate or reimburse the petitioner-company for the iron ore sold in pursuance of the impugned order dated 01.10.2020 cannot be granted as it involves complicated factual question. The learned Addl. Government Advocate further submits that the petitioner waited for six months and after disposal of the writ application of similarly situated persons and dismissal of the SLP before the Hon'ble Supreme Court has come up with this writ application and, therefore, it should be treated as fencesitter and the writ application should be dismissed.

6. We have carefully examined the judgment passed by this Court in the batch of cases referred to above (supra). This Court has allowed the writ application for a limited purpose. We find it appropriate to quote the operative portion of the order after setting aside the notice dated 01.10.2020. This Court directed as follows:-

" xxx Therefore, considering the facts situation of the present case, this Court is persuaded to allow this writ petition for the limited purpose. Accordingly, the impugned order dated 01.10.2020 is set aside and the opposite parties are directed to grant transport passes/permits to the petitioner for

// 4 //

removal of all its plant and machineries etc. within seven days hence and the petitioner shall be granted 45 days time thereafter to remove all its plants, machineries, crushers, weighbridges and other equipments etc. It is made clear that upon failure of the petitioner to do so within the aforesaid time, it would be open for the opposite party-State to again invoke Rule 12(1)(hh) of the Rules, 2016."

7. There appears to be no specific direction to remove iron ore from the site. Even paragraph-5 of the writ application, where the portion of the common judgment dated 22.12.2020 has been quoted, no such direction has been given to allow the petitioner to claim any property right over the iron ore allegedly already excavated.

8. As far as the money claim is concerned, a writ petition under Section 226 of the Constitution of India is not the proper remedy and such cases of money claim or compensation should be agitated in a competent civil court having jurisdiction over the matter.

9. Moreover, we are in agreement with Mr. P.P. Mohanty, learned Addl. Government Advocate that in this case the petitioner waited till 28.06.2021 though the other similarly placed mine lease holders had approached this Court earlier and their applications were disposed of on 22.12.2020.

// 5 //

10 So, this Court is of the opinion that the writ application is devoid of any merit and the same is dismissed. There shall be no order as to costs.

11. Urgent certified copy of this order be granted as per rules.

(S.K. Mishra ) Judge

(K.R. Mohapatra) Judge

pcd