Afr vs State Of Odisha And Others
2023 Latest Caselaw 10489 Ori

                    ORISSA HIGH COURT: CUTTACK

                          W.P.(C) NO. 18506 OF 2023

         In the matter of an application under Articles 226 and
         227 of the Constitution of India.
                                ---------------

AFR P. Rama Rao ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For Petitioner : Mr. R.K. Mohanty, Sr. Advocate, along with M/s B. Nayak, S. Samantray and A.K. Patra, Advocates.

            For Opp. Parties :          Mr. T. Pattnaik,
                                        Addl. Standing Counsel

         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN

Date of hearing and Judgment : 31.08.2023

DR. B.R. SARANGI, J. The petitioner, by way of this writ

petition, seeks to quash the order dated 04.06.2023

under Annexure-1, by which the Collector, Malkangiri has

refused to extend the period of lease on the ground of

non-availability of the provisions under the Odisha Minor

Minerals Concession Rules, 2016.

2. The factual matrix of the case, in brief, is that

following an auction process, the petitioner, being the

highest bidder, was settled with "Pedawada Stone Quarry"

pertaining to plot no.1376 in khata no.145, Mouza-

Pedwada, Tahasil-Malkangiri having area Hec.4.300, by

the Tahasildar, Malkangiri, vide letter dated 31.05.2017,

and was directed to deposit Rs.10,000/- towards earnest

money, Rs.40,000/- towards the cost of mining plan

preparation, obtain environmental clearance from the

District Environmental Impact Assessment Authority

(DEIAA), Malkangiri for considering grant of long term

lease of the source for 5 years on execution of lease

agreement thereon with the Tahasildar, Malkangiri on

behalf of the Governor of Odisha. Thereafter, the

Tahasildar, Malkangiri forwarded the application of the

petitioner to the Chairman, District Environmental Impact

Assessment Authority, Malkangiri, vide letter dated

12.06.2017, for environment clearance for the lease

period from 2017-18 to 2021-21 and on recommendation

of the District Appraisal Committee, the Chairman,

District Environmental Impact Assessment Authority,

Malkangiri accorded environment clearance for the lease

period, vide letter dated 10.04.2018. After accordance of

environment clearance by the District Environmental

Impact Assessment Authority, Malkangiri, the mining

lease deed for "Pedawada Stone Quarry" was executed by

the petitioner with the Tahasildar, Malkangiri on behalf of

Governor of Odisha on 12.07.2018 for the lease period

2017-18 to 2021-22 for a period of five years.

2.1 The petitioner deposited all statutory dues to

start operation of the stone quarry. As a pre-requirement,

permission was to be granted by the Collector, Malkangiri

to use explosive for blasting work. Soon after execution of

the lease deed, the petitioner, on 03.09.2018, applied for

permission for explosive license, along with treasury

challan no.98 dated 21.08.2018, so that he would be able

to operate the stone quarry in terms of the lease deed.

After making such application for grant of explosive

license to start the blasting work, the petitioner pursued

the matter in the office of the Collector, Malkangiri, but

the same was kept pending for consideration for quite a

long period. Therefore, the petitioner filed two consecutive

representations on 07.01.2019 and 15.11.2019

requesting the Collector, Malkangiri to dispose of the

same for grant of blasting license, so that he can start

operation of the quarry. For about 18 months, in spite of

repeated approach of the petitioner, no action was taken.

Ultimately, the blasting license was issued in favour of the

petitioner on 02.03.2020. Thereafter, the petitioner

requested the Tahasildar, Malkangiri to issue 'Y' Form to

him to facilitate mining operation and sale of mining

products. Again, the matter was delayed at the level of the

Tahasildar for quite a long period for no reason and

ultimately on 27.12.2021, the Tahasildar, Malkangiri

issued 'Y' Form to the petitioner for selling of the mining

products. Therefore, the lease was granted on 12.07.2018,

whereas the blasting license was issued by the Collector,

Malkangiri on 02.03.2020 and ultimately 'Y' Form was

issued to the petitioner by the Tahasildar, Malkangiri on

27.12.2021. So, practically the mining operation was

started after 27.12.2021, although the lease was granted

on 12.07.2018.

2.2 Thereafter, from December, 2021, the mining

operation was started by the petitioner and after about

one year, on 03.01.2023, the petitioner made a

representation to the Tahasildar, Malkangiri praying for

extension of lease period on the ground that he was not

allowed to operate the stone quarry for quite a long period

on account of the fact that his application for grant of

blasting license was kept pending before the Collector,

Malkangiri, for which he was absolutely not at fault.

Similarly, subsequent thereto, the Tahasildar, Malkangiri

also delayed for issuance of 'Y' Form to the petitioner, for

which the stone quarry remained inoperative for more

than 30 months after the execution and registration of the

lease deed. Considering all these grievances of the

petitioner, the Tahasildar, Malkangiri forwarded the

representation dated 03.01.2023 of the petitioner to the

Collector, Malkangiri, but the same remained pending for

consideration. Since no action was taken, the petitioner

had approached this Court by filing W.P.(C) No. 9721 of

2023, which was disposed of, vide order dated

03.04.2023, directing the Collector, Malkangiri to consider

the recommendation of the Tahasildar, Malkangiri and

pass appropriate order in accordance with law within a

period of two months. Thereafter, the Collector,

Malkangiri, by letter dated 06.03.2023, sought

clarification from the State Government regarding

extension of the lease period. As a consequence thereof,

the Govt. of Odisha in the Department of Mining and

Geology clarified the matter and ultimately the Director,

Minor Minerals-opposite party no.2 issued a clarification

to the Collector, Malkangiri vide letter dated 29.05.2023.

Thereafter, in pursuance of the direction given by this

Court on 03.04.2023 in W.P.(C) No. 9721 of 2023, the

Collector, Malkangiri disposed of the representation of the

petitioner, vide order dated 04.06.2023 under Annexure-

1, in rejecting the claim of the petitioner for extension of

the lease period. Hence, this writ petition.

3. Mr. R.K. Mohanty, learned Senior Counsel

appearing along with Mr. B. Naik, learned counsel for the

petitioner vehemently contended that though the

petitioner was granted with "Pedawada Stone Quarry" on

lease for a period of five years, he could not be able to

operate the same for a period of two years for non-grant of

permission by the opposite parties with regard to blasting.

It is contended that the petitioner had deposited the

treasury challan on 21.08.2018, but the blasting license

was issued in favour of the petitioner on 02.03.2020.

Thereby, the petitioner could not be able to operate the

quarry for the period from 21.08.2018 to 02.03.2020,

even though the lease was granted on 12.07.2018.

Therefore, the reason for non-operation of the quarry by

the petitioner is only attributable to the opposite parties

and, therefore, for the period of time lost in permitting the

petitioner to operate the quarry, the petitioner should be

compensated by extending the lease period in his favour.

Therefore, the petitioner has approached this Court by

filing the present writ petition.

4. Mr. T. Pattnaik, learned Addl. Standing

Counsel appearing for the State-Opposite Parties

vehemently contended that the petitioner was allowed to

operate the quarry under the OMMC Rules, 2016 and, as

such, under the said Rules, there is no provision for

extension of lease period. Referring to the counter

affidavit, it is stated that since there is no provision to

grant extension of lease for the period for which the

petitioner could not be able to operate the quarry, the

benefit cannot be extended to the petitioner. As such, he

justifies the order passed by the Collector in refusing to

grant extension of lease period.

4.1 It is also contended that the petitioner had

approached the authority for extension of lease period of

Pedawada Stone Quarry and to consider the letter dated

10.01.2023 forwarded by the Tahasildar, Malkangiri. The

same having not been considered, the petitioner had

approached this Court earlier by filing W.P.(C) No. 9721 of

2023, which was disposed of vide order dated 03.04.2023

directing to consider the case of the petitioner. As a

consequence thereof, the matter has been considered by

the Collector and the claim of the petitioner has been

rejected stating therein that since there is no provision for

extension of time, the same cannot be considered. It is

further contended that in view of the judgment of the apex

Court in the case of Dharmendra Kumar Singh v. State

of Uttar Pradesh and others, (2021) 1 SCC 93, the

claim for extension of the period of lease is not admissible

and at best the petitioner can be refunded with some

proportionate amount of statutory deposit made by him

for the period he has not operated the quarry.

5. This Court heard Mr. R.K. Mohanty, learned

Senior Counsel appearing along with Mr. B. Naik, learned

counsel for the petitioner and Mr. T. Pattnaik, learned

Addl. Standing Counsel appearing for State-opposite

parties by hybrid mode, and perused the records.

Pleadings having been exchanged between the parties,

with the consent of learned counsel for the parties this

writ petition is being disposed of finally at the stage of

admission.

6. Having heard learned counsel for the parties

and after going through the records, this Court finds that

admittedly though the petitioner executed a lease

agreement on 12.07.2018 and deposited the treasury

challan on 21.08.2018 for grant of blasting license, no

action was taken. Therefore, the petitioner made

representations on 07.01.2019 and 15.11.2019 and, on

consideration of the same, on 02.03.2020, blasting

permission was issued in his favour. Thereafter, the

petitioner filed application for extension of lease for the

period from 21.08.2018 to 02.03.2020, for which he could

not operate the quarry. It is contended that the same

should be compensated by extending the lease period. On

03.01.2023, the petitioner filed an application before the

Tahasildar, Malkangiri praying for computation of lease

period of "Pedawada Stone Quarry", which was forwarded

by the Tahasildar to the Collector, Malkangiri making

recommendation on 10.01.2023 and, in turn, the

Collector, Malkangiri forwarded the same to the

Government. But due to inaction of the Collector, the

petitioner filed W.P.(C) No. 9721 of 2023, which was

disposed of vide order dated 03.04.2023 directing the

authority to consider the case of the petitioner in

accordance with law. As a consequence thereof, the

Collector passed the order impugned dated 04.06.2023

refusing to extend the period, as there is no provision

under the OMMC Rules, 1016 for grant of extension.

7. Mr. R.K. Mohanty, learned Senior Counsel

appearing along with Mr. B. Naik, learned counsel for the

petitioner vehemently contended that if the lease was

granted for a period of five years and if for the reasons

attributable to the opposite parties, the petitioner could

not operate the quarry for a specific period, the

computation of five years period has to be made from the

date the petitioner had been allowed to operate the quarry

in terms of the lease deed.

8. But, as it appears, such a provision having not

been provided under the Rules, the benefit cannot be

extended to the petitioner. It is brought to the notice of

the Court by way of pleading made in the counter affidavit

that there was no laxity on the part of the petitioner,

rather laxity was shown by the State authorities.

Therefore, for the laxity caused by the State authorities,

the petitioner cannot be suffered without granting the

extension. But fact remains, since there is no such

provision either in the Rules or in the lease agreement

between the parties, the benefit cannot be admissible to

the petitioner.

9. Similar question had came up for consideration

before this apex Court in Dharmendra Kumar Singh

(supra) and in paragraph-13 of the said judgment, the

apex Court had formulated the following question:-

"13. The State respondents filed an additional affidavit dated 6.8.2020 setting forth its stand. It was contended by the State of UP that no permission for mining can be granted for the obstructed period as there does not exist any provision for grant of such permission for mining in case of disruption of mining operations under the Uttar Pradesh Mining Minerals (Concession) Rules, 1963 (hereinafter referred to as the 'Mining Rules').5 On 10.8.2020 while noticing the aforesaid and upon a query from the Court, the State of UP conceded that it was willing to refund the proportionate amount of the lease money, for which period the leases have not been permitted to operate. This was objected to by the 5 Framed under Section 15 of the Mines and Mineral (Development and Regulation) Act, 1957 appellants. Thus, the Court crystallised the issue to be determined and the only aspect to be examined by this Court, as whether in view of judicial pronouncements the appropriate order to pass would be for refund of the lease amount for the period it was not permitted to operate, or whether the leases are liable to be renewed for the period of obstructed time. It is within the contours of the aforesaid proposition that learned counsel for the parties have taken their stand, both in terms of the written synopses and by making submissions in the Court."

10. The question formulated in paragraph-13 of the

aforesaid judgment was answered in paragraph-37 of the

judgment to the following effect:

"37. We do find ourselves in agreement with the submission of the learned counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof."

Ultimately, the apex Court in paragraph-46 held as

under:-

"46. The appeals are, thus, decided as aforesaid with the limited directions and to the extent the observations in the impugned order are in contradiction thereto are set aside. It is directed that the following amounts be refunded to the appellants:

i. Security deposit, if not already refunded, with simple interest @ 9% per annum from the date it ought to have been refunded after the expiry of the lease till it is now actually refunded, in case of expired leases; and

ii. Advance royalties, if not already refunded, with simple interest @ 9% per annum from the date of the obstruction occurred, i.e., 29.8.2018 and 5.2.2019 as applicable to the respective appellants, till the date of payment.

iii. Both the aforementioned amounts be refunded within two months from today."

11. In view of the aforesaid law laid down by the

apex Court, this Court is of the considered view that the

same should be adhered to in letter and spirit. At this

point of time, Mr. R.K. Mohanty, learned Senior Counsel

appearing along with Mr. B. Naik, learned counsel for the

petitioner brings to the notice of the Court paragraph-8 of

the counter affidavit as to what is to be done in this

situation. For better appreciation, paragraph-8 of the

counter affidavit is extracted hereunder:-

"8. That it is a matter of fact that the petitioner had filed an application on dated 03.01.2023 before the Tahasildar, Malkangiri praying for computation of lease period of Pedawada Stone Quarry for five years up to dated 01.03.2025 from the date of issue of explosive license i.e. dated 02.03.2020. The Tahasildar, Malkangiri then had forwarded the application to the Collector and Controlling Authority,

Malkangiri for consideration of the prayer for extension of lease period up to 01.03.2025. The clarification circulated by the Govt. vide letter no.15040 dated 02.02.2020 of the Govt. in R&DM department is found to be silent regarding extension of lese period due to delay in obtaining explosive license by the lease holder. Basing on the application of lessee on extension of lease period due to delay in obtaining blasting license, a clarification was sought from R&DM Department vide letter no.112 dated 06.03.2023 of the Collector, Malkangiri upon the application of the petitioner. On 23.05.2023 the Revenue Department wrote a letter to the Steel and Mines Department with regard to clarification of Collector, Malkangiri, which is pending consideration."

12. It is contended that the clarification, which has

been provided by the Revenue Department by letter dated

23.05.2023 to the Steel and Mines Department with

regard to clarification sought by the Collector, Malkangiri,

which is pending for consideration, be worked out.

13. In the above view of the matter, this writ

petition stands disposed of directing the opposite parties

to work out the clarification sought by the Collector,

Malkangiri, which is pending with the Department of Steel

and Mines, keeping in view the ratio decided by the apex

Court in the case of Dharmendra Kumar Singh (supra),

and pass appropriate order in accordance with law within

a period of four weeks from the date of communication of

or production of the certified copy of this judgment by the

petitioner. But, however, under the facts and

circumstances of the case, there shall be no order as to

costs.

..................................

                                                               DR. B.R. SARANGI,
                                                                    JUDGE

           M.S. RAMAN, J.                    I agree.

..................................

M.S. RAMAN, JUDGE Orissa High Court, Cuttack The 31st August. 2023, Ashok

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Sep-2023 15:11:23