M/S. Eswari Exports Pvt. Ltd vs State Of Odisha & Ors
2023 Latest Caselaw 160 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                           W.P (C) No. 33807 of 2022


M/s. Eswari Exports Pvt. Ltd.,       .....                               Petitioner
Hydervad
                                                    Mr. P. Acharya, Sr. Advocate
                                                    along with Mr. S.S. Tripathy,
                                                                        Advocate

                                     Vs.
State of Odisha & Ors.               .....                        Opposite parties
                                                         Mr. P.P. Mohanty, AGA
             CORAM:
                 DR. JUSTICE B.R. SARANGI
                 MR. JUSTICE B.P. SATAPATHY


                                            ORDER

04.01.2023 W.P (C) No. 33807 of 2022 And I.A. No.16939 of 2022

Order No. This matter is taken up through hybrid mode.

2. Heard Mr..Acharya, learned Senior Counsel appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner and Mr. P.P. Mohanty, learned Additional Government Advocate.

3. The petitioner has filed this writ petition to declare Rule 4(12) of the Odisha Minor Minerals Concession Rules, 2016 as ultra vires in view of provisions made in MMDR Act, 1957 and further to struck down the order dated 03.06.2022 under Annexure-6, by which the application filed by the petitioner has not been taken into consideration.

4. Mr. P.Acharya, learned Senior Counsel appearing for the petitioner contended that the petitioner filed an application for prospecting license under the OMMC Rules, 2004, when it was in force and in the meantime, OMMC Rules, 2016 came into force. But the authority vide order dated 03.06.2022 vide Annexure-6 rejected its application in view of Rule 4(12) of OMMC Rules, 2016, which states that all application for prospecting license and mining lease for specified minor minerals received prior to the date of commencement of these rules, shall become ineligible. It is contended that the application filed by the petitioner under the old Rules having found in order, it should have considered under the said Rules, but the opposite party authority has rejected its application on the plea of commencement of new Rules under Rule 4(12) of OMMC Rules, 2016, which cannot be sustained in the eye of law. To substantiate his contentions, he has relied upon the judgment of the apex Court in Federation of Indian Mineral Industries and others v. Union of India and another, (2017) 16 SCC 186.

5. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that OMMC Rules, 2016 have been framed in exercise of powers conferred by sub-section (1) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 and the same has been framed in supersession of the provisions contained in the Odisha Minor Mineral concession

Rules, 2004. Rule-4(12) of the OMMC Rules, 2016 states that all applications for prospecting license and mining lease for specified minor minerals received prior to the date of commencement of these rules shall become ineligible and that rule has been framed in consonance with the provisions contained in Section-10-A of the OMMDR Act, 1957, which also specifies that all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible. Therefore, taking into consideration of Section-10(A) of OMMDR Act read with Rule-4(12) of the OMMC Rules, 2016, the application of the petitioner for prospecting license filed under the old Rules, i.e. OMMC Rules, 2004, became ineligible as the old Rules have been superseded.

6. In the opinion of this Court, the matter requires consideration.

7. Issue notice to the opposite parties both in main case and Interlocutory Application.

8. Let three extra copies of the writ petition be served on learned Additional Government Advocate, as he appears for opposite parties no.1 to 3 to enable him to obtain instructions or file counter affidavit.

                                             (DR. B.R. SARANGI)
                                                   JUDGE



Alok                                           (B.P. SATAPATHY)
                                                    JUDGE