Orissa High Court
Dinesh Agrawal vs State Of Odisha And Others .... Opposite ... on 24 November, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31357 of 2025
Dinesh Agrawal .... Petitioner
Mr. Prabodha Chandra Nayak, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Ms.Aishwarya Dash,
Additional Standing Counsel
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 24.11.2025
01. 1. Challenge is laid to order dated 23.09.2025 passed by the
Tahasildar, Badasahi cancelling the auction of sairat source viz.,
"Balanga River Sand Bed, Belpal" vide advertisement No.498 dated
15.03.2022 in the instant writ petition invoking extraordinary
jurisdiction under Articles 226 & 227 of the Constitution of India.
2. It is contended by Sri Prabodha Chandra Nayak, learned
counsel that in response to advertisement dated 15.03.2022, the
petitioner submitted bid along with requisite documents and
deposited EMD to the tune of Rs.1,20,000/-. He was declared
successful having quoted the highest bid. However, the lease could
not be finalized on account of operation of interim order passed by
the learned National Green Tribunal, Kolkata in O.A.
No.46/2022/EZ. He would submit that it is evident from impugned
order dated 23.09.2025 passed by the Tahasildar that "the final
order of the said NGT case No.46/2022/EZ was pending at SEIAA,
Odisha for finalization of DSR as per instruction of Hon'ble NGT,
Kolkata. And on dated 18/04/2025 the DSR has finalized by
SEIAA, Odisha which is valid form 2025 to 2030." It is, therefore,
strenuously argued by Sri Nayak, learned counsel that the authority
concerned settled sairat source of adjacent sand bed with much
lower price than what is quoted by the petitioner. Notwithstanding
such fact that the petitioner being declared on 29.04.2022 the
highest bidder on opening the tender, the Tahasildar, Badasahi
having no jurisdiction in view of the Odisha Minor Mineral
Concession (Second Amendment) Rules, 2022 promulgated w.e.f.
28.12.2022, cancelled the auction of Balanga River Sand Bed,
Belpal. Placing heavy reliance on judgment dated 16.10.2025
rendered by this Court in Dillip Kumar Sahoo vs. State of Odisha
and others, W.P.(C) No.9874 of 2025, it is urged that the Tahasildar
after the aforesaid amendment came into force ceased to have
power to deal with auction of minor mineral. Therefore, he
contended that the order is liable to be set aside and the Competent
Authority in terms of the aforesaid Amendment Rules, 2022 is
empowered to take a decision in this matter.
3. Ms. Aishwarya Dash, learned Additional Standing Counsel
submitted that since the advertisement for auction of sand sairat of
Balanga River Sand Bed, Belpal was floated prior to said
Amendment Rules in 2022, the order of cancellation of auction by
Tahasildar, Badasahi cannot be faulted with.
4. Heard learned counsel for the parties.
5. Perusal of record reveals that an advertisement for auction of
minor mineral-- sand sairat-- i.e. Balanga River Sand Bed, Belpal
was floated on 15.03.2022 and the petitioner was the highest bidder.
The Odisha Minor Mineral Concession (Second Amendment)
Rules, 2022 came into force w.e.f. 28.12.2022 empowering the
authorities in the Department of Steel and Mines to deal with the
minor mineral.
6. In the judgment dated 16.10.2025 rendered in Dillip Kumar
Sahoo (supra) this Court considered the effect and impact of
jurisdiction of the Tahasildar to consider matters relating to minor
mineral after the Odisha Minor Mineral Concession (Second
Amendment) Rules, 2022. Relevant portion of the said judgment is
reproduced hereunder:
"8. ***
The record would reveal that the Tahasildar/Sub-Collector
proceeded to take such decision and issued several letters,
which are challenged in the instant writ petition and decided
to grant the sand sairat right in favour of the second highest
bidder although the petitioner was initially declared as the
first highest bidder.
***
10. There is no scintilla of doubt that an authority tracing
power from the statutory rules cannot exercise any powers
dehors such rules. The statutory authority cannot transgress
the boundaries of the statutory provisions in exercising the
powers conferred therein nor can assume any power not
provided in the said statutory rules. The authority has to
travel within the four corners of the statutory provisions as
any action or the decision taken in excess of the powers so
conferred entails interference by the competent court. In
absence of any power of delegation reserved in the statutory
rules, the competent authority cannot delegate the power to an
authority not contemplated in the statutory document. The
power of delegation must emanate from the statutory provision
and unless such power is provided in the statutory rules, the
competent authority cannot delegate such power upon the
authority, which is kept outside the purview of the said Act.
11. The Tahasildar or the Sub-Collector, who was
regarded as the competent authority at the pre-amended
stage, cannot continue to discharge the duties and functions
under the said statutory rules after the amendment having
brought and the power is diverted to another authority. It is
inconceivable that the competent authority reverted the entire
issue to the Tahasildar/Sub-Collector to take a decision in
respect of a pending auction, which can be perceived without
any reasonably doubt that the power so reserved upon the said
authority is being delegated and/or diverted to an authority
not competent under the aforesaid Rules. Mere participation in
responding to the queries and/or the allegations made by an
authority not competent under the statutory rules does not
cloath such powers nor can assume such powers if not
provided in the statute. The conferment of the powers or
jurisdiction can never be made on the basis of a conduct or
consent as the statutory authorities are duty bound to
discharge the duties and the functions so conferred by the
statutory document."
6.1. In Nazir Ahmed Vs. King Emperor, reported in AIR 1936 PC 253,
it has been laid down that, "where a power is given to do a certain
thing in a certain way, the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden."
6.2. Said principle has been followed subsequently in catena of
decisions; suffice it to have regard to State of U.P. Vs. Singhara Singh,
AIR 1964 SC 358, Dhanajaya Reddy Vs. State of Karnataka, AIR 2001
SC 1512, Chandra Kishore Jha vs. Mahabir Prasad and others, AIR
1999 SC 3558, Gujrat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd.,
AIR 2008 SC 1921, Ram Deen Maurya Vs. State of U.P., (2009) 6 SCC
735; Deepak Agro Solution Limited Vrs. Commissioner of Customs,
Maharashtra, (2008) 8 SCC 358 and Central Potteries Ltd., Nagpur Vs.
State of Maharashtra and others, (1962) SCC OnLine SC 213.
6.3. In Subash Chandra Nayak Vrs. Union of India, 2016 (I) OLR 922,
it has been observed as follows:
"*** the statute prescribed a thing to be done in a particular manner,
the same has to adhered to in the same manner or not at all. The
origin of the Rule is traceable to the decision in Taylor v. Tailor, (1875)
LR I Ch D 426, which was subsequently followed by Lord Roche in
Nazir Ahmad v. King Emperor, AIR 1936 PC 253(2). But the said
principle has been well recognized and holds the field till today in Babu
Verghese v. Bar Council of Kerala (1999) 3 SCC 422, and Zuari
Cement Limited v. Regional Director, Employees' State insurance
Corporation, Hyderabad and others, (2015) 7 SCC 690 and the said
principles has been referred to by this Court in Manguli Behera v. State
of Odisha and others (W.P.(C) No. 21999 of 2014 disposed of on
10.03.2016)".
6.4. Similar view has also been taken in Rudra Prasad Sarangi v. State
of Orissa and others, 2021 (I) OLR 844; Bamadev Sahoo v. State of
Orissa, 132 (2021) CLT 927 and in Shaswata Pratika Pradhan v. State
of Odisha and others, 2022 (Supp.) OLR 601.
7. The Odisha Minor Minerals Concession (Second Amendment)
Rules, 2022, having come into force with effect from 28.12.2022, this
matter relating to sand sairat has been transferred from the Revenue &
Disaster Management Department to the Steel & Mines Department. As
is discernible from the facts borne on record, the Tahasildar, Badasahi
lacks jurisdiction to exercise power over Balanga River Sand Bed
relating to the petitioner. Hence, the order dated 23.09.2025 is held to
be non est in the eye of law on the pristine principle as laid down in
Nazir Ahmed (supra) and followed sacrosanctly till date by the Hon'ble
Supreme Court and Courts.
7.1. It needs to be highlighted as enunciated in Deepak Agro Foods v.
State of Rajasthan, (2008) 7 SCC 748 that,
"All irregular or erroneous or even illegal orders cannot be held to
be null and void as there is a fine distinction between the orders
which are null and void and orders which are irregular, wrong or
illegal. Where an authority making order lacks inherent
jurisdiction, such order would be without jurisdiction, null, non est
and void ab initio as defect of jurisdiction of an authority goes to
the root of the matter and strikes at its very authority to pass any
order and such a defect cannot be cured even by consent of the
parties. (See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.)
However, exercise of jurisdiction in a wrongful manner cannot
result in a nullity-- it is an illegality, capable of being cured in a
duly constituted legal proceedings.
***
In Rafique Bibi Vrs. Sayed Waliuddin, (2004) 1 SCC 287 explaining
the distinction between null and void decree and illegal decree, this
Court has said that a decree can be said to be without jurisdiction,
and hence a nullity, if the court passing the decree has usurped a
jurisdiction which it did not have; a mere wrong exercise of
jurisdiction does not result in a nullity. The lack of jurisdiction in
the court passing the decree must be patent on its face in order to
enable the executing court to take cognizance of such a nullity
based on want of jurisdiction. The Court further held that a
distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable
and a decree of the court which is merely illegal or not passed in
accordance with the procedure laid down by law. A decree
suffering from illegality or irregularity of procedure, cannot be
termed inexecutable."
7.2. It has been laid down in Central Potteries Ltd. Nagpur Vrs. State
of Maharashtra, 1962 SCC OnLine SC 213 as follows:
"In this connection it should be remembered that there is a
fundamental distinction between want of jurisdiction and irregular
assumption of jurisdiction, and that whereas an order passed by an
authority with respect to a matter over which it has no jurisdiction
is a nullity and is open to collateral attack, an order passed by an
authority which has jurisdiction over the matter, but has assumed it
otherwise than in the mode prescribed by law, is not a nullity. It
may be liable to be questioned in those very proceedings, but
subject to that it is good, and not open to collateral attack."
7.3. Thus, in view of the principles enunciated above, even though
auction of sand sairat was undertaken prior to the amendment of the
Odisha Minor Minerals Concession Rules, 2016, the Tahasildar is not
competent to assume the power in 2025, when he sought to cancel the
auction of sairat.
8. In such view of the matter, the order dated 23.09.2025 passed by
the Tahasildar, Badasahi is set aside and the Tahasildar is directed to
transfer all the records relating to auction of "Balanga River Sand Bed,
Belpal" vide advertisement No.498 dated 15.03.2022 to the Department
of Steel and Mines and the Competent Authority under the Odisha
Minor Minerals Concession Rules, 2016 as amended by the Odisha
Minor Minerals Concession (Second Amendment) Rules, 2022, who
shall take decision afresh after adhering the principles of natural
jurisdiction within four weeks from the date of communication of this
order.
9. With the aforesaid observation and direction, the writ petition is
disposed of and pending Interlocutory Application(s), if any, shall stand
disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Bichi
Signed by: BICHITRANANDA SAHOO
