Omega Enterprises vs State Of Odisha And Others .... Opposite ...
2026 Latest Caselaw 1244 Ori

Orissa High Court

Omega Enterprises vs State Of Odisha And Others .... Opposite ... on 11 February, 2026

Author: Murahari Sri Raman

Bench: Murahari Sri Raman

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 WP(C) No.30269 of 2023
          Omega Enterprises                                 ....                  Petitioner

                                              -Versus-
          State of Odisha and others                        ....         Opposite Parties


         Advocates appeared in this case:
                For Petitioner           :    Ms. Soma Patnaik,
                                              Advocate
                For Opposite Parties :        Ms. Aishwarya Dash,
                                              Additional Standing Counsel


                                CORAM:
                      HON' BLE THE CHIEF JUSTICE
                                  AND
                HON'BLE MR. JUSTICE MURAHARI SRI RAMAN

                                      JUDGMENT

----------------------------------------------------------------------------------

Date of hearing and judgment: 11th February, 2026

---------------------------------------------------------------------------------- HARISH TANDON, CJ.-

1. The petitioner has challenged the several demand notices

issued by the authorities claiming the additional charges in respect

of Sarandamal Stone Quarry solely on the ground that the

foundation of the levy of the additional charges taking shelter

under Rule 39 of the Odisha Minor Mineral Concession Rules,

2016 (for short, "the OMMC Rules") is per se illegal.

2. Undisputedly, on the basis of an application of the

petitioner, the lease of the said Sarandamal Stone Quarry under

Lakhanpur Tahasil was executed in favour of the petitioner for a

period of five years from the year 2018 to 2023. The petitioner

observed all the formalities and the paraphernalia, required in

execution of the lease deed to operationalize the Stone Quarry,

including the payment of additional charges contemplated under

Rule 32(3) of the OMMC Rules. According to the petitioner, the

impugned demand notices are per se illegal, infirm and liable to be

quashed and set aside as the authority cannot invoke a particular

provision of the statute, which is not applicable to the persons like

the petitioner.

3. On the other hand, a plea of demur is taken by the learned

Additional Standing Counsel that since the alternative remedy is

available to the petitioner, recourse under Article 226 of the

Constitution of India is not permissible. According to her, the writ

petition is not maintainable, the moment a remedy by way of

appeal is provided under the OMMC Rules. She further submits

that the terms and conditions embodied in the lease provides for

levy of additional charges and, therefore, the petitioner cannot

escape from such contractual obligation.

4. In support of a contention that a writ petition is not

maintainable, reliance is placed upon three-Judge Bench decision

of the Apex Court in the case of Gurucharan Singh Vs. Kamla

Singh and others, (1976) 2 SCC 152. Further reliance is placed

upon a judgment of the Apex Court rendered in the case of Radha

Krishan Industries Vs. State of Himachal Pradesh and others,

(2021) 6 SCC 771, on the proposition that unless violation of the

fundamental rights or non-adherence of the principles of natural

justice or the order being wholly without jurisdiction and the vires

of the Act is assailed, the Court should not entertain the writ

petition, when the alternative efficacious remedy is provided in the

statute.

5. It is further submitted that pursuant to the letter dated 14th

October, 2019, the additional charges are to be calculated on the

basis of the formula indicated therein and a subsequent letter dated

24th September, 2020 issued by the Additional District Magistrate,

Jharsuguda exposited the fact that the quarry lease holders are

liable to pay additional charges in terms of the formula indicated in

the preceding letter and, therefore, the demand so raised in

commensurate therewith does not warrant any interference.

6. Taking the plea of alternative remedy being a hurdle in

maintaining the writ petition at the first, we hasten to add that none

of the judgments rendered by the Apex Court spanning over more

than two decades from the era of Whirlpool Corporation Vs.

Registrar of Trade Marks, (1998) 8 SCC 1 to the judgment

rendered in Radha Krishan Industries (supra), it has been held

with clarity and the precision that the constitutional jurisdiction

exercised by the High Court under Article 226 of the Constitution

of India is taken away in absolute terms if the statute provides a

forum for ventilating the grievance. From the regime of

Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225 to L.

Chandra Kumar Vs. Union of India, (1997) 3 SCC 261, it is

constant view of the Constitution Bench of the Apex Court that the

power of judicial review and the power of superintendence

enshrined under Articles 226 and 227 of the Constitution of India

respectively are the integral part of the basic structure of the

Constitution, which cannot be whittled down and/or abridged or

curbed through a legislative exercise. The moment such

Constitutional forum is available to the citizen of the country, it is

preposterous to suggest that the conferment of such constitutional

powers is taken away absolutely as the Legislators have provided

remedial forum by promulgating the legislative law. There is a

stark distinction between "maintainability" and "entertainability"

of the judicial proceedings. (see, Godrej Sara Lee Ltd. Vs. Excise

and Taxation Officer-cum-Assessing Authority, (2023) 3 SCR 871).

It admits no ambiguity that the maintainability strikes at the root of

the jurisdiction exercised by the Court; on the other hand, the

entertainability provides a discretion into the Court whether to

adjudicate upon the reliefs claimed by the litigant or to relegate

him to exhaust the statutory remedy provided in this regard. The

moment the plea of maintainability is taken as a demur, the Court

must visit on an absolute exclusion of the jurisdiction, which in

view of the judgment rendered by the Constitution Bench of the

Apex Court, is indefeasible and/or indispensable. Such remedy

before the Constitutional Court is available to every citizen and

upholding the contention that the alternative forum forecloses the

doors of the Constitutional Court under Article 226 of the

Constitution of India is undermining the ratio of the decisions

rendered by the Constitutional Courts of the country. We are

unable to countenance the stand of the Additional Standing

Counsel that the instant writ petition is not maintainable in view of

the alternative forum for an appeal is provided under the aforesaid

Rules.

7. It leads to another issue, whether such plea of demur can

be permitted at the fag end of the litigation, more particularly after

the parties exchanged their affidavits or in other words, after the

completion of the pleadings. The plea of entertainability must be

raised at the nascent stage of admission and not at the later stage of

the proceedings when the parties have already disclosed their stand

on facts as well as law. Refer, Utkal Highways Engineers and

Contractors Vs. Chief General Manager & others, (2025) SCC

OnLine SC 1400; Sanjivani Ultrasound Clinic Vs. State of Odisha,

(2025) SCC OnLine Ori 4167. Once such plea has not been taken

at the first instance, the Court should frown upon such plea taken

at the belated stage of the proceedings or at the fag end of the

litigation. Encouraging such plea at the ripe age of the litigation

would open a pandora box for all and sundry and at times the

onerous responsibilities imposed upon the Constitutional Court is

capable of being compromised. At times the Court may relegate

the parties to exhaust the remedy of appeal when such remedy

becomes barred, if there is a period of limitation provided therefor

and it would be a farcical exercise or in other words shirking the

responsibilities of adjudicating the dispute on merit.

8. So far as the entertainability of the writ petition is

concerned, it is no longer res integra that it vests discretion upon

the Court either to adjudicate the rights or the disputes itself or

relegate the parties to other statutory forums provided therefor. It is

the discretion of a Court and, therefore, cannot be assumed as a

compulsion to revert the parties to the statutory forum. It is,

therefore, regarded as the rule of discretion than of compulsion.

Once the parties have exchanged their pleadings, we do not think

that it would percolate the sense of justice if the petitioner is

reverted to the statutory forum, that too, after more than two years

from the date of institution of the instant writ petition.

9. Reverting to the merit of the instant case, the seminal point

involved in the instant writ petition is, whether the authority can be

said to be justified in invoking a provision of the Rules which has

restricted applicability to a Government Organization / the

Government Companies. The origin of fixation of further

additional charges can be traced from the letter dated 14th October,

2019 issued by the Additional Secretary, Revenue and Disaster

Management Department to all Collectors. The said letter is

reproduced as under:-

"No.RDM-MMS-MEET-0009-2019-30986/R&DM, Dated 14.10.2019 From Sri B.B. Das Additional Secretary to Government To All Collectors Sub: Fixation of additional charge on unit quantity of minor minerals in case of quarry lease granted to Government Organisations and for quarry permits under the provisions of OMMC Rules, 2016.

Madam/Sir,

In inviting a reference to the subject cited above, I am directed to say that Rule 39 of the OMMC Rules, 2016 provides for reservation of any area for lease for quarrying operation by government organisations subject to such terms and conditions as may be decided by Government. Sub-rule-5 of the said Rule speaks that the lessee, to whom a lease has been granted under this rule, shall pay to the Government all amounts payable by a lessee under these rules and such additional charges as may be decided by the Government from time to time.

Keeping the above in view, Government, after careful consideration, have been pleased to decide that average of the five highest additional charge bids received during last three to five years for leasing for the same minor mineral sources in the same Tahasil or nearby Tahasil of the same district or nearby district will be taken as the additional charge for lease of minor mineral sources in favour of Govt. organisations on nomination basis and also for issue of temporary quarry permits.

Necessary steps may be taken to carry out the above decision and all concerned may be informed accordingly."

10. Apropos the said direction issued, another letter was

caused on 24th September, 2020 by the Additional District

Magistrate to Tahasildar, Lakhanpur for fixation of the additional

charges on the rate of royalty assessed during the time of

settlement of the minor mineral sources beyond the scope of the

OMMC Rules on the basis of a calculation provided in the above

quoted letter. The aforementioned two letters are the substratum of

the demand raised upon the petitioner which is sought to be

challenged on the premise, as narrated hereinabove. The above

quoted letter manifestly indicates that the fixation of the additional

charge on the unit quantity of the minor minerals is restricted to a

quarry lease granted to the Government Organisation, more

particularly under Rule 39 of the OMMC Rules. Rule 39 of the

OMMC Rules runs thus:-

"39. Reservation of mines for Government organizations:-

(1) Notwithstanding anything contained in these rules, the State Government may, by a written order, reserve any area for prospecting operation or mining operation or quarrying operation by a Government organization, subject to such terms and conditions as may be specified in the said order. (2) Upon such reservation, prospecting license-cum-mining lease or mining lease or a quarry lease as the case may be, for the area so reserved, shall be granted to the Government organization in whose favour the reservation has been made subject to such terms and conditions, as may be decided by the Government.

(3) Government organization, for the purpose of these rules, shall mean Government, a Corporation established by any Central, State or Provincial Act or a Government Company within the meaning of Clause (45) of Section 2 of the Companies Act, 2013 and includes State level apex cooperatives, such other agencies, authorities or organization controlled substantially by the Government, as may be decided by the Government.

(4) The prospecting license-cum-mining lease or the mining lease, as the case may be, granted under this rule shall be granted for a period not exceeding thirty years and may be renewed for such period not exceeding twenty years at a time, as may be decided by the Government.

(5) The lessee, to whom a lease has been granted under this rule, shall pay to the Government all amounts payable by a lessee under these rules and such additional charges as may be decided by the Government from time to time."

11. The bare look of the aforesaid Rules contained in separate

Chapter-VI postulates the incorporation of the special provision for

the Government Organisation. Sub-rule (5) of Rule 39 of the

OMMC Rules, which has been pressed in action by the authority,

provides for a payment of all amounts payable by the lessee under

the OMMC Rules and the additional charges, as may be decided by

the Government from time to time. It can be reasonably gathered

from the language used in sub-rule (5) of Rule 39 of the OMMC

Rules that the said provision is applicable only where lease has

been granted under the said Rule and it can be logically inferred

that the said Rule has its restricted applicability to the mines given

to Government Organisation. Once the provision is restricted to a

particular class of persons, its expansion to other class of the

persons is impliedly ruled out and, therefore, the authorities cannot

expand the horizon of the said statutory provisions to the other

lessees who are not Government Organisations. So far as the

imposition of the additional charges are concerned, the liability

towards the payment is envisaged under Rule 32 of the OMMC

Rules and it is not in dispute that the petitioner paid the said

additional charges to the Government. There cannot be any escape

from the discharge of the liability imposed by the statutory

provisions, but equally it is true that the imposition of any liability

de hors the provision of law, is also impermissible.

12. In view of the discussions hereinabove, we find that the

demands raised by the authorities, which are impugned

hereinabove, are per se illegal, infirm and beyond the statutory

powers conferred under the aforesaid Rules. Those are, hereby,

quashed and set aside. The writ petition is, thus, disposed of.

13. As a result of the disposal of the writ petition, pending

Interlocutory Application(s), if any, shall stand disposed of, but in

the circumstances there shall be no order as to costs.

(Harish Tandon) Chief Justice

(M.S. Raman) Judge MRS/Laxmikant

Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Feb-2026 12:19:04