[Cites 11, Cited by 0]
Orissa High Court
Sagar Kumar Ray vs State Of Odisha And Others .... Opposite ... on 17 March, 2026
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.31129 of 2025
Sagar Kumar Ray .... Petitioner
Mr. Janmejaya Katikia, 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. 17.03.2026
02. 1. The petitioner was declared successful bidder for operating
Bhargabi River Sand Source quarry under Achyutpur for a
period of five years commencing from the date of execution of
lease agreement. Though lease agreement was executed on 6th
August, 2021 and amount of Rs.2,30,27,980/- was deposited by
the petitioner, no work order was issued; which compelled the
petitioner to approach the Tahasildar, Balipatna, Mining
Officer, Khordha and Collector, Khordha to seek for refund of
the said amount.
2. It is submitted by Shri Janmejaya Katikia, learned counsel for
the petitioner that by letter dated 13.09.2024 (Annexure-6), the
Mining Officer (I/C), Khordha transmitted the record relating to
M.M. Case No.05/2020-21 (Bhagarvi River Sand Source
Achyutpur) for disposal of the same for consideration of refund
of the deposited amount. Said case being not considered as yet,
the learned Advocate for the petitioner sought for a direction to
the appropriate authority for considering the application for
refund of amount deposited in respect of aforesaid sand source.
3. Ms. Aishwarya Dash, learned Additional Standing Counsel
submitted that the authority concerned shall consider the
grievance of the petitioner for refund of the amount, if direction
is issued to dispose of aforesaid M.M. case.
4. Considering the submission, perusal of records reveals that the
petitioner has made an application for refund of amount
deposited towards royalty, EMD and the additional charges etc.
along with interest thereon vide letter dated 16.07.2024
addressed to the Mining Officer, Khordha (Annexure-5).
However, by letter dated 13.09.2024 (Annexure-6), the Mining
Officer, Khordha transmitted M.M. Case No.05/2020-21 for
disposal at the end of the Tahasildar, Balipatna.
5. This Court is conscious about amendment being enforced in the
Odisha Minor Mineral Concession Rules, 2016. By virtue of the
Odisha Minor Minerals Concession (Second Amendment),
Rules, 2022, the Mining Officer, Khordha is now empowered to
deal with the matter relating to minor mineral and the
Tahasildar, Balipatna is ceased to have jurisdiction to deal with
such matter.
5.1. It is trite 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 (in
Nazir Ahmed Vs. King Emperor, reported in AIR 1936 PC 253).
5.2. Said principle has been followed subsequently in very many
cases; 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.
5.3. At this juncture, reference to Rule 13 of the Odisha Minor
Minerals Concession (Second Amendment) Rules, 2022 may be
made for better understanding of the jurisdictional fact, which
reads as follows:
"13. In the said Rules, in Rule 66, after sub-rule (2), the
following sub-rule shall be inserted, namely:
„(3) Notwithstanding anything to the contrary
contained in the amended provisions, till the new
system is put in place, the existing arrangement
would continue. The State Government may take
necessary steps for effective transition of minor
minerals from Revenue & DM Department to Steel
& Mines Department."
5.4. 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)".
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.
5.5. 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."
5.6. 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."
6. Since by virtue of aforesaid amendment, the Steel and Mine
Department is the competent department to deal with the minor
minerals, it is felt expedient to direct the Tahasildar, Balipatna
(opposite party no.5) to re-transmit the record relating to M.M.
Case No.05/2020-21 (Bhagarvi River Sand Source Achyutpur)
to the Mining Officer, Khordha along with necessary evidence
indicating deposits made by/received from the petitioner within
a period of fifteen days from today. On receipt of the material
as aforesaid, the Mining Officer, Khordha (opposite party no.4)
shall consider the application for refund of the amount vide
aforesaid M.M. Case within a period of four weeks thereafter.
The Mining Officer, Khordha (opposite party no.4) shall pass a
reasoned order and communicate the same to the petitioner
forthwith.
7. With the aforesaid observations and direction, the writ petition
stands disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Aswini
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary-in-
charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 19-Mar-2026 17:20:44
