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Orissa High Court
Niranjan Nayak vs State Of Odisha And Others .... Opposite ... on 24 March, 2026
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 5796 of 2025
Niranjan Nayak .... Petitioner
Mr. Prafulla Kumar Rath, Senior Advocate
assisted by Mr. Abhijit Mohanty, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Sanjay Rath, Additional Government Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 24.03.2026
01. 1. The instant writ petition raises a serious issue as to whether
less quantity of dispatch would attract the extraction of the stones,
admittedly within the permitted limit, would tantamount to an illegal
extraction.
2. The Odisha Minor Mineral Concession Rules, 2016
(hereinafter referred to as 'the Rules') defines the Minimum
Guaranteed Quantity (MGQ) under Rule 2(p) thereof to mean "in
respect of sources for which the mining plan has been approved, the
quantity of annual extraction approved for the year concerned as per
the mining plan and in respect of sources for which mining plan has
not been prepared and approved, such annual extractable quantity as
may be assessed by the Competent Authority with approval of the
Controlling Authority as the reasonable quantity that may be
extracted from the source considering its potential".
3. It is not in dispute that the petitioner was granted a lease for
extraction of stone for a period of five (05) years identifying the
quantity of the stone to be extracted on yearly basis. The Consent to
Operate was issued by the Regional Office of the State Pollution
Control Board (SPCB), Odisha limiting the extraction on yearly
basis and the authority, on a field inspection done in the year 2024
(Annexure-17), found the total extraction at 7486.685 cum from the
leased area but noticed the dispatch quantity of the stone at 7110.00
cum which according to the Mining Officer partakes a character of
the excess extraction of the stone illegally.
4. Interestingly, the first sentence of the second paragraph of
the Demand Letter dated 4th September, 2024 (Annexure-17), which
laid the foundation of the demand, contains a clear and explicit
expression that "the quantity so noticed is as per the Rule" meaning
thereby that it is within the permissible limit set forth in the
document recognized under the said Rules. It does not convey any
intention that such extraction can take the character of illegal
extraction as such extraction was found by the authority to have been
done within the said Rules. The authority further noticed a less
quantity of dispatch which is also not disputed and treated the
remainder as an illegal extraction.
5. Our attention is drawn to the consent order issued by the
Regional Office of the State Pollution Control Board, Odisha
earmarking the quantity of production on yearly basis and the lease
was admittedly commenced in the year 2021 and at the time of the
inspection in the year 2024, the total extraction was noticed by the
Tahasildar which on mere mathematical calculation would
corroborate the Minimum Guaranteed Quantity to be extracted.
6. Our endeavour has failed to find out any such provision
from the said Rules nor the counsel appearing for the respective
parties could lay emphasis upon any such rules that if there is a
mismatch between extraction of stone within the permissible ceiling
limit, the disparity in the dispatch, that too less quantity would
tantamount to an illegal extraction of the remainder quantity of
stone.
7. Our attention is drawn to Rule-32 of the said Rules
containing broader head relating to liability for payment of royalty,
dead rent, surface rent, additional charge, amount of contribution
payable to the District Mineral Foundation, amount of contribution
payable to the Environment Management Fund to buttress the
submission that in the event the quantity of extraction is beyond the
MGQ, it can be removed from the leased area only after the payment
of the amount under different categories as mentioned hereinabove
on a pro-rata basis.
8. The removal of extraction is only permissible on the
payment under the aforesaid categories mentioned therein but the
said provision does not throw any light on the issue that if there is a
less dispatch, the remainder would become illegally extracted
quantity attracting the imposition of the penalty and the tax collected
at source. Even the extraction appears to be nearly 80% of the total
extraction which is admittedly done within the leased area in
accordance with the provisions of the Rules.
9. Rule 51 of the said Rules relates to the power to impose
penalty for violation of any terms and conditions of the lease deed as
well as the provisions contained under the Rules and thus the
question arose whether the authorities are within their competence to
impose any penalty. Sub-rule (1) of Rule 51 of the said Rules
postulates that wherever any person is found extracting or
transporting any minor minerals, otherwise than in accordance with
the said Rules shall be presumed to be a party to the illegal
extraction or removal of such minor minerals and shall expose
himself liable to be punished with Simple Imprisonment for a term
which may extend to two (02) years or with fine which may extend
to rupees five lakhs or with both.
10. Clause (iii) of sub-rule (1) of Rule 51 contains negative
words as no cognizance shall be taken for such offence punishable
under the said Rules by the Court unless a complaint in writing by
such officer or the authority is made. The other incidences engulfed
within the said Rules relate to separate incidences empowering the
authorities to confiscate and recover the amount of illegally
extracted minor minerals and other steps that may be warranted in a
given situation.
11. So far as the imposition of the penalty in relation to illegal
extraction within the Rules is concerned, it does not attract the
penalty to be imposed by the authority as the charging provision
confers power upon the Court to decide the same that too on the
basis of a complaint given in writing by the competent authority.
Once the power is conferred upon the authority, it impliedly takes
away the power from the other authorities. The authorities have to
travel within the circumference of the statutory provisions and
cannot usurp the powers expressly conferred upon another authority
because of the very presence within the statutory Rules. Once the
exercise of powers is segregated upon different authorities, it
necessarily excludes the exercise of powers by the other authorities.
12. As indicated hereinabove, once the extraction is admittedly
done strictly in accordance with the provisions of the Rules, mere
dispatch of a lesser amount, which is nearly 80% of the extracted
amount, does not make the remainder having extracted illegally
within the leased area. Apart from the same, Rule-51 of the said
Rules does not cloathe power upon the authorities to impose penalty,
which is expressly conferred upon the Court while taking cognizance
of the offence having committed within the Rules and, therefore, the
demand so made, is a colourable exercise of the powers not provided
in the Rules and, therefore, cannot be sustained.
13. Therefore, the Demand Letter dated 4th September, 2024
(Annexure-17) issued by the Mining Officer-cum-Competent
Authority, Minor Minerals, Nayagarh (opposite party No.7) is,
hereby, quashed and set aside.
14. The writ petition is accordingly disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
S. Behera
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 26-Mar-2026 18:30:42
