The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13473 of 2025 M/s. P.K. Minerals and another …. Petitioners Mr. Pravat Kumar Muduli, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. Sanjay Rath, AGA CORAM: THE HON’BLE THE CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. ORDER 30.07.2025 03. This matter is taken up through Hybrid mode. 2. Illegal, improper and wrongful exercise of power by the Tahasildar, Champua-opposite party No.5 passing an Order No.2313, dated 22.04.2025 vide Annexure-22, led the petitioners to file the present writ petition invoking extraordinary jurisdiction under Articles 226 & 227 of the Constitution of India with the following prayer(s):- “In view of the facts and circumstances stated above, it is most humbly prayed that this Hon’ble Court may graciously be pleased to issue a Rule NISI in the nature of Writ of Mandamus and/or any other appropriate Writ/Writs calling upon the Opp. Parties more particularly the Opp. Party No.5-Tahasildar, Champua to show cause as to why Order No.2313, dtd.22.04.2025 under Annexure-22 shall not be quashed; And, as to why the Opp. Party No.5-Tahasildar, Champua shall not be directed to pass a reasoned order on application dtd.04.03.2025 of Petitioners under Annexure-19 within a stipulated period, after providing opportunity of hearing to Petitioners; And, as to why the Opp. Party No.5-Tahasildar, Champua shall not be directed to refund the excess amount collected from Petitioners, within a stipulated period fixed by this Hon’ble Court; Page 1 of 11 And as to why letter No.630/Touzi, dtd.05.02.2025 issued by Opp. Party No.5-Tahasildar under Annexure-16 shall not be quashed being illegal and wholly without the authority of law; And if the Opp. Parties fail to show cause or show insufficient/false cause, make the said Rule absolute; And pass any Order/Orders and direction/directions as this Hon’ble Court may deem think fit and proper in the facts and circumstances of the present case; And allow this Writ Petition with cost; And, for this act of kindness, Petitioners shall remain duty bound ever pray.” The Petitioner No.1, a private limited company, being successful 3. bidder, was granted lease of Bhimpur Sand Quarry for five years under the provisions of the Odisha Minor Minerals Concession Rules, 2016 (for short, “the OMMC Rules”) vide Letter No.3134, dated 06.08.2020. 3.1. After completion of formalities, lease deed would be executed in Form „N‟, after obtaining the environmental clearance from the State Environment Impact Assessment Authority, Bhubaneswar vide letter dated 13.07.2021 granted permission to operate the Sairat Source and, accordingly, the petitioners have paid amount towards Royalty, Additional Charge, DMF, EMF, IT, SR etc., for a period of one year from 09.06.2021 to 08.06.2022 to operate the quarry. 3.2. However, there was stoppage of quarrying operation in quarry with effect from 16.11.2021 on the instruction of the authorities concerned, on account of which for a period of 126 days, the petitioners could operate the quarry. 3.3. Pending submission of Replenishment Study Report in terms of Clause-9.1 of Environment Clearance, the petitioners vide letter dated 17.05.2022 requested the Tahasildar, Champua-opposite party No.5 for re-verification of the quarry for the purpose of reassessment of Page 2 of 11 Minimum Guaranteed Quantity. On the basis of Replenishment Study Report, the opposite party No.5 demanded a sum of Rs.20,30,720/- from the petitioners towards Royalty, Surface Rent, DMF, EMF and Income Tax for the year 2022-23 vide letter dated 18.03.2023. 3.4. Against such letter, the petitioners requested the opposite party No.5 to issue letter of demand in terms of Replenishment Study Report considering the revised quantity in the year 2022-23 vide letter dated 28.03.2023. While the matter stood thus, in view of stoppage of mining operation with effect from 15.11.2021, the petitioners returned the used as well as the unused Transit Pass Books („Y‟ Forms) to opposite party No.5. 3.5. The Odisha Minor Minerals Concession (Second Amendment) Rules, 2022, having come into force, since this matter relates to sand quarry, it has been transferred from the Revenue & Disaster Management Department to the Steel & Mines Department. The Mining Officer vide notice dated 02.02.2024 issued show-cause notice contemplating cancellation of lease for having stopped quarrying operating for more than six months and raised a demand of Rs.5,058/- for the years 2022-23 & 2023-24, to which the petitioners complied with by depositing the requisite amounts on 05.02.2024 as demanded by the Mining Officer. The Mining Officer-opposite party No.4 was also intimated the reasons for stoppage of quarrying operations. However, the petitioners further complied with the demand vide letter dated 01.06.2024 raised by the Mining Officer with respect to Financial Years 2022-23, 2023-24 and 2024-25 with respect of Royalty, Surface Rent, DMF, EMF, Income Tax and Interest on 18.06.2024. Page 3 of 11 3.6. While the matter stood thus, the petitioner was served with a letter dated 05.02.2025 issued by the Tahasildar-opposite party No.5 instructing the company to deposit a sum of Rs.24,47,263/- towards Royalty, Surface Rent, DMF, EMF, Income Tax and Interest for the second year, i.e., 2022-23. However, the petitioners responded to such notice of the opposite party No.5 and requested for recalling the
Legal Reasoning
demands and claimed refund of the excess amount paid for the first year of lease. Since no action was taken, the petitioner approached this Court in a writ petition, giving rise to W.P.(C) No.9258 of 2025. During pendency of this writ petition, the Tahasildar, Champua vide Order No.2313, dated 22.04.2025 under Annexure-22 passed an order, which is subject matter of this writ petition. The petitioners sought leave to withdraw the aforesaid writ petition with liberty to file the present writ petition questioning the order dated 22.04.2025. Therefore, this writ petition has been filed by the petitioners challenging the said order dated 22.04.2025.
Legal Reasoning
4. Mr. Pravat Kumar Muduli, learned counsel appearing for the Petitioner submitted that the order dated 22.04.2025 passed by opposite party No.5 is without jurisdiction and authority in view of the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022. Taking this Court to significant amendment carried out in the Odisha Minor Minerals Concession Rules, 2016, he submitted that the word “Tahasildar” being omitted, by virtue of which the subject-matter relating to minor mineral including sand has been transferred to the Steel and Mines Department. So, the Mining Officer is now vested with power to deal with quarry lease matters and also Royalty, Surface Rent, DMF, EMF, Income Tax and Interest etc. arising from such lease. Page 4 of 11 4.1. He further submitted that since the petitioners had apprised the Mining Officer with respect to reason for non-operation of quarry and complied with the demands raised by the Mining Officer for the Financial Years 2022-23, 2023-24 and 2024-25, the Tahasildar could not assume jurisdiction over the same subject matter any further. 4.2. The Tahasildar could not have passed an independent order dated 22.04.2025 on the application/explanation of the petitioners. Referring to celebrated judgment in Nazir Ahmed Vs. King Emperor, reported in AIR 1936 PC 253, he submitted 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.” 4.3. It is submitted that 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. Mr. Sanjay Rath, learned Additional Government Advocate appearing for the State-opposite parties resisting the arguments advanced by the learned counsel appearing for the petitioner submitted that the Tahasildar having considered the pending application dated
Decision
04.03.2025 of the writ petitioners and passed a reasoned and speaking order, the same needs no interference. It is submitted that since the sand Page 5 of 11 sairat was given to the petitioners from 09.06.2021 for five years till 08.06.2026 under the OMMC Rules, 2016, there was no infirmity in exercising powers under said Rules, which was existing prior to effective date of the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022. 5.1. He submitted that the application being related to recall of demand and refund of excess amount paid during the first year of lease towards Royalty, Surface Rent, Additional charges, DMF, EMF, Interest and Income Tax etc., the exercise of power by the Tahasildar in passing order dated 22.04.2025 cannot be faulted with. 6. Since there is no dispute with regard to facts and the matter involves question of law, whether order dated 22.04.2025 can withstand the judicial scrutiny in view of amendments vide the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022 have been incorporated in the Odisha Minor Minerals Concession Rules, 2016, on the consent of the learned counsel for the respective parties, the writ petition is heard and disposed of at the stage of admission. 7. The factual narration as adumbrated in the pleadings brings to fore that the petitioners have complied with the demand(s) raised by the Mining Officer for the financial years 2022-23, 2023-24 and 2024-25 and the Mining Officer was apprised of non-operation of quarry mine during the first year due to certain statutory formalities to be satisfied, the Tahasildar should not have exercised the power, which is not vested in him after the amendments. 8. Learned Additional Government Advocate laid emphasis on Rule 6(3) as envisaged in the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022, which reads as follows:- Page 6 of 11 “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.” 8.1. Stemming on said Rule, it is vehemently contended that since the arrangement as it existed prior to amendment continued even thereafter, the Tahasildar having passed the order dated 22.04.2025 with respect to application dated 04.03.2025 relating to the context of first year of lease, i.e., 2021-22 there could not have been any confusion. There is no statutory interdiction. Though such argument advanced by the opposite parties, sounds good, on minute scrutiny of documents available on record, such contention is only to be repelled. 8.2. Having glance at show-cause notice dated 02.02.2024 issued by the Mining Officer (in-charge), Competent Authority of Minor Minerals, Champua Subdivision, Keonjhar Circle, Keonjhar, it ex-facie transpires that the record relating to the present petitioners has been transferred to the Steel and Mines Department in and around 2024. 8.3. It is also emanating from the pleadings that the petitioners have also made payments in favour of the Mining Officer-cum-Competent Authority in the Office of the Deputy Director Mines, Keonjhar Circle, Keonjhar with respect to certain statutory deposits pertaining to the financial years 2022-23, 2023-24 and 2024-25. Copies of challans showing deposits with the said Mining Officer are testimony to the fact that the Mining Officer is the competent Authority with respect to lease granted in favour of the petitioners. He is in seisin of the records Page 7 of 11 relating to Bhimpur Sand Quarry of the petitioner much prior to passing impugned order dated 22.04.2025 by the Tahasildar. 8.4. It is obvious that the moment the records are transferred to the Steel and Mines Department by virtue of the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022, the Tahasildar ceases to have power to exercise jurisdiction over the Bhimpur Sand Quarry relating to the petitioner(s). 9. Having thus found that the Tahasildar lacks jurisdiction to exercise over Bhimpur Sand Quarry lease granted to the petitioner, the order dated 22.04.2025 cannot be held to be tenable. 9.1. 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. Page 8 of 11 9.2. As is found in the preceding paragraphs that the Tahasildar, Champua-opposite party No.5 lacks jurisdiction to exercise power over the Bhimpur Sand Quarry relating to the petitioner(s), the order dated 22.04.2025 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. 9.3. 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 Page 9 of 11 accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable.” 9.4. 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.” 10. In view of the aforesaid discussions made and having regard to the perspective law with respect to exercise of power without jurisdiction, the order dated 22.04.2025 passed by the Tahasildar, Champua under the OMCC Rules, 2016 is liable to be quashed and this Court does so. However, it is directed that the application dated 04.03.2025 vide Annexure-19 be transmitted by the Tahasildar, Champua-opposite party no.5 within a period of one week from the date of receipt of copy of this order to the Mining Officer (in-charge), Competent Authority of Minor Minerals, Champua Subdivision-opposite party No.4, who on receipt of the same shall consider the same and dispose it off as expeditiously as possible preferably within a period of eight weeks from receipt of such application. Page 10 of 11 11. 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 MRS/Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Aug-2025 17:33:34 Page 11 of 11