Orissa High Court
Case Details
AFR ORISSA HIGH COURT : CUTTACK W.P.(C) No.19737 of 2025 In the matter of Applications under Articles 226 and 227 of the Constitution of India *** Ashoka Infracore Pvt.Ltd. represented through its Managing Director – Sri Satrughana Lal Saha, aged about 73 Years, Son of Sri Prem Chand Saha, At-Dalaipara, Ward No.10, P.O./Dist: Sambalpur, PIN-768001 … Petitioner -VERSUS- 1. State of Orissa, represented through Secretary to Government, Steel & Mines Department, Secretariat Building, Bhubaneswar, Dist:Khurda 2.Director, Mines, Odisha, Bhubaneswar, Dist:Khurda. 3.Dy. Director, Mines, Phulbani, At/PO/Dist:Phulbani. 4. Mining Officer, Boudh, At/PO/Dist:Boudh. … Opposite parties Counsel appeared for the parties: For the Petitioner : Mr. Sukanta Kumar Dalai, Advocate W.P.(C) No.19737 of 2025 Page 1 of 20 For the Opposite parties : Mr. Saswat Das, Additional Government Advocate P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 30.07.2025 : Date of Judgment : 30.07.2025 HARISH TANDON, C.J.— J UDGMENT The proposition of law from the various provisions contained in the Odisha Minor Minerals Concession Rules, 2016 (OMMC Rules”, for short) though unambiguous, is sought to be projected as ambiguous by the rhetoric of the counsel appearing for the petitioner. The eloquence in deliberation of an argument appears to be focussed in a sympathetic way than on an actual interpretation of the statutory provisions. Certain provision quoted in a prescribed format appended to the statutory Rules is argued in such fashion as if it created uncertainty in arriving at a definite decision. After extensive arguments having W.P.(C) No.19737 of 2025 Page 2 of 20 advanced by the petitioner and on a manifest reading of several provisions sought to be relied upon, we do not find that the action of the authorities can be tainted either with malice or arbitrary. 2. In course of hearing, serious allegation was made against the official that his action is lopsided in order to favour a blue-eyed person, but we do not find a semblance of such averment in the instant writ petition. The only allegation which we perceived from the writ petition is that the said authority did not act fairly, transparently and in a bona fide manner so that his action can be termed as arbitrary. It is not a healthy practice in a judicial dispensation that an argument is advanced raising a serious allegation against a person without any pleading in this regard nor such person has been impleaded as a party to the proceedings. The action of the person cannot be condemned nor can be reprimanded solely on the basis of an oral submission when the requisite pleading is lacking. Be that as it may, we do not venture to go into the nitty-gritty of the aforesaid submissions as the same is de hors the pleading and we confine our consideration to the facts emanating from the record and the pleading filed in the instant case. W.P.(C) No.19737 of 2025 Page 3 of 20 3. Shorn off unnecessary details, the facts are more or less undisputed. 4. Pursuant to the tender floated for granting a mining lease, i.e., a sand quarry, the petitioner submitted the bid and passed through the muster of both technical and financial stage. The petitioner was undeniably declared as the highest bidder and such factum was duly communicated to him. Subsequently, the petitioner was declared ineligible having not complied with the statutory requirements and the said action of the authority is assailed in the instant writ petition. 5. The pleading runs into several pages is primarily aimed upon the arbitrary and/or whimsical action of the authorities in declaring the petitioner unqualified having not deposited the royalty, the additional charges and the contribution to the District Mineral Foundation, within 15 days from the date of intimation. It is averred that the Rules permit the concurrence and/or consent to be given within 15 days from the date of such intimation, which, in fact, has been duly complied with in the instant case. 5.1. It is a specific case that the deposit of an amount equivalent to 1/4th of the total amount of royalty and additional charges and contribution payable to the District Mineral Foundation on an annual minimum W.P.(C) No.19737 of 2025 Page 4 of 20 guaranteed quality being an uncertain amount unless calculated by the authority, such obligation does not commence until the successful bidder is communicated of the calculation. 5.2. The petitioner further stated that the consent and/or concurrence to accept the mining lease was to be given within the statutory period, on receipt of an intimation in a prescribed format. The authorities were called upon to calculate the total amount required to be deposited under Rule 27(7) of the Odisha Minor Minerals Concession Rules, 2016. Such calculated amount was provided on the eve of 13th day giving a time of two days to deposit the same. The petitioner says that the period of 15 days shall start from the date of receipt of calculation from the competent authority and a reasonable interpretation is required to be given to the aforesaid provision. 6. From the reading of the averments made in the writ petition, we gather an impression that the action of the authorities in declaring the petitioner as disqualified having not complied with the statutory requirements is basically founded upon the interpretation of the relevant provisions of the said Rules of 2016, and, therefore, we do not intend to invite the opposite party to file a counter affidavit and proceeded to dispose of the matter at this stage. W.P.(C) No.19737 of 2025 Page 5 of 20 7. The counsel for the petitioner vociferously submits that Rule 27 contains an exhaustive provision relating to grant of a quarry lease including an obligation of the authority to intimate the selected bidder within 07 days in a prescribed Form which contains the terms and conditions embodied therein. According to him, after receipt of such intimation, it invokes the twin responsibilities of a successful bidder;
Legal Reasoning
Firstly, he has to give concurrence and/or consent to accept the terms and conditions as communicated in the said intimation; secondly after the amount is quantified and/or determined by the authority and communicated to the bidder, the time limit fixed in the statutory provision would start ticking from the receipt of such calculation. 7.1. The counsel for the petitioner further submits that the prescribed form contains several provisions of the said Rules, meaning thereby the authorities were not sure about the applicability of any such provision and probably for such reason the word „„strike off which is not applicable” is incorporated therein. According to learned counsel for the petitioner, Rule 10(12) as quoted in the prescribed form of communication does not postulate the deposit as indicated by the authorities and even Rule 16 (10) thereof does not postulate the deposit within 15 days W.P.(C) No.19737 of 2025 Page 6 of 20 from the date of intimation, unless quantified and/or determined by the authorities. It is arduously submitted that sub-rule (6) of Rule-27 provides for an intimation by the competent authority in a prescribed form and the Rule 7 having two components; one relating to acceptance and other for deposit which are required to be interpreted in a pragmatic way and has to be construed that such period is provided for all the aforesaid twin conditions in a specified situation and not at a time. The counsel for the petitioner is very much vocal on the fact that environmental clearance has not been obtained as yet, and, therefore, the authorities could not have proceeded to disqualify the petitioner as the mining lease cannot be executed, unless the same is obtained. 7.2. As a last gasping resort, it is submitted that Rule 32 of the said Rules of 2016, imposed an obligation upon the lessees to pay the State Government, every year the dead rent and the surface rent as well as the royalty together with the additional charges, and, therefore, the same being variable in nature, it is inconceivable that the bidder would determine the amount to be deposited in terms of Rule 27 (7) of the said Rules.
Legal Reasoning
7.3. On the other hand, learned counsel for the State submits that since the petitioner did not comply with W.P.(C) No.19737 of 2025 Page 7 of 20 the statutory requirements, he was declared disqualified and since the 2nd highest bidder also did not comply the statutory provisions, the fresh tender has been decided to be floated, which, in fact, has been floated by now. 8. On the backdrop of the aforementioned factual matrix, the pivotal issue emerged in the instant writ petition as to whether the interpretation sought to be assigned to the provisions contained in Rule 27(7) of the said Rules by the petitioner is a correct interpretation or it conveys a different intention of the legislature while legislating the said subordinate legislation. 9. The Odisha Minor Mineral Concession Rules, 2016 contains an exhaustive provision relating to grant of mineral concession in respect of minor minerals. The said Rules are framed with an avowed object of regulating, granting and/or settling the mines for excavation of the minor minerals in different part of the State. The said Rules are framed in exercise of the powers conferred under Section 15(1) of the Mines and Minerals (Development and Regulation) Act, 1957, and, therefore, partakes a character of a statutory document. 9.1. Rule, 27(6) of the said Rules postulates that the selected bidder shall be intimated by a competent W.P.(C) No.19737 of 2025 Page 8 of 20 authority within seven days in Form-F about the selection and terms and conditions of the lease. Form- F appended to the said Rules is indicative of such fact where the successful bidder is intimated of such facts and the said successful bidder is obligated to convey his acceptance of the terms and conditions and to deposit the amount as prescribed in Rule 10(12) and 13/16 (10) (11)/27 (7) (9) of the said Rules with the rider “strike off whichever is not applicable”. 10. It is manifestly clear from the said Form-F that it is a common and composite form for all kinds of minor minerals and the aforesaid Rules have been incorporated in order to eradicate any confusion with the clear stipulation that if any of such Rules is not applicable to a particular case, the adherence thereof is not insisted upon. 10.1. Reliance is placed upon Rule 10 and Rule 16 of the said Rules of 2016 in order to support the claim that there has been a situation where the selected bidder is not in a position to determine the exact amount, so that the 1/4th thereof could be deposited within the time framed. 10.2. Rule10 of the said Rules contained, in Chapter-II, the heading whereof indicates that the provisions contained in the said Chapter is relatable W.P.(C) No.19737 of 2025 Page 9 of 20 to a grant of prospecting license-cum-mining lease for specified minor minerals. 10.3. Rule 16 is also contained in Chapter-III of the said Rules with the heading that the provisions incorporated therein is also applicable to the grant of mining lease for a specified minor mineral. In both the Chapters, we find a common expression, i.e., specified minor minerals which is defined in Rule 2(aa) to mean all minor minerals including decorative stones other than minor minerals listed at (Serial No.2 of Schedule- III). Schedule-II is appended to the said Rules, where the amount of royalty is quantified and/or specified therein. Entry 32 of the said Schedule contains the rate of royalty applicable to “ordinary sand” and in the instant case, the mining lease is for the sand quarry. The provisions contained in Chapters-II and III are applicable in case of specified minor minerals and the definition of “specified minor minerals” excludes those minor minerals included in Schedule-II, and, therefore, the reliance on the provisions does not appear to be correct. 10.4. We are conscious that the head note put in the statutory provisions cannot be taken as a sacrosanct in order to determine the applicability of the provisions contained therein, but it may be relevant for the purpose of its applicability in a W.P.(C) No.19737 of 2025 Page 10 of 20 specified class of the things and the provisions engulfed into the said Chapter has to be ascribed the meaning and the intention of the legislature to be gathered, taking note of the headnote appended in the said Chapter. It leads no ambiguity in our mind that the Rule10 or Rule16, which finds place within Chapter-II and III of the said OMCC Rules, 2016 is not applicable in the instant case, and precisely for such reason, the explanatory expressions were included in the said Form-F i.e. “strike off, whichever is not applicable”. 10.5. It leads us to interpret the provision contained in Rule 27 finding place in Chapter-IV with the headnote “grant of quarry leases”. Whether the interpretation made by the petitioner is acceptable or is opposed to the core fabric of the interpretative tools applied in the Indian Jurisprudence are to be seen. Ordinarily, the word „and‟ or „or‟ are interpreted in a conjunctive and disjunctive manner, wherever statutory provisions contained the word „and‟, it connotes a conjunctive aspect and if different situations and/or eventualities are added with the word „and‟, it normally be construed as the situation and/or eventualities which must co-exist. 10.6. The word „and‟ is commonly used to bind two situations and/or eventualities, and therefore, an W.P.(C) No.19737 of 2025 Page 11 of 20 interpretation other than what is commonly understood is only possible if it frustrates the intention and the object for which the said Act was enacted or the subordinate legislation is framed. For such reason, at times the word „and‟ and „or‟ are inter- changeable depending upon the intention of the Legislature in tune with the object and purpose, for which it is so legislated. 10.7. In the case of CIT Vrs. Puthu Thotam Estates (1943) Limited, (1981) 127 ITR 481 (Mad), it has been observed as follows:- the statute “The circumstances under which the word “and” may be construed as “or” and vice versa should be somewhat rare. Otherwise, if the two are taken to be interchangeable terms, then it would result in Parliament throwing into two expressions the indiscriminately and leave them to the courts to sort out the meaning. In ordinary usage „„and‟‟ in conjunctive and „„or‟‟ is disjunctive, but to carry out the intention of the legislature it is sometimes possible to take “and” for “or” and vice versa. But such occasions should be rare and should only be to avoid absurd consequences that would follow if the words are taken in their literal meaning.” 10.8. It is a well-established principle of statutory interpretation that the word “or” is normally disjunctive and the word “and” is normally conjunctive. Both of them can be read as vice-versa, but that interpretation is adopted only where the W.P.(C) No.19737 of 2025 Page 12 of 20 intention of the legislature is manifest. Where provision is clear and unambiguous the word „or‟ cannot be read as „and‟ by applying the principle of reading down. But if the literal reading of the words produces an unintelligible or absurd result „and‟ may be read for „or‟ and „or‟ for „and‟ even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. Conversely if reading of „and‟ and „or‟ produces grammatical distortion and makes no sense of the portion following „and‟, „or‟ cannot be read in place of „and‟. The alternatives joined by „or‟ need not always be mutually exclusive. [Central Council for Research in Ayurvedic Sciences Vrs. Bikartan Das, (2023) 11 SCR 731 = 2023 INSC 733; State of Bombay Vrs. RMD Chamarbaugwala, (1957) 1 SCR 874; J. Jayalalitha Vrs. Union of India, (1999) 5 SCC 138; Mazagaon Dock Ltd. Vrs. CIT & Excess Profits Tax, (1959) 1 SCR 848; Spentex Industries Ltd. Vrs. CCE, (2015) 11 SCR 487.]. 10.9. In Hyderabad Asbestos Cement Product Vrs. Union of India, 2000 (1) SCC 426 = AIR 2000 SC 314, it has been held that „or‟ in its natural sense denotes an „alternative‟ and is not read as „substitutive‟. In Green Vrs. Premier Glynrhonwy State Co., (1928) I KB 561, it has been held that „or‟ does W.P.(C) No.19737 of 2025 Page 13 of 20 not generally mean „and‟ and „and‟ does not generally mean „or‟. The same view has also been taken in Nasiruddin Vrs. State Transport Appellate Tribunal,