Kangali Charan Baral … v. ….. Opposite parties Mr. P.P. Mohanty, AGA Order No. 02 CORAM: ACTING CHIEF JUSTICE
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No.32736 of 2023 Kangali Charan Baral ….. Petitioner Mr. U.K. Samal, Advocate State of Odisha & Ors. Vs. ….. Opposite parties Mr. P.P. Mohanty, AGA Order No. 02 CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN ORDER 04.12.2023 This matter is taken up through hybrid mode. 2. Heard Mr. U.K. Samal, learned counsel appearing for the
Legal Reasoning
petitioner and Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties. 3. The petitioner has filed this writ petition seeking to quash the order dated 26.02.2021 under Annexure-7 passed by opposite party no.3-Collector, Keonjhar as well as the order dated 28.02.2023 under Annexure-8 passed by opposite party no.2- Revenue Divisional Commissioner, Northern Division, Sambalpur in OMCC Appeal No.2 of 2022 and further to issue direction to the opposite parties to permit the petitioner for lifting of 6404 cum of sand from Baitarani River Sand Bed, Bancho or to extend the lease period for which the petitioner was prohibited. 4. Mr. U.K. Samal, learned counsel appearing for the petitioner contended that pursuant to auction, the petitioner was granted lease for a period of five years. But due to unforeseen situation, he could not be able to lift the sand from Baitarani Page 1 of 7 River Sand Bed, Bancho. Therefore, he earlier had approached this Court by filing W.P.(C) No.14716 of 2020, which was
Decision
disposed of vide order dated 16.12.2020 stating, inter alia, if the petitioner was the highest bidder and deposited royalty amount for the five years and was allowed to operate the quarry till 31st March, 2020, but due to some unforeseen situation, i.e., in the wake of pandemic Covid19, he was not allowed to operate the quarry and could not be able to remove the 5th year approved quantity, then in that case the authority should take necessary steps permitting the petitioner to remove the balance quantity of sand, i.e, 6404 cum (10000 cum – 3596 cum) or extend the lease period till 31st March, 2021, whichever is earlier. To that extent, the petitioner has to approach the Collector, Keonjhar ventilating his grievance. If such grievance is made within a period of 10 (ten) days from today, the Collector, Keonjhar shall consider the same and pass appropriate order in accordance with law by affording opportunity of hearing to the petitioner, as expeditiously as possible, preferably within a period of 15 (fifteen) days thereafter. In compliance of the said order, the petitioner filed representation before opposite party no.3-Collector, Keonjhar, who, vide order dated 26.02.2021 while rejecting the representation of the petitioner came to a conclusion that as per the provision contained in OMMC Rules, 2016, the order dated 16.12.2020 passed by this Court in W.P.(C) No.14716 of 2020 could not be implemented, i.e. permitting the petitioner to remove the balance quantity of sand or extend the lease period till 31.03.2023 and further directed the Tahasildar, Hatadihi to take appropriate step for fresh auction of Baitarani Sand Bed (Sand Sairat), Bancho as per OMMC Rules, 2016. Being aggrieved, the Page 2 of 7 petitioner approached opposite party no.2 by filing OMMC Appeal No.2 of 2022 and opposite party no.2, vide order dated 28.02.2023 confirmed the order passed by opposite party no.3- Collector, Keonjhar rejecting the claim of the petitioner. Therefore, the petitioner has approached this Court. 5. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that the appellate authority, namely, Revenue Divisional Commissioner (Northern Division), Sambalpur taking into consideration the entire scenario passed order dated 28.02.2023 in OMMC Appeal No.2 of 2022 rejecting the claim of the petitioner for extension of the lease period to extract the deficit quantity of sand, pursuant to order dated 16.12.2020 passed by this Court in W.P.(C) No.14716 of 2020, stating that after a lapse of two years from the date of expiring of the lease, there is no reasonable ground to extend the lease period or to allow extracting the balance quantity of sand. Therefore, it is contended that since opposite party no.2 passed the said order on 28.02.2023 and the petitioner approached this Court by filing this writ petition on 04.10.2023 after lapse of 8 months, the writ petition suffers from delay and laches. Consequentially, he seeks for dismissal of the writ petition. 6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that the Tahasildar, Hatadihi issued a notice inviting applications on 11.02.2015 to participate in the auction for Baitarani River Sand Bed at Bancho for a period of five years, i.e., from 2015-16 to 2019-2020, in response to which the petitioner participated and found to be the highest bidder. Accordingly, he was directed to Page 3 of 7 deposit an amount of Rs.3,56,140/- on 18.06.2015 towards the royalty, surface rent, dead rent and environment management fund etc., which the petitioner deposited. Consequentially, an agreement was executed with the petitioner on 27.06.2015 for a term of one year. Since the lease period was five years and the petitioner had deposited the bid money for one year, he was not allowed to operate the sand quarry. But subsequently, the Tahasildar directed the petitioner to deposit the entire auction amount. Accordingly, the petitioner complied the same by depositing the amount of Rs.12,18,000/- on 10.07.2015. After receiving the said amount, the Tahasildar executed the agreement on 11.08.2015 and got the same registered on 25.08.2015 for the period of first year and for the subsequent four years i.e., for the year 2015-16, 2016-17, 2017-18, 2018-19 and 2019-20. As per the Rule 27-A (3) of the Orissa Miner Minerals Concession (Amendment) Rules, 2014, the petitioner submitted the mining plan for extraction of sand from the Baitarani sand quarry, which was duly approved by the Deputy Director of Geology Keonjhar. Accordingly, the petitioner has to extract sand for a period of five years with quantity of 10000 cum for the first year, 9998 cum for the second year, 9997 cum for the third year 9967 cum for the fourth year and 10000 cum for the fifth year. As per the approved mining plan, the petitioner extracted the sand from 26.08.2015 to 21.03.2020 but due to pandemic Covid-19, the Government declared lockdown on 22.03.2020, thereby, the petitioner could not be able to operate the sand quarry for full term of fifth year. As such, during continuance of the lockdown period, the fifth year tenure of the petitioner already expired. As per the fifth year approved mining plan, the petitioner had extracted 3596 cum of Page 4 of 7 sand out of 10000 cum in support of the T.P. book, which was issued to the lessee, the petitioner herein. The remaining quantity of sand could not be extracted because of the lockdown imposed by the authority concerned. In the meantime, the period of lease has expired on 27.06.2020. Therefore, the petitioner claimed that the lease period should be extended till 31st March, 2021 or he may be allowed to remove the balance quantity of sand for the fifth year allotment of 10000 cum, whichever is earlier. 7. Claiming such benefit, the petitioner had approached this Court by filing W.P.(C) No.14716 of 2020 and this Court, vide order dated 16.12.2020 disposed of the said writ petition with the following order: “Having heard Mr. Samal, learned counsel for the petitioner and Mr. Muduli, learned Addl. Government Advocate for the State, this Court is of the considered view, taking into consideration the factual matrix mentioned above, that if the petitioner was the highest bidder and deposited royalty amount for the five years and was allowed to operate the quarry till 31st March, 2020, but due to some unforeseen situation, i.e., in the wake of pandemic Covid19, he was not allowed to operate the quarry and could not be able to remove the 5th year approved quantity, then in that case the authority should take necessary steps permitting the petitioner to remove the balance quantity of sand, i.e, 6404 cum (10000 cum – 3596 cum) or extend the lease period till 31st March, 2021, whichever is earlier. To that extent, the petitioner has to approach the opposite party no.2-Collector, Keonjhar ventilating his grievance, as mentioned above. If such grievance is made within a period of 10 (ten) days from today, the opposite party no.2- Collector, Keonjhar shall consider the same and pass appropriate order law by affording in accordance with opportunity of hearing to the petitioner, as expeditiously as possible, preferably within a period of 15 (fifteen) days thereafter.” 8. In compliance of the said order, the petitioner approached opposite party no.3-Collector, Keonjhar by filing representation and opposite party no.3, vide order dated 26.02.2021 rejected the claim of the petitioner by passing the following order: “In view of clarification obtained from Govt. in R&DM, Department, Odisha, Bhubaneswar as mentioned Supra and as per the provision contained in OMMC Rules, 2016, the order No.8 dated 16.12.2020 of Hon’ble High Court, Odisha passed in Page 5 of 7 W.P.(C) No.14716 of 2020 couldn’t be implemented i.e. permitting the petitioner to remove the balance quantity of sand or extend the lease period till 31.03.2021. Hence, the representation made by the writ petitioner in accordance with the order of Hon’ble High Court, Odisha is rejected. Tahasildar, Hatadihi is directed to take appropriate step for fresh auction of Baitarani Sand Bed (Sand Sairat), Bancho as per OMMC Rules, 2016. Communicate the Superintendent, Hon’ble High Court, Odisha for kind appraisal of the Hon’ble Court and inform all concerned accordingly.” 9. Being aggrieved by the aforesaid order dated 26.02.2021, the petitioner approached this Court by filing W.P.(C) No.11155 of 2021, which was disposed of on 12.04.2021 permitting the petitioner to prefer appeal under Rule-46 of the OMMC Rules, 2016. In compliance thereof, the petitioner approached the Appellate Authority, namely, Revenue Divisional Commissioner (Northern Division), Sambalpur by filing OMMC Appeal No.2 of 2022, which was disposed of by passing following order on 28.02.2023: “The Collector, Keonjhar while deciding the matter hold that the appellant had taken Baitarani Sand Bed, Bancho as highest Bid amount which was expired on 27.06.2020. He was restrained to extract sand from 22.03.2020 till date due to lockdown of Covid-19 pandemic situation and applied for extension of lease period. It is also found that as per report of R.I, the appellant has extracted 3596 cm of sand as against approved mining plan of 10,000 cm. It is further observed that as per the direction of Hon’ble High Court in W.P.(C) No.14716 of 2020 to take necessary steps permitting the appellant to remove the balance quantity of sand i.e. 6404 cm or to extend the lease period till 31.03.2021 whichever is earlier. On the issue, a clarification was sought for by the Collector, Keonjhar from Govt. in R & D.M. Deptt., Odisha, Bhubaneswar regarding implementation of order of Hon’ble High Court as to whether the appellant will be allowed further period to remove the balance quantity of sand i.e. 6404 Cum or extend the lease period till 31.03.2021, whichever is earlier. In response to that, the Govt. in R & DM Deptt. vide letter No.4292/R&DM/dt.05.02.2021 that Covid-19 restriction were imposed by H&FW Deptt. order No.8980 dt.24.03.2020 and such restriction for operation of minor mineral quarries relaxed w.e.f. 20.04.2020 vide R & D.M. Deptt. order No.14533 dt.18.04.2020. The total period of restriction affecting operation of quarry was less than one month OMMC Rules-2016 does not provide for extension of lease period in case of such casual disruption of quarrying clarified Page 6 of 7 activity. Accordingly, Collector, Keonjhar has rejected the representation of speaking order the appellant vide No.427/Judl. Dt.26.02.2021. Further, after a lapse of two years from the date of expiring of the lease, I do not find any reasonable ground to extend the lease period or to allow extracting the balance quantity sand at this stage. Hence, I am inclined to hold that the appellant’s case does not deserve consideration and therefore, the claim is rejected. The appeal is disposed of accordingly. Pronounced in the open court today, i.e. the 28th February, 2023.” 10. Against the said order dated 28.02.2023 passed by opposite party no.3-Revenue Divisional Commissioner (Northern Division), Sambalpur, the petitioner approached this Court by filing this writ petition on 04.10.2023. At the outset, this Court is of the considered view that the appellate authority passed the order on 28.02.2023 and the petitioner filed this writ petition on 04.10.2023 after a long lapse of 8 months. There is gross delay in filing this writ petition. Consequentially, this Court is not inclined to entertain this writ petition, as the same is suffered from delay and laches. Needless to say, on perusal of the writ petition, no reason has been assigned as to why the petitioner has approached this Court at a belated period after expiry of 8 months. 11. Accordingly, the writ petition suffers from delay and laches and the same is dismissed. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: orissa high court Date: 05-Dec-2023 17:53:04 Alok (M.S. RAMAN) JUDGE Page 7 of 7