M GRANITES Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application has prayed for quashing the order No. 5507/IV(E)(DS) SM.4/2003 dated 22.5.2003 in which quarry lease for decorative stone covering an area of 73.50 acres or 29.744 hectares of land in Titilagarh Tahasil in the district of Bolangir has been renewed in favour of the opposite party No. 4 and for further direction to the opposite party No. 1 to consider application of the petitioner for grant of quarry lease in it's favour.

(2.) CASE of the petitioner is that quarry lease of decorative stone covering 73.50 acres/29.744 hectares of land in village Gandhargola No. 95 in Titilagarh Tahasil in the district of Bolangir had earlier been granted in favour of one Jitendra Kumar Lohia for a period of 10 years and the period of lease expired on 10.2.2003. During subsistence of the lease said Jitendra Kumar Lohia transferred the quarry lease in the name of opposite party No. 4 on 7.2.2003. Prior to expiry of the lease period said Jitendra Kumar Lohia had applied for renewal of the lease on 11.10.2002 and after transfer of the lease in favour of the opposite party No. 4 a fresh application was submitted by opposite party No. 4 on 7.2.2003 for renewal of the lease in its favour, The petitioner alleges that considering the application dated 7.2.2003 of the opposite party No. 4 for renewal of the lease as continuation of the application filed by Jitendra Kumar Lohia, renewal was granted in favour of the opposite party No. 4. The specific case of the petitioner is that it has established a processing plant by taking financial help from the Orissa State Financial Corporation. It had also applied for lease of the decorative stone quarry on 11.2.2003, but the said application was not considered and renewal of lease was granted in favour of opposite party No. 4 even though such renewal application was not in accordance with the provisions of the Orissa Minor Mineral Concession Rules, 1990.

(3.) SHRI Sanjit Mohanty, learned senior advocate appearing on behalf of the petitioner drew attention of the Court to Rules 6 and 9 of the Rules. According to Sri Mohanty, Rule 6 prescribes the manner in which application for grant of lease shall be disposed of and Rule 9 prescribes the mode of renewal. It is submitted by him that under Rule 6 of the Rules, all applications received by the competent authority shall be entered in the Register of Applications for quarry leases and shall be disposed of in the manner prescribed in the said Rule. Under Rule 9, a quarry lease may be granted for a period of not exceeding five years for leases referred to in Clauses (i) and (ii) of Sub rule (6) of Rule 6 and three years for leases referred to in Clauses (iii) and (iv) thereof. Under Rule 9(2), an application for renewal of a quarry lease shall be made in Form E at least ninety days before the expiry of lease, to the competent authority and shall be accompanied with a fee of two hundred rupees. An application for renewal of quarry lease shall be disposed of before expiry of the lease term and if the application is not so disposed of within that period it will be deemed to have been refused, The proviso to Rule 9(2) prescribes that applications for renewal of quarry leases of rocks used for decorative, industrial and export purposes including dimension stones which are deemed refused may be reconsidered by the State Government in the Department of Steel and Mines on application made to them within 30 days of the date of deemed refusal by the party aggrieved. Referring to proviso to Rule 9(3) Sri Mohanty contended that no second renewal shall be granted unless the lessee has set up a plant for processing such stones using at lease twenty five per cent of the stones quarried from the lease hold area. On the basis of said rule it was contended by Sri Mohanty that the original lessee was one Jitendra Kumar Lohia and he had taken lease in his individual capacity. There was an application for renewal by said Jitendra Kumar Lohia on 11.10.2002. There was no application for renewal of lease by the opposite party No. 4 and no such application for renewal of lease could have been filed by the opposite party Mo. 4 since the lease had not been granted in its favour. Only on 7.2.2003 lease was transferred in favour of the opposite party No. 4 company and on that date i.e., three days prior to the expiry of the lease period, application for renewal was filed by the opposite party No. 4. According to Sri Mohanty under no stretch of imagination application filed by the opposite party No. 4 company dated 7.2.2003 can be treated to be an application for renewal and is not in terms of Rule 9(2) of the Rules. Shri Mohanty further submitted that the company is a separate and distinct legal entity and therefore its application for renewal could at best be considered as fresh application under Rule 6 and renewal of lease in favour of opposite party No. 4 is in contravention of Rule 9 of the said Rules. He also submitted that the opposite party No. 4 having not set up any plant for processing stones, renewal could not have been granted in its favour. Shri Sarangi, learned counsel for the opposite party No. 4, on the other hand, submitted that Jitendra Kumar Lohia who had taken lease initially is the Director of the opposite party No. 4 company. After formation of the company in the year 1993, information was given to the competent authority for transfer of the lease in favour of the opposite party. No. 4 company, but the same was kept pending till 7.2.2003. In view of the above conduct on the part of the competent authority, the opposite party No. 4 had no occasion to file an application for renewal 90 days prior to expiry of the lease and therefore its Director Jitendra Kumar Lohia who was the original lessee applied for renewal of the lease within time. Shri Sarangi, further submitted that the application filed by Jitendra Kumar Lohia in time is to be treated as an application on behalf of the opposite party No. 4 company and the competent authority has treated the application as such and granted renewal of lease. According to Sri Sarangi there has been compliance of the Rule 9 of the Rules and therefore this Court should not interfere with the lease granted in favour of opposite party No. 4 company. Learned Additional Government Advocate, on the other hand, referring to the records submitted that the opposite party No. 4 has already set up plant for processing stones and therefore there has been compliance of proviso to Rule 9(3) of the Rules. So far as Rule 9(2) of the Rules is concerned, it was submitted by the learned Additional Government Advocate that the opposite party No. 4 also complied the said provision since Jitendra Kumar Lohia, original lessee is a director of the opposite party No. 4 company and no order for renewal of lease having been passed on the application filed by Jitendra Kumar Lohia, it was deemed to be refused and under proviso to Rule 9(2) application of the opposite party No. 4 was considered and renewal of lease was granted.