NARAYAN NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner herein not only challenges the legality of order passed by opposite party Nos. 3 and 4 under Annexures-8 and 9 respectively, but also prays thereby to set aside such orders along with grant of extension of lease beyond the tenure for the non-operational period of 321 days from the source in the Tarpur-Achhutpur-Gokulpur Mahanadi Sand Sairat in conformity with Sub-Rule 4 of Rule 8 of the Orissa Minor Minerals Concession Rules, 2016 (in short the 'Rules') in an application under Articles 226 and 227 of the Constitution of India.

(2.) The short facts involved in this writ are that the petitioner was awarded with the lease in Tarpur-Achhutpur-Gokulpur Mahanandi Sand Sairat under Raghunathpur Tahasil on a long term basis for five years from 2015-16 to 2019-20 vide Registered Lease Agreement No. 10761500602 and as per the mining plan, the lessee-petitioner was required to produce 97975 cubic metre sand during the lease tenure of five years, but the lease in question was determined by opposite party No.4 on 13/1/2017 which persuaded the petitioner to take shelter in the Court in W.P.(C) No. 7837 of 2016 which was disposed of by this Court quashing the lease determination order dtd. 13/1/2017 with the observation that the liability of the party to deposit any demand relating to royalty or additional charges in advance would arise only from the date of execution of lease deed and not prior to that date, but during pendency of such writ petition, the petitioner could not operate the Sand Sairat due to determination of lease with effect from 13/1/2017 to 13/4/2017 in which period the payment of any such demand was exempted. According to the petitioner, due to non-issuance of R- Form and determination of lease, he was unable to operate the source(quarry) from 9/9/2016 to 28/4/2017 in which period he was eligible for exemption from paying the demand including the royalty or additional charges. In terms of order passed in W.P.(C) No. 7837 of 2016, the petitioner approached for restoration of lease and exemption from paying the demand through letters to opposite party No.4 who was supposed to pass a speaking order complying the order of this Court passed in the aforesaid writ petition, but as no order was passed, the petitioner made representation to opposite party No.4 on 24/12/2019 by providing a copy thereof to opposite party Nos. 2 and 3 praying therein from exemption of payment of royalty and other additional dues for the entire non-operational period, however, when the authority paid a deaf ear to such representation, the petitioner again approached this Court in W.P.(C) No. 838 of 2020 and during the pendency of such writ petition, the petitioner by way of another representation had prayed for extension of lease tenure against the non-operational period in conformity with Sub-Rule 4 of Rule 8 of the Rules. The above writ petition was accordingly disposed of by this Court directing the opposite party No.4 to consider such representation of the petitioner in accordance with law and take a decision by a speaking order and consequent upon such order passed in such writ petition, the opposite party No.4 disposed of the representation of the petitioner by holding that the lessee(petitioner) had no good ground for exemption from payment of dues or for extending the lease period. Being aggrieved, the petitioner approached opposite party No.3 in an appeal under Rule 46(1) of the Rules against the order passed by opposite party No.4 on 27/11/2020 in Misc. Case No. 15 of 2020 which was initiated on the representation of the petitioner, but opposite party No.3 dismissed the appeal by its order passed on 23/2/2021 in Misc. Appeal No. 08 of 2020, which order according to the petitioner was being passed arbitrarily by opposite party No.3 without taking note of the fact in true perspective. According to the petitioner, he could not operate the Sand Sairat with effect from 9/9/2016 to 28/4/2017 due to non-submission of R-Form and determination of lease till it was restored on 28/4/2017 and from 20/3/2020 to 26/5/2020, but he was only granted exemption for the period 13/1/2017 to 13/4/2017 for pendency of the writ petition and there was no fault on the part of the petitioner for not being able to operate the source for the aforesaid reason in addition to the fact that the petitioner could not operate the Sand Sairat from 20/3/2020 to 26/5/2020 on account of COVID pandemic during which rectified lease agreement was executed and registered on 26/5/2020. Further, the petitioner was not allowed to carry on the operation of the quarry with effect from 22/8/2020. Accordingly, the total non-operational period was calculated by petitioner for 320 days which according to the petitioner was not attributable to him in any way and thereby, the petitioner could not able to lift the required quantity of 97975 of Cubic metre sand during the entire lease period. According to the petitioner, the Authority can grant the quarry lease for a period which shall not exceed ten years with minimum period of five years and thereby, the Authority can still extend his lease for the aforesaid non-operational period, but ignoring those facts, the Appellate Authority-cum-Opposite Party No.3 had dismissed the appeal by observing inter alia that the petitioner has not submitted any evidence in support of his claim that he has not operated the source for a period of 321 days. On the aforesaid substance of averments, the petitioner has knocked the door of this Court in this writ petition for the relief indicated in the preceding paragraph.

(3.) In response to the notice of the writ petition, the Opposite Party Nos. 2 and 3 have jointly filed their counter affidavit stating inter alia that the petitioner has not produced any evidence in support of his claim for not operating the source for 321 days, but Opposite Party Nos. 3 and 4 had duly addressed to the grievance made over to them in the form of representation of the petitioner and had passed orders inconformity with the Rules. It is also stated in the counter affidavit that the Opposite Party No.4 has no jurisdiction to extend the lease tenure, so also there is no provision in the Rules for extension of lease tenure. While denying the averments alleged against them, the Opposite Party Nos. 2 and 3 have claimed in the counter affidavit that the petitioner is not entitled to any relief and the writ petition being devoid of merit is liable to be dismissed.