Orissa High Court
A. Ganesh Raj vs State Of Odisha on 15 January, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13788 of 2024
A. Ganesh Raj, Aged about 57 years, S/o- Late Petitioner
V. Arundavasi Achari, present residing At- ....
N.K.T. Road, Opposite Govt. High School,
Jeypore, District-Koraput, 764001
-versus-
1. State of Odisha, represented through its Opposite Parties
Joint Secretarty, Steel and Mines Department,
Secretariat Building, Bhubaneswar ....
2. The Director of Mines, Odisha, Heads of
the Department, Govt. of Odisha.
3. Deputy Director of Mines, Koraput Circle,
Koraput, Odisha
For the Petitioner : Mr. Subir Palit, Senior Advocate
assisted by Ms. A. Pradhan, Advocate
For Opposite Parties : Mr. L. Samantaray, AGA
CORAM:
HON'BLE THE CHIEF JUSTICE
HON' BLE MS JUSTICE SAVITRI RATHO
JUDGMENT
15.01.2025 Savitri Ratho, J. This writ application has been filed praying for the following reliefs:
W.P.(C) No. 13788 of 2024 Page 1 of 10
"........to admit the writ petition taking into consideration of the new facts and call for the records and issue notice to the opposite parties to show cause as to why the impugned order as under Annexure-8 dated 15.12.2020 shall not be quashed and if the opposite parties fail to show cause or show insufficient cause, the impugned order dated 15.12.2020 vide Annexure-8 may kindly be quashed and the writ application be allowed;
Further, this Hon'ble Court may be gracious enough to issue direction to the concerned opposite party to reconsider the special case of the petitioner for which deserves relaxation in the light of the facts that the land was acquired and its conversion was carried out by the petitioner, the definite plan for setting up the industry was brought to the notice of the authority and the recommendation made by inclusion of the petitioner name in the "to be considered" list of the Internal Verification Committee..."
2. On 2.11.2020, the Joint Secretary to Government, Department of Steel & Mines, had rejected the application dated 30.01.2015 filed for renewal of mining lease (in short "RML") of the petitioner, for Decorative Stone which had been granted in favour of the applicant, over an area of W.P.(C) No. 13788 of 2024 Page 2 of 10 2.869 Ha in village San Ujei & Dimla of Koraput District on 29.03.2005 for a period of 10 years which expired on 28.03.2015.
3. The application for renewal of the mining lease had been filed under Rule 8 (7) of OMMC Rules, 2004. During its pendency , OMMC Rules, 2016 came into force which was amended on 21.05.2018 as OMMC (Amendment) Rules, 2018 inserting Rule-8A with special provision for lessees of Decorative Stone providing for extension of lease period instead of renewal. This rule provided for extension of mining lease period for decorative stone mining lease granted before the commencement of OMMC Rules, 2016 , subject to certain stipulations which included setting up of an industry in the State based on decorative stone extracted from the lease hold area. The Internal Verification Committee (IVC, in its meeting dated 02.03.2019 had found that the case of the petitioner was not eligible for consideration for extension under Rule 8A of OMMC (Amendment) Rules, 2018 due to non-compliance of the condition for setting up an industry. So show cause notice had been issued vide Department Letter No. 7966 dated 23.09.2020 asking the applicant as to why the RML application should not be rejected. The reply of the applicant submitted on 02.11.2020 was not admissible under the provisions of Rule 8A of OMMC W.P.(C) No. 13788 of 2024 Page 3 of 10 (Amendment) Rules, 2018 for which after considering his reply , the Government was pleased to reject the RML application submitted by the petitioner.
4. Challenging this order, the petitioner had earlier filed W.P.(C) No. 35166 of 2023. The writ application was dismissed on 21.11.2023 holding that the petitioner is a fence sitter and has approached the Court at a belated stage, without explaining as to why he has approached this Court at a belated stage and that the writ application suffers from delay and latches.
5. The petitioner had approached the Supreme Court in Special Leave Petition (Civil) Diary No. 14174/2024 challenging the order dated 2.11.2023 passed in WP( C) No. 35166 of 2023 . This was dismissed on 19.04.2024 . The order is extracted below:
"Delay condoned.
We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed. Pending application(s), if any, shall stand disposed of."
6. This writ application has been filed again challenging order dated 15.12.2020 , stating that the factory could not be set up by the petitioner for reasons beyond his control , although he had acquired the land and had a W.P.(C) No. 13788 of 2024 Page 4 of 10 definite plan for setting up the factory / processing unit. It has also been stated the opposite party (authority) has renewed the mining lease of various other lessees who like the petitioner had not set up a factory, for which the order of rejection is arbitrary, illegal, whimsical and discriminatory.
7. It is stated that Rule 8 (2) of OMMC Rules, 2004 provides that the mining lease can be granted for a term not exceeding thirty years and minimum period should not be less than twenty years. But the petitioner had been granted mining lease for a period of 10 years which is in direct violation of this Rule. Rule 8 (3) of OMMC Rules, 2004 provides for renewal of mining lease for a period not exceeding twenty years and has a proviso stating that an industry / processing unit has to be set up by the lessee prior to applying for renewal of mining lease. But the said rule and proviso though worded as a mandatory provision in essence, is directory as it is followed by a sub-rule under Rule-8(4) which starts with a non- obstante clause stating as follows:
"Rule-8(4):-Notwithstanding anything contained in Sub-rule (3), if the State Government is of the opinion that in the interest of development of decorative stones it is necessary to do so, it W.P.(C) No. 13788 of 2024 Page 5 of 10 may, for reasons to be recorded in writing, authorize the renewal of a lease for a further period of periods not exceeding twenty years in each case."
8. It has been further stated that the petitioner had the land, a definite plan and statutory clearances for setting up the industry, but was unable to do so due to existence of law and order situation on account of naxalite activities in the region which was beyond the petitioner's control . While the petitioner's application was pending with the authorities the amendment to the OMMC Rules, 2016 came out on 21.05.2018, whereby Rule 8 (A) was incorporated which provided for an extension of the lease term instead of renewal provided in the prior rules. It is further stated that the petitioner had applied for renewal of his lease in the year 2015 under the prevalent OMMC Rules, 2004 and the application should have been decided on the basis of the 2004 rules but on account of the pendency of the application due to the competent authority's laid back/ lackadaisical approach, there has been a direct violation of Rule 8 (7) of the OMMC Rules, 2004 causing hardship to the petitioner.
9. Mr. Subir Palit, learned Senior Advocate has submitted that the petitioner is not a fence-sitter but a victim of unfortunate and W.P.(C) No. 13788 of 2024 Page 6 of 10 insurmountable circumstances as in addition to the extra-ordinary Covid-19 pandemic situation, the petitioner's poor health condition was the sole cause of the delay in approaching this Court. These circumstances were beyond the control of the petitioner which caused an unwanted delay in approaching this Court for redressal of his grievances. He has attached some medical documents along with the writ application stating that these documents were not in possession of the petitioner during the filing of the previous writ application for which due to absence of any plausible explanation, this Court has labeled the petitioner as a fence-sitter.
In support of his submission, Mr. Palit, learned Senior Advocate has relied on paragraph 11 of the decision of the Hon'ble Supreme Court in the case of P. Mohanan Pillai vrs. State of Kerala and Others reported in (2007) 9 SCC 497:
"11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."W.P.(C) No. 13788 of 2024 Page 7 of 10
10. The Supreme Court in the case of State of UP vs Labh Chand AIR 1994 SC 754 : 1993 (2) SCC 495, has held as follows:
"When a Judge of single Judge Bench of a High Court is required to entertain a second Writ Petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier Writ Petition of the same person on the same matter had been dismissed already by another single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non-availing of alternate remedy. Second Writ Petition cannot be, so entertained not because the learned single Judge has no jurisdiction to entertain the same, but because entertaining of such a second Writ Petition would render the order of the same Court dismissing the earlier Writ Petition redundant and nugatory, although not reviewed by it in exercise of the recognised power. Besides, if a learned single Judge could entertain a second Writ Petition of a person respecting a matter on which his first Writ Petition was dismissed in limine by another learned single Judge or a Division Bench of the same Court, it would encourage an unsuccessful Writ Petitioner to go on filing Writ Petition after Writ Petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of W.P.(C) No. 13788 of 2024 Page 8 of 10 the Constitution in that any order of any Bench of such Court refusing to entertain a Writ Petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh Writ Petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the Court refusing to entertain a Writ Petition. It is why, the Rule of judicial practice and procedure that a second Writ Petition shall not be entertained by the High Court on the subject-matter respecting which the first Writ Petition of the same person was dismissed by the same Court even if the Order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternate remedy, has come to be accepted and followed as salutary Rule in exercise of writ jurisdiction of Courts.
11. As mentioned earlier , challenging the selfsame order dated 15.12.2020 the petitioner had earlier filed WP ( C ) No. 35166 of 2023, which had been dismissed by this Court on 21.11..2023 and Special Leave Petition (Civil) Diary No. 14174 of 2024 /2024 filed against the order of this Court has been dismissed by the Supreme Court on 19.04.2024 .
12. In our view, the petitioner now wants us to sit as an appellate Court over the decision of another Division Bench which is impermissible in law and would also amount to judicial indiscipline.
W.P.(C) No. 13788 of 2024 Page 9 of 10
13. In view of the above observations, we are not inclined to entertain this writ application and dismiss the same.
.......................
(Chakradhari Sharan Singh) Chief Justice .....................
(Savitri Ratho) Judge Orissa High Court, Cuttack.
The 15th day of January , 2025.
Puspa, P.A. Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 15-Jan-2025 19:50:59 W.P.(C) No. 13788 of 2024 Page 10 of 10