Orissa High Court
Aashish Yadav vs State Of Odisha And Others .... Opposite ... on 19 August, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20652 of 2025
Aashish Yadav .... Petitioner
Mr. Gauri Mohan Rath, Advocate assisted by
Mr. Byotkesh Mohanty, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr.Saswat Das, Addl. Government Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE MURAHARI SRI RAMAN
ORDER
19.08.2025 Order No.
01. 1. Challenge in the instant writ petition is laid to the demand notices dated 2nd May, 2024 and 18th March, 2025 issued by the Tahasildar, Jharsuguda (opposite party No.5) vide Annexure-1, and Annexure-4 respectively directing the petitioner to deposit Royalty & Additional Charges, Environmental Compensation Charges, penalty along with interest @ 24% per annum up to 30th April, 2024 aggregating to Rs.1,59,14,810/- (Rupees one crore fifty nine lakhs fourteen thousand and eight hundred ten) and also demand notice dated 19th November, 2022 issued by the Tahasildar, Jharsuguda (opposite party No.5) under Annexure-2 directing to deposit Royalty and Additional Charges and Environmental Compensation Charges @ Rs.1000/- per cum of sand as well as penalty aggregating to Rs.1,07,53,250/- (Rupees one crore seven lakh fifty three thousand two hundred fifty) under Rule Page 1 of 7 58 of the Odisha Minor Minerals Concession Rules, 2016 ("OMMC Rules", for short).
2. Undisputedly, the petitioner is neither a lessee nor in any way connected with the sand quarry of Loisingh Sand Bed. The brother of the petitioner, namely, Shashank Yadav is the successful bidder in respect of the sand quarry. On being informed, it is submitted that for want of environment clearance his brother, though deposited the security amount, no mining lease has yet been executed.
2.1. While the matter stood thus, the petitioner received notice vide P.R.No.2506 dated 2nd May, 2024 from the Office of the Tahasildar, Jharsuguda wherein he along with his brother Sri Shashank Yadav and another person Sri Deepak Ray was directed to deposit the value of mineral and penalty for illegal extraction of sand amounting Rs.1,59,14,810/-. The authority thereafter proceeded to raise afore-stated demand under Rule 58(1) of the said Rules.
3. It is submitted by Sri Gauri Mohan Rath, learned Advocate assisted by Sri Byotkesh Mohanty, learned Advocate for the petitioner that being not connected with the lease of sand quarry, the petitioner-Aashish Yadav filed objection dated 02.07.2024 before the Tahasildar, Jharsuguda that he is elder brother of Shashank Yadav, as such the Revenue Inspector has mistakenly entangled his name with that of other two persons, whose names find place in the notice of demand. It is, therefore, submitted that the Tahasildar, Jharsuguda having not taken into consideration Page 2 of 7 such objection, continues to proceed to pursue demand against the present petitioner.
4. Sri Saswat Das, learned Additional Government Advocate proceeded to oppose the contentions of the learned counsel for the petitioner and submitted that notices are issued in respect of three persons who are involved in the quarry and transportation of sand without due authority or permit. Therefore, the notice of demand issued against three persons including the present petitioner is just and proper, warranting no intervention by exercise of writ jurisdiction. He sought to justify the action of the authority concerned.
5. In order to appreciate the dispute raised by the petitioner, it is profitable to take note of Rule 58(1) of the OMMC Rules which is reproduced hereunder:
"58. Miscellaneous.--
(1) No holder of prospecting license-cum-
mining lease or mining lease or quarry lease or quarry permit or auction purchaser shall dispatch any minerals from an area without a valid transit pass in Form-Y issued electronically by Competent Authority--
(a) the Deputy Director of Mines or Mining Officer having jurisdiction in case of specified minor minerals; and
(b) the Competent Authority in case of minerals other than Specified Minor Minerals."
5.1. On a plain reading of the language employed in the said provision, it leaves no ambiguity in our mind that the holder of a prospecting license-cum-mining lease or mining lease or quarry lease or quarry permit or auction purchaser shall not be Page 3 of 7 permitted to despatch any mineral from an area without a valid transit pass in Form-Y issued electronically by the Competent Authority. The expression "prospecting license- cum-mining lease" is defined in Rule 2(t) of the said Rules to mean a two stage concession granted for the purpose of undertaking prospecting operation in respect of specified minor minerals followed by mining operation over a compact area.
5.2. It is, thus, manifestly clear that sub-rule (1) of Rule 58 of the said Rules is applicable to a specified category of a person and cannot be applied and/or used against the other category of persons. It is beyond cavil of doubt that the statutory provisions has to be understood in tune with the context in which it is so used and once such provision is restricted to a specified category of person, its applicability cannot be expanded to the other category of person. It is preposterous to suggest that the authorities can bring any class of a person not specified in the statutory provision within the fold thereof for raising a demand. It is not only an usurpation of the power not provided in a particular provision of the statute but also percolates a sense of non-application of mind. It seems that the authority proceeded in a mechanical manner and did not apply its conscientious mind whether such provision has any applicability to the facts emerged. The authority cannot assume power under a particular provision unless such power eminently and evidently appears from the unambiguous language used therein. Any transgression from Page 4 of 7 the fold of law shall entail such decision liable to be interfered with.
5.3. Since the petitioner does not satisfy the definition of a prospecting license-cum-mining lease appearing in sub-rule (1) of Rule 58, its invocation against the petitioner-Ashish Yadav (Noticee No.3 in the notices issued by the Tahasildar) is misconceived and illegal.
5.4. The aforesaid view is fortified by interpretation on the language of Rule 58 of the OMMC Rules, 2016, put forth by Division Bench of this Court in the case of Suvendu Kumar Sahu Vrs. State of Odisha and others, W.P.(C) No.19918 of 2025, vide Order dated 04.08.2025.
6. It is contended by the counsel for the petitioner that action contemplated to be initiated under Section 51 of the OMMC Rules, 2016 against Aashis Yadav vide Order dated 30.04.2024 of the Tahasildar, Jharsuguda passed in Misc. Case No.38 of 2022 is untenable inasmuch as unless he is found guilty by a competent Court, the said authority is incompetent to issue notice dated 18.03.2025 against the petitioner directing him to deposit the demanded amount.
6.1. No person can undertake a mining activity nor can excavate the minor minerals without the license or permission granted by the competent authority and for such reason, the sufficient safeguard is provided under Rule 51 of said Rules.
6.2. Sub-rule (1) of Rule 51 attracts a criminal liability against the person who excavates and/or extracts or transports Page 5 of 7 any minor minerals without any valid license or permission and if he does so, he is liable to be punished with simple imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,00,000/- or with both.
6.3. This Court has not been taken to any other provision of the OMMC Rules providing for imposition of penalty, and, therefore, it is discerned that the Tahasildar, Jharsuguda has acted beyond the powers so conferred by imposing "penalty" against the petitioner-Aashis Yadav, which in fact, a fine to be imposed by a Criminal Court, in the event a proceeding is initiated under sub-rule (1) of Rule 51 of the said Rules.
6.4. For arriving at such conclusion this Court stems on the discussion with respect to scope of levy of "fine" under Section 51 of the OMMC Rules, 2016 as has been made in Suvendu Kumar Sahu Vrs. State of Odisha and others, W.P.(C) No.19918 of 2025, vide Order dated 04.08.2025 and Dillip Khuntia and Another Vrs. The Collector, Bhadrak and Others, W.P.(C) No.12066 of 2018, vide Order dated 25.03.2021.
7. Having thus found that authority-Tahasildar, Jharsuguda proceeded under Rule 58 without application of conscientious mind as said provisions are not applicable in the present factual matrix, nor is there any power conferred upon the authority to impose "penalty" invoking Section 51 of the OMMC Rules, the impugned demands are liable to be quashed and set aside qua instant petitioner-Aashis Yadav.
Page 6 of 78. However, it is open to the authority to take steps as permissible in law, in the event, the violation of the said Rules is still continuing or found to exist.
9. With these observations, the writ petition stands disposed of. Pending Interlocutory Application (s), if any, shall also stand disposed of accordingly. No order as to costs.
(Harish Tandon) Chief Justice (M.S. Raman) Judge Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 20-Aug-2025 19:35:23 Page 7 of 7