Orissa High Court
Unknown vs Hon'Ble The Chief Justice Mr. Mohammad ... on 9 November, 2020
Bench: Mohammad Rafiq, B.R. Sarangi
W.P.(C) No. 12432 of 2020
HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
06. 09.11.2020 Mr. D.R. Mohapatra, Adv. : For the Petitioner
Mr. S. Palit, A.G.A. : For State-Opp. Parties
ORDER
Heard learned counsel for the parties by Video Conferencing mode.
The petitioner has filed this writ petition seeking direction to opposite party no.2-Tahasildar, Balianta to obtain environmental clearance from opposite party no.3-State Environment Impact Assessment Authority and execute the quarry lease as per Form 'N' and allow the petitioner to operate the quarry in question for a period of five years from the date of execution of the lease as clarified by Revenue and Disaster Management Department in Annexure-7 dated 02.05.2020 addressed to Collector, Ganjam and in term of Rule 43(2) of the OMMC Rules, 2016.
The factual matrix of the case, in hand, is that Tahasildar, Balianta-opposite party no.2 issued an advertisement putting Bhubanpur sand sairat under Kushabhadra river into auction on 24.02.2015, pursuant such advertisement, the petitioner along with four bidders have submitted their bids. Out of five applications, three were received from registered post/speed post and two including one Sunakar Sahoo and Smt. Baijayantimala Baliarsingh were received through ordinary post. As the application submitted by Sunakar Sahoo was not taken into account, he approached this Court by filing W.P.(C) No.6434 of 2015 wherein the -2- present petitioner was made as opposite party no.3. This Court, vide order 17.07.2017, dismissed the said writ petition observing that the authority inviting applications for settlement of minor minerals is the best judge to decide the eligibility conditions and the same cannot be waived by Court or cannot be a subject matter for judicial review unless the same falls within any of the categories as laid down in Jagadish Mandal v. State of Orissa, (2007) 14 SCC 517. As such, the petitioner has not made out a case under any of the aforesaid categories which would warrant a judicial review.
Thereafter, the process of auction was continued and the petitioner was the highest bidder in respect of sand sairat situated in mouza-Bhubanpur under Khata no.366, plot no.38 measuring Ac.60.00. The said auction was for a long term lease period of five years, i.e., 2015-16 to 2019-20. As W.P.(C) No.6434 of 2015 was filed by one Sunakar Sahoo and the same was dismissed by this Court vide order dated 17.07.2017, it is stated that the said period could not have been adhered to. In any case, the petitioner requested opposite party no.2 on 18.11.2017 and 08.12.2017 addressing to the Director, Geology by referring their letters dated 23.06.2015 and 19.10.2017 for approval of mining plan. Accordingly, by letter dated 08.12.2018 the Deputy Director, Geology informed opposite party no.2 that sand sairat of Bhubanpur mining would be 15500 cubic meter approximately, which would be calculated on the basis of eye estimate. Thereafter, the mining plan was prepared in the name of the petitioner and the same was approved on 27.03.2018 by the Deputy Director. After receiving the mining approval dated 27.03.2018, opposite party no.2 requested the Chairman, SEIAA vide letter dated 29.03.2018 regarding environmental clearance in respect of the -3- sand sairat in question by depositing Rs.1 lakh. But the same could not have been obtained in time. Consequentially, the petitioner approached opposite party no.2, who in turn on 29.07.2019 intimated the Chairman, SEIAA that in the meantime one year has been elapsed but no clearance has been received till date. Thereafter, on 12.02.2020, the petitioner filed a representation before the opposite party no.2 requesting to take steps to settle the aforesaid sand sairat in his favour for the period from 2020-21 to 2024-25, as he was not able to operate the sand sairat in question even for a single day. But without considering the same, opposite party no.2 issued a fresh advertisement on 20.02.2020 for settlement of the minor minerals for settling of the sand sairat of river Kushabhadra in mouza-Bhubanpur putting auction fixing the date from 10.03.2020 to 20.03.2020. Challenging the said advertisement dated 20.02.2020, the petitioner approached this Court by filing W.P.(C) No.9824 of 2015, wherein this Court issued notice on 18.03.2020. But the auction for the sand sairat which was scheduled to be held on 21.03.2020 could not be held because of COVID-19 situation. Subsequently, opposite party no.2 published a public notice on 19.03.2020 informing therein that the sand sairat under the Tahasil which was scheduled to be held on 21.03.2020 has been stayed till further commencement and publication in daily newspaper.
Government of Odisha, in Revenue and Disaster Management Department informed the Secretary, Board of Revenue and all RDCs and Collectors regarding clarification on revised period for quarry operation due to non-execution of the lease agreement by the lessee of the minor mineral sairat sources. In the said letter it has been indicated that Rule-27 of -4- the OMMC Rule, 2004 as amended by OMMC (Amendment) Rule, 2014 and Rule 8(4) of the OMMC Rule, 2016 provided that minimum period of lease shall be 5 years. Rule 61(2) of OMMC Rule, 2004 and Rule 43(2) of the OMMC Rule, 2016 stipulates that the date of commencement of period for which quarry lease is granted shall be the date on which duly executed the deed is registered. Rule-27(13) of the OMMC Rule, 2016 provides that the selected bidder shall be required to execute the quarry lease in Form 'N' within three weeks from the date of intimation of his selection, if approved mining plan and environmental clearance has been obtained before auction and in all other cases three months from the date of intimation, failing which intimation shall be stands cancelled and security deposit shall stand forfeited.
Mr. D.R. Mohapatra, learned counsel appearing for the petitioner strenuously urged before this Court that as the petitioner has already deposited the entire amount and could not able to operate the source even for a day and as such, the source has not been put to auction even though the lease period has already expired from 31.03.2020, he may be permitted to operate the quarry for a period of five years taking into consideration the clarification dated 02.05.2020 issued by the Government of Odisha, Revenue and Disaster Management Department as well as Rule 43(2) of OMMC Rules, 2016. It is further contended that no delay is attributable to the petitioner to obtain environmental clearance and mining plan and as such, if any delay has been caused, it is due to inaction of the authority but not by the petitioner. It is further contended that no delay is attributable to the petitioner as the petitioner has complied all the requirements. In view of statement made in paragraph-21 of -5- the counter affidavit relying upon the Government guidelines for regulating the sand quarry in the State dated 26.04.2019 under Annexure-A/2, the petitioner's case can be considered by opposite party no.2-Tahasildar, Balianta for grant of lease for a period of five years, i.e. from 2020-21 to 2025-26. In the event, for some reason or others, opposite party no.2 does not extend the lease for a period of five years, then necessary steps be taken for refund of money to the petitioner along with interest, which he has already deposited.
Mr. S. Palit, learned Additional Government Advocate contended that one Sunakar Sahoo filed W.P.(C) No.6434 of 2015, which was dismissed only on 17.07.2017 and after that the cause of action started and consequentially, the environmental clearance and mining plan were also approved. In the meantime the lease period of five years have already expired on 31.03.2020. Due to COVID-19 situation, even though fresh advertisement was issued, no auction could be taken place as the same has been stayed by the instruction issued by the Tahasildar, Balianta. As such, the petitioner has already deposited the entire amount and if his case is considered by the Tahasildar, Balianta for grant of lease for a period of five years taking into account the guideline dated 26.04.2019 issued by the Government of Odisha, Revenue and Disaster Management Department under Annexure-A/2 read with clarification issued on 02.05.2020 under Annexure- 7 and allowed the said benefit to the petitioner, there will be no legal impediment stand on the way to get the said benefit. Therefore, the petitioner should approach the Tahasildar, Balianta by filing a representation which shall be considered in accordance with law.
-6-Having heard learned counsel for the parties and after going through the records, it appears that there is no dispute with regard to settlement of source in favour of the petitioner pursuant to advertisement for public auction issued on 24.02.2015. The petitioner being the highest bidder, deposited the entire amount, but could not be able to operate the source because of filing of W.P.(C) No.6434 of 2015, which was dismissed only on 17.07.2017. Thereafter, efforts have been made by the Tahasildar, Balianta by submitting the required documents for getting mining plan and environmental clearance from the competent authority. By the time he received such clearance, the lease period of five years have already over on 31.03.2020 and even though he has issued fresh notice inviting auction, but the same could not have been materialized as he himself has stayed for putting the source into auction. In the meantime, since the petitioner has got mining plan approved and environmental clearance and the authority has accepted the entire money from the petitioner, his case could have been considered taking into account the guidelines issued on 26.04.2019 under Annexure-A/2 for regulating the sand quarrying in the State by the Government of Odisha Revenue and Disaster Management Department and subsequent clarification on revised period for quarry operation due to late execution of lease deed agreement by the lessees of Minor Mineral Sairat Sources issued on 02.05.2020 by the Government of Odisha Revenue and Disaster Management Department under Annexure-7 read with Rule 43(2) of OMMC Rules, 2016. Therefore, this Court permits the petitioner to file a fresh representation before opposite party no.2-Tahasildar, Balianta within a period of seven days from today. In the event, the petitioner files such representation within the time -7- stipulated, opposite party no.2 shall consider the same taking into consideration the guidelines issued on 26.04.2019 under Annexure-A/2 and clarification dated 02.05.2020 issued under Annexure-7, as expeditiously as possible within a period of 15 days and pass a reasoned and speaking order by affording opportunity of hearing to the petitioner in the interest of justice, equity and fair play. In the event, the Tahasildar does not feel inclined to extend the lease period of five years for some reasons or other, he can also take a decision with regard to refund of the amount already deposited by the petitioner along with interest within a period of six weeks thereafter, so that it will not cause prejudice to the petitioner.
With the aforesaid observation and direction, the writ petition stands disposed of.
As COVID-19 pandemic situation is continuing, learned counsel for the petitioner may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.
Alok/Ashok
(Dr. B.R. Sarangi) (Mohammad Rafiq)
Judge Chief Justice