Purna Chandra Swain vs State Of Odisha And Others .... Opposite ... on 22 August, 2025

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Orissa High Court

Purna Chandra Swain vs State Of Odisha And Others .... Opposite ... on 22 August, 2025

01. 1. Beseeching to set aside the order dated 25th October, 2022 passed in Misc. Appeal No.1 of 2022 by the Sub-Collector, Cuttack Sadar, Cuttack vide Annexure-8 with a writ of mandamus to the Deputy Director of Mines, Cuttack-Opposite Party No.7 to dispose of said appeal afresh, the writ petition invoking provisions under Articles 226 and 227 of the Constitution of India has been filed with the following prayer(s):

"It is, therefore, humbly prayed that this Hon'ble Court

a) Quash the impugned order dated 25.10.2022 passed in Misc.

Appeal No.1 of 2022 by the sub-Divisional Magistrate, Cuttack Sadar, under Annexure-8, on the ground of lack of jurisdiction and non-consideration of DPR already filed;

b) Issue a writ of mandamus or any other appropriate writ directing the Opposite Party No.7 (Deputy Director of Mines, Cuttack) to take up and dispose of the Misc. Appeal No.1 of 2022 afresh in view of the DPR dated 27.09.2022 (Annexure-

9), in accordance with law, within a time-bound manner in issuing required permits;

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c) Pass any other order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to secure the ends of justice;

And for this act of kindness the petitioner as in duty bound shall ever pray."

2. As is revealed from the writ petition that an agreement dated 28th February, 2019 was executed between the Ministry of Road Transport and Highways, Government of India and the petitioner, for development and management of National Highway No.16 including the Construction of VUP at Balikuda, Sikharpur & Badachana in Bhubaneswar-Jagatpur-Chandikhole section of NH-5 (New NH-16) in the State of Odisha.

2.1. For utilization of sand, the petitioner approached the authority concerned under the Odisha Minor Minerals Concession Rules, 2016 (for short, "OMMC Rules"), which being remained unattended to, a writ petition, W.P.(C) No.23475 of 2019, was filed before this Court. Said writ petition was disposed of on 6th December, 2019 with direction to the authority for consideration of the grievance. Thereafter, another writ petition, i.e., W.P.(C) No.8034 of 2021 was filed for consideration of application for quarry permit for facilitating execution of aforesaid work, which was disposed of on 15th March, 2021 with a direction to conduct joint enquiry.

2.2. The petitioner moved the Tahasildar, Cuttack Sadar for grant of environmental clearance. As the same was not given any heed to, W.P.(C) No.18957 of 2021 was filed before this Court, which came to be disposed of on 6th July, 2021 with a direction to approach the Page 2 of 10 authority with appropriate representation/application and the authority was directed to consider the same.

2.3. The Tahasildar, Cuttack Sadar, Cuttack rejected the representation, leading to filing of W.P.(C) No.31165 of 2021 before this Court, which stood disposed of on 21st December, 2021 by granting liberty to the petitioner to challenge the said order in appeal under Rule 46 of the OMMC Rules, 2016 before the appellate authority. Accordingly, the petitioner approached the Sub- Collector, Sadar, Cuttack eliciting difficulties faced in carrying out the work as per agreement. In absence of environmental clearance certificate, and making sand available by allowing operation of quarry, the terms of agreement could not be accomplished.

2.4. The said appeal came to be dismissed by the Sub-Collector, Cuttack Sadar on 25.10.2022, which is subject-matter of challenge in the instant writ petition.

3. Sri Sukanta Kumar Dalai, learned counsel for the petitioner put forth two folds arguments:

i. though DPR was enclosed to Letter dated 27.09.2022 which was submitted to Sub-Collector, Sadar Cuttack prior to order of dismissal of order dated 25.10.2022, the same was not taken care of.

ii. an application dated NIL (Annexure-10) stated to have been filed before the Sub-Collector after dismissal of said appeal, with a prayer to direct the Mining Officer to do the needful in view of amendment carried to the OMMC Rules, 2016 in the year 2023, Page 3 of 10 i.e., the Odisha Minor Mineral Concession (Amendment) Rules, 2023, the same is not attended to.

3.1. It is submitted that the petitioner filed an application post-

disposal of appeal before the appellate authority, which is pending consideration. In the said application the petitioner has made the following prayer:

"It is therefore, humbly prayed that this Hon'ble Court may graciously pleased to pass appropriate direction may kindly be given to the competent authority as prescribed under law i.e. Mining Officer, Cuttack to proceed ahead to obtain environment clearance and issuance of transit permit forthwith considering the DPR under Annexure-1 to secure ends of justice."

3.2. The counsel for the petitioner submitted that the cause of action has arisen in the present writ petition due to change of law pursuant to the Odisha Minor Mineral Concession (Amendment) Rules, 2023. Therefore, he submitted to allow this writ petition by setting aside the order in appeal and direct the opposite party No.7, i.e., Deputy Director of Mines, Cuttack to take up and dispose of Appeal No.1 of 2022 afresh taking into consideration the DPR enclosed to Letter dated 27th September, 2022 (Annexure-9).

4. Per contra, Sri Saswat Das, learned Additional Government Advocate objecting to the contentions of the learned counsel for the petitioner, would submit that since the appeal has been disposed of prior to the Odisha Minor Mineral Concession (Amendment) Rules, 2023 came into force with effect from 24th April, 2023, there is no infirmity in exercise of jurisdiction by the Sub-Collector, Sadar, Cuttack in passing order dated 25th October, 2022.

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4.1. Though the petitioner was granted sufficient numbers of opportunities to furnish relevant documents, as he did not furnish before the appellate authority, the appeal has been dismissed. Therefore, the appellate authority having not committed error in law, the appellate order does not deserve intervention.

5. Heard Sri Sukanta Kumar Dalai, learned counsel for the petitioner and Sri Saswat Das, learned Additional Government Advocate appearing for the opposite parties, and considered the submissions carefully and perused the materials available on record.

6. On perusal of pleadings and documents on record, while disposing of W.P.(C) No.18957 of 2021 vide Order dated 06.07.2021, this Court observed as follows:

"2. The grievance of the Petitioner in this writ application is that despite approaching Tahasildar, Cuttack Sadar (Opp. Party No.2) on 2nd June, 2021 for grant of environment clearance for the purpose of lifting sand for construction work of VUP at Balikuda, Sikharpur and Badachana in Bhubaneswar, Jagatsinghpur, Chandikhole Section of N.H.5 (New N.H.16), no action is taken thereon till date.

***

4. Counsel for the Petitioner states that he will make a fresh representation/application before the Opp. Party No.3 not later than 26th July, 2021. If such an application is made, the Opp. Party No.3 will consider the same on merit and pass appropriate reasoned order thereon not later than 23rd August, 2021 and communicated to the Petitioner not later than 31st August, 2021. If aggrieved by such order, it would be Page 5 of 10 open to the Petitioner to seek appropriate remedies in accordance with law.

5. The Tahasildar, Cuttack Sadar (Opp. Party No.2) is directed to forward the previous application of the Petitioner dated 2nd June, 2021 to Opp. Party No.3 not later than 26th July, 2021."

6.1. Against rejection of such representation the petitioner filed W.P.(C) No.31165 of 2021. The said writ petition was disposed of on 21.12.2021 with the following observation:

"1. Against the impugned order of the Tahasildar, Cuttack Sadar, an appeal under Section 46 of the OMMC Rules, 2016 before the appellate authority is maintainable.

2. Therefore, granting the Petitioner said liberty to file an appeal before the appellate authority in accordance with law, the Court declines to interfere at this stage.

3. The writ petition is disposed of. The next date of listing i.e. 9th February 2022 reflected in the order dated 8th December, 2021 is cancelled accordingly."

6.2. As it is manifest from above order, since the order of this Court appeal was required to be filed, obviously it was filed as per the pre-amended position. The appeal filed under Rule 46 of the OMMC Rules, 2016 being dismissed by the Sub-Collector, Sadar, Cuttack on 25.10.2022, the undated application after disposal of appeal before the Sub-Collector, Sadar cannot resurrect the cause of action for the petitioner to re-agitate the issue on the basis of subsequent amendment of the statute.

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7. The appeal filed under Rule 46 of the OMMC Rules came to be dismissed on 25th October, 2022 by the Sub-Collector, Sadar, Cuttack on the ground that "the approved mining plan along with the documents mentioning thereof quantity of sand, approved plan and estimate issued by the competent authority of NHAI as it is required for issuance of quarry permit" was not furnished by the petitioner. Challenging the said order, the petitioner has come up before this Court in the instant writ petition.

7.1. It is vehemently contended that the counsel for the petitioner has, in fact, submitted DPR enclosed with Letter dated 27.09.2022 which was ignored by the appellate authority. Hence, he would submitted that the Sub-Collector, Sadar having passed order dated 25.10.2022 de hors the material available on record, the same deserves to be set aside and in view of subsequent amendment in the year 2023 to the OMMC Rules, 2016, the Deputy Director of Mines be directed to take up the appeal to hear and dispose of afresh.

7.2. Scrutiny of order dated 25th October, 2022 of Sub-Collector, Sadar, Cuttack (Annexure-8), reveals that the sole ground on which appeal stood dismissed, is this:

"As required quantity of sand, location of sand as well as duration of the project is badly required for issue of quarry permit, the appellant vide order dated 12.08.2022 was directed to submit the Detailed Project Report (DPR). But despite number of adjournments the appellant neither appeared nor submitted the DPR."

7.3. Nonetheless, the petitioner has sought to demonstrate that prior to said order in appeal being passed, by Letter dated 27th Page 7 of 10 September, 2022 addressed to Sub-Collector, Sadar, Cuttack, Odisha enclosing herewith detailed quantum of sand, etc. required for execution of entrusted work was furnished. At the time of hearing of this matter, the learned Additional Government Advocate was not in a position to put forth factually whether such a letter was available on record prior to disposal of appeal.

7.4. Since the petitioner seeks to challenge the order passed in 2021 by way of filing the present writ petition in the year 2025, and attempted to impressed upon this Court that documents placed on record was ignored, this Court does not feel it apt to keep the matter pending but to dispose of the present case with certain observations infra.

8. It is pertinent to note that the counsel for the petitioner has asserted to have filed an application (without date) before the appellate authority after dismissal of appeal with a prayer to issue direction "to the competent authority as prescribed under law i.e. Mining Officer, Cuttack to proceed ahead to obtain environment clearance and issuance of transit permit forthwith considering the DPR under Annexure-1 to secure ends of justice".

8.1. It needs to be observed that the learned counsel for the petitioner is unable to show power of review vested in the appellate authority after disposal of appeal. It is trite that after disposal of the appeal, the authority concerned is functos officio.

8.2. In this respect, the ruling as propounded by the Hon'ble Supreme Court of India in the case of State of Orissa Vrs. Madan Gopal Rungta, 1951 SCC 1024 for better appreciation of law:

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"14. On behalf of the appellant it was urged that the Court had no jurisdiction to pass such orders under Article 226 under the circumstances of the case. This is not a case where the Court before finally disposing of a petition under Article 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo. The question which we have to determine is whether directions in the nature of interim relief only could be granted under Article 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued."

8.3. Therefore, such a petition after disposal of the appeal is not maintainable before the Sub-Collector, Sadar, Cuttack. Therefore, this Court desists from showing indulgence and directing the authority in this regard.

9. This Court, believing the factual narration on the affirmation of the petitioner in this writ petition, that there has been non- consideration of document enclosed to Letter dated 27.09.2022 submitted to the Sub-Collector, Sadar, Cuttack, while disposing of the appeal, the order dated 25.10.2022 is, thus, liable to be set aside. 9.1. As this Court, on concession of counsel for both sides disposes of this writ petition at the threshold, it is felt expedient to pass following directions:

9.1. The appellate authority is directed to ascertain whether at all the Letter dated 27.09.2022 was available on the date of making the order dated 25.10.2022. If such document was available on record of appeal prior to its disposal, the impugned order is treated to be set aside and the appeal requires fresh consideration. In such eventuality, the order dated 25th October, 2022 of the Sub-

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Collector, Sadar, Cuttack passed in Misc. Appeal No.1 of 2022 being set aside, in view of Rule 46 of the Odisha Minor Minerals Concession Rules, 2016, as amended by virtue of the Odisha Minor Minerals Concession (Second Amendment) Rules, 2022, the appeal record is required to be transmitted to appropriate authority for hearing and disposal of appeal afresh.

9.2. Needless to say that in the event such document, i.e., "Ref. Letter No.: Nil 2023, Date: 27.09.2022" along with the "Royalty Statement" showing DPR (Annexure-9), as claimed to have been submitted by the petitioner, does not find place, the order dated 25th October, 2022 shall be deemed not to have been interfered with and there would be no necessity to transmit the record to appropriate authority for the purpose of hearing and disposal of appeal for the reason that on the date of order dated 25th October, 2022 aforesaid the Odisha Minor Mineral Concession (Second Amendment) Rules, 2022, which came into force with effect from 28th December, 2022, did not see the light of the day.

9.3. With the aforesaid observation and direction, this writ petition stands disposed of.




                                                                     (Harish Tandon)
                                                                       Chief Justice


                                                                      (M.S. Raman)
Signature Not Verified                                                   Judge
Digitally Signed           MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Aug-2025 18:21:10




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