Orissa High Court
Jdl Lime Stone And Dolomite vs State Of Odisha And Others ..... ... on 18 April, 2023
Bench: B.R. Sarangi, M.S.Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11475 of 2023
And
I.A. No. 5281 of 2023
JDL Lime Stone and Dolomite ..... Petitioners
Mines, Sundargarh and Anr.
Mr. P. Acharya, Sr. Adv. along with
Mr. A.B. Pattnaik, Adv.
Vs.
State of Odisha and others ..... Opposite Parties
Mr. P.P. Mohanty, AGA
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE M.S.RAMAN
ORDER
18.04.2023 Order No. This matter is taken up through hybrid mode.
01.
2. Heard Mr. Pitambar Acharya, learned Senior Counsel along with Mr. A.B. Pattnaik, learned counsel appearing for the petitioner and Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties.
3. The petitioners have filed this writ petition seeking to quash the order dated 12.01.2023 under Annexure-17, by which the representation filed by the petitioners has been rejected on the ground that it does not fall under the definition of "force majeure".
4. Mr. Pitambar Acharya, learned Senior Counsel along with Mr. A.B. Pattnaik, learned counsel appearing for the petitioner contended that "force majeure" has been explained under clause-4 of Part-IV of the General Provisions of the agreement executed between the parties to the following effect:-
"4. Failure on the part of the lessee to fulfil any of the terms and conditions of this lease shall not give the Central or State Government any claim against the lessee/lessees or be deemed a breach of this lease, in so far as such failure is considered by the said Government to arise from force Page 1 of 3 majeure, and if through force majeure the fulfillment by the lessee of any of the terms and conditions of this lease be delayed, the period of such delay shall be added to the period fixed by this lease. In this clause the expression "Force Majeure" means Act of God, war, insurrection, riot, civil, commotion, strike, earthquake, tide storm, tidal wave, flood, lightning, explosion, fire, earthquake and any other happening which the lessee could not reasonably prevent or control."
5. It is further contended by Mr. Pitambar Acharya, learned Senior Counsel that similar provision has also been provided under clause- 12(1)(ff) of the Minerals (other than Atomic and Hydrocarbons Energy Minerals) Concessions Rules, 2016, to the following effect:-
"(ff). Failure on the part of the lessee to fulfil any of the terms and conditions of the Act and rules made thereunder or under the mining lease shall not give the Central Government or State Government any claim against the lessee or be deemed a breach of the lease, in so far as such failure is considered by the relevant Government to arise from force majeure. In the event of any delay by the lessee to fulfil any of the terms and conditions of the Act and rules made thereunder or under the mining lease on account of a force majeure event, the period of such delay shall be added to the period fixed by these rules or the mining lease.
In this clause the expression "force majeure" means act of God, war, insurrection, riot, civil commotion, strike, earth quake, tide, storm, tidal wave, flood, lightning, explosion, fire, earthquake and any other happening which the lessee could not reasonably prevent or control."
6. It is contended that there is no laches on the part of the petitioners to attract the "force majeure" clause and reject the claim of the petitioners. As such, relying upon the documents, which have been filed vide Annexure-14 dated 08.10.2015 and Annexure-15 dated 05.11.2015, it is contended that it is the deliberate laches on the part of the authority, but not on the part of the petitioner so as to come within the sweep provisions contained under "force majeure" to deny the benefits admissible to the petitioners.
7. Issue notice to the opposite parties in the main case as well as in Page 2 of 3 the interlocutory application.
8. Three extra copies of the writ petition be served on learned State Counsel appearing for opposite parties no.1 to 3 within three days enabling him to obtain instructions or file counter affidavit.
(DR. B.R. SARANGI) JUDGE (M.S. RAMAN) Ashok JUDGE Page 3 of 3