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Showing contexts for: parag tripathi in M/S. Kjs Ahluwalia vs State Of Odisha & Others : Opp. Parties on 22 December, 2020Matching Fragments
Writ Petition(Civil) No. 27731 of 2020 :
25. This writ petition has been filed by Ramesh Prasad Sao challenging the order dated 1.10.2020, vide Annexure-1. Mr.Parag Pr. Tripathy, learned Senior Advocate appearing for the petitioner while admitting that the mining lease of the petitioner expired on 31.3.2020, but no fresh lease involving the leasehold area enjoyed by the ex-lessee has been granted therein. It is contended that the State Government, vide general order dated 31.3.2020 granted a period of six months in purported exercise of its power under Rule 12(1)(gg) of the Rules of 2016 to remove raised mineral, plant and machinery etc. In the meantime, Government of India clamped the lockdown at national level due to outbreak of Covid-19. The petitioner made all possible efforts to remove the entire quantity of minerals, however, due to supervening circumstance following lockdown imposed by the Government for the reason of Covid-19 pandemic, he could not do so. It is also claimed that the transportation got affected due to enumerable obstructions, such as due to sudden lockdown from the last week of March, the workers left to their native villages. There was also mass reverse migration.
26. Referring to the documents at running pages-136, 139, 142 and 148 of the brief, Mr. Parag P. Tripathy, learned Senior Advocate contended that there was also capping for plying of trucks, which drastically reduced the transportation capacity of the petitioner. Drawing attention of the Court to the Notification issued in October, 2020 by the Ministry of Road, Transport and Highways at Annexure-18, Office Memorandum issued by Ministry of Finance, Government of India, vide Annexure-19 filed an additional affidavit dated 2.11.2020 and also referring to Annexures-21 to 24 with the rejoinder affidavit, Mr. Parag P. Tripathy, learned Senior Advocate submitted that there is universal acceptance of the pandemic arising out of outbreak of Covid-19 being a circumstance justifying invocation of Force Majeure clause. There cannot be a better position than this for application of Force Majeure to the case of the petitioner. Taking this Court to the impugned communication dated 1.10.2020, it is argued that this order has been passed without appreciating or even referring, to the application of the petitioner dated 29.9.2020, vide Annexure-3 pending consideration with the competent authority at the relevant time. It is thus alleged that there has been gross-disregard to principles of natural justice by not providing opportunity of hearing to the petitioner so as to enable him to satisfy the opposite parties of its case before the order dated 9.10.2020 at Annexure-2 was passed.
27. Relying on the judgment of this Court in J. C. Budharaja v. State of Orissa and others: AIR 1990 Orissa 6, Paragraph-5 and that of the Supreme Court in State of Haryana v. Ram Kishan & Ors. in (1988) 3 SCC 416, Paragraphs-7 & 8; and Delhi Transport Corporation v. D.T.C. Mazdoor Congress, reported in 1991 Supp (1) SCC 600, learned Senior Advocate attempted to justify his argument of gross-violation of principle of natural justice and claimed direct application of all the above decisions to the case of the petitioner. Similarly referring to Nareshbhai Bhagubhai and Ors. v. Union of India and Ors., reported in (2019) 15 SCC 1 at paragraphs-26, 28 & 29, learned Senior Advocate contended that the order passed by the public authority must be judged on its own terms objectively and it cannot be improved by subsequent affidavit. Learned Senior Advocate in this context relied on the decision of the Supreme Court in Mohinder Singh Gill vrs. Chief Election Commissioner :(1978) 1 SCC 416. It is submitted that the petitioner faced enormous difficulty in arranging the means of transportation on account restrictions imposed due to Covid-19 pandemic. Learned Senior Advocate submitted that Rule 12 (1)(gg), Rule 12(1)(hh) read together with Rule 12(1)(ff) would make it evident that there is no bar or embargo in providing extension of time to the ex-lessee for removal of remaining stock of minerals. In the peculiar circumstances of the case, it is contended that State is rather obliged to grant such extension, as the minerals sought to be removed were already raised at the time when the lease of the petitioner was subsisting. Referring to Clause-4 of paragraph-9 of Form-K of the M.C. Rules, 1960 and also Rule 12(1)(ff) of the Rules of 2016, learned Senior Advocate contended that that the State Government is duty bound to consider the Covid-19 suffering as a circumstance of force majeure. Relying on the decision of the Supreme Court in S. C. Udhawan v. Punjab University, reported in AIR 1982 SC 1212, National Textile Workers' Union etc v. P.R. Ramakrishnan and others, 1983(1) SCC 228, Swadeshi Cotton Mills etc. etc v. Union of India etc. etc, AIR 1981 SC 818, Mr. Parag P. Tripathy, learned Senior Advocate submitted that it is settled proposition of law that the competent authority ought to provide opportunity of hearing to the party likely to be affected before passing any order. Learned Senior Advocate also relied on the judgment of the Supreme Court in M/s. Dhanrajamal Gobindram v. M/s. Shamji Kalidas and Co., reported in AIR 1961 SC 1285 and that of the Bombay High Court in Esjay International Prt. Ltd. v. Union of India & Ors., reported in 2011 SCC Online Bombay 1263 and submitted that the Force Majeure clause applies to the situation of unforeseen and unexpected circumstances, which happens suddenly over which a person has no control. Learned Senior Advocate taking this Court through the decision of Delhi High Court in Dharam Veer vs. Union of India : AIR 1989 Delhi 227 with reference to Clause-4 part-IX of Form-K of the M.C. Rules, 1960 contended that the period of interruption can be excluded from the period specified in the lease deed or the Rules. On this aspect, learned Senior Advocate also relied on the judgments of the Supreme Court in Mohd. Ayub v. State of Utter Pradesh: (2009) 17 SCC 70 and Delhi Development Authority v. Kenneth Builders and Developers Pvt. Ltd: (2016) 13 SCC 561 and submitted that ratio thereof has direct application to the case of the petitioner. Similarly, referring to order of the Supreme Court in Chowgule-II and Mideast, learned Senior Advocate argued that the Supreme Court in that case initially granted six months' time and subsequently extended the time till January, 2021, only on consideration of the pandemic situation following spread of COVID-19. It is submitted that the decision of the Supreme Court in Chowgule and Mideast have direct application to the case of the petitioner.
28. Advancing his submission that since the minerals were raised during the validity period of lease by the ex-lessee and as such are his property, if acquired by the State, will be hit by Article 300-A of the Constitution of India, Mr. Parag P. Tripathy, learned Senior Advocate relied on the judgments of the Supreme Court in B.K. Ravichandra and Ors. v. Union of India and Ors. reported in 2020 SCC Online SC 950, Plantation Private Limited and Anr. v. State of Karnataka, reported in (2011) 9 SCC 1, Nareshbhai Bhagubhai and Ors. v. Union of India and Ors., reported in (2019) 15 SCC 1 and contended that all these decisions fully support the above plea of the petitioner. Learned Senior Advocate submitted that the petitioner, vide his letter dated 29.9.2020 invoking the power under rule 12(1)(ff) of the Rules, 2016 sought extension of period equivalent to the period lost on account of reasons beyond his control. It is thus contended that keeping such application pending and yet issuing the order dated 1.10.2020 directing the petitioner to remove the minerals along with infrastructure within a period of one calendar month was wholly arbitrary and unreasonable. It is also contended that there is no meaning in rejecting such application, vide order dated 9.10.2020 after invocation of provision under Rule 12(1)(hh) through communication dated 1.10.2020, as by this time the competent authority could not have taken any other decision, after issuing the communication dated 1.10.2020. Challenging certain averments in the counter affidavit in this case, learned Senior Advocate submitted that there is no proper application of mind even while filing the counter by the State Government. Seriously objecting to the submission of the State to the application of rule 12(1)(ff) of the Rules, 2016, learned Senior Advocate submitted that this is a clear case of approbation and reprobation. Taking this Court to the circular issued by the Central Government dated 5.05.2020 asking the Principal Secretaries/Directors of Mining Departments to consider granting the benefit of Force Majeure clause in the case of new lessee and the submission of State that such notification has not been accepted by the State even in the case of new lessee, learned Senior Advocate submitted that the State has no right to oppose such important decision taken by the Union of India. Benefit of this circular ought to be also extended to the petitioner on the premises that when relaxation is being granted in case of fresh lessee due to the situation arising after pandemic COVID-19, there is no justification in not according similar treatment to the ex- lessees.