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2021 DIGILAW 435 (ORI)

Rakesh Kumar Sahoo v. State Of Odisha

2021-10-26

B.P.ROUTRAY, S.MURALIDHAR

body2021
ORDER Dr. S. Muralidhar, CJ. - The Petitioner who was successful in sand sairat auction conducted in the year 2016-17 and was awarded the said sairat for a period of five years has come to this Court in the petition for a direction to the Opposite Parties to allow to operate the quarry lease for a period of five years commencing from 4th December, 2020 i.e. the date on which the lease deed was executed and registered. He has also sought the quashing of an order dated 19th April, 2021of the Tahasildar, Garadpur, Kendrapara stating that since the period of lease was going to conclude on 25th April, 2021 the Petitioner should stop lifting sand from the source after the said date. 2. In the present petition notice was issued on 4th June, 2021. In response to the notice, counter affidavit has been filed by the Tahasildar, Garadpur (Opposite Party No.4) inter alia stating that the lease deed itself clearly mentions that the lease period is from 2016-17 till 2020-21 which is consistent with the auction notice. Reference is also made to the 4th para (terms and conditions) in the lease deed which states that the period of five years would be the years 2016-17 till 2020-21 and further that the period shall continue till the State Environmental Impact Assessment Authority (SEIAA) permission is valid and shall end on 25th April, 2021. Therefore, notwithstanding that Rule 61(2) of the Orissa Minor Mineral Concession Rules, 2004 ('OMMC Rules, 2004') which states that the date of commencement of the period for which a license/lease is granted 'shall be the date on which a duly executed deed is registered', it is sought to be contended by the Opposite Parties that since the lease deed itself clearly specifies that the lease period end on 25th April, 2021 and the Petitioner has signed the same with 'open eyes' he should deemed to have accepted the terms and cannot claim that he is entitled to operate the sairat source for five years from the date of the lease. In the counter affidavit it is sought to be contended that the Petitioner has been paying royalty even prior to the date of the registration of the lease deed and that he has been operating the lease. 3. Mr. In the counter affidavit it is sought to be contended that the Petitioner has been paying royalty even prior to the date of the registration of the lease deed and that he has been operating the lease. 3. Mr. Rath, learned counsel appearing for the Petitioner on the hand points out that the Petitioner was obliged to pay the minimum guaranteed royalty but was unable to operate the lease prior to the date of registration i.e. 4th December, 2020. This is the reason why the Petitioner approached this Court in the first instance. Mr. Rath also refers to Rule 61(2) of the OMMC Rules, 2004 to urge that the five-year period has to commence from the date of the registration of the lease agreement. 4. At one stage of these proceedings, the Court inquired in its order dated 16th August, 2021 whether any Y form (it should actually read a 'R' Form since the applicable Rules are the OMMC Rules, 2004' and not the OMMC Rules, 2016) has been issued to the Petitioner for lifting of sand from the sairat in question and from the date on which such Y ('R') Form was issued. 5. Today the original file has been produced before this Court. Mr. Mohanty, learned Additional Government Advocate states that the record does not show that any R form was in fact issued in favour of the Petitioner for lifting of sand for any period prior to 04th December, 2020. 6. It, therefore, appears that although the Petitioner was paying the minimum guaranteed royalty, which was one of the terms and conditions of the lease deed, from the date on which the sairat was successfully bid for by the Petitioner in the auction, the Petitioner was no able to operate the lease at any point in time prior to 4th December, 2020. This was for good reason since the lease period was to commence only after the lease deed was duly executed and registered. The admitted position is that under Rule 61 (2) of the OMMC Rules the date of commencement of the lease period had to be from the date 'on which a duly executed deed has registered'. 7. In the present case, no convincing reasons have been provided by the Opposite Parties as to why there should a departure from Rule 61(2) as far as the Petitioner is concerned. 7. In the present case, no convincing reasons have been provided by the Opposite Parties as to why there should a departure from Rule 61(2) as far as the Petitioner is concerned. With the record containing no evidence of any R Form having been issued under the OMMC Rules, 2004 in favour of the Petitioner, there is nothing to show that the Petitioner has in fact operated the said lease prior to 4th December, 2020. 8. For the aforementioned reasons, this Court quashes the letter dated 19th April, 2021 issued by the Tahasildar, Garadpur and holds that the Petitioner is permitted to count the five year period of the lease from the date of registration of the lease deed i.e. 4th December, 2020 consistent with Rule 61 (2) of the OMMC Rules, 2004. The necessary corrections be carried out in the lease agreement within a period of four weeks to reflect the above position. 9. It is clarified that the period during which the lease has been stopped i.e. 27th April, 2021 onwards upto the date on which it allowed to resume on the strength of this order, will also be accounted for while calculating the five-year period. 10. The writ petition is allowed in the above terms, but in the circumstances, with no order as to costs. 11. An urgent certified copy of this order be issued as per rules.