As per case facts, the Petitioner-Company was granted a mining lease for 20 years from 2001, which was then suspended by the Opposite Party on the ground of invalid environmental ...
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IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.17676 OF 2024
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
1. Sarda Mines Private Limited
2. Mr. Arjun Saraswat
…. Petitioners
-Versus-
1. State of Odisha
2. Director Mines, Department
of Steel & Mines,
Government of Odisha,
Bhubaneswar
3. The Deputy Director Mines,
Joda Cicle, District
Keonjhar, Odisha
…. Opp. Parties
Advocates appeared in this case:
For Petitioners : M/s. Gopal Jain (Sr. Adv.)
Sudarshan Nanda, G. Rasgotra,
M. Kharbanda, D. Moorjani, E. Gupta,
K.S. Duggal & S. Kar, Advocates
For Opp. Parties: Mr. Pitambar Acharya, Advocate General
with M/s. S.B. Panda, Ms. A. Dash, ASC
CORAM:
THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT
THE HON’BLE MR. JUSTICE CHITTARANJAN DASH
J U D G M E N T
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Date of hearing & judgment : 15.05.2026
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PER KRISHNA S. DIXIT,J.
Petitioner-Company had made an application
dated 21.07.1998 under Rule 24A in the prescribed Form-J
of Mineral Concession Rules, 1960. The application having
been processed, was allowed eventually resulting into the
grant of a Mining Lease for 30 years vide order dated
11.02.1999 made under Section 8 of The Mines & Minerals
(Development & Regulation) Act, 1957. Pursuant to this
grant, a formal Lease came to be executed in Form-K under
Rule 31 of 1960 Rules on 14.08.2001 for a period of 20
years that would expire on 13.08.2021. Petitioner carried on
Mining Operation for winning the minerals till 31.03.2014.
Petitioner secured Environmental Clearance dated
22.09.2004 and Forest Clearance dated 21.06.2001, their
validity period being co-terminus with the Mining Lease.
2. When things were going smooth, OP No.3 issued a
letter dated 31.03.2014 hereafter ‘Suspension Order’, which
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proved to be a bolt from the blue, interdicting Mining
Operations on the ground that there was no valid
Environmental Clearance. This resulted in the subject Mine
being included in the C.E.C. Report dated 25.04.2014 and
as a consequence, there was suspension of Mining
Operations for all purposes pursuant to Apex Court’s
interim order dated 16.05.2014 entered in Common Cause
v UOI, (2016) 11 SCC 455. Petitioner’s Representations
dated 16.08.2014 and 21.08.2014 for having the subject
letter rescinded ended in vain and therefore, I.A. No.42 of
2015 and I.A.No. 186810 of 2019 was filed seeking an order
for resumption of Mining Operations, which to an extent
came to be favoured by the Apex Court vide order dated
15.01.2020.
3. In terms of above order of Apex Court, the OP No.3,
vide Order No.280 dated 31.01.2020 permitted resumption
of Mining Operations (Resumption Order), there apparently
being valid Environmental Clearance and Forest Clearance.
However, the said Order did not mention anything about the
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period of 5 years & 10 months during which the Mining
Operations stood suspended because of Suspension Order.
Therefore, Petitioners made Representation dated
28.06.2024 requesting for compensatory addition of the said
period for the purpose of mining. There being a stony silence
from the side of the OPs, this Petition is filed on 23.07.2024
with the following principal prayer:
“Issue a Writ of Mandamus or any other appropriate
writ directing the Opposite Party No. 1, Opposite Party
No. 2 and Opposite Party No. 3 to consequently add the
5 years and 10 months period C'V which was lost due
to the wrongful closure of the mine, in terms of Clause 4
(Part IX) of the Lease Deed dated 14.08.2001 (initial 20
years);
Issue a writ of Mandamus or any other appropriate writ
directing the Opposite Party No. 1, Opposite Party No. 2
and Opposite Party No.3 to permit the Petitioner No.l to
undertake the mining operations over an area of
947.046 ha in Thakurani Iron Ore Mines, Block-B,
Village Soyabaii District- Keonjhar, Odisha for the lost 5
years 10 months between 01.04.2014 and 31.01.2020
due to the wrongful actions of the Opposite Parties.”
After service of notice, the OPs having entered appearance
through the learned AGA, have filed the Counter Affidavit
dated 21.11.2024 resisting the Petition.
4. Learned Senior Advocate appearing for the Petitioners
urged the following grounds in support of the Petition:
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i. The initial tenure of the Lease admittedly is 20 years
reckoned from 14.08.2001 and therefore, its period would
expire on 13.08.2021. There were Environmental Clearance
dated 22.09.2004 & Forest Clearance dated 21.06.2001 and
therefore, letter dated 31.03.2014 suspending the Mining
Operations is ab initio void and otherwise also illegal. As a
consequence, the said letter is liable to be set at naught and
the period of 5 years & 10 months lost has to be added
while computing the Lease Period of 20 years.
ii. The letter dated 31.03.2014, which suspended the
Mining Operations, has been issued by an incompetent
authority, namely OP No.3, and also in the absence of
jurisdictional facts of The Orissa Minerals (Prevention of
Theft, Smuggling & Illegal Mining and Regulation of
Possession, Storage, Trading and Transportation) Rules,
2007. For the wrong act of the State functionary, the lawful
right of the Petitioners to carry on Mining Operations has
been cut short and therefore, the State is bound to yield the
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compensatory period of 5 years & 10 months lost in
suspension of mining activities.
iii. The Central Government vide letter dated 15.01.2015,
had confirmed that the Environmental Clearance dated
22.09.2004 was valid & subsisting which the OPs
themselves vide communication dated 29.01.2015
acknowledged that interdiction of Mining Operation was due
to interim order dated 16.05.2014 of the Apex Court and not
any defect in the Environmental Clearance. In any event,
the said interim order of the Apex Court was the net effect of
the Suspension Order dated 31.03.2014. Therefore, State
has to rectify the mistake and restitute the lost Lease
Period.
iv. The Suspension Order dated 31.03.2014 having been
made by OP No.3 unilaterally despite having enormous
financial & industrial implications, is in violation of
principles of natural justice, which are considered to be
Article 14 jurisprudence and therefore, is liable to be set at
naught with all consequential benefits.
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v. The Apex Court, vide order dated 15.01.2020, made in
Common Cause v. UOI, (2021) 20 SCC 448, has itself
directed grant of resumption of Lease and in furtherance
thereof, the OPs have issued Resumption Order. As a
corollary of this, Petitioners have to be given additional
period of 5 years & 10 months and therefore, the State
could not have maintained stony silence to Petitioners’
Representation dated 28.06.2024.
In support of his submission, Mr.Jain, learned Senior
Advocate pressed into service certain Rulings.
5. Learned Advocate General Mr.Pitambar Acharya
assisted by learned AGA Mr.S.B.Panda resists the Writ
Petition on the following grounds:
i. The Suspension Order was issued on 31.03.2014
whereas Writ Petition has been filed on 23.07.2024 and
thus, there is enormous delay & laches that come in the
way of granting any relief to the Petitioners.
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ii. After the 2015 Amendment, the provisions of Section
8A come in the way of extending the Lease Period beyond 50
years in any circumstance and therefore, the Writ Court
cannot grant relief contrary to the intent and policy content
of the Statute.
iii. Petition is broadly barred by res judicata, inasmuch as
Petitioners’ WPC No.3115 of 2021 seeking extension of
Lease Period has been negatived by a Co-ordinate Bench of
this Court vide order dated 10.01.2022 and that the said
order is put in challenge in CA No. 8995 of 2022 that is now
pending on the file of the Apex Court.
iv. OP No.3 being the Competent Authority under 2007
Rules, has issued the Order dated 31.03.2014 suspending
the Mining Operations for want of Environmental Clearance
in the light of Central Government Order dated 15.01.2015.
v. Petitioners are not justified in invoking force majeure in
the instrument of Lease, inasmuch as the concept is defined
in the very same instrument, and that case of the
Petitioners is miles away from it.
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Mr.Acharya also banks upon certain Citations in support of
his contentions
6. Having heard learned counsel for the parties and
having perused the Petition papers, this Court is inclined to
grant indulgence in the matter as under and for the
following reasons:
6.1. The record of the case reveals and there is no dispute
at the Bar as to there being a Mining Lease for a period of
20 years with clause for extension of another period of 10
years and that the 20 years period shall be reckoned from
14.08.2001 and the same would expire on 13.08.2021.
Leases of the kind have statutory character, the same being
governed by the provisions of 1957 Act and 1960 Rules
promulgated thereunder. It hardly needs to be stated that
statutory lease of the kind would create vested interest in
the leasehold area and therefore, that would constitute
property to which constitutional guarantee avails under
Article 300-A.
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6.2. The word ‘Property’ employed under Article 300A of the
Constitution of India apparently includes the leasehold
rights, there being nothing to derogate from this view and
therefore, even in respect of Statutory Mining Lease of the
kind, Constitutional protection avails, subject to all just
exceptions. This view gains support from Julabhai v. State
of Gujarat, AIR 1995 SC 142. In DD Basu ’s Indian
Constitutional Law, Fourth Edition, Kamal Law House
Publication at page-1627 it is written as under:
“… The word 'property'.-The word 'property' connotes
everything which is subject to ownership, corporeal or
incorporeal, tangible or intangible, visible or invisible,
real or personal; everything that has an exchangeable
value of which goes to make up wealth or estate or
status. Property, therefore, within the constitutional
protection, denotes group of rights inhering citizen's
relation to physical thing, as right to possess, use and
dispose of it in accordance with law. Mines, minerals
and quarries are property attracting Art. 300A…”
That being the position, interference of the State or its
functionaries in the Mining Operation of a Statutory Lease,
which is admittedly not terminated, cannot be justified
unless shown to have been done strictly in accordance with
law. Despite vehement submission of Learned AG, the
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legality of Suspension Order dated 31.03.2014 has not been
demonstrated by showing that its author had jurisdiction
under 2007 Rules or that, there existed jurisdictional facts
for warranting exercise of arguable statutory power.
6.3. The Mining Operations came to be interdicted by OP
No.3 vide order dated 31.03.2014 that too sans any
opportunity of hearing to the Petitioners herein. Mining
Operations of such a large scale if halted will have far
reaching consequences on the livelihood of workmen. It
hardly needs to be stated that operating a Mining Industry
of the size involves huge financial investment, requires
enormous infrastructural facilities and a colossal workforce,
this view broadly gains support from State of Meghalaya
v. All Dimasa Students Union , (2019) 8 SCC 177. There
being a plea to this effect in the Pleadings of the Petitioners
which have not been contradicted in species. The
Suspension Order therefore, could not have been made
without giving an opportunity of hearing to the stakeholders
in general and to the Petitioners in particular. Our system
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treats the principles of natural justice as sacrosanct and
their violation, as of necessity, has to render the action
vulnerable for challenge, subject to all just exceptions. What
heavens would have fallen down, had the Petitioners been
heard before passing the said Order, remains a mystery
wrapped in enigma. No plausible explanation is offered in
the Counter filed by the OPs, as to the circumstances that
led to denial of opportunity of hearing. Therefore, the said
Order, regardless of its terminology, is liable to be voided ab
initio as rightly argued by learned Senior Advocate Mr.Jain.
6.4. The vehement contention of learned AG that the
Suspension Order dated 31.03.2014 has not been
challenged by the Petitioners is difficult to agree with, in
view of specific pleadings in the Petition paragraphs-K & X,
which read as under:
“Κ. BECAUSE the suspension letter dated 31.03.2014
was wrongly issued by the Opposite Party No.3 on
erroneous grounds leading to financial and operational
setbacks to the Petitioner No. 1. It is submitted that
where a party has suffered due to wrongful action,
equitable redress should be provided. Therefore,
granting the Petitioner No. 1 an opportunity to undertake
mining operations for the 5 years and 10 months lost as
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a result of the wrongful actions of Opposite Parties
would rectify the injustice faced by Petitioners. …
Χ. BECAUSE even otherwise the order dated
31.03.2014 was passed by the Opposite Party No.3
without any notice or any opportunity of hearing to the
Petitioner No. 1 and has therefore been passed in
complete violation of the principles of Natural Justice.
Thus, the order dated 31.03.2014 is void-ab-initio and is
liable to be set aside by this Hon'ble Court.”
The Makers of Constitution have widely phrased the powers
of Writ Court specifically giving up conventional constraints
which do operate in English Law of Writs. Added, the
Suspension Order is non est in the eye of law, as discussed
infra and therefore, a formal prayer for its quashment is
unnecessary. This view gains support from Kiran Singh v.
Chaman Paswan , AIR 1954 SC 340, wherein it is said that
an order without jurisdiction being nullity, can be assailed
or resisted, wherever it is sought to be enforced and even in
collateral proceedings. A Writ Court cannot turn down a
worthy cause on technical grounds of the nature. Justice
Oliver Wendell Holmes Jr. in Davis v. Mills, 194 U.S. 451
(1904) said as under:
“…constitutions are intended to preserve practical and
substantial rights, not to maintain theories…”
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6.5. Let us examine the text & context of Suspension Order
dated 31.03.2014. For ease of reference the same is
reproduced:
“No. 1554/Mines. Dt. 31.03.2014
xxx xxx xxx
Sub: Suspension of Mining Operation in respect of
Thakurani Block - B Iron Mines over 947.046 hects. of
Sarda Mines (P) Limited.
Sir,
With reference to the subject cited above, I am to say
that the validity of Environmental Clearance order No.J-
11015/1176/2007-IA.II(M), dated 29.10.2008 issued by
MOEF, Govt. of India for production of 15 MTPA ROM in
respect of your Thakurani Block B Iron Mines over
947.046 hects. expired on 31.03.2014.
You are therefore requested stop all kind of mining
activities within your aforesaid M.L. area w.e.f.
01.04.2014 until further order….”
Textually speaking, it does not contain a mandate which
Statutory Orders of the kind would, inasmuch as it employs
the term “requested”. Secondly but significantly, it proceeds
on a wrong premise that there is no valid & effective
Environmental Clearance. Mr. Jain is right in telling us that
the Environmental Clearance dated 22.09.2004 is valid &
co-terminus with the tenure of Lease in question, so far as 4
MTPA is concerned. OP No.3-Deputy Director has made
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strenuous effort to read Central Government’s alleged denial
of Environmental Clearance for enhancing the quantity of
mining from 4MTPA to 15 MTPA vide order dated
29.10.2008 as having subsumed the Environmental
Clearance. This stuns us, to say the least. No other reason
is given. We need not state that the validity of a Statutory
Order of the nature has to be adjudged on the basis of
reasons discernable from its womb vide Mohinder Singh
Gill v. The Chief Election Commissioner , AIR 1978 SC
851.
6.6. Mr.Jain contends that the impugned Suspension
Order is a nullity, its author not being competent to make it.
Mr.Acharya draws our attention to Schedule-1 of 2007
Rules, to repel the same. The very Preamble to the Rules
reads as under:
“… S.R.O. No. 412/2007- In exercise of the powers
conferred by Section 23C of the Mines and Minerals
(Development and Regulation) Act, 1957 (67 of 1957),
the State Government do hereby make the following
rules for prevention of theft, smuggling & illegal mining
and to regulate the possession, storage, trading and
transportation of minerals in the State of Orissa and for
the purposes connected therewith, namely: …”
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The above Order is structured on an erroneous premise that
there is no valid Environmental Clearance, when there is
one dated 22.09.2004 coupled with Forest Clearance dated
21.06.2001, both having validity co-terminus with tenure of
the Lease in question. The text & context of 2007 Rules
show the object & intent of Rule Maker. Absence of
Environmental Clearance is not within the contemplation of
any provision of these Rules. In The Barons of the
Exchequer v. Heydon, [1584] EWHC Exch J 36, it has been
held that a Statute cannot be used for a purpose alien to
which it has been made, and where a power is given to do a
certain thing in a certain way, the thing must be done in
that way or not at all and that other methods of
performance are necessarily forbidden, vide Taylor v.
Taylor, 1875 LR ChD 426. Even assuming that OP No.3
has jurisdiction, the same could not have been exercised in
the absence of jurisdictional facts, which the subject Rules
would take cognizance of. Existence of power is one thing
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and its exercise is another. Mere existence least justifies the
exercise.
6.7. The vehement submission of Mr.Acharya that OP No.3,
even if arguably was not a competent authority, has issued
the Suspension Order, with bona fide and therefore, such
actions are immune from assailment, does not merit
acceptance. Reasons for this are not far to seek: Firstly, an
action cannot be said to be bona fide when essential facts
are not ascertained by exercising reasonable diligence.
There is absolutely no justification for assuming the
absence of Environmental Clearance dated 22.09.2004 for 4
MTPA, which aspect the Central Government itself clarified.
Secondly, there is no explanation as to why hearing
opportunity was to be denied to the Petitioners in a serious
matter like this. What heavens would have fallen down, had
they been given a post-decisional hearing, remains culpably
enigmatic. Thirdly, bona fide decision arguably immunes the
decision-maker from personal liability, but does not infuse
life into a non est instrument of law. In matters like, this the
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Authorities should be very cautious regard being had to the
enormity of implications on Mining Industry and the
livelihood of hundreds of poor workers (stated to be 2000
herein). Much is not necessary to specify and less is
insufficient to leave it unsaid.
6.8. Mr. Acharya next presses into service two decisions of
Co-ordinate Benches of this Court to contend that, in
identical fact matrix, relief having been denied to litigants of
the kind, the Petition at hand should meet the same fate. In
WPC No.21564 of 2019 between Ramesh Prasad Sao v.
State of Odisha decided on 19.11.2019, the Court declined
the request for add-on of the lost period of the lease,
inasmuch as the litigant therein had entered into a
supplementary lease deed and thereby had waived whatever
arguable grievance he had. We need not say that waiver,
acquiescence, estoppel, etc. avail as good grounds to resist
Petitions of the kind. Therefore, this decision does not come
to the rescue of OPs. In WPC 11475 of 2023 between JDL
Limestone & Dolomite Mines v. State of Odisha decided
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on 20.02.2024, there again was a supplementary lease deed
and therefore, what happened in Ramesh Prasad Sao supra
happened to the said Petitioner. Admittedly, there is no any
supplementary lease in the case at our hand. It was Lord
Halsbury who said more than a century ago that, a decision
is an authority for the proposition that it actually laid down
in a given fact matrix, and not for all that which logically
follows from what has been so laid down vide Quinn v.
Leathem, [1901] AC 495 (HL). In fact, Petitioners’ WP (C)
No.3115 of 2021 for extension of Lease by another tenure
period having been negatived by a Coordinate Bench vide
order dated 10.01.2022, now the lis pends before the Apex
Court in C.A. No.8995 of 2022. That would not resjudicate
the present Petition in any way, the foundational facts and
the causes of action being completely different.
6.9. Mr.Acharya’s next contention that the Lease in
question would exceed the statutory period prescribed in
Section 8A of 1957 Act, if its extension is granted, cannot be
agreed to. Grant of Lease and renewal of Lease are two
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principal concepts obtaining in the realm of Law of Lease.
The case at hand is neither of grant of lease nor of its
extension. It is a specific case of compensatory addition of a
period of 5 years & 10 months that was lost because of
Suspension Order dated 31.03.2014 during which Mining
Operations were unjustifiably interdicted. In fact, pursuant
to Apex Court order dated 15.01.2020 made in Common
Cause supra, the Resumption Order has been issued on
31.01.2020, after ascertaining inter alia the validity of
Environmental Clearance dated 22.09.2004. Once
resumption is allowed, there is absolutely no reason or
rhyme for the OPs to deny the period of suspension. An
argument to the contrary would spurn at law, at reason and
at justice. If lessee is prevented from enjoying the leasehold
rights for a particular period because of the wrongful act of
lessor, the same needs to be added to the lease period.
6.10. Mr.Jain submits that in terms of lease in
question, there is a force majeure clause and Mining
Operations having been interdicted by act of the State, this
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clause comes to the aid of Petitioners. In support of this, he
places reliance on Avtar Singh. v. UOI, AIR 1993 Del. 156.
Per contra, Mr.Acharya, repels this contention by citing a
Co-ordinate Bench decision in Md. Serajuddin v. State of
Orissa, 1969 SCC Online Ori 4, wherein paragraphs 39 &
40 read as under:
“….39. The rulings and literature on the subject show
that where reference is made to "force-majeure", the
intention to save the performing party from the
consequences of anything of the nature stated above or
over which he has no control. I In the present case, the
words "force-majeure" do not stand alone, but the clause
in which it occurs in the lease contains examples of
what was intended to be conveyed by this expression.
The intention with which this term "force- majeure" is
used in Clause 5 of Part IX has been explained therein
as follows:-
"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 and any
other happening which the lessee could not
reasonably prevent or control."
40. It would, therefore, mean that all such things as
mentioned above on which the lessee could not have
any control would come within this clause. The words
"any other happening which the lessee could not
reasonably prevent or control" are to be read and
understood ejusdem generis with the words preceding
this expression. According to Mr. Justice Mc Cardie the
"Force Majeure" clause should be construed with a close
attention to words which precede or follow it, and with
due regard to the nature and the general terms of the
contract. Therefore the words "any other happening"
must be given Ejusdem generis construction so as to
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engulf within its fold only such happenings end
eventualities which are of the 'nature and type
illustrated above in the same clause with close attention
to the 'nature and terms of the lease, and would not
reasonably be within the power and control of the
lessee. ...”
Serajuddin supra does not much come to the rescue of OPs
for the simple reason that the definition of force majeure, as
it then existed, has itself undergone textual change as
under:
"Failure on the part of the lessee/lessees to fulfil any of
the terms and conditions of this lease shall not give the
Central Government 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 majeure, and if
through force majeure the fulfilment by the
lessee/lessees 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 the 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/lessees could not reasonably prevent or control."
(underling supplied by us)
6.11. Conventionally speaking, the concept of force
majeure & vis majeure that obtain in the Law of Torts
cannot be bodily transplanted to the case at hand, is true.
However, when the Lease Deed itself gives a definition
clause, one need not confine its expanse. The first part of
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the definition above gives discretion to the Government to
decide what act can be considered as force majeure. The
second part employs the term “any other happening, which
the lessee/lessees could not reasonably prevent or control”.
Such a term is conspicuously absent in Serajuddin supra.
Added, what we have to keep in mind is that we are
construing a clause of the contract and not a provision of
enactment. There is scope for argument that the Suspension
Order dated 31.04.2014 made by State functionary, i.e, OP
No.3 could not have been resisted by the Petitioners and
therefore, it broadly fits into the expression “any other
happening” appearing in the definition. This view gains
support from the observation in Dharam Veer v. UOI, ILR
(1988) II Delhi 71 wherein paragraphs 41 & 43 read as
under:
“…41. The lease deed provides in Part VIII that the
lessee will hold and enjoy the rights quietly after paying
the rents etc. and performing the covenants and
agreements during the term of the lease without any
unlawful interruption from or by the State Government
or any person rightfully claiming under it".
43. The expression force majeure has been held to
mean, act of god, war, insurrection, riot, civil commotion,
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strike. earth quack, tide, storm, tidal wave, flood,
lightening; explosion; fire and "any other happening
which the lessee could not reason- ably prevent or
control". Though this is not a case of force majeure in
terms, on analogous principles, it appears to us that the
unlawful interruption of enjoyment caused to the lessee
by the illegal act of respondent No. 2 is something that
the lessee could not reasonably prevent or control and
the period of this interruption should be excluded from
the term of the three year lease. It appears to us
necessary as a matter of law and justice to give this
consequential relief as a result of our striking down the
order of premature termination. Not to do so would
result in multiplication of litigation, and depriving the
petitioner who has been prejudiced of substantial relief.”
What is significant to note is that the OPs cannot gainfully
argue that in no circumstance, the period lost can be added
to the period of lease, inasmuch as the very force majeure
clause by text & context provides for addition. Even
otherwise, there is an express Covenant in the lease itself
for ‘Quiet Enjoyment’ as enacted in Section 108 of the
Transfer of Property Act, 1882. In Mulla’s The Transfer of
Property Act, Tenth Edition, LexisNexis Publication at
page-108, it is said:
“A breach of covenant occurs when there is substantial
interference with enjoyment even if it does not amount to
dispossession. For instance, in Sanderson v. Berwick-
on-Tweed Corporation, (1884) 13 QBD 547, there was
breach when the lessees field was flooded by overflow
from a drain badly constructed by the lessor…”
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It cannot be gainfully argued that the Suspension Order
dated 31.03.2014 did not tantamount to substantial
interference with the Mining Operations.
6.12. Lastly, the contention of learned AG as to delay &
laches also does not much impress us, inasmuch as the
Resumption Order has been passed by the OPs on
31.01.2020. This was preceded by an application moved
before the Apex Court in Common Cause supra. Mr. Jain is
right in placing reliance on Apex Court decision in
Tukaram Kana Joshi v. Maharashtra Industrial
Development Corporation, (2013) 1 SCC 353 wherein
paragraphs 13, 14 & 15 read as under:
“13. The question of condonation of delay is one of
discretion and has to be decided on the basis of the
facts of the case at hand, as the same vary from case to
case. It will depend upon what the breach of
fundamental right and the remedy claimed are and
when and how the delay arose. It is not that there is
any period of limitation for the courts to exercise their
powers under Article 226, nor is it that there can never
be case where the courts cannot interfere in a matter,
after the passage of a certain length of time. There may
be a case where the demand for justice is so compelling,
that the High Court would be inclined to interfere in
spite of delay. Ultimately, it would be a matter within
the discretion of the Court and such discretion, must be
exercised fairly and justly so as to promote justice and
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not to defeat it. The validity of the party's defence must
be tried upon principles substantially equitable…
14. No hard-and-fast rule can be laid down as to when
the High Court should refuse to exercise its jurisdiction
in favour of a party who moves it after considerable
delay and is otherwise guilty of laches. Discretion must
be exercised judiciously and reasonably. In the event
that the claim made by the applicant is legally
sustainable, delay should be condoned. In other words.
where circumstances justifying the conduct exist, the
illegality which is manifest, cannot be sustained on the
sole ground of laches. When substantial justice and
technical considerations are pitted against each other,
the cause of substantial justice deserves to be preferred,
for the other side cannot claim to have a vested right in
the injustice being done, because of a non-deliberate
delay. The court should not harm innocent parties if
their rights have in fact emerged by delay on the part of
the petitioners…
15. In H.D. Vora v. State of Maharashtra 16 this Court
condoned a 30-year delay in approaching the court
where it found violation of substantive legal rights of the
applicant. In that case, the requisition of premises made
by the State was assailed.”
When substantive rights over and interest in the immovable
property such as leasehold are violated trampling the
constitutional guarantee under Article 300A, by an ab initio
void order of a State functionary, the arguable delay &
laches pale into insignificance. It is not the case of OPs that
the land comprised in the lease in question has been
allotted to others and thus, any third party right has been
created and therefore, granting of relief to the Petitioners
Page 27 of 28
would be injurious to other’s right. Added, Petitioners had
made Representations dated 16.08.2014 & 21.08.2014
grieving against the Suspension Order. The OPs, in their
communication dated 29.01.2015, acknowledged that the
inability to carry on the Mining Operations was on account
of Apex Court interim order dated 16.05.2014 made in the
Common Cause case, i.e., WPC No.114 of 2014. Further, the
Central Government, vide letter dated 15.01.2015, had
categorically stated that the Environmental Clearance dated
22.09.2004 was valid and subsisting. The Petitioners had
filed I.A. No.42 of 2014 and I.A. No.186810 of 2019 seeking
resumption of Mining Operations and the Apex Court
allowed the same vide order dated 15.01.2020. Thus, it
cannot be said that the Petition is hit by delay & laches.
In the above circumstances, this Writ Petition
succeeds. A Writ of Mandamus issues to the OPs to permit
the Petitioners to operate the Mining Lease in question for
an added period of 5 years & 10 months reckoned from the
Page 28 of 28
Resumption Order dated 31.01.2020 without interference,
subject to usual compliances. Costs reluctantly made easy.
This Court places on record its deep appreciation for the
able research and assistance rendered by its official Law Clerk-
cum-Research Assistant Mr. Mohammed Nihad Sharief.
Web copy of judgment to be acted upon by all
concerned.
Krishna S. Dixit
Judge
Chittaranjan Dash
Judge
Orissa High Court, Cuttack
The 15
th
May, 2025/Prasant
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