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2025 DAILYLAW 6910 (ORI)

Ashoka Infracore Pvt. Ltd. v. State of Orissa, represented through Secretary to Government, Steel & Mines Department

2025-07-30

Harish Tandon, Murahari Sri Raman

body2025
JUDGMENT : H ARISH T ANDON , C.J. The proposition of law from the various provisions contained in the Odisha Minor Minerals Concession Rules, 2016 (OMMC Rules”, for short) though unambiguous, is sought to be projected as ambiguous by the rhetoric of the counsel appearing for the petitioner. The eloquence in deliberation of an argument appears to be focussed in a sympathetic way than on an actual interpretation of the statutory provisions. Certain provision quoted in a prescribed format appended to the statutory Rules is argued in such fashion as if it created uncertainty in arriving at a definite decision. After extensive arguments having advanced by the petitioner and on a manifest reading of several provisions sought to be relied upon, we do not find that the action of the authorities can be tainted either with malice or arbitrary. 2. In course of hearing, serious allegation was made against the official that his action is lopsided in order to favour a blue-eyed person, but we do not find a semblance of such averment in the instant writ petition. The only allegation which we perceived from the writ petition is that the said authority did not act fairly, transparently and in a bona fide manner so that his action can be termed as arbitrary. It is not a healthy practice in a judicial dispensation that an argument is advanced raising a serious allegation against a person without any pleading in this regard nor such person has been impleaded as a party to the proceedings. The action of the person cannot be condemned nor can be reprimanded solely on the basis of an oral submission when the requisite pleading is lacking. Be that as it may, we do not venture to go into the nitty-gritty of the aforesaid submissions as the same is de hors the pleading and we confine our consideration to the facts emanating from the record and the pleading filed in the instant case. 3. Shorn off unnecessary details, the facts are more or less undisputed. 4. Pursuant to the tender floated for granting a mining lease, i.e., a sand quarry, the petitioner submitted the bid and passed through the muster of both technical and financial stage. The petitioner was undeniably declared as the highest bidder and such factum was duly communicated to him. 3. Shorn off unnecessary details, the facts are more or less undisputed. 4. Pursuant to the tender floated for granting a mining lease, i.e., a sand quarry, the petitioner submitted the bid and passed through the muster of both technical and financial stage. The petitioner was undeniably declared as the highest bidder and such factum was duly communicated to him. Subsequently, the petitioner was declared ineligible having not complied with the statutory requirements and the said action of the authority is assailed in the instant writ petition. 5. The pleading runs into several pages is primarily aimed upon the arbitrary and/or whimsical action of the authorities in declaring the petitioner unqualified having not deposited the royalty, the additional charges and the contribution to the District Mineral Foundation, within 15 days from the date of intimation. It is averred that the Rules permit the concurrence and/or consent to be given within 15 days from the date of such intimation, which, in fact, has been duly complied with in the instant case. 5.1. It is a specific case that the deposit of an amount equivalent to 1/4 th of the total amount of royalty and additional charges and contribution payable to the District Mineral Foundation on an annual minimum guaranteed quality being an uncertain amount unless calculated by the authority, such obligation does not commence until the successful bidder is communicated of the calculation. 5.2. The petitioner further stated that the consent and/or concurrence to accept the mining lease was to be given within the statutory period, on receipt of an intimation in a prescribed format. The authorities were called upon to calculate the total amount required to be deposited under Rule 27(7) of the Odisha Minor Minerals Concession Rules, 2016 . Such calculated amount was provided on the eve of 13 th day giving a time of two days to deposit the same. The petitioner says that the period of 15 days shall start from the date of receipt of calculation from the competent authority and a reasonable interpretation is required to be given to the aforesaid provision. 6. Such calculated amount was provided on the eve of 13 th day giving a time of two days to deposit the same. The petitioner says that the period of 15 days shall start from the date of receipt of calculation from the competent authority and a reasonable interpretation is required to be given to the aforesaid provision. 6. From the reading of the averments made in the writ petition, we gather an impression that the action of the authorities in declaring the petitioner as disqualified having not complied with the statutory requirements is basically founded upon the interpretation of the relevant provisions of the said Rules of 2016, and, therefore, we do not intend to invite the opposite party to file a counter affidavit and proceeded to dispose of the matter at this stage. 7 . The counsel for the petitioner vociferously submits that Rule 27 contains an exhaustive provision relating to grant of a quarry lease including an obligation of the authority to intimate the selected bidder within 07 days in a prescribed Form which contains the terms and conditions embodied therein. According to him, after receipt of such intimation, it invokes the twin responsibilities of a successful bidder; Firstly, he has to give concurrence and/or consent to accept the terms and conditions as communicated in the said intimation; secondly after the amount is quantified and/or determined by the authority and communicated to the bidder, the time limit fixed in the statutory provision would start ticking from the receipt of such calculation. 7.1. The counsel for the petitioner further submits that the prescribed form contains several provisions of the said Rules, meaning thereby the authorities were not sure about the applicability of any such provision and probably for such reason the word "strike off which is not applicable” is incorporated therein. According to learned counsel for the petitioner, Rule 10(12) as quoted in the prescribed form of communication does not postulate the deposit as indicated by the authorities and even Rule 16 (10) thereof does not postulate the deposit within 15 days from the date of intimation, unless quantified and/or determined by the authorities. According to learned counsel for the petitioner, Rule 10(12) as quoted in the prescribed form of communication does not postulate the deposit as indicated by the authorities and even Rule 16 (10) thereof does not postulate the deposit within 15 days from the date of intimation, unless quantified and/or determined by the authorities. It is arduously submitted that sub-rule (6) of Rule-27 provides for an intimation by the competent authority in a prescribed form and the Rule 7 having two components; one relating to acceptance and other for deposit which are required to be interpreted in a pragmatic way and has to be construed that such period is provided for all the aforesaid twin conditions in a specified situation and not at a time. The counsel for the petitioner is very much vocal on the fact that environmental clearance has not been obtained as yet, and, therefore, the authorities could not have proceeded to disqualify the petitioner as the mining lease cannot be executed, unless the same is obtained. 7.2 . As a last gasping resort, it is submitted that Rule 32 of the said Rules of 2016, imposed an obligation upon the lessees to pay the State Government, every year the dead rent and the surface rent as well as the royalty together with the additional charges, and, therefore, the same being variable in nature, it is inconceivable that the bidder would determine the amount to be deposited in terms of Rule27 (7) of the said Rules. 7.3. On the other hand, learned counsel for the State submits that since the petitioner did not comply with the statutory requirements, he was declared disqualified and since the 2 nd highest bidder also did not comply the statutory provisions, the fresh tender has been decided to be floated, which, in fact, has been floated by now. 8. On the backdrop of the aforementioned factual matrix, the pivotal issue emerged in the instant writ petition as to whether the interpretation sought to be assigned to the provisions contained in Rule 27(7) of the said Rules by the petitioner is a correct interpretation or it conveys a different intention of the legislature while legislating the said subordinate legislation. 9. The Odisha Minor Mineral Concession Rules, 2016 contains an exhaustive provision relating to grant of mineral concession in respect of minor minerals. 9. The Odisha Minor Mineral Concession Rules, 2016 contains an exhaustive provision relating to grant of mineral concession in respect of minor minerals. The said Rules are framed with an avowed object of regulating, granting and/or settling the mines for excavation of the minor minerals in different part of the State. The said Rules are framed in exercise of the powers conferred under Section 15 (1) of the Mines and Minerals (Development and Regulation) Act, 1957 , and, therefore, partakes a character of a statutory document. 9.1. Rule, 27(6) of the said Rules postulates that the selected bidder shall be intimated by a competent authority within seven days in Form-F about the selection and terms and conditions of the lease. Form- F appended to the said Rules is indicative of such fact where the successful bidder is intimated of such facts and the said successful bidder is obligated to convey his acceptance of the terms and conditions and to deposit the amount as prescribed in Rule 10(12) and 13/16 (10) (11)/27 (7) (9) of the said Rules with the rider “strike off whichever is not applicable”. 10. It is manifestly clear from the said Form-F that it is a common and composite form for all kinds of minor minerals and the aforesaid Rules have been incorporated in order to eradicate any confusion with the clear stipulation that if any of such Rules is not applicable to a particular case, the adherence thereof is not insisted upon. 10.1. Reliance is placed upon Rule 10 and Rule 16 of the said Rules of 2016 in order to support the claim that there has been a situation where the selected bidder is not in a position to determine the exact amount, so that the 1/4th thereof could be deposited within the time framed. 10.2. Rule10 of the said Rules contained, in Chapter-II, the heading whereof indicates that the provisions contained in the said Chapter is relatable to a grant of prospecting license-cum-mining lease for specified minor minerals. 10.3. Rule 16 is also contained in Chapter-III of the said Rules with the heading that the provisions incorporated therein is also applicable to the grant of mining lease for a specified minor mineral. 10.3. Rule 16 is also contained in Chapter-III of the said Rules with the heading that the provisions incorporated therein is also applicable to the grant of mining lease for a specified minor mineral. In both the Chapters, we find a common expression, i.e., specified minor minerals which is defined in Rule 2(aa) to mean all minor minerals including decorative stones other than minor minerals listed at (Serial No.2 of Schedule- III). Schedule-II is appended to the said Rules, where the amount of royalty is quantified and/or specified therein. Entry 32 of the said Schedule contains the rate of royalty applicable to “ordinary sand” and in the instant case, the mining lease is for the sand quarry. The provisions contained in Chapters-II and III are applicable in case of specified minor minerals and the definition of “specified minor minerals” excludes those minor minerals included in Schedule-II, and, therefore, the reliance on the provisions does not appear to be correct. 10.4. We are conscious that the head note put in the statutory provisions cannot be taken as a sacrosanct in order to determine the applicability of the provisions contained therein, but it may be relevant for the purpose of its applicability in a specified class of the things and the provisions engulfed into the said Chapter has to be ascribed the meaning and the intention of the legislature to be gathered, taking note of the headnote appended in the said Chapter. It leads no ambiguity in our mind that the Rule10 or Rule16, which finds place within Chapter-II and III of the said OMCC Rules, 2016 is not applicable in the instant case, and precisely for such reason, the explanatory expressions were included in the said Form-F i.e. “strike off, whichever is not applicable”. 10.5. It leads us to interpret the provision contained in Rule 27 finding place in Chapter-IV with the headnote “grant of quarry leases”. Whether the interpretation made by the petitioner is acceptable or is opposed to the core fabric of the interpretative tools applied in the Indian Jurisprudence are to be seen. Ordinarily, the word 'and' or 'or' are interpreted in a conjunctive and disjunctive manner, wherever statutory provisions contained the word 'and', it connotes a conjunctive aspect and if different situations and/or eventualities are added with the word 'and', it normally be construed as the situation and/or eventualities which must co-exist. 10.6. Ordinarily, the word 'and' or 'or' are interpreted in a conjunctive and disjunctive manner, wherever statutory provisions contained the word 'and', it connotes a conjunctive aspect and if different situations and/or eventualities are added with the word 'and', it normally be construed as the situation and/or eventualities which must co-exist. 10.6. The word 'and' is commonly used to bind two situations and/or eventualities, and therefore, an interpretation other than what is commonly understood is only possible if it frustrates the intention and the object for which the said Act was enacted or the subordinate legislation is framed. For such reason, at times the word 'and' and 'or' are inter- changeable depending upon the intention of the Legislature in tune with the object and purpose, for which it is so legislated. 10.7. In the case of CIT Vrs. Puthu Thotam Estates (1943) Limited, (1981) 127 ITR 481 (Mad), it has been observed as follows:- “The circumstances under which the word “and” may be construed as “or” and vice versa should be somewhat rare. Otherwise, if the two are taken to be interchangeable terms, then it would result in Parliament throwing into the statute the two expressions indiscriminately and leave them to the courts to sort out the meaning. In ordinary usage ''and'' in conjunctive and ''or'' is disjunctive, but to carry out the intention of the legislature it is sometimes possible to take “and” for “or” and vice versa. But such occasions should be rare and should only be to avoid absurd consequences that would follow if the words are taken in their literal meaning.” 10.8. It is a well-established principle of statutory interpretation that the word “or” is normally disjunctive and the word “and” is normally conjunctive. Both of them can be read as vice-versa, but that interpretation is adopted only where the intention of the legislature is manifest. Where provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down. But if the literal reading of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. But if the literal reading of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. Conversely if reading of 'and' and 'or' produces grammatical distortion and makes no sense of the portion following 'and', 'or' cannot be read in place of 'and'. The alternatives joined by 'or' need not always be mutually exclusive. [ Central Council for Research in Ayurvedic Sciences Vrs. Bikartan Das , (2023) 11 SCR 731 = 2023 INSC 733 ; State of Bombay Vrs. RMD Chamarbaugwala, (1957) 1 SCR 874; J. Jayalalitha Vrs. Union of India, (1999) 5 SCC 138 ; Mazagaon Dock Ltd. Vrs. CIT & Excess Profits Tax, (1959) 1 SCR 848; Spentex Industries Ltd.Vrs. CCE, (2015) 11 SCR 487.]. 10.9. In Hyderabad Asbestos Cement Product Vrs. Union of India , 2000 (1) SCC 426 = AIR 2000 SC 314 , it has been held that 'or' in its natural sense denotes an 'alternative' and is not read as 'substitutive'. In Green Vrs. Premier Glynrhonwy State Co., (1928) I KB 561, it has been held that 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. The same view has also been taken in Nasiruddin Vrs. State Transport Appellate Tribunal, (1975) 2 SCC 671 = AIR 1976 SC 331 and Municipal Corporation of Delhi Vrs. Tek Chand Bhatia, (1980) 1 SCC 158 = AIR 1980 SC 360 and State (Delhi Administration) Vrs. Puran Mal (1985) 2 SCC 589 = AIR 1985 SC 741 . In Mersey Docks and Harbour Board Vrs. Henderson Bros., (1888) 13 AC 595, it has been held that as pointed out by LORD HALSBURY the reading of 'or' and 'and' is not to be resorted to, “unless some other part of the same statute or the clear intention of it requires that to be done”. In Union of India Vrs. Rabinder Singh, (2012) 12 SCC 787 , the apex Court held that where provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down. 10.10. In Kamta Prasad Aggarwal Vrs. In Union of India Vrs. Rabinder Singh, (2012) 12 SCC 787 , the apex Court held that where provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down. 10.10. In Kamta Prasad Aggarwal Vrs. Executive Engineer, Ballabhgarh, AIR 1974 SC 685 , it has been held that depending upon the context, 'or' may be read as 'and' but the Court would not do it unless it is so obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. 10.11. The argument of the counsel for the petitioner that sub-rule (7) of Rule 27 contains two parts and the time limit as provided therein is to be adhered separately, does not appear to be the spirit of the legislature while incorporating the same. The argument could have been accepted, had it been proved before us that the quantification of the total royalty is an impossible task on the part of the successful bidder, unless the authority made a calculation thereof. But we do not find from the meaningful reading of the said provision that there is any confusion and ambiguity in determining and/or ascertaining the amount required to be deposited under Rule 27(7) of the said Rules. The said Rule is quoted as under:- “27 (7). Within fifteen days of such intimation, the selected bidder shall be required to convey his acceptance of the terms and conditions and to deposit an amount which shall be calculated in such a way that it shall be equivalent to one- fourth of the total amount of royalty and additional charge and the amount of contribution payable to the District Mineral Foundation on the annual minimum guaranteed quantity, taken together, reduced by the amount of earnest money, which, along with the earnest money, shall be held as interest-free security deposit.” 10.12. Sub-rule (7) provides for an acceptance to be conveyed to the Authority of the terms and conditions “and” to deposit an amount calculated in such a way that it shall be equivalent to one-fourth of the total amount of royalty and additional charges and/or the amount of contribution payable towards the District Mineral Foundation on the annual minimum guaranteed quantity after adjustment of the certain deposits already made. 10.13. 10.13. The tender document indicates the minimum guaranteed quantity which the petitioner is required to excavate per annum from the said mines and the moment such numerical figure is duly quantified, it does not create any confusion and/or ambiguity in this regard. 10.14. Our attention is drawn to Schedule-II of the said Rules which explicitly contained the rates of the royalty in respect of different minor minerals and Entry 32 which is for “ordinary sand”, it is specified at Rs.35/- per cubic meter. If the amount of the royalty can be reasonably ascertained, there is no difficulty in ascertaining the additional charges which is the rate quoted by the successful bidder in its bid and we do not find any ambiguity that 10% of the total amount is considered as a contribution payable to the District Mineral Foundation. Therefore, the amount can be calculated in terms of the said provision by the successful bidder by applying ordinary prudence and should not have depended upon the authorities to give a calculation. However, if any request is made to the authority to calculate the amount and if such calculation is given, obviously to obviate any technical objection to be taken by the authority subsequent thereto. It does not whittle down the mandatory timeline given in the said provision for the compliance of the successful bidder. Once the statute has fixed a timeline or a time period within which the compliance is to be made, it is regarded as a mandatory requirement, unless the very object and the purpose of the enactment suggest otherwise. A period given in the statutory provision is mandatory can also be conceived of if the said enactment contained the consequences for non- compliance which in this case appears to have been incorporated in sub-rule (9) of Rule 27. It provides that in the event of a default by a successful bidder, if the intimation is given in a prescribed form and the compliance is not made under Rule 7, the next highest bidder may be approached. 10.15. The moment the consequence is provided for non-compliance of the statutory provision, the period becomes mandatory and in absence of any discretionary power conferred on the authority to extend or relax, the same cannot act contrary to the provisions. 10.15. The moment the consequence is provided for non-compliance of the statutory provision, the period becomes mandatory and in absence of any discretionary power conferred on the authority to extend or relax, the same cannot act contrary to the provisions. The statutory authority who sees his birth from the enactment has to travel within the contours of law and its provisions and cannot attempt to transgress therefrom. Any act or the thing done by the statutory authority which offends any of the provisions of the statute or such action is contrary to any such provision, it is susceptible to be interfered with in exercise of power of judicial review by the High Court. The statutory authority is bound to travel within the circumference of the statute which in absence of any discretion having vested cannot enlarge the time, which in our opinion, is mandatory in the instant case. 10.16. Therefore, the word 'and' acts as a binding agent to two different situations contemplated therein, i.e., the acceptance to the terms and conditions and the deposit to be made within the timeline. We could not persuade ourselves to the interpretation sought to be assigned to the said provision. 11. The plea of environmental clearance is also misconceived for the reason that the same is required at the time of execution of lease and unless such clearance is sought for and/or obtained, the authorities cannot execute the lease. The execution of a lease and a requirement under the statute to become eligible to participate in the execution of lease are two different and distinct concepts. If the person complies the mandatory requirement of sub-rule (7) of Rule 27, he becomes eligible to have the lease deed executed in his favour and in default of such compliance, he cannot take shelter to the provisions applicable to the stage of execution of a lease. 12. So far as the liability to pay the royalty or the dead rent contained in Rule 32 of the said Rules is concerned, we do not find that the said provisions can come to the aid of the petitioner. The said provision provides that the lessee shall pay to the State Government every year the dead rent and the other amount and the liability towards the payment is also provided therein. 12.1. The said provision provides that the lessee shall pay to the State Government every year the dead rent and the other amount and the liability towards the payment is also provided therein. 12.1. As indicated above, the right to discharge such obligation under Rule 32 is on the lessee and a person to partake a character of lessee must be the person who executed the lease deed or who is the beneficiary of the said lease. The person who grants the lease is commonly known as a lessor and the recipient of the said lease is called lessee, and, therefore, in order to come within the ambit of the word 'lessee', the compliance under Rule 27(7) is mandatory and after the execution of the lease, the liability under Rule32 gets activated. The petitioner has not reached to such stage as he was found disqualified for non-compliance of Rule 27(7)of the said Rules and, therefore, we do not find that the action of the authority can be tainted with malice or be termed as arbitrary and/or illegal. 13. We, thus, do not find any merit in the instant writ petition. The same is hereby dismissed. All pending I.As., if any, shall stand disposed of.