TaxTMI 
TaxTMI 
2026 (7) TMI 637
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.... 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 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 Petitioner's Representations dated 16.08.2014 and 21.08.2014 for having the subject letter rescinded ended in vain and therefore, I.A. No.42 of 2015 and I.A.No. 186810 of 2019 was filed seeking an order for resumption of Mining Operations, which to an extent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 C....
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....e 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 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 A....
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....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. 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,....
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.... 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: "K. 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 a result of the wrongful actions of Opposite Parties would rectify the injustice faced by Petitioners. ... X. 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 phr....
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....utory 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: ... " 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 Environm....
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....asmuch 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 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 foundati....
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.... 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 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, ha....
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....rrection, riot, civil commotion, 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 S....
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....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 p....