Sarda Mines Private Limited vs State Of Odisha …. Opp. Parties on 20 May, 2026

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    Orissa High Court

    Sarda Mines Private Limited vs State Of Odisha …. Opp. Parties on 20 May, 2026

    Author: Chittaranjan Dash

    Bench: Chittaranjan Dash

           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     ....        Petitioners
    2.     Mr. Arjun Saraswat
                             -Versus-
    
         1. State of Odisha                ....      Opp. Parties
         2. Director Mines, Department
            of Steel & Mines,
            Government of Odisha,
            Bhubaneswar
         3. The Deputy Director Mines,
            Joda Cicle, District
            Keonjhar, Odisha
    
    
    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
    
                            JUDGMENT
    

    Page 1 of 28

    ———————————————————————————-

    SPONSORED

    Date of hearing & judgment : 15.05.2026

    ———————————————————————————-
    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

    Page 2 of 28
    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
    Page 3 of 28
    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:

    Page 4 of 28

    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

    Page 5 of 28
    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.

    Page 6 of 28
    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.

    Page 7 of 28

    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.

    Page 8 of 28

    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.

    Page 9 of 28
    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

    Page 10 of 28
    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
    Page 11 of 28
    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
    Page 12 of 28
    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…”

    Page 13 of 28

    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

    Page 14 of 28
    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: …”

    Page 15 of 28

    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

    Page 16 of 28
    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
    Page 17 of 28
    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
    Page 18 of 28
    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
    Page 19 of 28
    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
    Page 20 of 28
    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
    Page 21 of 28
    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

    Page 22 of 28
    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,

    Page 23 of 28
    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…”

    Page 24 of 28

    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

    Page 25 of 28
    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 26 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 27 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 15th May, 2025/Prasant

    Signature Not Verified
    Digitally Signed
    Signed by: PRASANT KUMAR SAHOO
    Designation: Personal Assistant
    Reason: Authentication
    Location: Orissa High Court
    Date: 20-May-2026 18:07:16
    Page 28 of 28



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