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HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.11607 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sri Amarendra Mallik, Son of Sunakara Mallik, Plot No.850, Nilakantheswar Marg, PO: Baramunda, PS: Khandagiri, Bhubaneswar, Dist: Khurda ... Petitioner
-Versus-
State of Orissa & Others ... Opp.Parties
For Petitioner : M/s. Patitapaban Panda,
B.B. Mohanty & R.N. Rout.
For Opp. Parties : Advocate General &
Government Advocate
(for opp. party nos. 2 & 3)
M/s. S.K. Nayak-I, A.C. Baral,
D. Nayak & B.R.Sarangi.
(for opp. party no.1)
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing : 02.11.2010 : Date of Judgment : 15.12.2010 B.N. MAHAPATRA, J. This writ petition has been filed with a prayer for quashing order dated 18.07.2009 (Annexure-5) passed by opposite party No.1- Commissioner-cum-Secretary to Government, Department of Steel & Mines, 2 Government of Orissa and letter dated 18.07.2009 (Annexure-6) issued by the Under Secretary to Government, Department of Steel & Mines, Government of Orissa. The opposite party No.1 under Annexure-5 rejected the representation of the petitioner for removal of 473.565 MTs of quartz from Stack Nos.3/07 to 6/07 of Burubuda Jungle Mines. Under Annexure- 6, the Under Secretary to Government of Orissa, Steel & Mines Department vide his letter dated 18.07.2009 requested the Director of Mines, Orissa, Bhubaneswar to issue a direction to the Mining Officer, Bolangir to recover cost of the minerals removed unauthorizedly by the petitioner- Amarendra Mallik from the mining area in village Burubuda Jungle of Subarnapur district and to collect the royalty due thereon as per the provisions of laws and also to initiate the legal action against Sri Mallik as per the provisions of law.
2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner, a mining lessee in respect of two number of mining leases, one over 37.433 hects in the village Burubuda Jungle and another over 18.000 hects. in village Chandili for quartz, gemstone and mica. The aforesaid mining leases were granted and executed in favour of the petitioner on 28.02.2006. After execution of the lease deeds, the petitioner started quarrying operation in respect of the said two leases and made production of quartz minerals from both the leases and dispatched the minerals on the basis of transit permit 3 issued by opposite parties from time to time on the application made by the petitioner to that effect. On 21.06.2007 the petitioner applied for transit permit for removal of 508.500 MTs quartz minerals extracted from the lease hold mines and the opposite party No.3-Mining Officer, Bolangir Circle, Bolangir issued transit pass (Annexure-3) allowing the petitioner to remove 508.500 MTs from the stack of the petitioner's mines. The said permit was issued on 21.06.2007 and remained valid for the period 21.06.2007 to 20.07.2007. According to the petitioner, pursuant to the said transit permit issued under Annexure-3, he could be able to remove 34.935 MTs minerals and the balance he could not be able to remove as he fell ill due to brain malaria. Apart from the above, the road was completely damaged due to rainy season and remained closed. The petitioner again on 27.08.2008 applied to opposite party No.3 for extension of time for removal of balance 473.565 MTs of quartz. In the meantime, the Collector, Khurda reported to the Mining Officer, Bolangir that the petitioner furnished a forged solvency certificate at the time of granting the mining lease. The Mining Officer reported the matter to the police and the petitioner was behind the bar for a period of one month. Since no transit permit was issued by opposite party No.3, the petitioner filed a writ petition before this Court bearing W.P.(C) No.2142 of 2009 praying for issuance of permit. The said writ petition was disposed of on 06.04.2009 with a direction to opposite party No.1 to take a decision on the representation of the petitioner with regard to issuance of 4 transit permit within a period of one month from the date of communication of the order. Since the representation of the petitioner was not disposed of within the time stipulated by this Court, the petitioner filed a contempt petition bearing CONTC No.797 of 2009. After filing of the contempt petition, opposite party No.1 rejected the application for extension of transit permit of the petitioner vide order dated 18.07.2009 (Annexure-5). Thereafter, Under Secretary to Government issued letter dated 18.07.2009 (Annexure-6) to opposite party No.2-Director of Mines, Orissa, Bhubaneswar to initiate a legal proceeding against the petitioner. Hence, this writ petition.
3. Mr. Patitapaban Panda, learned counsel appearing for the petitioner vehemently argued that the orders passed under Annexures-5 and 6 are arbitrary, illegal, mala fide and contrary to the provisions of law and the materials available on record and as such the same are liable to be quashed. The reasons mentioned in the rejection order are non est in the eye of law, biased, far from truth, self created, mala fide and inconsistent with their own orders passed from time to time. Mr. Pravat Kumar Ojha, the Mining Officer has wrongly reported regarding non-availability of physical possession of the stock in the leased out area. Since, the petitioner has made an application for extension of the period of permit after lapse of the validity period on 21.07.2007, the opposite party No.1 is wrong to reject the petitioner's application for extension of the permit on the ground that 5 the same has not been made in specific Form-'J' accompanied by the required fee as has been prescribed under Sub-Rule (2) of Rule 10 of the Orissa Mineral (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 (for short, "Rules, 2007"), which came into force w.e.f. 20.09.2007. Since the petitioner has only utilized 14 number of Forms out of 50 from the book bearing Book No.19, the opposite parties are not correct to say that the petitioner has not submitted the returns of used transit passes. The petitioner has filed monthly returns in Form A for Burubuda Jungle Mines till 31.12.2007. The petitioner has also filed monthly returns in Form B showing all the details. The allegation that the application made for removal of stock from stack Nos.3/07 to 6/07 was not found physically available at the petitioner's mines is false and fabricated. Since there was no need to submit any solvency certificate along with the application for grant of mining lease, there was no occasion for the Collector, Sonepur or the Mining Officer to find out whether any false solvency certificate has been submitted by the petitioner or not. It is the Director of Mines, who can say whether the petitioner has submitted any solvency certificate or not. Opposite party No.3 has no business to initiate a police case against the petitioner as he was not an authorized officer to do so. All alleged forgery and irregularities were committed by his childhood friend, Manas Ranjan Sahoo to whom in good faith he entrusted the work of supervision of 6 mining activities because of his illness. Earlier the opposite parties have granted several extension of transit permits after lapse of their validity period, but presently the said extension is not granted only to harass the petitioner. Concluding his argument, Mr. Panda urged that Annexures-5 and 6 should be quashed.
4. Learned Advocate General appearing for opposite parties submits that the impugned orders passed under Annexures 5 and 6 are valid and legal. In the present case disputed questions of fact are involved and therefore, this Court by exercising jurisdiction under Articles 226 and 227 of the Constitution cannot effectually adjudicate the disputed questions of fact. The petitioner has not approached this Court with clean hands. In the meantime, the lease granted has been cancelled. After cancellation of the lease no permit can be granted for removal of any stack. Moreover, the petitioner has raised minerals from outside the lease hold area. Therefore, the writ petition is liable to be dismissed. It is submitted that though it is averred by the petitioner that the forgery and irregularities as alleged against the petitioner by the opposite parties were committed by one Sri Manas Ranjan Sahoo, who was the childhood friend of the petitioner, the petitioner has not made him a party in the writ petition. Similarly, though the petitioner has raised allegation against the Collector, Khurda, he has also not been made him a party in the writ petition. Hence, the writ petition is not maintainable due to non-joinder of necessary 7 parties. On 17.01.2008 the Sub-Collector, Bhubaneswar intimated the Collector, Khurda that the solvency certificates bearing Nos.57/2003 and 12/2006 were forged documents. On 25.01.2008, the Collector, Khurda intimated to the Collector, Bolangir regarding the above facts. The Collector, Bolangir vide his letter dated 01.02.2008 intimated the same to the opposite party No.3-Mining Officer. On 02.02.2008, the opposite party No.3 intimated the matter to the Director of Mines, Orissa, Bhubaneswar. On 04.02.2008 the Collector, Subarnapur intimated the facts to the opposite party No.2-Director of Mines, Orissa, Bhubaneswar as well as the opposite party No.1-Commissioner-cum-Secretary to Government in Steel and Mines Department for taking appropriate action. On 20.05.2008 the Director of Mines intimated the Steel & Mines Department for cancellation of two granted MLs bearing Nos.29/S and 30/S in view of submission of forged solvency certificates. The application for extension of time for removal of balance quantity of 473.565 MT of quartz from Burubuda Jungle ML area was not in the prescribed Form-'J'. The said application was submitted without specific dimension of the stack Nos. 3/07 to 6/07 and was also not accompanied with the prescribed fee as provided under Sub-Rule (2) of Rule 10 of Rules, 2007. The opposite party No.3 filed an F.I.R. against the petitioner on 08.03.2008 in the Town Police Station, Bolangir. Thereafter, the petitioner was arrested on 12.07.2008 in Bolangir Town P.S. Case No.178/2008 and released on bail by order of the Sessions 8 Judge, Bolangir on 22.07.2008. The petitioner has not yet submitted returns of used transit passes in Form-M showing the details of dispatched quantity of quartz from the above stacks out of 508.500 MTs of Quartz permitted earlier for removal. Despite request dated 03.03.2008 the petitioner has not submitted the monthly returns in the prescribed Forms A & B in respect of the aforesaid mines after May, 2007. During the inspection of Burubuda Jungle Quartz Mines of the petitioner by the Joint Director of Mines, Orissa on 15.01.2008, it was noticed that the petitioner had unauthorizedly removed 10,900 Cubic Meters of morrum from his leasehold area (Burubuda Jungle) and used the same in construction of road out side the leasehold area without obtaining permission from opposite party No.3, who is the competent authority. The petitioner was asked to pay royalty amounting to Rs.1,09,000/- (Rupees One Lakh nine Thousand) and to pay Rs.71,967/- (Rupees Seventy One Thousand Nine Hundred and Sixty Seven) only towards outstanding arrears of dues of Dead Rent, Surface Rent and interest on delayed payment thereof. As the petitioner did not respond to make payment of the outstanding dues as mentioned above, a certificate case was initiated against him in the Court of the Certificate Officer-cum-Sub-Collector, Bolangir vide Certificate Case No.5/2008 under the provisions of Orissa Public Demand Recovery Act, 1962. The State Pollution Control Board, Orissa, Bhubaneswar vide its letter No.1335 dated 18.01.2008 issued instruction to the petitioner for 9 closure of the above two mines under Section 31(A) of Air (Prevention and Control of Pollution) Act, 1981 and Section 33(A) of Water (Prevention and Control of Pollution) Act, 1974 in view of the fact that the petitioner had not taken any steps in compliance to obtain the consent of the State Pollution Control Board under the aforesaid Act for mining operations.
Sri R.K. Das, Senior Inspector of Mines, Bolangir during his visit on 25.06.2009 to the said mines noticed and reported that the applied stacks Nos. 3/07 to 6/07 could not be found in the mines area of the petitioner. It was further detected that neither the boundary pillars all along the boundary lines of the leasehold area nor surface right area therein were found existing in the leasehold area. During his visit to the mines, neither the petitioner nor his representative was found available at the mines site except only one watchman, who stated that all their staff have left the mines since long and all the reports, returns, records etc. pertaining to mining activities are kept with the petitioner at Bhubaneswar. Therefore, the Senior Inspector of Mines could not verify the area from which the mineral was removed. He also could not know the balance stock out of the previously permitted quantity and so also the total stock at mines site. Therefore, he could not recommend for extension of time of the permit to lift the balance left out quartz permitted earlier, as required under the provisions of sub-rules (5) & (6) of Rule 10 of the Rules, 2007. 10 Prior to the application dated 27.08.2008 for issue of transit permit, proceedings have been initiated for fraudulent action of the petitioner.
The Vigilance Cell, Orissa, Bhubaneswar has instituted a case vide Case No.8/2008 for submission of forged solvency certificate by the petitioner during grant of M.L. No.30/S over 37.433 hects in village Burubuda Jungle and M.L. No.29/S over 18.000 hects in village Chandli of Subarnapur district for quartz, mica and gemstone.
The petitioner has defaulted in payment of dead rent and surface rent in respect of both the leases. Since the petitioner could manage to acquire/obtain the grant of these mining leases which is contrary to the provisions of the Act, 1957 and the Rules, 1960, the entire mining operation including production and despatch of minerals carried out by the petitioner is in contravention of the provisions of Section 4(1) and 4(1A) of the Act, 1957. Under Section 21(5) of the Act, 1957, the price of mineral unauthorizedly and unlawfully removed from a void and non- existent leasehold area in contravention of Section 4(1) of the Act, 1957 is to be recovered from the person concerned along with rent, royalty or tax, as the case may be. The reasons for rejection of order for issuance of transit permit by opposite party No.1 are based on facts and provisions of MM(DR) Act, 1957, MC Rules, 1960 and the Rules, 2007. The petitioner applied for extension of the originally granted permit to him for removal of balance quantity of the mineral on 27.08.2008, when the Rules, 2007 was already 11 in force w.e.f. 16.07.2007. It is submitted that as per the provisions of Rule 10(11) of the Rules, 2007, the transit permit was to be issued by the competent authority after verification of the quantity of mineral available in the stack and other information. Since the petitioner has not submitted any returns in the prescribed form, the availability of balance mineral could not be checked by opposite party No.3. Since the petitioner did not submit the said monthly returns beyond May, 2007, he was instructed by opposite party No.3, vide letter No.772 dated 03.03.2008 to make good of the same.
5. The petitioner in the present writ petition challenges the order dated 18.07.2009 (Annexure-5) rejecting his request for extension of transit permit to remove the minerals extracted from the leasehold area granted in his favour. He has also challenged the order dated 18.07.2009 (Annexure-6) issued by Deputy Secretary to Government to the Director of Mines requesting him to recover the cost of minerals removed unauthorizedly as per the provisions of law and to initiate legal proceedings against him. Petitioner's request for grant of transit permit for removal of minerals was rejected by opposite party No.1 on the ground that the petitioner has transported the quartz mineral unauthorizedly and he has violated the covenants of the lease deed. While rejecting the petitioner's prayer the opposite party No.1 has taken into consideration the following aspects:
(a) The petitioner has not submitted application for issuance of permit for removal of the mineral from mines in specific form i.e. Form-'J'.12
(b) The application was not accompanied by the required fees as has been prescribed under Sub-rule (2) of Rule 10 of Orissa Mineral (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007.
(c) The petitioner has not submitted the returns of used TP in Form No.M showing details of dispatched quantity of quartz from the stacks i.e. stack Nos.3/07 to 6/07.
(d) Despite request by M.O., Bolangir, vide letter No.7729, dt.
03.03.08, the petitioner has not submitted the monthly returns in Form Nos.A & B for Burubuda Jungle Mines since May, 2007.
(e) The applied stacks for removal i.e. stack Nos.3/07 to 6/07 are not found physically available at the petitioner's mines as revealed by the visit of Shri R.K. Das, SIM to the Mines on 25.06.2009. This field visit also reveals that neither the boundary pillars all along the boundary lines nor surface right pillars of the granted surface right area were in existence.
(f) The Director of Mines vide his letter No.7767/DM dated 30.06.2009 reported that as per the communication of Collector, Sonepur, the petitioner has submitted false solvency certificate for grant of two mining leases including the mines at Burubuda Jungle from which the petitioner seeks to remove 473.565 mts of quartz.
6. The reason/basis given by opposite party No.1 for rejecting the petitioner's request for extension of time of the transit permit to remove the minerals as applied for and the reply of the petitioner to the same involve purely disputed questions of fact. Such factual questions of fact cannot be 13 adjudicated by this Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution. Apart from the above, we find that action has been taken against the petitioner by the State Pollution Control Board, Orissa, Bhubaneswar under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 and Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974, suggesting closure of its mines. Proceedings for realization of royalty for unauthorized removal of minor minerals was also initiated. Criminal cases have been instituted for submitting forged solvency certificate to obtain the mining lease. Vigilance Case No.8/2008 has also been instituted by the State Vigilance Cell, Orissa, Bhubaneswar. Criminal case in G.R. Case No.386/2008 arising out of Bolangir Town P.S. Case No.178/2008 has also been instituted against the petitioner by the Police in the Court of S.D.J.M., Bloangir. Therefore, this is not a fit case for interference by this Court. However, we are expressing no opinion on the merit of the above noted cases.
7. In the result, the writ petition is dismissed.
No order as to costs.
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B.N.Mahapatra, J.
V.Gopala Gowda, C. J. I agree.
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Chief Justice
Orissa High Court, Cuttack
Dated 15 December, 2010/sss/skj/ssd