PANKAJ KUMAR Vs. STATE OF ODISHA
LAWS(ORI)-2020-2-58
HIGH COURT OF ORISSA
Decided on February 28,2020

PANKAJ KUMAR Appellant
VERSUS
STATE OF ODISHA Respondents

JUDGEMENT

B.R.Sarangi, J. - (1.) By means of this application, the petitioner, who was appointed as Mines Manager for operation of the mines under Sections 17 and 18 of the Mines Act, 1952, has approached this Court to quash the order dated 04.12.2014 passed by the learned J.M.F.C., Barbil in 2(b) CC No.20 of 2014 under Annexure-10 taking cognizance of the offence under Section 27 (3) (b) and (c) of the Orissa Forest Act, 1972 and also to quash the proceeding initiated against him.
(2.) The prosecution story as revealed from the FIR is that the original mining lease was granted for a period of 30 years over an area of 1437.719 hectors w.e.f. 17.01.1933 to 16.01.1963 and the said lease deed was executed on 17.01.1933 and registered for the area such as, Joda West, Khondbond and Katamati in faovur of the then Maharaja, Keonjhar. The first renewal of Joda West mining lease was granted for the period from 17.01.1963 to 16.01.1983 for a period of 20 years. Similarly, the second renewal was granted for a period of 20 years w.e.f. 17.01.1983 to 16.01.2003 and the said lease deed was executed on 27.10.1984. Before expiry of the aforesaid 20 years period, the Joda West Iron Ore & Manganese Mine of M/s Tata Steel Limited submitted necessary application on 07.12.2001 for third renewal of mining lease, but the said application was not disposed of within the prescribed period. Therefore, the lease period was extended by virtue of Rule 24-A (6) of Mineral Concession Rules, 1960 until such time the State Government decides the renewal application. 2.1 On 21.04.2014, the apex court in the case of Goa Foundation v. Union of India, 2014 6 SCC 590, held that the provisions for deemed extension of a mining lease under Rule 24-A (6) of the Mineral Concession Rules, 1960 cannot apply to a renewal under Section 8(3) of the MMDR Act, 1957, i.e., for second and subsequent renewals. Following the case of Goa Foundation mentioned supra, the apex Court in W.P. (C) No. 114 of 2014 passed order on 16.05.2014 holding that unless "Express Orders" are issued under Section 8(3) of the MMDR Act, 1957, mining shall remain suspended in cases of second and subsequent renewals. As such, the Government of Odisha was directed to dispose of all the renewal applications within six months, i.e., by 16.11.2014. In pursuance thereof, on 17.05.2014, the company received letter from the Deputy Director of Mines, Joda Circle directing it to stop mining operations in its Joda West and Manganese Mine, in view of the order of the apex Court dated 16.05.2014 passed in W.P.(C) No.114 of 2014 directing suspension of mining operations in all leases under the second and subsequent renewal stage, which were operating on the basis of Rule-24 A(6). On 31.05.2014, the State Government issued fresh express orders under Section 8(3) of the MMDR Act in respect of Joda West Iron Ore & Manganese Mines. Accordingly, the company was allowed to resume the mining operation w.e.f. 01.06.2014. 2.2 Opposite party no.2-Divisional Forest Officer, vide letter dated 26.07.2014 addressed to the Head (Manganese Group of Mines) of M/s Tata Steel Limited, issued show cause notice for violation of Section 27 and Section 81(4) of Orissa Forest Act, 1972, as well as and Section 2 of Forest (Conservation) Act, 1980. In compliance of the same, reply was submitted before the DFO by the company through Head (Manganese Group of Mines) on 01.08.2014. But, without taking the fact in proper perspective, the Forest Range Officer, Champua lodged written complaint on 13.11.2014 stating inter alia that Hon'ble Justice M.B. Shah, Commission of Inquiry on illegal mining in the State of Odisha has reported vide AnnexureIII (A) of the report submitted to Government of India, that illegal production of ore has been taken up by the lessees in their lease hold area over periods in absence of approval under Section 2 of Forest (Conservation) Act, 1980. Production of ore in the mining lease in forest land in absence of requisite forest clearance amounts to violation of Section 2 of Forest (Conservation) Act, 1980. The Divisional forest Officer, Keonjhar, vide letter dated 23.07.2014, instructed to take immediate legal action under Orissa Forest Act, 1972 for illegal production of ore from forest land in absence of required approval under Section 2 of the Forest Conservation Act, 1980 pursuant thereto, Forest Range Officer, along with Forest In-charge, Joda, namely, Bijaya Kumar Mohanta on 04.08.2014 made an inquiry and convinced that illegal production of iron ore has been taken up by the lessee without required forest clearance and, therefore, FIR No.281616/2550 dated 04.08.2014 was drawn for mining in forest without any authority, thereby violating section 27(3)(b) and (c) of Orissa Forest Act, 1972, as amended during 2006, and registered OR Case No.83 of 2014-15 and taken up investigation of the case as per Rule 4 (2) of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980. In the said report, the illegal periods of mining operation were shown to be (1)17.01.1983 to 16.01.2003, (2) 17.01.2003 to 11.05.2004, (3) 12.05.2005 to 17.07.2005, (4) 18.01.2006 to 22.01.2006 and (5) 23.07.2006 to 10.08.2007. Accordingly, prayer was made for issuance of non-bailable warrant against the accused person for commission of offence amounting to blatant violation of the law of the land. Consequentially, 2(b) CC No.20 of 2014 was instituted in the court of learned J.M.F.C., Barbil, who in turn, vide order dated 04.12.2014, took cognizance of offence under Section 27(3) (b) and (c) of the Orissa Forest Act, 1972 and issued non-bailable warrant against the accused person showing absconded. Hence this application.
(3.) Mr. S.P. Sarangi, learned counsel for the petitioner argued with vehemence and contended that lease has been granted in favour of Joda West Iron Ore and Manganese Mine of M/s Tata Steel Limited in which the petitioner joined as a Manager on 16.08.2013. The illegal period of mining, as revealed from the prosecution report, covers for the period from 17.01.1983 to 10.08.2007 during which period the petitioner was not in employment. In the FIR lodged wherein the name of the petitioner has been shown as accused and father's name of the petitioner has been shown as "Joda West Manganese Mines of Tata Steel Limited", which is evident at page-53 of the application, and more particularly the company has not been made as a party. Therefore, the proceeding against the officer, namely, the present petitioner is not maintainable. It is contended that if there was no vicarious liability, in that case, the offence alleged against the petitioner cannot be attracted. Therefore, taking cognizance against the present petitioner by the learned JMFC on 04.12.2014 was an outcome of nonapplication of mind, particularly when there was no allegation against the petitioner. It is further contended that as per the provisions contained under Section 27(3)(b) and (c) "any person" violates, action should have been taken, but as the company against whom the allegations have been made having not been made party to the proceeding, the proceeding so initiated against the petitioner cannot sustain in the eye of law. To substantiate his contention, learned counsel for the petitioner has relied upon the judgments of the apex Court as well as of this High Court in the cases of S.K. Alagh v. State of Uttar Pradesh, 2008 5 SCC 662; Sharad Kumar Sanghi v. Sangita Rane, 2015 12 SCC 781; Odisha Mining Corporation Ltd. V. State of Odisha,2019 SCCOnlineOri 293; and Hari Charan Gupta v. State of Orisssa, WPCRL No.1215 of 2011 disposed of on 31.01.2012.;


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