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2014 DIGILAW 831 (ORI)

Ramakanta Mahakud v. State of Odisha

2014-12-03

B.N.MAHAPATRA, I.MAHANTY

body2014
ORDER I. Mahanty, J. 1. Heard Mr. R. Das Nayak, learned counsel for the petitioners, Mr. P.P. Mohanty, learned counsel for opposite party No. 5 and Mr. M.S. Sahoo, learned Additional Standing Counsel on behalf of the State. This writ application has come to be filed by one Ramakanta Mahakud, Ward Member of the Tulasichaura, Naranpur Grama Panchayat in the district of Keonjhar along with several other individuals seeking to quash the order of quarry lease i.e. Tulasichaura Stone Quarry No. 3 in favour of opposite party No. 5 for the year 2014-2015. 2. Learned counsel for the petitioners submits that although, opposite party No. 5 was the highest bidder for the Tulasichaura Stone Quarry, the grant of the said quarry in favour of him was in contravention of Rule-4(5) of the Orissa Minor Minerals Concession Rules, 2004 which is extracted hereinbelow: "Rule-4(5) No prospecting license or mining/quarry lease or its renewal or auction of source shall be granted in Scheduled Areas without recommendation of the concerned Grama Panchayat." 3. It is further asserted on behalf of the petitioners that the role of the Grama Sabha or the Grama Panchayat in granting of prospecting license or mining/quarry lease or its renewal or its auction also is mentioned in the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and in particular Rule-4(k) which is extracted hereunder: "4(k) the recommendations of the Grama Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas;" 4. It is further asserted by the learned counsel for the petitioners that neither the opinion of the Grama Sabha nor the Grama Panchayat has been obtained or has been taken prior to holding of the auction by the State or grant of the lease for the year 2014-15 in favour of opposite party No. 5. 5. It would also be relevant herein to note that the very self same writ petitioner had approached this Court earlier in W.P.(C) No. 14322 of 2013 with a prayer to quash the auction of Tulasichaura Stone Quarry No. 3 granted in favour of the self same opposite party No. 5 for the earlier year i.e. 2013-14. In the said writ application, the present opposite party No. 5 has been arrayed as opposite party No. 7. In the said writ application, the present opposite party No. 5 has been arrayed as opposite party No. 7. The State have filed a counter affidavit in the earlier writ application and in paragraph-6 of the counter affidavit filed by the Tahasildar, Keonjhar, it is stated as follows: "So, for augmentation of Government revenue through annual public auction, the aforementioned Tulasichaura Stone quarry has been put to public auction declaring the same as new Sairat source of Stone quarry. For this purpose, according to the Orissa Minor Minerals Rules, 2004 under provision of Rule 27, opposite party No. 3 has sent request letter to the Sarapanch (opposite party No. 6) of Naranpur Grampanchayat vide his letter No. 3042/dated 23.06.2012 inviting the views of the Grampanchayat. The letter of O.P. No. 3 was received by the Sarapanch (O.P. No. 6), Naranpur on 24.06.2013. But, the Sarapanch (O.P. No. 6), Naranpur did not answer the request letter and did not advance the views of the Grampanchayat, neither to the O.P. No. 3 nor to other opposite party No. 1 & 2. Accordingly to the provision of above stated Orissa Minor Minerals Rules, 2004 the opposite party No. 3 wait for 2 months for the views of the Naranpur Panchayat and thereafter according the said rule, considered that the Panchayat has nothing to view on the matter. So he proceeded further according the rules which is given under paragraph 3 to 5 of this petition." 6. Learned counsel for opposite party No. 5 admits that also in the present year, neither the opinion of the Naranpur Grama Panchayat has been obtained nor any Grama Sabha has been held before holding auction or grant of lease in favour of opposite party No. 5. 7. On a perusal of Rule-4(5) of the Orissa Minor Minerals Concession Rules, 2004 read with Rule-4(k) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, it is clear therefrom that in scheduled areas prior to auction or settlement of the quarry or mining lease, recommendation of the concerned Grama Panchayat is mandatory. The aforesaid rule read with Rule-4(k) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 makes it clear that the recommendation of the Grama Sabha or the Panchayat at the appropriate level shall be mandatory prior to grant of prospecting license or mining license for minor minerals in scheduled areas. The aforesaid rule read with Rule-4(k) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 makes it clear that the recommendation of the Grama Sabha or the Panchayat at the appropriate level shall be mandatory prior to grant of prospecting license or mining license for minor minerals in scheduled areas. 8. In this respect, learned counsel for the petitioner places reliance on a judgment of the Hon'ble Supreme Court in the case of Orissa Mining Corporation Ltd. vs. Ministry of Environment & Forest & Others, 2013(6) SCC 476 in which the Hon'ble Supreme Court in para-50 has observed that the requirements of the PESA Act apply only to minor minerals and in such event, the recommendations of the Grama Sabha or the Grama Panchayat is mandatory prior to grant of prospecting license or mining lease for minor minerals in scheduled areas. 9. In view of the above, the mere fact that the Tahasildar had addressed a letter to the Sarapanch of the Grama Panchayat and the Sarapanch did not give any respond to the said letter, cannot and does not amount to recommendation of the Grama Panchayat. Consequently, the action of the state in holding the auction itself is in violation of Rule-4(5) of the Orissa Minor Minerals Concession Rules, 2014 as well as Rule-4(k) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996. 10. Accordingly, the writ application is allowed and grant of lease of Tulasichaura Stone Quarry No. 3 in favour of opposite party No. 5 for the years 2013-14 & 2014-15 is quashed. The State is also directed to ensure that in future, if any quarry lease or mining lease is contemplated for grant of rights over minor minerals, the requirements of both the Orissa Minor Minerals Concession Rules, 2004 as well as the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 must be complied with prior to putting the said quarry or area to auction and on consultation with the Grama Sabha or the Grama Panchayat as the case may be and not mere failure of a Sarapanch to reply to the letter of the Tahasildar. It is open for the Tahasildar/Collector, Keonjhar to take immediate steps for auction of Tulasichaura Stone Quarry No. 3 subject to complying with the provisions as indicated hereinabove. 11. Mr. It is open for the Tahasildar/Collector, Keonjhar to take immediate steps for auction of Tulasichaura Stone Quarry No. 3 subject to complying with the provisions as indicated hereinabove. 11. Mr. Mohanty, learned counsel for opposite party No. 5 (the highest bidder) in whose favour lease of Tulasichaura Stone Quarry No. 3 was granted both for the year 2013-14 and 2014-15 submits that opposite party No. 5 in spite of having deposited the money in question has not operated the quarry in view of the pendency of both the writ application. In view of the submission made, opposite party No. 5 is at liberty to file an application before the Tahasildar, Keonjhar, who shall forward his recommendation to the Collector for consideration of refund of the amount deposited, if any, strictly in accordance with law. A free copy of this order be handed over to the learned counsel for the State for necessary communication.