The Orissa High Court granted fifteen days to the State to rectify the mistake and if the same was done, the Court assured not to pursue proceedings against the concerned authorities.
The Division Bench of Acting Chief Justice Dr. Bidyut Ranjan Sarangi and Justice Murahari Sri Raman heard a Public Interest Litigation (PIL) praying for a direction to the Opposite Parties to take prompt action to stop illegal mining by way of mechanized manner, to adopt guided and controlled method for transportation of sands, to cause an independent inquiry in relation to the illegal practice adopted by Opposite Parties and declare the present auction procedure for grant of mining lease as illegal, arbitrary, tainted with mala fide and against larger public interest.
Having heard counsel for the parties and after going through the materials available on record, the Court noted that though notice had been issued to the Opposite Parties including the State on 16th March 2023, till date no counter has been filed by the State . AGA, seeks time to file counter affidavit. But, it is brought to notice of the Court by the Bar that the situation and the ground reality are so alarming that the Cuttack city is filled up with pollution and, therefore, the Court is not inclined to take into consideration the prayer made by the State seeking time to file counter.
If the affidavit sworn to by the then Collecto and the documents forming part of enquiry report enclosed thereto are examined, with reference to the submission made on behalf of the State, it would be made clear that a false and frivolous affidavit has been filed by a responsible officer of the State Government viz., the then Collector, Cuttack’
It is observed on scrutiny that the replies/letters of interested persons are replete and replicated explanations and the enquiry report prepared being based on such explanation, the affidavit containing such false and incorrect factual position is not acceptable. Since such a false affidavit has been filed by such a responsible officer without visualizing the ground reality, the Court takes a very serious view of the matter. Day in and day out, it is observed that the quarrying operation is being done by mechanized way and, as such, SubClause.iv of Clause-C of the guidelines issued by the Department of Revenue and Disaster Management, Government of Odisha dated 26th April, 2019, which deals with quarrying/mining operation, has been violated.
Further the Court noted that a large number of excavators are being utilized by the lessees to remove the sand from the riverbed of Kathajodi. By this process, the lessees are violating the condition stipulated under Sub-Clause.iv as quoted above. Even though this fact has been brought to the notice of the authority concerned by way of filing the petition, the Bench noted that the authorities, who are in-charge of the same, have not taken care of and attempted to control the situation; rather they, as it appears, have hand in glove with the lessees for the reasons best known to them.
More particularly, when the case is still pending for adjudication and notice has also been issued to them, they are not taking sincere effort to file a proper affidavit, by way of counter, which shows that the authorities are encouraging the lessees to go for illegal mining and, therefore, they are all parties to the illegal extraction of sand, for which they should also be penalized by initiating appropriate proceedings against them. Moreover, the Court is concerned about the public health and safety of the people and environment, which is the part of Article 21 of the Constitution of India. To protect the interest of all citizens, if the State authorities, who have been vested with powers by the Constitution to provide good health and to take proper care, fail to perform their duties and the same is violated at their behest, the Court will not appreciate the same and, as such, the persons who are in the helm of affairs should be suitably dealt with in accordance with law.
“The affidavit which has been filed by the then Collector on 19th July, 2023 itself is based on false information and flimsy statements supplied to him and, therefore, it is construed that the said affidavit is a false one and criminal proceedings should be initiated against such persons, which would be a lesson for others. It has also been seen that the vehicles indulged in illegal mining of sand have been imposed with penalties and money has been realized, but such penal action is insufficient/inadequate as the law being violated. The authority cannot apply the method, which is suitable to both the authority and the lessees. In any case, imposition of penalty may be one of the reasons for violation of the guidelines, but that cannot be extended to illegal mining of sand, especially when the lessees know the provisions of law fully well. On the one hand the authorities are allowing the lessees to go for mechanized mining of sand quarry, on the other hand they are permitting to do so by protecting them simply imposing certain penalties, and that itself shows the callous action of the authorities. The documents filed by the State, along with the enquiry report, clearly show the authorities have admitted that there is excess mining/quarrying of sand”, said the High Court.
AGA states that he does not want to press the said affidavit dated 19th July, 2023 and seeks one opportunity to file a fresh affidavit.
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