Allowed

Mangal Makar v. State of Odisha

Orissa HC7 Feb 2019WP(C)/1721/2017

Case brief

AI extract

What is this about?

The Court disposed of multiple writ petitions challenging the cancellation of Forest Right Pattas. It held that the cancellation decision violated principles of natural justice due to lack of an opportunity of hearing. It also noted that commercial coal mining is not the domain of the State Government.

What did the court decide?

Proceedings of the District Level Committee cancelling the forest right patta were set aside; matter remanded for fresh enquiry after giving the petitioners an opportunity of hearing.

Mangal Makar Vs State of Odisha — Constitutional and Fundamental Rights | Orissa HC (2019)

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W.P.(C) NO.1721 OF 2017

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07. 07.02.2019

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I.A. No._______ of 2019 arising out of W.P.(C) No.1721 of 2017

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This application has been filed by opposite party No.4 in Court today for modification of the order dated 17.01.2019. Office is directed to register the same.

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Considering the grounds taken in the petition, the order dated 17.01.2019 imposing cost of Rs.1,000/- on opposite party Nos.1 to 6 is recalled.

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The I.A. is disposed of.

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S.Panda, J.

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S.K.Sahoo, J.

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08. 07.02.2019 W.P.(C) Nos.1721, 1722, 1724, 1726, 1728, 1730, 1731, 1735, 1739, 1742, 1743, 1755, 1756, 1758, 1759, 1761, 1762, 1763 and 1765 of 2017.

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Heard learned counsel for the petitioners, learned counsel for the intervenor and learned Addl. Government Advocate.

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These Writ Petitions have been filed by the petitioners challenging the proceeding of the District Level Committee Meeting held on 30.10.2015 wherein a decision has been taken to cancel the Forest Right Patta issued in favour of the petitioners under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as ‘the Act, 2006’) without complying the principles of natural justice.

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Since all these Writ Petitions involve common question of law, the same are taken up for hearing together and are disposed of by this common order.

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The case of the petitioners is that they are in possession of the forest land and made applications to the Grama Sabha/Forest Right Committee for recognition of their forest rights as per the provisions of the Act, 2006. Thereafter the Grama Sabha conducted a field enquiry and prepared a list of claimants of forest rights and maintained register containing the details of claimants and the extent of land to which the claimants are in occupation. A resolution was passed by the Grama Sabha, which was forwarded to the SubDivisional Level Committee for necessary action. On receipt of the same, the Sub-Divisional Level Committee examined the said resolution and the maps of the Grama Sabha to ascertain the veracity of the claim and on being satisfied about the correctness of the resolution passed by the Grama Sabha and possession of the forest land by the petitioners forwarded the claim of the petitioners with a draft record of proposed forest right to the District Level Committee for final decision. The District Level Committee after examination of the records issued the ‘patta’ for forest land under occupation of the petitioners in the year 2010 under the provisions of the Act, 2006.

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While matter stood thus, a survey was conducted by the Central Government and it was found that the entire village has got the open cast coal deposits. The rayati land, forest land and the government land of the village having the mineral of coal deposits and coal is obtainable from the said land. The State Government has published notification under Section 4 (1) of the Land Acquisition Act, 1894 in the year 2010 including all the rayati land of the Village –

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Manoharpur for acquisition in respect of Orissa Power Generation Corporation. Even though ‘patta’ was issued in favour of the petitioners in recognizing their right, title, interest and possession under the Act, 2006, in the notification under Section 4 (1) of the Land Acquisition Act, 1894 the land of the petitioners were not indicated on the plea that their land belongs to government. A proceeding was initiated in the year 2015 to transfer the said forest land to the companies without intimation to the petitioners, who are in physical possession of the land.

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Learned counsel for the petitioners submitted that in the Circular dated 15.05.2013 issued by the Government of Odisha in the Department of Revenue and Disaster Management it was specifically reflected that under the provisions of Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 read with Rule 8 (h) of Forest Rights Rules, 2007, the S.T. and Other Traditional Forest Dweller is granted with a right to live in that forest land under his occupation though the said right is not a title but to hold the forest land for habitation and self-cultivation for livelihood. So, if the said forest land is acquired, the S.T. or the Traditional Forest Dweller having the right to hold and live on the said land for habitation and self-cultivation for livelihood shall lose that right and will be deprived of such right forever. In that view of the matter, the S.T. and Other Traditional Forest Dwellers in whose name the Forest Right is recognized and is granted with a right for that forest land is entitled to compensation though the ownership of the forest land lies with the Government and Kissam of forest remains the same in the records.

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He further submitted that in view of the decision of the Apex Court reported in (2014) 9 SCC 516 no State Government or the Public Sector Undertaking of the State Government are eligible for mining coal for commercial use of Village – Manoharpur and some other village, as such the action of the opposite parties is illegal, arbitrary and the State Government has no jurisdiction to acquire raiyat land and to transfer the forest right of the petitioners in favour of Orissa Power Generation Corporation. In view of Sections 4 & 7 of the Coal Bearing Areas (Acquisition and Development) Act, 1957, it is within the domain of the Central Government. The impugned decision of the District Level Committee to cancel the right of the petitioners is liable to be interfered with as the same was passed in violation of the principles of natural justice. The petitioners are residing in the area since time immemorial and their ancestors were in possession of the land for more than three generations, as such they are entitled to compensation.

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Earlier opposite party No.4 has filed a counter affidavit on 18.12.2018 without giving the detail particulars for which this Court by order dated 17.01.2019 directed the opposite parties to file a further affidavit. In pursuance of the said order, opposite party Nos.2, 3, 5 and 6 have filed a further counter affidavit in Court today wherein it is stated that from the 7^th State Level Monitoring Committee Meeting held on 27.06.2013 for implementation of the Act, 2006 and Amendment Rules, 2012, it was revealed regarding settlement of forest right obtained by undeserving persons in fraudulent manner in few pockets of Sundargarh district, which is corroborated by the report submitted by the Department wherein cancellation of such right was made in respect of Village – Darlipali and possession was

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returned. Accordingly, it was decided that all the records in respect of issuance of ‘forest right’ in all the district of the State should be checked thoroughly wherever compensation amount has been received by such persons on account of holding individual rights in forest land through fraudulent means and action should be initiated for recovery of the land acquisition compensation. In view of such decision the Sub-Divisional Level Committee has issued the order of cancellation to the respective persons.

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It also reveals that though the aforesaid decision was taken in the month of June, 2013, without taking any step against the erring officials, the opposite parties have only issued the order of cancellation to the petitioners. The ‘forest right patta’ was issued in favour of the petitioners on the basis of the enquiry made by the District Level Committee following the statutory provisions. The State Level Monitoring Committee though decided to verify all such issuance of ‘patta’ under the Act, 2006 after due enquiry. However, no notice was issued to the beneficiaries/persons in whose favour the ‘patta’ was issued following the prescribed procedure. Before taking any action regarding cancellation of ‘patta’ the authorities should have given an opportunity of hearing to the beneficiaries.

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8.1 In the case of Uma Nath Pandey and others Vs. State of U.P. and another reported in AIR 2009 SC 2375 the Apex Court held that principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Natural justice is the essence of fair

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adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

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8.2 The Apex Court in the case of Manohar Lal Sharma Vs. Principal Secretary and others reported in (2014) 9 SCC 516 held that commercial mining cannot be carried on by the State Government or State Public Sector Undertakings.

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In view of the aforesaid facts and circumstances, we set aside the proceeding of the District Level Committee held on 30.10.2015 under Annexure-3 so far as cancelling the ‘forest right patta’, issued in favour of the petitioners and remit the matter back to opposite party No.2 with a direction to conduct a fresh enquiry and pass necessary orders after giving opportunity of hearing to the petitioners.

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All these Writ Petitions are accordingly disposed of.

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S.Panda, J.

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S.K.Sahoo, J.

Mangal Makar v. State of Odisha

Case brief

What is this about?

What did the court decide?

Mangal Makar v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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