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TMI Blog2020 (8) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14.01.2010 is found in conflict with the provisions of the MMDR Act or the OMPTS Rules. A bare perusal of the notification dated 14.01.2010 clearly shows that it has given power to the Vigilance Police to investigate or lodge complaint for such offences under the MMDR Act and other relevant Acts/Rules. Therefore, in view of the specific authorization made in favour of the Vigilance Officials in that respect, the contentions of the petitioners cannot be accepted that the Dy. Superintendent of Police (Vigilance) is not authorized to file the complaint for the offences against the requirement of Section 22 of the MMDR Act. Therefore, the complaint at the instance of Vigilance Police and investigation conducted by them against the petitioners is maintainable. A further contention is made on behalf of the petitioner Jitendranath Patnaik that in absence of all legal heirs of the lessee Late Bansidhar Patnaik, the prosecution against him alone is not maintainable. This contention has no leg to stand because as per the allegation he is the only legal heir of late Bansidhar Patnaik, who applied for renewal by producing the forged WILL and is also the beneficiary of the ill-got minerals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 24-A of the Mineral Concession Rules, 1960 as it then was. 4. Allegedly accused Jitendranath Patnaik (petitioner in CRLREV No. 534/2019), on 7.11.1991 applied on behalf of his father Bansidhar Patnaik to the Government in the Department of Steel and Mines through the Deputy Director of Mines, Joda for grant of working permission pending renewal of mining lease. The working permission was granted for 6 months and extended from time to time till 26.12.1994 without any approval by the Ministry of Environment and Forest. Said Banshidhar Patnaik (father of the petitioner) died on 5.11.1995. The Ministry of Environment and Forest in its letter dated 3.9.1998 communicated the permission for DRP (De-reservation Proposal) over an area of Hc. 18.02 for 10 years which was coterminous with the permission granted under the MMDR Act. 5. In the meantime accused Jitendranath Patnaik in his letter dated 6.9.1996 requested the Government in Steel and Mines Department for 20 years renewal of the mining lease, however, without submitting the application in proper form. Further, another proposal for renewal was submitted by the said accused Jitendranath Patnaik on 25.07.2008 for 20 years enclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute the offence of theft. The learned court below has not appreciated the law properly, and held that, since the petitioner did not challenge the order taking cognizance of the offences, their prayer for discharge at this stage cannot be entertained. In addition to this submission, it is also submitted on behalf of the petitioners Akshya Kumar Das (petitioner in CRLREV No. 615/2019) and Nityananda Mohanty (petitioner in CRLREV No. 616/2019) that, they have retired from service on 30.04.1994 and in the year 1996 respectively and therefore, initiation of any judicial proceeding against them after four years of their retirement is not permissible in view of the provision contained in Rule 7(2)(c) of the OCS (Pension) Rules, 1992. 9. In support of their contention that, the cognizance of the offences under the MMDR Act and MCD Rules without the complaint being lodged by any competent authority as per the mandate in Section 22 of the MMDR Act and Schedule-I of the OMPTS Rules is unsustainable and the proceeding against the petitioners is also vitiated, they rely on the decision in the case of State of NCT of Delhi Vs. Sanjay, reported in (2014) 9 SCC 772 and a judgment of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king illegal mining to exercise such powers all over the State; Now, therefore, in exercise of the powers conferred under Sections 22 23B of M. M. (D. R.) Act, 1957, the State Government have been pleased to authorize the following Officers to exercise the powers of detection, seizure and confiscation, etc. in connection with illegal mining activities covering the entire State of Orissa under the relevant provisions of the aforementioned Act Rules in respect of the area mentioned against each. Further they are declared as competent authority as defined in rule 2(1)(b) of Orissa Minerals (Prevention of Theft, Smuggling Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007 from the date of issue of this notification. By order of the Governor S. DASH Commissioner-cum-Secretary to Government 13. Again the Government of Odisha in the Home Department in their Notification dated 14.01.2010 have specified the Officers of and above the rank of Inspector of Police under the Director of Vigilance, Odisha to conduct investigation/enquiry and to take legal action under the provisions of the IPC, other relevant Acts and Rules pertaining to illegal mining i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transportation) Rules, 2007. The State Government do hereby empower the officers of and above the rank of Inspector of Police posted under the Director, Vigilance, Orissa to conduct investigation/enquiry, take legal actions under the provisions of I.P.C. other relevant Acts and Rules pertaining to the illegal mining in the State and file Charge Sheet/Final Report as it is applicable after obtaining approval/sanction of the Competent Authority as and when required in the corresponding Acts/Rules. The devolution of the above power shall be limited to the purpose of taking up enquiry/investigation into the alleged mining activities referred to by the State Government or till the latter withdraws the same. [No. 128-C] By order of the Governor A.P. PADHI Principal Secretary to Government 14. In the case of State of NCT (supra), the Hon'ble Supreme Court has held at paragraphs 69 and 70 as follows: 69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l action pertaining to illegal mining activities in the State including the offences under the MMDR Act, Forest Conservation Act and OMPTS Rules. It is true that none of the petitioners have challenged or are questioning the power of Government to issue the Notification dated 14.01.2010 authorising Vigilance Police in that respect. Undisputedly the validity of notification dated 14.1.2010 is not questioned. The averments and submissions made on behalf of the petitioners are completely silent about the said Notification made in favour of the Vigilance Police. On the other hand, as seen from the Notification dated 14.01.2020 issued by the Government in Home Department and the Notification dated 19.12.2009 issued by the Steel and Mines Department, Government of Odisha, they are neither overlapping to each other nor the Notification dated 14.01.2010 is found in conflict with the provisions of the MMDR Act or the OMPTS Rules. A bare perusal of the notification dated 14.01.2010 clearly shows that it has given power to the Vigilance Police to investigate or lodge complaint for such offences under the MMDR Act and other relevant Acts/Rules. Therefore, in view of the specific authorization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-a-vis the Code of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 1982 is a pari materia provision with Rule 7 of the OCS (Pension) Rules, 1992. On interpretation, it is held by the Supreme Court that, those provisions of the Pension Rules is only meant for the purpose of granting, withholding or withdrawing the pension and it's operation would be in the limited field and cannot supersede the period of limitation prescribed under the Cr.P.C. The relevant observation of the Supreme Court is reproduced below: 9. Similarly, in the present case, Rule 27(1) provides the right of Government to withhold or withdraw a pension and in that context the said rule is to be interpreted. Under the said rule, the Government may, inter alia, order withholding or withdrawing a pension or any part thereof, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. It also empowers the Government to order the recovery from such pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service. In the context of the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect and shall prevail notwithstanding any provision in the Pension Rules, and therefore, the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners. So the contention of these two petitioners to give them immune from criminal prosecution by virtue of Rule-7 of the OCS (Pension) Rules is found without substance and accordingly rejected. 19. A further contention is made on behalf of the petitioner Jitendranath Patnaik that in absence of all legal heirs of the lessee Late Bansidhar Patnaik, the prosecution against him alone is not maintainable. This contention has no leg to stand because as per the allegation he is the only legal heir of late Bansidhar Patnaik, who applied for renewal by producing the forged WILL and is also the beneficiary of the ill-got minerals. When other legal heirs have not played any role in such illegal mining, they need not be brought into the sphere of prosecution because only being the legal heirs under the law will not attract any offence itself, without actus reus and mens rea. 20. In view of the discussions made above, the CRLREVs are found devoid of any merit and accordingly all these Criminal Revisions stand dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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