THE HIGH COURT OF ORISSA : CUTTACK Writ Petition (Criminal) No. 220.of 2007 In the matter of an application under Article 226 of Constitution of India. M /s. Shakti Bricks .......... .. Petitioner -Versus- The Collector, Bhadrak and others .......... .. Opp. Parties For Petitioner : M / s. Prafulla Kumar Rath, R.C.Jena, P.K.Satpathy, R.N.Parija 85 A.K.Rout For Opp. Parties 1 to 4: Addl. Govt. Advocate For Opp. Parties 5 85 6: M/s. None. For Opp. Party No.7 : ' M / s. Chittaranjan Nanda, S.N.Kar, A.C.Mohanty, R.C.Rath, N.Das, N.M.Praharaj, P.Das, A.Parida, M.Behera and A S.Acharya. For Opp. Party No.8 : M /s. Subha Bikas Panda, * M.K.Dash and P.K.Beura. PRESENT: THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY. Date of hearing: 21.12.2007 Date of Judgmentzgig .O8.2008 I.Mahanty, J. The petitioner--M/s. Shakti Bricks, represented by its Proprietor Sri Bibhuti Bhusan Mishra, has filed this writ application seeking a direction to the District Administration as well as the police authorities to provide protection to the life and property of the petitioner who claims to be threatened by the private opposite parties 5 and 6 who are allegedly restraining them from carrying on their business activity and trade. 2. I In course of proceeding, certain intervenors either supporting the petitioner intervened and they were impleaded as opposite parties 7 and 8. 3. The main grounds of challenge as narrated in this writ application are : (a) The freedom of carrying on occupation, trade and ' business is one of the Fundamental Rights of a citizen of this country provided under Article 19(l)(g) of the Constitution of India. The petitioner's industry which has been lawfully registered and is supposed to carry on his business but then only because he could not satisfy the demand of the private opposite parties, they have been creating illegal impediment by blocking the village road for transporting the materials from the petitioner's industry. (b) As a result, the loss suffered by the petitioner is huge and enormous. In View of the illegal act of the opposite parties, the petitioner's right of carrying on business and occupation is affected and the District Administration who are 'authorities of the State are supposed to protect the same by preventing the illegalities being committed.' Though the petitioner has sought for protection by representation to all the authorities, inaction on their part is unjust, illegal and contrary to law. 4. The petitioner asserts that the petitioner-firm is a registered as an industrial unit under the District Industries Centre and the petitioner and his family members have been carrying on business of Brick Kiln Unit for more than 15 years, over 8-10 acres of land said 'to be recorded in their favour under Routrapur Mouza. He asserts that the property over which the Brick.-Kiln is situated stands recorded in the name' of the petitioner's father. It is also assertedithat the Brick Kiln is located about 26 K.Ms and 24 K.Ms from N.H.--5 and N.H.53 and the railway line respectively. The petitioner states that for the purpose of running his business, he has obtained "No Objection Certificate" from the Tahasildar, Bonth and the Unit has also obtained "consent order" for carrying on business of Brick Kiln as required under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 from the Orissa Pollution Control Board. It is also asserted that the initial consent order granted by the Pollution Control Board on 24.12.2005
was originally valid upto 31.3.2006 and on expiry of the
same, the petitioner has applied for renewal of consent and such
renewal has been granted in favour of the petitioner extending the same
up to 31.3.2011.
5. The petitioner contended that the younger brother of the
petitioner had entered into an agreement with Nrusingha Nath Jew
Trust Board for utilizing their sandy soil for the purpose of preparing
raw material for the Brick Kiln business under Routrapur Mouza. It is
stated that the local Tahasildar objective to the same, effected seizure of
the raw bricks manufactured by same sandy soil obtained from
Nrusingha Nath Jew Trust Board and put the same to public auction.
The petitioners’ younger brother being the highest bidder offered Rs.l
lakh and on being successful, deposited the said amount of Rs.l lakh
with the Revenue Authority and took possession of the bricks.
6. The petitioner submits that for carrying coal, which is
required for the purpose of firing the brick kiln, the petitioner had to
use the only passage for transport such materials, which runs through
the village Patkura. It is stated that some anti-socials and criminals of
the locality, named in the petition including opposite parties 5 and 6,
demanded huge amount of contribution from the petitioner and since
the petitioner did not support their demands, they obstructed the
passage running through their village byputting an unauthorized gate-
and started demanding contribution from all the trucks carrying
materials to and from the petitioner’s unit as well as from the
labourers, working in the said unit. It is further submitted that the
persons named in paragraph-10 of the petition also assaulted the
Tahasildar, Bonth While he was carrying on auction of raw materials
and the Tahasildar has lodged an F.I.R. before the police against such
anti-socials, some of whom were arrested and some remain absconding.
7. It is stated that since no furtherlaction was taken against
the said law breakers, the petitioner had to approach this Court in
W.P.(Crl.) No.51 of 2007 and this Court was pleased to dispose of the
same by directing the O.l.C., Agarpada P.S. to take appropriate action
against the accused persons. It appears that the accused persons had
approached this Court and obtained bail and it is alleged that, those
accused persons taking advantage of the bail order granted by this
Court, carried on committing similar activities and whenever the
petitioner’s trucks loaded with coal and/ or bricks were sought to be
carried over the public road, these accused persons with their
supporters blocked the passage by sitting in front of the vehicle, as a
result of which the petitioner’s business activities have come to a
standstill. It is further asserted that on an occasion, the petitioner’s
truck driver was assaulted by the accused persons and when he lodged
the F.I.R. against them, no action whatsoever has been taken against
them. Accordingly, the petitioner has filed the Writ application praying
for issue of writ of certiorari and/ or mandamous and/ or any other
directions commanding the Superintendent of Police, Bhadrak to
provide adequate police protection to the petitioner for carrying on his
trade or business.
8. A counter affidavit dated 23.7.2007 has been f1led’by
opposite party No.4-O.I.C., Agarpada P.S. alleging therein that the
petitioner had not obtained any permission from the competent
authority regarding running of his Brick Kiln for the year 2006-07 for
which the Tahasildar, Bonth had been to Brick Kiln of the petitioner for
spot enquiry and had submitted an enquiry report dated 26.6.2007
stating that the petitioner had manufactured bricks unauthorisedly.
The O.I.C. avers that during the spot enquiry of the Tahasildar, he
noticed one Check-gate had been putting in the village road for
collecting Chanda (Donation) from each truck carrying bricks. It
appears that villagers” to remove
the check–gate from the village road as it is a public road but the
villagers opposed him and on the written report of the Tahasildar,
Agarpada P.S. Case No.1/2007 was registered under Sections 143, 342,
294, 353, 506 85 149 l.P.C. read with Section–3 SC/ST (P.A.) Act
against 11 accused persons. It is further stated that in course of –
investigation, four accused persons had obtained anticipatory bail from
this Court and one accused was arrested and forwarded to the court
and other accused persons surrendered in the court of S.D.J.M.,
Bhadrak and were released on bail subsequently. In paragraph~11 of
the said counter affidavit, it is averred by the O.I.C. that subsequent to
the representation made by the petitioner, the police has taken
adequate protective measures and has also registered cases and
apprehended some accused persons. It is further stated therein that
since lifting of brick is a continuous affair, it is not possible on the part
of the police to provide continuous protection.
A further ‘additional affidavit’ on behalf of opposite party
No.4–O.I.C., Agarpada P.S. was filed on 31.10.2007, alleging that the
petitioner had manufactured bricks unlawfully and for the said purpose
thetpetitioner had appeared before the Tahasildar, Bonth on 12.7.2007
O\
and on admitting that he had manufactured bricks unauthorisedly, he
agreed to pay penalty for it. But till date the petitioner has not paid any
penalty and, therefore, he is not entitled to the relief sought for in the
writ application. Further, it is stated therein that no police protection
shall be given to the petitioner for shifting of his finished products or
otherwise as it would put the entire district administration and police
in bad light and will only boost the confidence of people violating laws
for their petty self-interest. It is also averred that it can lead to serious
law and order problems in the areas in future.
‘9. M ” ‘lniitheifrejoinder”affidavit filed by the petitioner in reply to
the counter affidavit of O.P.4-O.I.C., it is stated that the petitioner’s
industry which has been lawfully established, should be allowed to use
the public road and the proceeding against the petitioner initiated by
the Tahasildar, _Bonth vide case No.3 / 2007-O8 imposing penalty and
royalty of Rs.60,000/–, has been closed with the petitioner’s depositing _
the demanded amount and, therefore, there could be noquestion of
petitioner’s business activities being Violative of any statutory provision.
It is further averred that the petitioner is entitled for protection of his
life and property as guaranteed under Article 21 read with Article
19(1)(g) of the Constitution of India and it is the constitutional
obligation of the police to provide protection to the citizens and denying
the said protection amounts to be the violation of the petitioner’s
constitutional rights.
10. As noted hereinabove, a group of persons headed by one
Narayan Ch. Bhutia claiming to be the villagers of village Pattakana
have been impleaded as opposite party no.7. In their intervention
application, the interveners claim that the petitioner was excavating
earth from the embankment of the river Shalandi which belongs to the
Irrigation Department, Govt. of Orissa and adjacent reserve communal
(Gochar) land belonging to the deity Sri Nrushinghanath Dev under the
admi.nistrative control of the Endowment Department. They asserted
that the petitioners have been carrying on illegal Brick Kiln for more
than 15 years by removing thousands of trees from adjoining
government land and their actions have been resulted in “soil erosion,
environmental pollution and ecological imbalance, due to which over
1000 acres of agricultural land lost its fertility and become unfit for
agricultural operation. It is contended that the soil erosion and
excavation of earth near to the bed of river Salandi causes weakness to
the embankment and therefore, there is every possibility of flood to the
adjoining villagers. Apart from the aforesaid factual assertions, it is
averred by the intervenors that Rule–3 of the Orissa Minor Mineral
Concession Rules, 1990 (in short ‘1990 Rules’) providesthat no person
shall undertake any quarrying operations for the purpose of extraction,
collection and/ or removal of minor minerals, except under and in
accordance with the terms and conditions of quarry lease, permit
and / or auction sale provided under these rules. It is further submitted
that Rule 24(1) of the 1990 Rules provides that whoever contravenes
the provisions of Rule–3 shall be liable to punishment with
imprisonment for a term which may extend to six months or with fine
which may extend to Rs.1000/- only or both. It issubmitted that the
petitioner and his family members have contravened the provisions
mentioned in Rule–24(1) of 1990 Rules and are liable for the penalty
under the same and the bricks made by the earth extracted by violating
Ru1e–20 becomes property of the Government and, therefore, neither
the petitioner nor his family members have any right on those bricks.
Therefore, no direction should be issued to provide police help from
taking away these bricks. i
11. A further set of interveners headed by Arun Kumar Prusty,
have intervened and have been impleaded as opposite party no.8 in the
present proceeding. They, on the other hand, support the prayer of the
lit.’
petitioner and state that_they are belonging to the village Patkana and
are labourers Working in the petitioner’s industry and state that their
livelihood is at stake since the private opposite parties and interveners
who are villagers of Mouza Routrapur are preventing the petitioner’s
vehicle from moving through the village which is the only road thereby
affecting their livelihood. They asserts that the industry in question is
not creating any kind of hazard to the intervener no.7 and asserts that
private opposite parties 5 and 6 demanded huge amount of “batti”
(donation) from the petitioner as a pre–condition for carrying on such
business.
12. In the light of the aforesaid controversy since opposite
party no.3 (Tahasildar) had not filed any counter affidavit, a direction
was issued to the Tahasildar, Bonth on 4.12.2007 directing him to file
an affidavit indicating the legal impediment if any exists for not
granting the prayer sought for by the petitioner. In terms of the said
direction, an affidavit was filed by the Tahasildar–O.P.3 on 18.12.2007.
From this affidavit, it appears that the petitioner’s firm Which operates
a Brick Kiln is situated at Routrapur and the land on which the Brick
Kiln is located, stands recorded in the name of Bibhuti Bhusana
Mishra, the proprietor of petitioner-firm. The Tahasildar further stated.
that the petitioner had manufactured approximately 17.5 lakhs of
bricks Without the prior permission of the competent authority and that
the petitioner had deposited an amount of Rs.60,600/– towards
penalty, royalty etc. on 27.09.2007. Most importantly, the Tahasildar
has stated in paragraph–5 that the petitioner had manufactured the
above bricks “using his own land”.
In the light of the aforesaid contention and/ or the
averments of the Tahasildar in his affidavit, it is apparent that the
petitioner–firm is a registered small-scale ‘industry manufacturing
bricks and is located at Routrapur Mouza. This unit was issued a “No
Objection Certificate” by the Tahasildar on 11.3.2003 and the State
“Pollution Control Board has also given its consent to the petitioner to
operate the brick kiln and the said consent is valid up to 31.3.2011.
The assertion of the petitioner is that the petitioner’s unit is established
over his own land which is accepted by the Tahasildar in his counter
affidavit. The sale of 2.5 lakhs bricks on the allegation of non-payment
of royalty, is also an admitted fact.iIt is also a matter of fact that the
petitioner’s brother, being the highest bidder at the public auction, had
paid Rs. 1 lakh to the Revenue Authority and purchased those bricks in
auction. It is also a further matter of record that there is only public
road which runs through the village Patakana for communicating to
and from the petitioner’s unit.
13. In the light of the averments made in the various affidavits,
noted hereinabove, it is clear that the issues raised against operation of
the petitioner’s Brick Kiln were raised for the first time only during the
month of January, 2007 and not on any point of time earlier thereto.
The “assertion made by” the petitioner is that certain individuals
belonging to Routrapur Mouza started demanding “dada batti” (forced
donation) from each truck going to and from the unit of the petitioner,
is borne out from the Spot Enquiry Report of the Tahasildar. It is
averred by the O.l.C., Agarpada in his counter affidavit that villagers of
Mouza Patakana had set up a “check gate” on the village public road
and that when the Tahasildar requested them to remove the same, the
relevant law and order situation compelled the Tahasildar to lodge
F.I.R. under various sections of I.P.C before the local police.
14. The assertions made by the intervener–O.P.7 that the
petitioner’s unit has been situated on Govt. Gochar land and causing
environmental pollution and endangers to the villagers at large, is not
borne out from the records. The affidavit of the Tahasildar indicates
that the petitioner’s Brick Kiln is located on his “oWn private land”. In
so far as. the environmental pollution is concerned, the petitioner has
annexed as Annexure-4, the consent of the State Pollution Control
Board to operate the Brick Kiln in question and the same is valid till
31.3.201 1. In so far as danger to the villagers is concerned, the same is
not affirmed by the Tahasildar in his affidavit and on the contrary, the
Tahasildar himself has granted “No Objection Certificate” on 11.3.2003
for operating the brick kiln and such allegation to the contrary made by
the intervenors cannot be accepted.
The only objection raised by the O.I.C. in his counter
affidavit is that by the date of the said affidavit the petitioner had not I
paid the assessed penalty as demanded, but the Tahasildar has
‘ accepted the fact that the petitioner had deposited the said assessed
penalty of Rs.60,600/– in respect of 17,50,000 bricks.
15. In the light of the aforesaid fact, it now becomesimportant
to determine as to whether the prayer of the petitioner seeking direction
to the Superintendent of Police to provide necessary legal protection to
carry on the trade/ business should be passed or not ? The O.I.C. in
one of its counter affidavit has asserted that the brick business being’ a .
continuous activity, necessary protection cannot be provided and there
is likelihood of the law and order situation, that may arises if such
direction is issued.
Hence, it is relevant to quote Articles 21 and l9(1)(g) of the
Constitution of India hereinbelovv:
“21. Protection of life and personal
liberty.– No person shall be deprived of his life or
personal liberty except according to procedure
established by law. I
. 19. Protection of certain rights
regarding freedom of speech, etc.-(1) All citizens
shall have the right-
(g) to practise any profession, or to carry
on any occupation, trade or business.”
Article 19(l)(g), is contained in part-III of the Constitution
under the heading Fundamental Rights of India. In terms thereof, all
citizens of India have a right to practise any profession, or to carry on
any occupation, trade or business. In terms of the said Constitutional
right, the petitioner having obtained “No Objection Certification” from
the Tahasildar in 2003 and having registered itself in the District
Industry Center as small-scale industry and further, after having
obtained the necessary consent from the said Pollution Control Board
which remains valid as on date, is entitled and is guaranteed the right
to carry on his occupation trade or business by the Constitution of
India. The petitioner who is also a citizen of India is entitled not to be
deprived of his personal liberty except in accordance with to the
procedure established by law as guaranteed under Article–2l. Both the
Articles read together along with the fact that the Tahasildar, Bonth
admits that there is no legal impediment for the petitioner to carry on
his business, justifies the petitioners’ prayer. .
16. In view of these facts, it is the constitutional obligation of
the State and its agencies including the police to ensure that no
impediments are cast on a citizen from practicing his profession or
carrying on any occupation, trade or business.
In the present case, I am of the considered view that the
stand of the police authorities that they are not in a position to provide
necessary protection, is clearly opposed to the constitutional rights
guaranteed under the Constitution to every citizen of India. Since I am
of the considered View that there is no legal impediment for the
petitioner from carrying on his business or occupation and/ or since no
legal impediment has been cited and/ or brought to my notice, the
police authorities are duty bound and are under a Constitutional
obligation to every citizen including the petitioner to provide all
12
necessary assistance so that lawful business can be carried on. It
needs to be kept in my mind that demand for unlawful donation for
various oblique purposes, and it is proved in this case that the villagers
had set up a check-gate on a public road and the Tahasildar has.
directed to remove the same. I reiterate that it is obligatory on the part
of the District Administration as well as the police authorities to ensure
that no such unlawful act, such as setting up of check-gates for the
purpose of collecting donation, should be allowed and whenever such
gates being put up, immediate actions should be taken to remove the
same and to take appropriate action against the persons who have
erected such gates for such unlawful purposes. No doubt, the local
villagers may have certain complaints against the industries operating
in their locality and it is open for such villagers to make representation
or to act as law–abiding citizens by bringing it to the notice of
appropriate authorities. Even if any infraction ever occurs, neither the
Constitution of India nor the law of this country authorize any
individual or group of individuals to take law into their own hands and
to start collecting donations by setting up check–gates/ road blocks at 7
their respective villages over public roads and. thereby impeding the
lawful business of any citizen.
17. In View of the conclusions arrived by me hereinabove, the
District Collector, Bhadrak and the Superintendent of Police, Bhadrak e
as well as the O.I.C., Agarpada are directed to provide all necessary V.
assistance in order toensure that the public road is permitted to be i
used by all persons including the petitioner without any impediment”
and] or inconvenience. In case of any obstruction to the movement of
such vehicle to and from the petitioner’s Brick Kiln, immediate
assistance and prosecution against the accused persons must be taken
immediately. For such purposes, if required, the police may set up a
out–post to be located at the village along with necessary police
,.\-s»cq«4i-rLmlenn.m’:n~m»Maw… ., t . .,…,., .. ., ms, .,._…,_.-MW;-.a.
personnel to ensure compliance of those directions. This would be the
only manner by which the rule of law can be enforced and at the same
time, the obligation of the ‘State to its citizens can be fulfilled.
18. Accordingly, the writ petition is allowed with the aforesaid
directions.
O/RISSA HIGH COURT; CUTTACK
August, 2008/ RKS.
