Orissa High Court
Subrat Bhoi And Another vs State Of Odisha And Others ....... Opp. ... on 9 October, 2020
Equivalent citations: AIR 2021 ORISSA 8, AIRONLINE 2020 ORI 110
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Page 1 of 22
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.24789 of 2020
I.A. No.11476 of 2020
In the matter of an application under Articles 226 and 227 of
Constitution of India.
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Subrat Bhoi and another ....... Petitioners
-Versus-
State of Odisha and others ....... Opp. Parties
For Petitioners : M/s. Partha Sarathi Nayak,
Prafulla Kumar Rath,
S.S.Mohapatra, S.Hota &
AFR R.Behera
For Opp. Parties : Mr.Pravat Kumar Muduli,
Additional Government Advocate
(For O.Ps 1 & 2)
Mr.Surya Prasad Mishra, Sr.Advocate,
M/s Mr.Prasanta Kumar Nayak
(Heard on Virtual Mode)
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Judgment delivered by Virtual Mode on 09.10.2020
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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O R D E R
K.R.Mohapatra, J As per the direction made by this Court on
30.09.2020, this matter is taken up today for further orders
in IA No.11476 of 2020 filed by opposite party No.4-M/s
Page 2 of 22
Vedanta Ltd., Jharsuguda (for short, 'the Company') for
recalling of order dated 29.09.2020 passed by this Court in IA
No.11105 of 2020 of 2020.
2. This writ petition has been filed assailing the
notice/advertisement dated 27.08.2000 under Annexure-1
published by opposite party No.3-Member Secretary, State
Pollution Control Board, Odisha, Bhubaneswar (for short,
'SPCB') for a public hearing for the purpose of expansion of
Aluminium Smelter Capacity from 16 LTPA to 18 LTPA,
Captive Power Plant (CPP) capacity of 1215 megawatt by
adding 2 LTPA Smelter Plant at village Bhurkamunda of
opposite party No.4-Company in the district of Jharsuguda, to
obtain environmental clearance from the Ministry of
Environment, Forest and Climate Change, Government of
India, New Delhi (for short, 'MoEF'). The said notice was
issued in terms of the Government of India notification
No.SO.1533(E) dated 14.09.2006 of MoEF. It specified that
the persons who desires to give view and objections etc.
relevant to the project may do so in writing within thirty days
from the date of publication of the said notice addressing the
same to the Member Secretary, State Pollution Control Board
(OP No.3) through registered post. Besides that, persons
Page 3 of 22
interested to submit their views relevant to the proposed
project in writing or orally may also do so during the public
hearing to be conducted on 30.09.2020 at 11.00 AM at
Government UP School Kurebaga, Dalki in the district of
Jharsuguda. It is further clarified in the said notice that the
public hearing should be conducted strictly observing the
guidelines of COVID-19 on social distancing and also COVID-
19 SOP issued by the Government. The persons interested to
participate in the said public hearing were requested to go
through the Environment Impact Assessment
(EIA)/Environment Management Plan (EMP) of the said
Project available at the offices mentioned in the said notice
under Annexure-1.
2.1 The matter was listed on 29.09.2020 for
admission. Taking into consideration the submissions of
learned counsel for the petitioners to the effect that
notice/advertisement dated 27.08.2020 under Annexure-1 is
in violation of order No.5039/R&D(DM) dated 31.08.2020
(Annexure-2) issued by the Special Relief Commissioner,
Government of Odisha, Bhubaneswar preventing 'other large
congregation' as per Clause-2(iv) of the said order, this Court
issued notice in the matter and passed the following interim
order in IA No.11105 of 2020.
Page 4 of 22
"Heard.
As an interim measure, it is directed that
the public hearing pursuant to advertisement dated
27.08.2020 issued by the State Pollution Control
Board, Odisha, scheduled to be held on 30.09.2020
at 11.00 A.M. at Government U.P. School, Dalki,
Kurebaga in the district of Jharsuguda shall not be
held till next date.
Authenticated copy of this order
downloaded from the website of this Court shall be
treated at par with certified copy in the manner
prescribed in this Court's Notice No.4587 dated
25.03.2020."
Thereafter, IA No.11476 of 2020 has been filed by opposite
party No.4-Company to recall the said interim order dated
29.09.2020, which was taken up on 30.09.2020 and following
direction was issued.
"xxx xxx xxx
14. In partial modification to the order dated
29.09.2020 passed in IA No.11105 of 2020, it is
directed that the public hearing pursuant to
advertisement dated 27.08.2020 under Annexure-1
issued by the State Pollution Control Board, Odisha
may continue, but no final decision shall be taken till
the next date. Petitioners, if so advised may
participate in the public hearing.
14.1 On consent of learned counsel for the
petitioners and opposite party No.4, put up this
matter tomorrow (01.10.2020)."
3. In course of argument, it appeared that the
consideration of aforesaid two Interlocutory Applications
would require hearing of the matter on merit. As such, on
consent of learned counsel for the petitioner, opposite party
No.4 as well as Additional Government Advocate for opposite
Page 5 of 22
party Nos.1 and 2, the matter is taken up for admission and
final hearing.
4. Mr. Prafulla Kumar Rath, learned counsel
appearing in the matter on consent of Mr.Partha Sarathi
Nayak, learned counsel for the petitioners, submitted that the
petitioners are villagers of Brundamal, Badamal which is one
of the villages likely to be affected in the event of proposed
expansion of opposite party No.4-Company is granted. In that
regard, the petitioners along with other-co-villagers have
made a representation on 21.09.2020 (Annexure-5) to
opposite party No.3-Member Secretary, SPCB to postpone the
public hearing till the pandemic of COVID-19 normalizes. The
petitioners also made representation dated 21.09.2020 to
opposite party No.2- Collector, Jharsuguda under Annexure-6
in that regard, but to no effect. Hence, this writ petition is
filed to defer /postpone the date of public hearing pursuant to
notice under Annexure-1.
4.1 Mr.Rath, learned counsel appearing on behalf of
the petitioners further elaborating his submission, placed
reliance on Clause-2 (iv) of Order No.5039/R & D(DM) dated
31.08.2020 (Annexure-2). For ready reference, Clause-2 of
notification dated 31.08.2020 reads as follows:-
Page 6 of 22
"2. Regulation of activities in areas outside
the Containment Zones
The following establishments/activities will continue
to remain closed till 30th September, 2020
throughout the State:
i. Religious places/places of worship for
public;
ii. International air travel of passengers,
except as permitted by MHA;
iii. Cinema halls, swimming pools,
entertainment complexes, theaters,
auditoriums, assembly halls and similar
places;
However, open air theaters and
similar places will be permitted to open with
effect from 21st September, 2020.
iv. Social, political, sports, entertainment,
academic, cultural, religious functions and
other large congregations;
v. Schools, colleges, universities, other
educational/training/coaching institutions,
anganwadis, etc. will remain closed for the
purpose of teaching till end of Puja
vacations in the month of October 2020.
However, the followings will be
permitted:
a. Conduct of examinations, evaluation
and other administrative activities;
b. Online/distance learning shall continue
to be permitted and shall be encouraged;
c. School & Mass Education
Department/Higher Education
Department may permit upto 50% of
teaching and non-teaching staff to be
called to the schools at a time for online
teaching/tele-counselling and related
work, in areas outside the Containment
Zones only with effect from 21st
September, 2020 as per Standard
Operating Procedure (SOA) to be issued
by the Ministry of Health & Family
Welfare (MoHFW);
d. Skill or Entrepreneurship training will be
permitted in National Skill Training
Institutes, Industrial Training Institutes
(it is), Short term training centres
registered with National Skill
Development Corporation or State Skill
Page 7 of 22
Development Missions or other Ministries
of Government of India or State
Governments;
National Institute for Entrepreneurship
and Small Business Development
(NIESBUD), Indian Institute of
Entrepreneurship (IIE) and their training
providers will also be permitted.
These will be permitted with effect from
21st September, 2020 for which SOP
will be issued by MoHFW. Skill
Development & Technical Education
Department will issue necessary
order/guideline in this regard.
e. Higher Education Institutions only for
research scholars (Ph.D.) and post-
graduate students of technical and
professional programmes requiring
laboratory/experimental works. These
will be permitted by the Department of
Higher Education (DHE) in consultation
with MHA, based on the assessment of
the situation, and keeping in view
incidence of COVID-19 in the
States/UTs.
Subject to other provisions of this order,
activities that are not specifically
prohibited/regulated/restricted above are
allowed subject to adherence to safety and
health protocols and SOPs/guidelines
issued by appropriate authorities."
Since the place where public hearing is scheduled to be held
is not within the containment zone regulation of activities in
that area should be guided by Clause-2 of the order under
Annexure-2. He accordingly submitted that the
establishment/activities more fully described in Sub-clause (i)
to (v) of the said Clause-2 would continue to remain closed till
30th September, 2020 throughout the State. Sub-clause (iv) of
Page 8 of 22
Clause-2 specifically provides that social, political, sports,
entertainment, academic, cultural, religious functions and
other large congregations has been directed to remain
suspended till 30th September, 2020 throughout the State. As
villagers of five revenue villages are likely to congregate in the
public hearing, there will be large congregation, which is
strictly prohibited under Clause-2(iv) of Order under
Annexure-2.
4.2 He further submitted that public hearing is not
an empty formality. It has to be conducted in strict adherence
to the guidelines issued from time to time to achieve the
purpose for which it is so conducted. Although public hearing
was held at the scheduled place on 30.09.2020 pursuant to
the direction of this Court dated 30.09.2020 in IA No.11476 of
2020 only 90 persons of the five revenue villages were
present. The same cannot at all considered to be an effective
public hearing for the purpose of which it is being conducted,
more particularly when the population of the five revenue
villages likely to participate in the public hearing is more than
ten thousand. He further submitted that the petitioners were
not made parties in W.P.(C)(PIL) No.24669 of 2020, which was
disposed of on 28.09.2020. The order issued by the Special
Relief Commissioner, Government of Odisha, Bhubaneswar
Page 9 of 22
on 31.08.2020 (Annexure-2) was not discussed in the order
dated 28.09.2020 while disposing of W.P.(C) (PIL) No.24669 of
2020. The said order was also not within the knowledge of the
petitioners. As such, the order passed by the Hon'ble Division
Bench in W.P.(C) (PIL) No.24669 of 2020 does not have any
binding effect on the petitioners in view of the doctrine of sub
silentio. In support of his submission, Mr.Rath relied upon the
case law decided by the Hon'ble Supreme Court in the case of
Ajit Kumar Rath Vs. State of Orissa and others, reported
in (1999) 9 SCC 596 and State of U.P. and another Vs.
Synthetics and Chemicals Ltd. and another, reported in
(1991) 4 SCC 139. Participation of only 90 villagers out of
more than ten thousand population of five revenue villages
itself shows that there was no proper representation in the
Grama Sabha/public hearing. Although, the petitioners were
given opportunity to participate in the public hearing, due to
the interim order passed on the previous day, i.e., 29.09.2020
they were indisposed and could not participate in the said
public meeting due to lack of unpreparedness. In
continuation to his submission, Mr.Rath contended that
Mr.Mishra, learned Senior Advocate, during the course of
hearing of IA No.11476 of 2020, submitted that if necessary
more than one public hearing can be held, which is recorded
Page 10 of 22
by this Court in order dated 30.09.2020 in its order at the
concluding lines of para-9.
4.3 He further submitted that the opposite party
No.4 has also filed W.A. No.574 of 2020 assailing the order
dated 29.09.2020 passed in IA No.11105 of 2020. As such,
two parallel proceedings against the self-same order is not
maintainable. In support of his case he relied upon the case
law in the case of Jai Singh Vs. Union of India and others,
reported in (1977) 1 SCC 1.
4.4 He, therefore, submitted that there is no
impediment for this Court to grant liberty to the petitioner to
submit their written objection and consideration of the same
by another public hearing. The petitioners undertake to
submit their objection(s) within a stipulated date, if they are
given such liberty.
5. Mr.S.P.Mishra, learned Senior Advocate appearing
for opposite party No.4-Company, on the other hand,
reiterated his submissions made on 30.09.2020. It is his
submission that self-same advertisement/notice was under
challenge in W.P.(C) (PIL) No.24669 of 2020 filed by one NGO,
namely, Anchalik Parvesh Surakhya Sangh, Jharsuguda. The
Hon'ble Division Bench of this Court, considering all relevant
aspects as well as the office memorandum dated 14.09.2020
Page 11 of 22
(Annexure-C to the IA) issued by the MoEF and Climate
Change Assessment Division, Government of India, held as
under:-
"5. We have heard learned counsel for the
parties, gone through the impugned Notice under
Annexure-1 and given our thoughtful consideration on
the matter.
6. In the impugned Notice dated 27.08.2020
(Annexure1) it has been clearly mentioned that
persons, who desire to submit their views, comments,
objections etc. relevant to the project, may do so in
writing within 30 days from the date of publication of
the notice addressing the same to the Member
Secretary, State Pollution Control Board, Odisha
through Registered Post. Besides this, persons
interested to submit their views relevant to the
proposed project in writing or orally, may also do so
during the public hearing to be conducted on
30.09.2020 at 11.00 A.M. at Govt. Upper Primary
School, Kurebaga. Public hearing shall be conducted
strictly observing guidelines contained in Covid-19 on
Social Distancing and also COVID-19 SOP issued by
the Government. We do not find any merit in the
argument that the State Pollution Control Board has
deliberately fixed the public hearing during pandemic
of COVID-19. From the above Notice, it appears that
the authority has given liberty to the public to file
their objections/suggestions/views not only on the
date of public hearing fixed but also in writing to the
opposite party No.5, within 30 days from the date of
Notice. The authority has thus not confined the
submission of objection to the public hearing only on
the date and time fixed, but it has given liberty to the
general public to file their objections/suggestion in
writing any time during the period of thirty days.
Therefore, the stand taken by the petitioner cannot be
accepted that the date fixed for public hearing will
frustrate the purpose, as the local people may not
participate in the meeting.
7. The further stand of the petitioner that due to
pandemic situation offices are functioning with half of
employees and therefore, it may not be possible on
Page 12 of 22
the part of the people to collect the documents from
the offices. The said assertion also cannot be
accepted for the reason that in the impugned notice it
has also clearly mentioned that persons desirous of
participating in the public hearing may go through the
Environmental Impact Assessment
(EIA)Environmental Management Plan (EMP) of the
said project which will be available at the offices as
mentioned in the notice and the same can also be
downloaded from the given website free cost.
8. Again, the impugned notice has been issued on
27.08.2020 inviting objections within 30 days and
fixing 30.09.2020 as the date of open public hearing,
but the petitioner has filed this writ petition much
belatedly on 24.09.2020 and further before
completion of 30 days period or holding of such public
hearing with an apprehension that public may not
participate in the meeting, which cannot be well-
founded. It is open for the petitioner as well as all the
interested public at large to give their
objections/suggestions/views not only at the time of
public -6- hearing but at any time within 30 days
from the date of said notice in writing.
9. In view of the above, we do not see any reason to
accept the stands taken by the petitioner and to
interfere in the matter. The writ petition lacks merit
and is accordingly dismissed."
It is his submission that Sub-clause (ii) and (iii) of office
memorandum dated 14.09.2020 (Annexure-C to the IA) are
relevant for the instant purpose, which reads as follows:-
"(ii) If the number of participants is more than
such ceiling, more than one Public Hearing shall be
conducted by staggering the time and/or dates;
(iii) Use of virtual platform/online facilities may
also be employed in addition to the physical Public
Hearing process;"
He therefore submitted that public hearing has been allowed
to be held with a ceiling of one hundred persons in the said
Page 13 of 22
public hearing following the guidelines and protocol of
COVID-19. If the number of participants would be more than
such ceiling, more than one public hearing could be
conducted by staggering the time and/or dates. But the
participants in the public hearing in question, as submitted
by learned counsel for the petitioners, was only 90. This Court
has also given the liberty to the petitioners to participate in
the said public hearing, if so advised. But for the reasons best
known to the petitioners they neither filed their written
statement/objection within thirty days of the said
advertisement/notice under Annexure-1 nor they have
participated in the public hearing, although liberty was
granted by this Court. It clearly shows that the petitioners
want to frustrate the public hearing and to drag the matter.
The petitioners in the instant writ petition can only agitate
their individual grievances and not the grievance of the public
at large, as it is not a Public Interest Litigation. Moreover,
Public Interest Litigation assailing the self-same
advertisement/notice has already been dismissed by this
Hon'ble Court. Non-consideration of the office order issued by
the Special Relief Commissioner, Government of Odisha
restricting 'other large congregation', as stipulated in Clause-
2(iv) of the said order is not applicable to public hearing in
Page 14 of 22
view of the office memorandum issued by the Government of
India in the Ministry of Environment, Forest and Climate
Change Impact Assessment Division, New Delhi, as the same
was issued by the concerned Department specifically dealing
with the subject 'public hearing'. Since the petitioners have
been given ample opportunity to participate in the public
hearing in question no further opportunity as sought for
should be given. In that view of the matter, he prayed for
dismissal of the writ petition.
6. Mr.Muduli, learned AGA heavily relied upon the
order passed in W.P.(C)(PIL) No.24669 of 2020 dismissed on
28.09.2020. He submitted that ample opportunity was given
to the petitioners and the averments made in the instant writ
petition clearly establishes that the petitioners had the
knowledge of the notice/advertisement issued under
Annexure-1, but for the reasons best known to him, they
neither filed any written objection within thirty days, as
stipulated in the said notice under Annexure-1 nor
participated in the public hearing in spite of liberty given by
this Court in order dated 30.09.2020. He further submitted
that the date of public hearing should neither be changed nor
extended as sought for by the petitioners, at the subsequent
stages of granting environmental clearance, if any, would be
Page 15 of 22
delayed. Although the impugned notice/advertisement was
issued on 27.08.2020, they approached this Court belatedly
only on 25.09.2020. The Hon'ble Division Bench has also
taken note of approaching the Court belatedly by the
petitioner in W.P.(C)(PIL) No.24669 of 2020 and deprecated
the same. In that view of the matter, the instant writ petition
also merits no consideration and the same is liable to be
dismissed.
7. Upon hearing learned counsel for the parties and
on perusal of the order passed in W.P.(C)(PIL) No.24669 of
2020, it appears that the self-same notice/advertisement
issued by opposite party No.3-State Pollution Control Board,
Odisha, Bhubaneswar for public hearing has been challenged
in both the writ petitions, i.e., W.P.(C)(PIL) No.24669 of 2020
as well as in the instant writ petition. The Division Bench, on
a threadbare discussion of the contentions raised as well as
taking note of the office memorandum issued on 14.09.2020
(Annexure-C to the IA filed for vacation of interim order dated
29.09.2020), dismissed the earlier writ petition.
7.1 Mr. Rath, learned counsel for the petitioners
submitted that the office order dated 31.08.2020 (Annexure-2)
issued by the Special Relief Commissioner prohibiting 'other
large congregation' as per Clause-2(iv) of the said office order
Page 16 of 22
was not taken into consideration by the Division Bench. As
such, the findings given by the Division Bench is not binding
on the petitioners in view of principles of sub silentio. Hon'ble
Supreme Court in Ajit Kumar Rath (supra) and Synthetics and
Chemicals Ltd. (supra) on the principles of binding effect of an
order, held as follows:-
7.2 In Ajit Kumar Rath (supra), it is held as follows:-
"32. Learned counsel for the respondents has
referred to the judgment of the Orissa High Court
passed in identical situation and relating to the same
service on 12th March, 1985, by which the seniority
was denied to certain promoted officers over those
appointed by direct recruitment, on the ground that
ad hoc promotion was contrary to rules. It is
contended that a Special Leave Petition against that
judgment was dismissed by this Court on 28.3.1998.
A copy of the order by which the Special Leave
Petition was dismissed has been placed on record
which indicates that no reasons were given for
dismissing the petition. This order, therefore, would
not constitute a binding precedent. Moreover, the
judgment of the Orissa High Court was delivered on
12th March, 1985, that is to say, many years earlier
than the decision rendered by the Constitution Bench
in the 1990 case of Direct Recruit Class-II Engg.
Officers Association (supra). On the basis of the
Constitution Bench decision as also the other
decisions of this Court, the efficacy of the judgment
passed by the Orissa High Court has altogether
vanished and there was no occasion for the Tribunal
to have relied upon that judgment in preference to the
Constitution Bench decision while writing the Review
judgment."
7.3 In Synthetics and Chemicals Ltd. (supra),
Hon'ble Supreme Court on the principles of sub-silentio held
as follows:-
Page 17 of 22
"41. Does this principle extend and apply to a
conclusion of law, Which was neither raised nor
preceded by any consideration. In other words can
such conclusions be considered as declaration of
law? Here again the English Courts and jurists have
carved out an exception to the rule of precedents. It
has been explained as rule of sub-silentio. A decision
passed sub-silentio, in the technical sense that has
come to be attached to that phrase, when the
particular' point of law involved in the decision is not
perceived by the Court or present to its mind'
(Salmond 12th Edition). In Lancaster Motor Company
(London) Ltd. v. Bremith Ltd., [1941] IKB 675 the
Court did not feel bound by earlier decision as it was
rendered 'without any argument, without reference to
the crucial words of the rule and without any citation
of the authority'. It was approved by this Court
in Municipal Corporation of Delhi v. Gumam Kaur,
[1989] 1 SCC 101. The Bench held that, 'prece- dents
sub-silentio and without argument are of no moment'.
The Courts thus have taken recourse to this principle
for relieving from injustice perpetrated by unjust
precedents. A decision which is not express and is
not founded on reasons nor it proceeds on
consideration of issue cannot be deemed to be a law
declared to have a binding effect as is contemplated
by Article 141. Uniformity and consistency are core of
judicial discipline. But that which escapes in the
judgment without any occasion is not ratio
decedendi. In Shama Rao v. State of Pondicherry, AIR
1967 SC 1680 it was ob- served, 'it is trite to say that
a decision is binding not because of its conclusions
but in regard to its ratio and the principles, laid down
therein'. Any declaration or conclusion arrived
without application of mind or preceded without any
reason cannot be deemed to be declaration of law or
authority of a general nature binding as a precedent.
Restraint in dissenting or overruling is for sake of
stability and uniformity but rigidity beyond
reasonable limits is inimical to the growth of law."
The office order dated 31.08.2020 under Annexure-2 refers to
'other large congregation' which does not include a 'public
hearing'. Further, it is made clear in the said order under
Page 18 of 22
Annexure-2 that the subject to other provisions in the said
order, the activities not specifically prohibited/regulated
/restricted in the said order are allowed subject to adherence
to safety and health protocols and SOPs/guidelines issued by
the appropriate authorities. On the other hand, office
memorandum dated 14.09.2020 (Annexure-C to the IA) has
been issued by the concerned Ministry, specifically on the
subject of conducting 'public hearing' during pandemic of
COVID-19. The said office memorandum under Annexure-C
also restricts the congregation with a ceiling of one hundred
persons. To meet with a situation where the number of
participants are more than such ceiling, provision has been
made under Clause-3(ii) of the said office memorandum,
which prescribes that if the number of participants are more
than such (100 persons) ceiling, more than one public hearing
shall be conducted by staggering the time and/or dates. Thus,
the restrictions imposed by the Special Relief Commissioner
in his office order dated 31.08.2020 under Annexure-2 cannot
be said to include a 'public hearing', if conducted as per the
guidelines given under office memorandum under Annexure-C
to the IA. In that view of the matter, the principles of sub
silentio is not applicable to the case in hand.
Page 19 of 22
8. Bare perusal of the writ petition as well as the
representations annexed to it as Annexures-5 and 6, which
are identical in nature, only suggests that the
representationists therein pray for keeping the public hearing
scheduled to be held on 30.09.2020 in abeyance till COVID-
19 situation is normalized. The representations do not throw
any light as to how the petitioners will be affected if the
proposed expansion of opposite party No.4-Company is
permitted. The case law decided by the Hon'ble Supreme
Court in Orissa Mining Corporation Limited Vs. Ministry
of Environment and Forests and others, reported in (2013)
6 SCC 47, as relied upon by learned counsel for the
petitioners has no application to the instant case, as in the
said case law the issue was with regard to environmental
clearance for diversion of forest land for alumina refinery
project (ARP)/bauxite mining project (BMP). The issue of non-
consideration of religious rights, i.e., customary rights of
worship in the mountains, especially a hilltop known as
Niyam-Raja by the Scheduled Tribe communities and other
tribal forest dwellers were involved. But in the instant case,
the same are certainly not in issue.
9. Further argument has been raised by Mr.Rath,
learned counsel for the petitioners that two parallel
Page 20 of 22
proceedings assailing the self-same interim order dated
29.02020, one by filing I.A. No.11476 of 2020 for recall of the
said order and another by filing Writ Appeal bearing WA
No.576 of 2020 is not maintainable. In support of his case,
the case law in Jai Singh Vs. Union of India and others,
reported in (1977) 1 SCC 1, wherein the Hon'ble Supreme
Court held/observed as follows:-
"4. The High Court dismissed the writ petition on the
ground that it involved determination of disputed
questions of fact. It was also observed that the High
Court should not in exercise of its extraordinary
jurisdiction grant relief to the appellant when he had
an alternative remedy. After hearing Mr. Sobhagmal
Jain on behalf of the appellant, we see no cogent
ground to take a view different from that taken by the
High Court. There cannot, in our opinion, be any
doubt on the point that the extent of purity of the
gypsum won by the appellant is a question of fact. It
has also been brought to our notice that after the
dismissal of the writ petition by the High Court, the
appellant has filed a suit, in which he has agitated
the same question which is the subject matter of the
writ petition. In our opinion, the appellant cannot
pursue two parallel remedies in respect of the same
matter at the same time."
9.1 He, therefore, submitted that two parallel
proceedings are not maintainable in the eye of law. The
arguments advanced by Mr.Rath is not sustainable in view of
the fact that Mr.Mishra, learned Senior Advocate appearing
on behalf of opposite party No.4 very fairly submitted that
although he had filed the I.A. No.11476 of 2020 seeking recall
of interim order dated 29.09.2020 passed in IA No.11105 of
Page 21 of 22
2020, but in view of the fact that this Bench was not
supposed to sit on 30.09.2020, opposite party No.4 also filed
W.A. No.576 of 2020 and moved the Hon'ble the Chief Justice
to take up the matter. However, pursuant to the direction of
Hon'ble the Chief Justice, the matter, i.e., the IA No.
No.11476 of 2020, was taken up by a special list on
30.09.2020. He also fairly submitted that he has not moved
the WA No.576 of 2020 in view of the fact that the instant IA
for recalling of interim order dated 29.09.2020 passed in IA
No.11105 of 2020 was taken up.
10. Mr.Rath, learned counsel for the petitioners
submitted that only 90 persons have participated in the
public hearing held on 30.09.2020 pursuant to order dated
30.09.2020 passed in IA No.11476 of 2020, which cannot be
said to be a substantial representation of villagers of five
revenue villages having population of more than ten thousand
and there was no effective 'public hearing' at all. However,
there is no material available before this Court to test the
veracity of the same. If that be so, then petitioners may make
a representation to the opposite party No.2-Collector,
Jharsuguda within a period of three days hence, i.e., by
12.10.2020, who shall consider the same and pass necessary
orders thereon in consultation with the stakeholders, if
Page 22 of 22
necessary, by taking steps to hold another 'public hearing'
pursuant to notice under Annexure-1.
11. With the aforesaid observation, the writ petition as
well as IA No.11105 of 2020 and IA No.11476 of 2020 are
disposed of.
11.1 An authenticated copy of this order downloaded
from the website of this Court shall be treated at par with
certified copy in the manner prescribed in this Court's Notice
No.4587 dated 25.03.2020.
................................
K.R. Mohapatra,J.
Orissa High Court, Cuttack. Dated the 9th Oct.,2020/ss