The petitioner by way of this petition under Article 226 of the Constitution of India has approached this Court with the following prayers;
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 07.03.2012 passed by respondent no.1 herein at Annexure-I hereto;
(B) Pending the hearing and final disposal of this petition, Your Lordships be pleased to :-
(i) stay the operation, implementation and execution of impugned order dated 07.03.2012 passed by respondent no.1 herein at Annexure I hereto;
(ii) direct the respondent no.1, his officers, servants and agents to forthwith issue the royalty passes to the petitioner upon payment of advance royalty at the rate prescribed in the Second Schedule to the Mines and Minerals (Regulation & Development ) Act, 1958;
(C) An ex-parte ad-interim relief in terms of prayer (C) above may kindly be granted.
(D) Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted;
The facts in brief leading to filing this petition deserve to be set out as under;
The petitioner is a lessee of land bearing Survey No.78/5 admeasuring 28 Acres of Taluka-Ranavav, District-Porbandar, as lease deed was executed on 31.05.1976 with respondent no.2. Thus, since 31.05.1976 it may be said that the petitioner is carrying out mining activities and excavating limestone in the mining area and the petitioner regularly paid the advance royalty. The officer of respondent no.1 carried out surprise visit on 21.11.2006. It was recorded that on account of petitioner's not leaving area near the boundary of the lease hold area there was a breach of provision of the Mineral Concession Rules, 1960 (hereinafter referred to as the "Concession Rules" for the sake of brevity). The petitioner received a show cause notice dated 11.09.2007 as to why recovery for quantity of 6,678 MTs should not be ordered. This amount was arrived at on the basis of calculating the clearance from 1985 to November 2006. The petitioner replied to the show cause notice by indicating that the mode of inspection for arriving at a conclusion was not reasonable and even otherwise also the amount was not so great as to raise any doubt in the matter. The replies were given on 22.12.2007, 31.01.2009 and 03.03.2009. The order came to be passed on 01.10.2009, raising demand at the rate of Rs.315/- PMT for total quantity of 6,678 MTs of limestone on the ground of it being unauthorizedly excavated by petitioner. This demand was in view of the provision of Section 21(5) of the Mines and Minerals (Development and Regulation) Act, 1975 (hereinafter referred to as the "MMDR Act" for the sake of brevity), the petitioner preferred Revision Application, as provided under Section 30 of the MMDR Act on 01.12.2009 before the Revisional Authority i.e. Government of India. The respondents did not issue royalty passes. The Revision Application was not heard and the royalty passes were not issued which resulted into stoppage of business of the petitioner completely. The petitioner was, therefore, constrained to file Civil Suit being Civil Suit No.51/2010 on 29.03.2010 in the Court of Principal Civil Judge, Porbandar with appropriate prayers. The suit was accompanied by Exhibit - 5 application for interim relief, which was dismissed vide order dated 23.06.2010 against which an appeal was filed in the District Court which confirmed the order passed by the Trial Court on 20.10.2010. Ultimately, the Revisional Authority i.e. the office of the Government of India decided the matter on 31.03.2011, wherein it was observed that the concerned Collector was whether holding power and authority under Section 23C of the MMDR Act by the State, and other observations are made, wherein in favour of the petitioner, the order was set aside and the matter was remanded back for deciding it afresh to the concerned Collector. Pursuant to the order dated 31.03.2011, the concerned Collector was decided the matter. The petitioner was constrained to file application below Exhibit - 26 in the Regular Civil Suit No.51/2010, praying that the authority should now issue royalty passes, as there existed no order, as the impugned order is set aside by the Revisional Authority. In the order, the Court observed six months period elapsed and Collector was not proceeded with the matter, hence it was directed that the same be decided within three months by the Collector. This order was passed on 09.12.2011. The petitioner has received communication dated 14.02.2012 calling upon the petitioner to remain present on 21.02.2012. The petitioner has averred in the memo of petition in para no.2.12 that issuance of said notice was so planned as to reach the petitioner only after the date fixed, is passed, as the petitioner received intimation only on 22.02.2012 and immediately right on the day the petitioner addressed the detailed letter informing the concerned authority with regard to the receipt of the communication after the date of hearing is passed. The petitioner was called upon to remain present on 29.02.2012 vide communication dated 23.02.2012. The said communication was also received by the petitioner only on 02.03.2012 i.e. after passing of 29.02.2012. The petitioner was once again constrained to address a letter on 05.03.2012 indicating these facts and seeking opportunity of being heard in the matter. The respondent no.1 passed an order on 07.03.2012, wherein unfortunately it was recorded that petitioner failed to remain present despite opportunity being given and it was held that the petitioner was liable to make payment of amount at the rate of Rs.320/-PMT for total quantity of 6,678 MTs of limestone. The action of the respondent is subject matter of challenge in this petition on the ground mentioned in the memo of petition.
The Court issued notice on 20.04.2012 , which was made returnable on 25.04.2012. Despite the service of notice, unfortunately no reply affidavit is filed controverting the averments and contentions made in this petition.
Learned advocate for the petitioner has contended that the conclusion with regard to so called difference of the quantities was not based upon any scientific assessment and/or appropriate method recognized under law. The notice indicating difference from the year 1985 till 2006 could not have been in the first instance be permissible by way of visual observation and assessment. Thus, the illegality perpetrated in arriving at arbitrary conclusion resulted into issuance of notice of demand and the authority concerned did not appreciate the fact that there was no hearing, so as to comply with the principle of natural justice.
Learned advocate for the petitioner invited this Court's attention to the observations made by the Revisional Authority in its order dated 31.03.2011 and submitted that the observations made by the authority ought to have been taken into consideration by the concerned District Collector while deciding the matter afresh. The impugned order, which was challenged in the revision was set aside and, therefore, there existed no order on the date and yet the State authorities and all the concerned respondents chose not to issue royalty passes so as to bring about complete halt to the business of the petitioner which is obnoxious in view of the provision of Article 19 and 14 of the Constitution of India.
Learned advocate for petitioner further contended that the Apex Court has held in case of Union of India and others Vs. Kamlakshi Finance Corporation Ltd. reported in AIR 1992 Supreme Court 711 that the order of superior authority is to be accepted and complied with irrespective of personal belief and/or opinion of the concerned subordinate authority. In the instant case, the Collector was, therefore, under pious obligation to completely comply with the observations made by the Revisional Authority.
Learned advocate for the petitioner laid heavy emphasis upon the observation made by the Apex Court in paragraph nos.6, 7 and 8 of the decision and contended that the clear observation with regard to the jurisdiction to exercise power by Collector and other material facts were required to be noted by Collector before passing the order. The order passed and impugned in this petition indicate that the observations of the Revisional Authority have not been considered at all and it is merely repetition of the earlier order which was quashed and set aside by the Revision Authority in exercise of power under Section 30 of the MMDR Act.
Learned advocate for the petitioner further contended that the so called difference of quantity looking to the entire quantity cannot be said to be so vast as to shock the conscience of anyone including the respondent authorities. The difference of quantity alleged is to be viewed from the total quantity excavated and if that total quantity is taken into consideration, then this can be treated as permissible variation which would knock of the jurisdiction of the Collector to issue any notices on the subject matter.
Learned advocate for the petitioner further contended that it is not the case of the State that royalty is not paid on this difference of quantity, but a demand is raised on account of so called illegality or unauthorized excavation and, therefore, when the royalty is paid, then there would not have been any question of foisting the liability of paying the price of mineral.
Learned advocate for the petitioner has placed heavy reliance upon the decision of the Apex Court in case of Karnataka Rare Earth and another Vs. Senior Geologist, Dept. of Mines and Geology and another, reported in AIR (2004 ) Supreme Court 2915, and submitted that the invocation of provision 21(5) of the MMDR Act is absolutely not justified so far as mineral from legalized mining activity is concerned. The observations made in paragraph no.7 have been sought to be relied upon for justifying the aforesaid contention.
Learned advocate for the petitioner heavily relied upon the fact that the communication issued by the Collector inviting the petitioner to attend the hearing. This was dispatched in such a fashion so as to deprive the petitioner of his legitimate right to be heard before the authority. The petitioner has raised specific contention in paragraph No.2.12 which has remained uncontroverted in any manner. The plain reading of letters under which the petitioner was intimated the date of hearing and the factum of their receipt after the date is passed and the petitioner's response narrated these facts and authorities uncanny silence speaks volumes about the conduct of the concerned authority and, therefore, it was submitted that the petition deserve to be allowed and appropriate relief be granted.
Learned AGP for the State contended that the order impugned is required to be challenged by way of revision, as the petitioner has approached this Court directly by way of writ petition, the petitioner be relegated to take recourse of the alternative remedy available under law.
Learned AGP for the State, however, could not controvert the averments made by the petitioner in paragraph No.2.12 as well as the communication sent by the petitioner in response to the belated receipt of the notice of hearing.
Learned AGP further submitted that he has received instructions to submit before the Court that promptness in the matter was required to be observed on account of petitioner's own act of obtaining order from the concerned Civil Court for deciding the matter within stipulated time limit. Therefore, the matter was required to be disposed of within stipulated time frame given by the Civil Court. In view of this, when there is no illegality imputed the order may not be interfered with and the petition be dismissed.
The following few facts which are indisputable required to be mentioned before adverting to the rival contentions of the parties.
(i) The facts remains that notice is issued on the basis of the visit made by persons at the behest of the concerned authority. The inspection taken did not reveal the methodology of arriving at the conclusion which resulted into issuance of notice.
(ii) The notice per se did not disclose the methodology, which was adopted for arriving at a conclusion.
(iii) The notice did contain demand which was straightway raised and petitioner was called upon to show cause as to why the recovery should not be ordered.
(iv) It is not disputed that the return filed from day one i.e. from inception, i.e the first return, then first inspection were taken into consideration in one hand and another hand the visual comparison and the inferences arrived at on that observations were forming part of opinion which was treated to be a valid ground for issuing notice.
(v) The notice was replied and the final order was passed.
(vi) The Revisional Authority in fact accepted the Revision Application and remanded the matter back to the concerned Collector. In the order of remand certain observations are made which observations have not been adverted to by the Collector while disposing of the matter, which resulted into the present order under challenge.
(vii) It is also not disputed that the communication intimating the petitioner for date of hearing were received by the petitioner after passing of the date and petitioner did submit his grievances in this respect to the authority, but without adverting to those grievances in any manner, the impugned order is passed.
(viii) The contentions raised in this petition and as they are reflected in two communications of the petitioner in respect of breach of principle natural justice intimating the authority itself that the intimation of dates of hearing were received by the petitioner after passing of the date have not been controverted in any manner for anyone and, therefore, Court is left with no alternative but to accept the same as correct.
Against the aforesaid factual backdrop question arises as to whether the order impugned can be said to be sustainable on any other ground including that of available alternative remedy. The answer would be 'no'. The petition is required to be allowed and the order impugned is required to be quashed and set aside for the following reasons namely;
(i) The close reading of the order passed by the authority in revision indicates that the Collector on remand was required to address himself to those observations. Unfortunately, the impugned order indicate that the concerned respondent - Collector while disposing of the matter on remand did not advert to it so as to fulfill the obligation case upon him. The order impugned, therefore, stands vitiated on this count also.
(ii) It is also required to be noted that the principle of natural justice are required to be complied with. In the instant case, as could be seen from the notices for hearing and the fact that they were received after the dates of hearing, were over and that there exists no denial specifically to this averment, conclusively will go to show that the complaint in respect of breach of principle of natural justice is absolutely correct and, therefore, as there is non compliance with the principle of natural justice, the impugned order cannot be sustained even on the ground of availability of the alternative remedy, as when there is a breach of principle of natural justice. The respondent cannot put forth the plea of alternative remedy for non suiting the petitioner.
(iii) The Court need not dwell upon the aspect of methodology for assessing the so called outstanding, as the Court is convinced for quashing the impugned order on the basis of breach of principle of natural justice and lack of opportunity to the petitioner, but at this stage it would not be out of place to mention that the respondents have undertaken to assess the outstanding from the date of inception of the lease, then they are under obligation to give cogent and justifiable reasoning for justifying the demand and while arriving at such a conclusion the notice to the other side i.e. the petitioner, is absolutely essential, in the instant case, as there exists no notice and straightway demand is raised on this ground also. The impugned order deserve to be quashed and set aside.
In the result and for the aforesaid discussion, the Court is of the considered opinion that the order impugned dated 07.03.2012 is required to be quashed and set aside. The petition is allowed. No costs. This rejection will not preclude the respondents from proceeding for assessment and/or for recovery of the dues, if any in accordance with law and after affording complete opportunity of being heard to the petitioner.
(S.R.BRAHMBHATT, J.) Pankaj Top