1. In present petition the petitioners have prayed that:-
“(A) to quash the order dated 13.6.2012 (Annexure-A) passed by the respondent No.1 – Geologist.
(B) to command the respondent No.1- Geologist to release the seized 13455 MT of Bauxite seized vide seizure memo dated 26.10.2010;
(C) to command the respondent No.1- Geologist to issue the transit pass / delivery challan / NOC for the sale / export of the said 13455 MT of Bauxite;
(D) to stay, pending the hearing and final disposal of the present Special Civil Application, the operation, implementation and execution of the order dated 13.6.2012 passed by the respondent No.1-Geologist.
(E) to direct pending the hearing and final disposal of the present Special Civil Application, the respondent No.1-Geologist to release the seized 13455 MT of Bauxite and to issue the necessary transit pass / delivery challan for the sale / export of the said 13455 MT of Bauxite;
(F).....
(G) ”
2. The relevant facts involved in and leading to submission of present petition, are that the petitioner, a Limited Company incorporated and registered as such under Companies Act, 1956, is engaged, inter alia, in business of sale and export of various minerals.
2.1 On 18.10.2007 the petitioners submitted an application, in compliance of the provisions contained under Rule 8(1) of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules 2005 (hereinafter referred to as the “said rules”) for registration of the designated place / area as place / area for storage of minerals at its establishment at Okha Port.
2.2 The petitioners have claimed that the said application was received by respondent No.1 on 24.10.2007.
2.3 It is alleged that the said application remained pending before the Competent Authority and according to the petitioners it was not attended for long time by the competent authority though Rule 8(5) of the Rules prescribes that the application for Registration should be processed within two months from the date of receipt of the application
2.4 Then, though the Registration was not granted, the petitioner commenced and conducted its business activity and also stored certain mineral (viz. Bauxite) at the plots in question.
2.5 The petitioner, has claimed that it had purchased 13,455 MTs of Bauxite from two companies viz. Orient Abrasives Limited and Carborundum Universal Limited and in May 2008 which it stored on the plots (from May 2008) in respect of which it had applied for registration.
2.6 The petitioner has claimed that it received letters dated 30.7.2008. According to the petitioner the said communication dated 30.7.2008 amounts to order / decision granting registration under Rule 8(1).
2.7 It appears that it came to the notice of the respondent authorities that the petitioner had stored 13,455 MTs of Bauxite without Registration of designated area / place and without complying the conditions and requirements prescribed under the said Rules.
2.8 Therefore, authority issued and served notice dated 23.6.2009 to the petitioners and asked the petitioners to produce the documents mentioned in the said notice.
2.9 On 18.4.2010 the respondent No.1 served a letter to the petitioners alleging that before acceptance of application for registration and without registration / licence, the petitioner had stored Bauxite and had also commenced processing unit and that therefore the application dated 18.10.2007 for registration was rejected. The respondent authority also initiated inquiry against the petitioners pursuant to the communications dated 7.10.2010 and 8.10.2010. Thereafter, by serving seizure memo in Form – J on 26.10.2010 the respondent No.1, in exercise of power under Rule 13(3) effected seizure of the said material i.e. 13,455 MT of Bauxite.
2.10 The petitioner has claimed that approximate value of the seized material is about Rs.87,32,295/-. The said action dated 26.10.2010 was followed by notice dated 1.11.2010 restraining the petitioner from recovering the said material and calling upon to show cause as to why a sum of Rs.87,32,295/- should not be recovered under Rule 13(2) of the said Rules.
2.11 The petitioners have claimed that on 6.12.2011 the petitioners served, through their advocate, a notice to the respondent No.1 asking the said authority to withdraw seizure dated 26.10.2010 and also to grant “No Objection Certificate”. Thereafter, by letter dated 27.10.2011 the petitioners were called to remain present before respondent No.1, for personal hearing. The hearing was attended by the petitioners' representative.
2.12 Subsequently correspondence ensued between the petitioner company and respondent No.1. The entire inquiry proceedings, inspection visits etc. culminated into order dated 13.6.2012 whereby the respondent authority informed the petitioner that for reasons mentioned in the said order his application for registration stands rejected.
2.13 The petitioner is aggrieved by the said order dated 13.6.2012 as well as the seizure memo dated 26.10.2010 under which about 13,455 MT Bauxite has been seized. Hence present petition.
3. The petition has been resisted by the respondent authorities and Geologist, Jamnagar, has filed reply affidavit dated 18.7.2012 denying the allegations and contentions by the petitioner which is countered by the petitioner with rejoinder affidavit dated 30.7.2012. The respondent authority has filed further affidavit dated 5.8.2012. The respondent authority has stated, inter alia, that:-
“5..... The registration in the present matter was cancelled vide order dated 18.4.2010. The said order dated 13.6.2012 is merely an Amendment Order where, the rule which was breached is mentioned. Moreover, there is a provision of appeal under Rule 11 which was also mentioned. These two things were not mentioned in the earlier order. The copy of the order dated 18.4.2010 and 13.6.2012 is annexed herewith and marked as Annexure R1 (Colly).
6. I state and submit that, as per the contention of the petitioner under Rule 8(5), the application of registration is to be granted and or refused within a period 2 months from the date of receipt thereof. This does not mean that the applicant can store things in the plots without getting proper registration on Form F as per the Rule 6 of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. As per Rule 3, it is mandatory to have the registration granted by the authorized officer, which in this case, has not been granted to the petitioner.
7. I state and submit that, the application of the petitioner was rejected vide order dated 18.4.2010. Later on an Amendment Order was passed on 13.6.2012 in which the reference of the earlier order has been made. The petitioner has stored 13,455 MT tones of Bauxite for which no registration was issued from this office as per Rule 6 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 in Form F. In the said order of 13.6.2012 the rules which were violated were mentioned and moreover, it was also stated that the petitioner can prefer an appeal under Rule 11 of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 to the Additional Director (Appeal and Flying Squad).
8. I state and submit that, the contention of the petitioner that the application of the registration should have been canceled under Rule 10 (as per Rule 10 - Cancellation or suspension of registration. “The authorized office, may at any time and after giving an opportunity of being heard to the Firm / Person registered, and after recording the reasons whereof may cancel or suspend the registration by an order in writing communicated to the firm / person registered for breach of any of the terms and conditions of the registration or these rules”.) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. Here the registration was not granted to the petitioner as per Rule 6 in form F and hence, Rule 10 could not applicable in present matter.
9. .......
10. I state and submit that, the applicant had brought a total material of 13,455 MTs. Bauxite from Orient Abrasives Ltd and Carborundum Universal Ltd. As per letter dated 25.05.2011 petitioner have purchased 12,172.360 MTs bauxite from Orient Abrasives Ltd vide Bill No. 11 dated 31.05.2008 and Bill No.32 dated 30.06.08; and 1,396.010 from Carborundum Universal Ltd vide Bill Nos. 29 to 63 dated 02.05.06 to 07.06.08. The copy of the letter dated 25.5.2011 is annexed herewithand marked as Annexure R2.
11 I further state and submit that, the letter dated 30.07.2008 issued by the answering respondent to the petitioner are mere general instructions which the registrations holders have to follow after getting the registration but in the present case, no registration have been granted to the petitioner under Rule 8(6) in Form F. Moreover, it is clear from the said statement of the petitioner on 05.01.2012 para 3 that the letter is merely regarding conditions of registration.
12 The petitioner stated that they have made an application for registration on 18.10.2007 and also they also mentioned that they have sold 75,000 MTs of bauxite which was lying at the time of application.
16. I state and submit that, a total quantity of 13,455 MTs of bauxite was found at the site on 13.07.2009 during the inspection. A show Cause Notice of Rs.87,32,299.00 was given on 01.11.2010 under Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 annexed herewith and marked as Annexure R11. The stock was seized on 26.10.2010 and the possession of which was given to the petitioner. The petitioner had given a written reply on 01.11.2010 in which it was mentioned that, this cargo was to be shifted to another Port of India. In this connection a personal hearing was given to the petitioner on 05.01.2012 before the Collector. The petitioner was asked to furnish the details of the bauxite purchased from the leaseholder in the prescribed form on 20.02.2012. M/s Carborundum Universal Ltd was given a Show Cause Notice for illegally transporting the material to the petitioner's site. M/s. Carborundum Universal Ltd., replied on 12.03.2012 in which it was mentioned that, the company does not have to pay any penalty in this case; whereas M/s Orient Abrasives Ltd in their letter dated 1.03.12 has given the details of the material supplied to the petitioner in which the challan No.4828 dated 31.05.2008 for Rs.120000/- is after the date of dispatch of the bauxite, which makes this challan illegal.”
3.1 The same deponent, in the further affidavit dated 5.8.2012 has, inter alia, stated that:-
“9. I say and submit that, the application of the petitioner was rejected vide order dated 18.4.2010. Later on an Amendment Order was passed on 13.6.2012 in which the reference of the earlier order has been made. The petitioner has stored 13,655.79 MTs. of Bauxite for which no registration was issued from this office as per Rule 6 of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 in Form F. In the said order of 13.06.2012, the rules which were violated were mentioned and moreover, it was also stated that the petitioner can prefer an appeal under Rule 11 of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 to the Additional Director (Appeal and Flying Squad). This Rules of 2005, are made under Section 23C(1) of the Mines and Mineral (Development and Regulation) Act, 1957.
10. I say and submit that, as per the Rojkam done on 17.6.2009, it is clearly mentioned that the petitioner does not have the Registration Number. On 16.7.2009, the petitioner himself had come to this office and submitted a statement wherein it was mentioned that at the time of filing of application, a quantity of 75000 MTs. Bauxite was lying at the plot which was exported and given to M/s. Ashapura Minechem. In the said statement, the petitioner had assured that they would provide the Stock Register within 10 days.
11. I say and submit that, the petitioner has till date, did not submitted the Stock Register showing the details of the 75000 MTs bauxite which was lying there at the time application for registration.”
4. Learned advocate for the petitioners relied on the communication dated 30.7.2008 and submitted that the said communication amounts to granting Registration and should be considered as granting of petitioner's application for registration. It is contended that the details mentioned in the said communication dated 30.7.2008 clearly suggest and give out that the authority had granted registration. He submitted that since the application for registration was granted vide said communication dated 30.7.2008, it relates back to 24.12.2007 and the registration should be deemed to have been granted on and from 24.12.2007 and that therefore the petitioners' action of storing material on plots in question cannot be said to be illegal or unauthorized or in breach of the said rules.
4.1 Mr. Vakil, learned advocate submitted, as an alternative submission – but without prejudice to the aforesaid submission that according to the provisions under Rule 8(1) of the said Rules the application for registration is required to be processed and decided within two months and that therefore upon expiry of period of two months, if the registration is not refused, it should be deemed to have been granted. It is claimed that in present case the application was made on 18.10.2007 and it was received on 24.10.2007 and that therefore it should have been processed and decided on or before 23.12.2007 however Registration was not refused i.e. application was not rejected on or before 23.12.2007 hence it should have been deemed to have been granted on or from 24.12.2007. He submitted that the petitioner stored the material in question on the plot in question in May 2008 and that therefore action of the petitioner cannot be said to have been taken in breach of the provisions under the said Rules and it cannot be termed that the petitioner stored the material without registration under the said Rules.
4.2 On such premise learned advocate for the petitioner contended that the seizure memo dated 26.10.2010 and the order dated 13.6.2012 are misconceived, arbitrary, contrary to the true meaning and effect of the provisions of the said Rules and that therefore seizure of material under seizure memo dated 26.10.2010 as well as order dated 13.6.2012 deserve to be set aside.
4.3 So as to support and justify his submissions, Mr. Vakil, learned advocate for the petitioners, relied on the provisions under Rule-3, Rule 8(1), Rule 8(5) and Rule 10. He also relied on the decisions by the Apex Court in case between Graphite India Ltd. vs. Durgapur Projects Ltd. (AIR 1999 SC 3289), Life Insurance Corporation of India vs. Escorts Ltd. (AIR 1986 SC 1370) and in case between U.P.
Avas Evam Vikas Parishad vs. Friends Co-op. Housing Society Ltd. (AIR 1996 SC 114).
5. Per contra learned AGP has submitted that the petitioner is not justified in claiming that under communication dated 30.7.2008 registration was granted or that the said letter dated 30.7.2008 amounts to granting the petitioner's application dated 18.10.2007 for registration. He further submitted that the petitioner, is also not justified in contending that the said communication dated 30.7.2008 would relate back to the date of application i.e. 18.7.2010. Learned AGP also submitted that actually vide communication dated 18.4.2010 the petitioners' application was rejected and that the order dated 13.6.2012 is further communication / an amendment wherein reference of said earlier communication dated 18.4.2010 is made. Learned AGP also contended that the petitioner is also not right in claiming that since the application was not refused within two months it should be deemed to have been granted. Learned AGP submitted that since the petitioner stored material in question without registration, the respondent’s action of seizure of material under Seizure Memo dated 26.10.2010 is justified and in consonance with the provision under the said Rules and the petition may not be granted.
6. I have heard learned advocates for the contesting parties and have also examined the material available on record.
7. At the outset it is appropriate to keep in focus some undisputed facts.
7.1 It is not in dispute that the petitioner had submitted an application dated 18.10.2007 for requisite registration as required under Rule 8(1) of the said rules.
7.2 It is also not in dispute that the said application was received in the office of the respondent on 24.10.2007 and that until completion of two months from the date of receipt of the application i.e. on or before 23.12.2007 the registration / said application was neither granted nor refused.
7.3 At the same time it is also not in dispute that though the petitioners had not received any intimation in prescribed Form – F granting registration before May 2008, the petitioner now, i.e. after the impugned proceedings and impugned order, claims to have acted on understanding (its own unilateral understanding) that on expiry of two months registration is deemed to have been granted. Thus, if the petitioner's submission is to be believed it would mean that the petitioner unilaterally and conveniently assumed that the registration was granted, and on such presumption it purchased and stored 13455 MT of Bauxite at the plots / area in question in May 2008.
7.4 It is also not in dispute that when the petitioner stored the material at the plots in question, the letter dated 30.7.2008 – on which the petitioner is so heavily relying – was not even issued and the illegal and unauthorized action of storing the material was taken two months before the letter dated 30.7.2008 was issued.
7.5 It is also not in dispute that when the officers of respondent authority inspected / visited the site it came to the notice of the respondent that though the petitioner did not hold / was not granted registration, yet it had stored the material at plots in question without obtaining registration and had even sold / used 75,000 MTs of material and that therefore the authority construed the said action as breach and violation of the said Rules. Hence, a show cause notice calling for petitioner's reply and explanation was issued and thereafter opportunity of hearing was granted.
8. So as to consider and appreciate the contentions raised by the petitioners it is relevant and necessary to take into consideration and keep in focus the relevant provisions under the said Rules. The relevant provisions read thus:-
“2. Definitions: In these rules, unless the context otherwise requires:-
(3) “Stockist” means any person who wishes to possess store, sell trade in or otherwise deal with any mineral including processed mineral for commercial purpose.
(4) “Authorized Officer” means an officer authorized by the State government by notification in the Official Gazette, to perform functions under these rules and for such jurisdiction as may be specified in the rules.
(9) “The Expression” “Mineral” “Mining lease” “prospecting license” “reconnaissance permit” meaning as assigned to them in the Mines and Mineral (Development and Regulation) Act, 1957 and “Querry lease or other mineral concessions” in respect of minor minerals have the meaning assigned to them in the Gujarat Minor Mineral Rules 1966.
(10) “Form” means the forms appended to the rules.
3. Restriction on possession, storage, etc. of mineral: No persons shall-
(i) win, possess, store, sell, trade, mine, remove in or otherwise deal with an mineral except in accordance with the provisions of the Act.
(ii) win, possess, transport, store, sell, trade, mine or remove any mineral from any place except in accordance with terms and conditions of a registration granted by the authorized officer.
(iii) transport or carry or cause to transport or carry any mineral by any means from the place of raising to another place without being in possession of a valid transit pass / delivery challan issued by the authorized officer.
8. Grant of registration, renewal for stocking / storage of mineral (1)Application for registration: Any person willing to possess, store, sell and trade in or otherwise deal with any mineral including processed mineral for commercial or industrial motive shall make an application in two copies to the authorized officer in Form-C.
(2).......
(3) On receipt of an application for registration, the authorized officer shall acknowledge the receipt in Form-D. The acknowledgment shall be sent to the applicant by Registered Post.
(4) Processing of application:
(i) The competent authority shall maintain a register in Form-E wherein, he will make necessary entry about the application immediately after its receipt and its disposed in due course;
(ii) The authorized officer shall verify the bonafide of the applicant and contents of the application by conducting such inquiry and examination of record as he deems necessary before disposal such application.
(5) Disposal of application for Registration:
(i) After due enquiry, the authorized officer shall, within two months from the date of receipt of the application, either grant a registration to the applicant on the condition specified in Sub-Rule (6), for a period not exceeding five years at a time, or refuse to grant the registration as he thinks fit.
(ii) In every case where the authorized officer refuses to grant the registration, he shall record his reasons thereof in writing and communicate the same to the applicant.
(6) Condition for Registration: the registration shall be granted in Form-F subject to the following conditions namely:-
(i) The registered firm or a person shall deposit Rs.10,000/- (Rs. Ten Thousand) as security deposit by challan.
(ii) The registered firm or a person shall maintain an account of ore and minerals procured, transported, processed, daily to different destinations in Form-1.
(iii) The registered firm or a person shall submit statement in Form F-2 duly maintained for every month in the first week of the succeeding month to the authorized officer.
(iv) In case of crushing, pulverizing or any kind of processing plant and factory, the registered firm or a person shall maintain a separate daily account of minerals procured and fed to the factory or plant and the processed minerals recovered in Form – G-1 and submit monthly statement of the above in the Form -G-2 duly maintained for every month in the first week of succeeding month to the authorized officer.
(v) The registered firm or a person shall not pollute the environment by storing the mineral or while utilizing them in his crushing plant for pulverizing plant or factory.
10. Cancellation or suspension of registration: The authorized officer may at any time and after giving an opportunity of being heard to the Firm / Person registered, and after recording the reasons where of may cancel or suspend the registration by an order in writing communicated to the Firms / Person registered for breach of any of the terms and conditions of the registration or these rules.
17. Seizure of property liable to confiscation:
(1) When there is reason to believe that an offence has been committed in respect of any mineral such mineral, together with vehicles or other conveyances used in committing such offence may be seized by any officer authorized by the government in that behalf (herein after referred to as the authorized officer) and record details of seizing property in Form-J.
(2). .....
(3) Where any mineral seized under sub-rule (1) produced before the officers authorized by the stage government and he is satisfied that an offence has been committed in respect thereof, he may order, confiscation of the mineral or value or part of the value thereof so seized and produced, together with the vehicles, or other conveyance used in committing such offence.
(4) No order confiscating any property shall be made under sub-rule (3) unless the person from whom the property is seized is given-
(a) a notice in writing in Form K informing him of the goods on which it is proposed to confiscated such property.
(b) opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and
(c) a reasonable opportunity of being heard in the matter.”
9. It is in light of the above mentioned undisputed facts and in light of relevant Rules that the petitioner's contentions are required to be examined and the respondent’s defence is required to be considered.
9.1 On perusal of the Rules it emerges that the Rules are framed with the object of preventing illegal and unauthorized mining, storage and transportation of mineral. Thus, the Rules will have to be construed and understood keeping said object in mind.
9.2 According to Rule 2(3) any person who wishes to possess, store, sale, trade in or otherwise deal with any mineral for commercial purpose, is and will be considered as “Stockist”. According to Rule 2(4) an officer who is authorized by State Government by notification in the gazette to perform functions under these rules for specified jurisdiction, is an “authorized officer” for the purpose of said Rules. The expression, mineral, mining lease, prospecting license and reconnaissance permit are defined under Rule 2(9) of the said Rules and the term “Form” according to Rule 2(10) means the Form appended to the said rules. According to the scheme of the Rules, Rule 3 prescribes that no persons shall do any of the acts mentioned under sub-rule 1,2, and 3, of Rule 3 except in accordance with the provisions of the Act and / or except in accordance with the terms and conditions of registration, as the case may be.
9.3 Now so far as the provisions referred to in said Rule 3 are concerned, the provisions under Rule 8(1) read with Rule 2(3) of Rule 3, require, inter alia, “Registration” by any person who wishes to store, sell, trade etc. any mineral.
9.4 According to conjoint reading of Rule 3 and Rule 8(1) any person who intends to engage himself / itself in winning, possessing, transporting, storying, selling, trading or removing any mineral from any place must apply for and obtain “Registration”. For the said purpose necessary application should be made to the authorized officer in prescribed From viz. Form-C.
On receipt of such application, the authorized officer is supposed to acknowledge the receipt in prescribed form viz. Form D and such acknowledgment is to be sent by Registered Post A.D.
9.5 According to Rule 8(5) after receipt of such application authorized officer has to cause “due inquiry” and within two months after “due inquiry” from the date of receipt of the application the authorized officer should either grant registration to the application on the condition specified in sub-rule (6) or refuse to grant the registration, if he so thinks fit.
9.6 The registration if granted, must be granted in prescribed in form viz. Form – F and it should be subject to the conditions specified under clause (i) to (iv) of said sub-rule-6 and the validity of period of registration should not exceed five years at a time and if the authorized officer decides to refuse to grant the registration, reasons should be recorded and communicated to the applicant.
9.7 According to Rule (10) the authorized officer can cancel or suspend the registration by passing an order at any time, after giving opportunity of being heard to the registered firm / person and after recording reasons.
10. The said Form-F contemplated under Rule 8(6), which is appended to the said Rules is in below mentioned formate:-
FORM-F (See Rule 8(6)) Grant of Registration
1. Name of the person / firm registered
2. Full address
3. Father's name in full (in case of firm, give name of Attorney to act on behalf of the firm)
4. Profession of the registered
5. Specific place or places of storage
6. Specific purpose for which registration is granted
7. Name of mineral / ore covered under the registrations
8. Challan No. showing payment of security deposit
9. Name and address of persons firm from whom the mineral / ore will be purchased / procured
10. Period of registration
11. If it is a case of renewal the number and date of grant of the original registration
12. No. and date of application for this registration Date of grant Signature of Authorized Officer to grant registration with designation and address”
10.1 It is pertinent that if the registration is granted then the “Registered” firm / person is obliged to maintain “an account / ore and minerals” procured, transported, processed to different destinations in Form F-1. The said form F-1 is in below mentioned formate:-
FORM-F-1 (See Rule 8(6)(ii)) Register of account of minerals
1. Name of the registered person / firm
2. Address in full
3. Date of registration
4. Period of registration
5. Name of mineral / ore to be transported
6. Place from which ore / mineral is transported
7. Total quantity of mineral / ore to be transported
8. Name of Circle Mining Office having jurisdiction over the ore / mineral Signature of the Registered person / firm Date of submission of return
10.2 Moreover, it also pertinent that such registered firm or a person is also obliged to submit, every month a statement in Form F-2 reflecting the details regarding opening stock, quantity of ore or mineral transported, details of transit pass etc. The form-2 is in below mentioned formate:-
FORM-F-2 (See Rule 8(6)(iii)) Monthly return mineral
1. Name of the registered person / firm
2. Address in full
3. Date of registration
4. Period of registration
5. Name of mineral / ore to be transported
6. Place from which ore / mineral is transported
7. Total quantity of mineral / ore to be transported
8. Name of Circle Mining Office having jurisdiction over the ore / mineral Signature of the Registered person / firm Date of submission of return
11. So far as present case is concerned, the entire edifice of petitioner's contentions against the actions of the respondent is based on (a) petitioner's claim that it acted on the belief that if the application is not refused and rejected within two months then on expiry of two months from the date on which it is received by the authorized officer then it should be deemed to have been granted and that therefore in absence of refusal the registration was deemed to have been granted after 23.12.2007; and (b) on petitioner's interpretation of the communication dated 30.7.2008 inasmuch as according to the petitioner the said letter dated 30.7.2008 amounts to granting registration dated 18.7.2010 (which is petitioner's convenient and unilateral assumption) and that such registration would relate back to the date of application i.e. 18.7.2010 or from 24.7.2010 i.e. the date on which it was received in the office of the respondent.
12. In view of this Court both the contentions and the premise of the challenge against respondent’s action and the decision are misconceived and unsustainable.
13. It emerges form the relevant provisions that Rule 3 of the said rules prescribes pre-condition for possession, storage, removal etc. of mineral and provides, inter alia, that except in accordance with the provisions of the Act no person shall win, possess, store, sell, trade, mine or otherwise deal with any mineral. On examination of the Rules, it becomes clear that Rule 8(1) prescribes that registration is sine qua non for the persons who intends to store, sell, possess, mine or remove any mineral. Hence, any storage, sell, possessing etc. of mineral without registration would be contrary to and in breach of the said Rules.
14. The learned Counsel for petitioner has contended that to fulfill the conditions prescribed by the rules, it had submitted application seeking registration and in view of the provision contained under sub-rule 5 (i) of Rule 8 the application for registration (which was received in respondents’ office on 24.10.2007) should have been processed and should have been granted or refused within two months and since the application was not refused within two months from the date of receipt of the application it should be presumed to have been granted on expiry of period of two months from the date of receipt of the application (i.e. after two months from 24.10.2007).
15. The said submission is misconceived and in light of the relevant rules, it cannot be accepted and sustained.
15.1 The Act or the Rules do not provide, and there is no provision in the Act or in the Rules, that if the application is not refused on or before expiry of the period prescribed for granting or refusing the application then on expiry of such period the application for registration shall be deemed to have been granted. Not only there is no provision in light of which Registration can be deemed to have been granted but there is clear mandate that without “Registration” the activities covered within the purview of Rule 3 and Rule 8(1) shall not be undertaken.
15.2 It is pertinent that the relevant provision starts with a command and the mandate that “No person shall.....”. The nature and object of the rules and conjoint reading of all provisions particularly Rule-3 and the expression with which the said Rule begins i.e. “No person shall........” makes Registration mandatory and do not admit such contention and do not leave any room to admit and accept such contention. The said qualifying phrase also indicates, impresses and signifies that the said requirement is in nature of a pre-condition and the said obligation is sine qua non for commencing the activities mentioned under clause (i) to (iii) of Rule 3 read with sub-Rule (1) of Rule 8 and it makes the obligation to obtain Registration not only a condition precedent but also a mandatory condition. When the provision which begins with such mandate, it would impose mandatory obligation which must be complied in the manner prescribed by the rules. Thus, the pre- condition, which is prescribed in mandatory terms must be complied before commencing / undertaking activity of storing, selling, possessing mineral.
15.3 Furthermore, it is also pertinent that the said requirement is prescribed for achieving the object of preventing illegal mining, storage and transportation of mineral.
15.4 Thus, in view of conjoint reading of provision under Rule 3 with Rule 8 and in light of the object of the provision it becomes clear that registration must be obtained before taking action of possessing, storing, selling etc. of any mineral and without complying the procedure and condition prescribed under Rule 3 and Rules 8(1) to 8(6), any person cannot possess, store, sale, trade, mine or remove any mineral.
15.5 It is pertinent that there is no provision in the Act or Rules which provides that consequence of not refusing registration within two months will be that the Registration shall be deemed to have been granted or that it shall automatically stand granted.
15.6 When applicable Rules contain provision prescribing a mandatory condition (viz. of registration) then in absence of any other specific provision expressly providing that if registration is not refused before expiry of prescribed time limit (in present case, two months) the registration may be deemed to have been granted then merely because registration is not refused within prescribed time limit on expiry of such time limit Registration cannot be presumed to have been granted,
15.7 If the petitioner's said contention is accepted it would amount to legislating or adding words in the relevant provision and would also amount to reading something more / additional which is not provided for by the legislature.
15.8 At this stage it is relevant to take into account that when the legislature intends to permit a presumption (i.e. when legislature intends to introduce “deeming fiction”) that if the application is not refused within prescribed time limit then it will be deemed to have been granted, the legislature expressly makes appropriate provision.
15.9 In this context reference can be made to the provision under Section 25(o) of Industrial Disputes Act, 1947. Subsection(1) of said Section 25(o) prescribes a condition that employer who intends to close down an undertaking may seek prior permission at least 90 days before the date on which the intended closure is to become effective. Subsection (3) of Section 25(o) provides that if the permission is not granted within 90 days then it will be deemed to have been granted. The relevant provisions read thus:-
“25-O. Procedure for closing down an undertaking.-
(1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work.
(2) ........
(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.“ (emphasis supplied) Similarly in the provision related to retrenchment under Section (N) of I.D. Act also the legislature has expressly made provision permitting such presumption. In this context reference can be made to the provision contained under Section 25 (N)(1), 25(N)(3) and 25(N)(4) which reads thus:-
25N. Conditions precedent to retrenchment of workmen.-
(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,--
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.
2.....
(3) Where an application for permission under sub-section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(4) Where an application for permission has been made under sub- section (1) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.” (emphasis supplied) At this stage reference may also be made to the provision contained under Section 40(B) of the Bombay Primary Education Act 1947 which prescribes that dismissal or removal of teacher in recognized private primary school shall not be effected without permission from the Administrative Officer.
In the said provision, the legislature has clearly provided that if action is not taken within the period of 45 days then on expiry of said period it will be deemed to have been granted. Relevant part of the said provisions read thus:-
“Section 40B: Dismissal removal or reduction in rank of teachers:-
(1)(a) No teacher of a recognized private primary school shall be dismissed or removed or reduced in rank nor service be otherwise terminated until –
i) he has been given by the manager an opportunity of showing cause against the action proposed to be taken in regard to him; and
ii) the action proposed to be taken in regard to him has been approved in writing by the administrative officer of the school board in the jurisdiction of which the private school is situated.
(b) The administrative officer shall communicate to the manager of the school in writing his approval of the action proposed, within a period of forty five days from the date of receipt by the administrative officer of such proposal.
(2) Where the administrative officer fails to communicate either approval or disapproval within a period of forty five days specified in clause (b) of sub-section (1), the proposed action shall be deemed to have been approved by the administrative officer on the expiry of the said period. (emphasis supplied)
(3). .......
(4.......
(5) ”
15.10 Thus, it emerges that wherever the legislature intends to permit such presumption then the legislature specifically makes such provision.
15.11 Therefore, it follows that when mandatory condition is prescribed then in absence of any provision on the strength of which Registration could have been deemed to have been granted, the petitioner could not have assumed that on expiry of two months registration is deemed to have been granted.
16. Hence, in absence of express provision that on expiry of two months if the registration is not refused then the registration shall be deemed to have been granted, any presumption to the effect that registration is deemed to have been granted could not have been made by the petitioner. In absence of such provision it cannot be presumed that on expiry of two years Registration is deemed to have been granted. Neither such presumption can be made nor such contention can be accepted.
16.1 In this view of the matter, the petitioner's contention based on such impermissible presumption (i.e. since on expiry of two months Registration was not refused it should be deemed to have been granted) cannot be accepted and sustained. Thus, the said contention fails.
17. So as to come out of such position, the learned Counsel for the petitioner, in his submissions tried to contend that if Registration is granted ex post facto then also the condition prescribed by Rule (3) read with Rule (8) can be said to have been complied. On this count the learned Counsel for the petitioner would further, or in alternative, submit that even if it is held that registration cannot be deemed to have been granted upon expiry of period of two months, then also, it should be held that the registration was granted vide communication dated 30.7.2008 and the said registration shall relate back to the date of receipt of the application in office of respondent.
17.1 So far as the said submissions are concerned, they proceed on petitioner’s interpretation of the communication dated 30.7.2008.
17.2 So as to advance and support such contention the learned Counsel for the petitioners heavily relied on the said letter dated 30.7.2008. The petitioners claim that the said letter amounts to order granting registration.
17.3 The said contention also is misconceived. Neither the provisions contemplate and / or recognize post facto registration (inasmuch as the condition about registration is pre-condition) nor the said letter dated 30.7.2008 can be read or construed as order granting registration.
17.4 When the said communication dated 30.7.2008 is examined in light of the provisions under Rule 2(10), Rule 3, Rule 8 (3), Rule 8(6)(ii)(iii) it becomes clear that the said letter does not fulfill the condition and requirement prescribed by the Rules. Therefore the said letter cannot be construed as oder granting Registration.
17.5 The foregoing discussion has established that the provision and condition about registration is a condition precedent which is required to be complied before undertaking the activities mentioned in Rule 3 and / or Rule 8 and that therefore the contention on ground of ex post facto registration i.e. post facto compliance cannot be sustained.
18. This aspect also comes out from conjoint reading of relevant Rules. The provision under Rule 8(6) prescribes that the authorized officer is obliged to follow the prescribed conditions according to which if the registration is to be granted then it must be granted in Form-F and that the registration should be granted for only for 5 years at a time and that the conditions mentioned under clause (i) to clause (iv) of sub-rule 6 of Rule 8 should be imposed.
18.1 It is trite law that if something is required and prescribed to be done in a particular and prescribed manner then it must be done in the prescribed way only and not in any other way or manner.
18.2 On perusal of said letter dated 30.7.2008, it emerges and becomes clear that it does not fulfill and comply the aforesaid prescribed conditions and requirements and is not in consonance with Rule 8.
18.3 If the said communication dated 30.7.2008 is examined in light of the prescribed Form-F, it follows that the said communication is not in prescribed Form and it does not formally and officially grant “Registration” in prescribed manner i.e. in prescribed Form – F and the condition regarding validity period is also not observed and complied. When the authorized officer has not granted “Registration” in prescribed Form-F, and when the other conditions are also not observed and complied, the said communication dated 30.7.2008 cannot be construed as “authorized officer's decision - and order” granting registration.
18.4 The respondent authority also has clarified the said aspect in the reply affidavit and has stated, inter alia that:-
“I further state and submit that, the letter dated 30.7.2012 issued by the answering respondent to the petitioner are more general instructions which the registrations holders have to follow after getting the registration but in the present case, no registration have been granted to the petitioner under Rule 8(6) in Form F. Moreover, it is clear from the statement of the petitioner on 05.01.2012 para 3 that the letter is merely regarding conditions of registration.”
18.5 In view of the relevant provisions and the requirement prescribed thereby the said letter dated 30.7.2008 cannot be construed as order granting Registration as contemplated under Rule 8 read with Rule-3.
19. In this context it is necessary to recall and relevant to note that the object and purpose of the Rule is to prevent illegal mining, storage and transportation of mineral. The said object of the Rule can be achieved if the person (or proprietary concern / partnership firm / company) who is willing to engage himself / itself in any of the said activities gets the place at which any of the activities are to be undertaken, duly registered in accordance with the condition prescribed under the Act. Therefore, even if Registration is granted after the activities contemplated under Rule (3) are already undertaken, then also it would not amount to and / or it cannot be construed as compliance of mandatory pre-condition.
19.1 This aspect can be examined from another perspective as well. It appears that until the impugned order came to be passed even the petitioner had not considered the said communication as order granting registration. Otherwise it would have complied the other requirements as prescribed under Rule 8(4) and Rule 8(5) including the requirement to file prescribed returns / statements in prescribed Form. The petitioner has neither pleaded such facts nor it has placed any material on record to establish that it had complied all other requirements (e.g. filing periodical returns, challans etc. in prescribed forms) on the understanding and on the belief that registration was granted. There is nothing on record to demonstrate that even the petitioner had ever treated said letter dated 30.7.2008 as order granting Registration and fulfilled the obligations required to be discharged pursuant to Registration inasmuch as the petitioner has not shown, in any manner, that from 30.7.2008 onwards it had complied the other requirements prescribed under the Rules.
20. The fact that in present case the expression / term “No person shall.............” not only makes the condition mandatory but also makes it condition precedent becomes clear from similar provision under Section 25-F of the Industrial Disputes Act, 1947, which reads thus:-
“25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a). .....
(b). .....
(c) ”
20.1 The said provision was considered by the Hon'ble Apex Court in case between The State of Bombay vs. The Hospital Mazdoor Sabha and other (AIR 1960 SC 610) wherein the Hon'ble Apex Court observed that:-
(6) ......Section 25F (b) provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer until he has retrenched by that employer until he has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months. Clauses (a) and (c) of the said section prescribe similar conditions but we are not concerned with them. On a plain reading of S. 25F (b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non- compliance with the said condition would not render the impugned retrenchment invalid. The argument which appealed to Tendolkar, J., however, was that the consequence of non-compliance with the requirement of S. 25F (b) was not to render the impugned retrenchment invalid, because he thought that by S. 25-I a specific provision has been made for the recovery of the amount prescribed by S. 25F (b). Section 25-I provides for the recovery of monies due from employers under Ch. V, and according to Tendolkar J. this provision covers the amount due to the workman by way of compensation under S. 25F (b). In our opinion, this view is untenable. Having regard to the fact that the words used in S. 25F (b) are mandatory and their effect is plain and unambiguous it seems to us that the Court of Appeal was right in holding that S. 25-I covered cases of recovery of monies other than those specified in S. 25F (b), and it is obvious that there are several other cases in which monies become due from the employers to the employees under Ch. V; it is for the recovery of these monies that S. 25-I had been enacted. Therefore, we see no substance in the argument that the Court of Appeal has misconstrued S. 25F (b). That being so, failure to comply with the said provision renders the impugned orders invalid and inoperative. (emphasis supplied)
20.2 In this context reference may also be made to the decision by the Ambalal Shivlal vs. Vin and others (1964 (2) LLJ 271). In the said decision the Court relied on the above mentioned observations by the Hon'ble Apex Court in the decision in case between State of Bombay vs. Hospital Mazdoor Sabha and made below mentioned observations:-
“.............Having regard to the view which their lordships have taken regarding the correct interpretation of S.25F it is impossible to accept this argument. In our judgment, when an order of retrenchment does not comply with the conditions laid down in S.25F, the order is not viodable but it is void. That being so, the order of retrenchment is null and void. It follows, that till compensation amount is paid by the employer, the relationship of master and servant between the employer and the employee continues and the only legal right which the employee has is to receive his wages on the basis that he continues to be in service.” (emphasis supplied)
20.3 Thus, when the condition prescribed under Rule 3 of the said Rules prescribes that no person shall store, possess, trade in or deal with any mineral without registration, then it should, as corollary, follow that the said provision is mandatory and in mandatory terms it prescribes pre-condition of Registration for any person who intends to possess, store, sell, transport any mineral.
21. From the foregoing discussion and reasons it emerges that the communication dated 30.7.2008 cannot be considered as order granting registration. Thus, when the said communication cannot be construed as order granting registration, then there is no scope to consider that the said letter or its effect would relate back to the date of receipt of the application in office of the respondent authority.
22. In present case what is even more relevant and important aspect is the fact that actually the authorized officer has, even ex post facto, not not expressly and officially granted registration but the petitioner has conveniently presumed that the registration is granted vide letter dated 30.7.2008 and the petitioner has further assumed that it should also relate back to the date on which its application was received in the office of the authority. The foregoing discussion brings out that the said letter dated 30.7.2008 cannot be construed or read as order granting registration. The above mentioned aspect brings out that the said contention raised on behalf of the petitioner in present petition are afterthought.
22.1 Thus, having regard to the nature and object of the provision the contention that ex post facto compliance would satisfy the requirement or the contention that the registration, though granted after commencement of the activities, would relate back to the date of the receipt of application for registration, cannot be accepted and sustained.
22.2 In this view of the matter the petitioner could not have stored the material at the plots in question before obtaining registration. The action of the petitioner of storing the material at the plot in question without obtaining registration, amounts to breach of the provision under Rule – 3 read with Rule – 8 of the said Rules.
22.3 If petitioner's aforesaid interpretation of the communication dated 30.7.2008 is not accepted and / or if the contention fails then the entire defence would fall because on one hand the petitioner undisputedly stored the material in May 2008 when the registration was not granted and even the said letter dated 30.7.2008 was not issued whereas on the other hand, so as to wriggle out of such position, the petitioner has, relying on such interpretation of the communication dated 30.7.2008, claimed that said letter dated 30.7.2008 amounts to granting Registration and that would relate back to the date of receipt of the application and therefore the storage of the material on the plots in question cannot be and should not have been considered as unauthorized and contrary to rules.
23. It is pertinent to recall that even before the said communication dated 30.7.2008 i.e. in May, 2008 the petitioner had already stored about 13455 Mt of the mineral at the plots in question. At that time the petitioner had no idea that it would receive communication dated 30.7.2008 and yet the petitioner stored the material (and also sold some quantity of material).
23.1 The said action of the petitioner of storing the material at the plots in question without registration amounts to, and was in, violation of Rule 3 read with Rule 8 (4) and 8(5) and 8(6) of the said Rules.
24. So as to support his contentions, the learned Counsel for the petitioner relied on certain decisions. However in view of the provision, and in light of the nature of the condition and its objects, the decisions on which reliance is placed by the learned Counsel for the petitioner, does not assist the petitioner’s case because the said decisions not only take into account different set of facts and circumstances but they also deal with different provisions whose nature, effect and object are different from the provision which are relevant and applicable in present case.
24.1 In the decision in case of Life Insurance Corporation of India (supra) the Apex Court considered the difference between provision under Section 8(1) and Section 29(1) of Foreign Exchange Regulation Act 1973. The Hon'ble Apex Court also considered the difference between “approval” and “permission”. The Apex Court observed that in the said provision the expression “general or special permission of Reserve Bank of India” is not qualified by word “previous” or “prior” and the Hon'ble Apex Court has observed that the word “prior” or “previous” may be implied if the contextual situation or the object and design of the legislation so demands. The Apex Court also observed that any compelling circumstances justifying reading of such implication was not found from the provisions of the Act and that actually the indications were found to be contrary. The Hon'ble Apex Court reached such conclusion having regard to the fact that on perusal of other provisions in the Act it was noticed that wherever the legislature considered it necessary to qualify the word “permission” with the word “prior” or “previous”, it had expressly done so. In this context the Apex Court made reference of provision contained under Section 27(1) and Section 30 of the Act and having regard to the said contradistinction the Apex Court observed that legislature had consciously made specific distinction between “permission simpliciter” and “previous permission” amongst several provisions. It was in such contextual backdrop that the Hon'ble Apex Court observed that “we find no justification whatsoever for limiting the expression permission to previous permission.......”. Thus the observations and conclusions by the Apex Court are made in light of the provision of the Foreign Exchange Regulation Act and Reserve Bank of India Act. Whereas in present case the contextual reference makes it clear that in mandatory terms a pre-condition is prescribed according to which the requirement is for “previous registration” and not “ex post facto registration”.
24.2 In the decision in case of Graphite India Limited (supra) the Hon'ble Apex Court considered the rival contentions in light of the provision which required “approval” of the Government and examined rival contentions in light of the distinction between “approval” and “permission” and observed that approval was granted by State Government by its letter dated 27.4.1992, and that the said approval would relate back with effect from 8.4.1991” The distinction between the requirement of approval and permission is illustrated by referring to provision under Section 33 of the Industrial Disputes Act. In subsection (1) of Section 33 the term used is “permission” whereas the term used in subsection (2) is “approval” and having regard to the said distinction Hon'ble Apex Court observed that approval could be post facto and it may relate back.
24.3 However, the said preposition would not be applicable where the provision mandates permission e.g. under sub-section (1) of Section 33 of the I.D. Act, 1947. Similarly the analogy would also not be applicable when the provision prescribes, in mandatory terms, the condition for registration as pre-condition for undertaking any activity mentioned under Rule 3 and Rule 8(1).
24.4 Learned advocate for the petitioner has also relied on the decision in case between U.P. Avas Evam Vikas Parishad (supra). In the said decision the Court referred to the decision in case of Life Insurance Corporation (supra) and noticed the distinction between term “permission” and “approval” and in light of such distinction the Apex Court held that “approval envisaged under exception (iii) of Section 59(1) (a), is to enable the Parishad to proceed further in implementation of the scheme framed by the Court”. The Court observed that “unless the approval is given by the government the Board may not effectively implement the scheme. Nevertheless, once the approval is given all the previous acts done or actions taken in anticipation of the approval get validated.” But there is material difference between two provisions inasmuch as in the cited decision the requirement was for “approval” which is no akin or similar to the pre-condition of Registration prescribed in present case.
24.5 As mentioned hereinabove earlier there is marked contextual difference between the provision considered by the Hon'ble Apex Court in the said decision and the provision under consideration in present case.
24.6 Moreover, the object of the provision and the intention of legislature viz. preventing illegal / unauthorized storage, possession, transport etc. of mineral, also cannot be overlooked. The said object also makes the condition of Registration, mandatory and a pre-condition.
25. There was no justification or reason for the petitioner to unilaterally presume that the registration is deemed to have been granted and it was also not permissible for it to store the material at the plots in question.
In this view of the matter when the respondent authority considered the action of the petitioner as breach of the condition of the relevant provision under the Rules, the said decision cannot be faulted. Similarly when the respondent authority passed order of seizure of the material stored at the plots in question in breach of applicable Rules and conditions, then such action and order of seizure also cannot be treated as illegal or arbitrary.
26. Before concluding, it is necessary to address one last contention which was raised at the end of the submissions. So far as the petitioner's contention that on account of delay caused in concluding proceedings pursuant to seizure of material, the action of seizure is vitiated is concerned, it is necessary to note that the Rules do not contain any provision prescribing time limit to conclude the proceedings. Moreover, it emerges from the record that considerable time was consumed by the authority in examining the factual details urged by the petitioner in connection with the source from where the petitioner acquired the seized material, the actual time when the material was procured and the relevant time when the material came to be stored at the plots in question. Time also appears to have been consumed in dealing with the contentions / objections raised by the petitioner. In this view of the matter the said grievance raised by the petitioner is neither justified nor sustainable.
27. For the foregoing discussion and reasons the petition fails. The petitioner has failed to make out any ground to interfere with the impugned order. The petition is accordingly disposed of. Rule is discharged.
Sd/-
Suresh* (K.M.THAKER, J.)