IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 785 of 2012 In SPECIAL CIVIL APPLICATION No. 258 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= ISMAIL IBRAHIM VORA THROUGH POA DHAVALKUMAR JAYANTILAL SHAH - Appellant(s) Versus COLLECTOR & 2 - Respondent(s) ========================================================= Appearance :
MR PRABHAV A MEHTA for Appellant(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 8/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant of a writ- application under Article 226 of the Constitution of India and is directed against an order dated March 20, 2012 passed by the learned Single Judge of this Court, by which His Lordship rejected the writ-application substantially on the ground that the writ-petitioner has an alternative remedy of appeal and such remedy has already been availed of by the writ-petitioner.
2. The facts shortly stated be thus :
2.1 The appellant is holding a licence for carrying out mining activities in respect of dolomite major mineral on the land mentioned in the memo of the writ- application. The appellant was called upon to show cause vide notice dated May 21, 2010 in respect illegal mining and incidental activities mentioned in the notice. The said notice was with respect to illegal mining from and within the area and outside the mining area assigned to the appellant. The said notice was replied by the appellant vide its communication dated June 01, 2010. In the said communication, the appellant outrightly denied the allegation with regard to carrying out any mining activities in the unauthorised area and the appellant had assured the authorities that he would take care of the deficiencies or irregularities mentioned in the notice.
2.2 The said notice, ultimately, culminated into an order dated June 04, 2011 passed by the Forest Department levying penalty or charges with respect to 154 sq.mtrs. of area excavated within the forest area indisputably falling outside the area of the appellant's mining. The appellant thereafter received a notice dated April 19, 2011, by which the appellant was called upon to answer the illegal mining activities, which the appellant had undertaken. The notice was issued under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the Act') and also under Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 and was called upon to explain as to why the appellant should not pay Rs.60,64,423/- towards the charges for the unaccounted quantity of mining mineral alleged therein. The said notice was replied by the appellant vide communication dated May 03, 2011, wherein he had called upon the respondents to supply him with certain documents. It is the case of the appellant that the documents were not supplied and ultimately, the appellant had to send his reply dated June 10, 2011 without redressing any grievance with regard to non- supply of the documents, which the appellant had referred to in his reply dated May 03, 2011.
2.3 In the reply, the appellant had stated that the complaint with regard to not putting a signboard would not survive as a signboard had been placed and the photographs were also annexed. There was an admission on the part of the appellant that through mistake mining in the forest was carried out and the penalty as charged by the Forest Department could be charged and the appellant would pay the requisite amount of penalty.
2.4 It appears that the explanation of the appellant was not found to be satisfactory and, therefore, the impugned order challenged in the main writ- application dated September 06, 2011, was passed, wherein it was also informed to the appellant that an appeal is provided to the Additional Director (Appeals) at Gandhinagar, which is to be preferred within 30 days.
2.5 Accordingly, the writ-petitioner had preferred an appeal, which is still pending. The said appeal was preferred on October 03, 2011.
2.6 During the pendency of the said appeal, the appellant preferred a writ-application challenging the order dated September 06, 2011.
2.7 The main plank of the appellant's submission before the learned Single Judge was that in view of the provision of Rule 23 of the Gujarat Mineral (Prevention of Illegal Mining, Transport and Search) Rules, 2005 (hereinafter referred to as 'the Rules'), nothing contained in this Rule shall apply to (i)possession, storage, selling, transporting or mining of minerals, which is governed by any law made by the Central Government under the Act on the subject for the time being in force and as the 'dolomite' is a major mineral, the State Government has no jurisdiction or powers to proceed against the appellant insofar as it relates to mining of dolomite is concerned.
The aforesaid submission of the appellant failed to find favour with the learned Single Judge and the learned Single Judge rejected the writ-application observing as under :
“7. xxx xxx xxx
(I) The petitioner cannot maintain this petition on the specious plea that the writ of prohibition is sought especially when the petitioner himself has chosen the alternative remedy by way of preferring an appeal to the concerned authority against the order of the Collector as it will amount to permitting the petitioner to maintain simultaneous proceedings. The plea of prohibition based upon illusory ground of lack of authority would also not help the petitioner for maintaining this petition as the provisions of Section 23(C) of the Act is unequivocally clear. .. ..
xxx xxx xxx
(II) The petitioner has relied upon the authorities in support of contentions but one needs to note that those authorities will be of no avail to the petitioner, as the date of insertion of Section 23(C), is a material date, then the authorities are prior to date of insertion of section. In that view of the matter and on factual aspect also, the action of the authorities does not require to be nipped in the bud as petitioner himself has chosen alternative remedy for petitioner as all the right and entitlement to raise ground. The observation with regard to lack of jurisdiction is purely an observation on the ground of remitting and dismissing the petition for permitting him to pursue the remedy and this cannot come in the way of the petitioner if he establish so before the concerned authority.”
3. Being aggrieved and dissatisfied, the appellant has come up with the present appeal.
4. Mr.Prabhav A. Mehta, the learned counsel appearing on behalf of the appellant, vehemently submitted that the learned Single Judge committed a serious error in rejecting the writ-application on the ground that the appellant has already availed of the remedy of appeal provided under the Rules challenging the impugned order and the said appeal is still pending before the Appellate Authority and, therefore, no case had been made out by the respondent for interference. Mr.Mehta submitted that the challenge in the writ-application is to the very power and jurisdiction of the State Government to proceed against the appellant with respect to major mineral “dolomite”. Such being the position, the appellant prayed for a writ of prohibition as there is patent lack of jurisdiction in the authorities to proceed against the appellant. Mr.Mehta further submitted that with regard to the major mineral detailed aspects are dealt with the Central Act as well as the Rules framed by the Central Government and thereby the State Government has rightly excluded the application of Rules, 2005.
4.1 Mr.Mehta also submitted that it is true that the appellant has already preferred an appeal before the Appellate Authority as provided under Rule 11 of the Rules, 2005 and the same is still pending before the Appellate Authority, but since he had prayed for a writ of prohibition, the alternative remedy would not be a bar for this Court to exercise its powers under Article 226 of the Constitution of India. Mr.Mehta, therefore, urged that this appeal be allowed and the reliefs as prayed for in the writ-application be granted in favour of the appellant.
5.1 On the other hand, Mrs.Krina Calla, the learned Assistant Government Pleader, vehemently opposed this appeal and submitted that the Government of Gujarat vide its notification dated November 26, 2005 has published Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 under the powers conferred in Section 23(g) of the Mines and Minerals (Development and Regulation) Act, 1957. These Rules are only for prevention of illegal mining, transportation and storage with respect to both minerals that are major and minor. For the purpose of providing mining permission for Major Minerals, Mineral Concession Rules, 1960 and for minor minerals Gujarat Minor Minerals Concession Rules, 2010 (Amended) are in force. Both these Rules are framed under the provisions of Mines and Minerals (Development and Regulation) Act, 1957. No Rules are framed for prevention of illegal mining, transportation, storage by Central Government separately for Major Minerals. This rules have given the definition of Mineral in Chapter-1 Rule 2(9) as follows : “The expression “mineral” “mining lease” “prospecting licence” “reconnaissance permit” meaning as assigned to them in Mines and Minerals (Development and Regulation) Act, 1957 and as per definition of “minerals” under Section 3(a), it includes all minerals major and minor except mineral oils.
5.2 It is the case of the State-respondent that the Government of Gujarat vide notification dated August 29, 2006 has authorised officers for the various function of Gujarat Mineral (Prevention of Illegal and Mining, Transportation and Storage) Rules, 2005. Hence, the order passed by the Collector is legal and as per the Rules. Further power of entry, search and seizure is given under Rule 19 of the Rules, 2005.
5.3 It is also the case of the State-respondent that the notice dated September 06, 2011 is as per the Rules and final order of penalty for illegal excavation in the lease area as well as outside lease area (encroachment) has been passed. The Government vide notification dated March 03, 2010 has authorised the authority to impose penalty in certain illegalities as mentioned, which are prepared and orders for the same are passed. After passing final order by the Collector, Vadodara, royalty pass account of the leaseholder is closed as per the Government notification dated March 03, 2010.
5.4 Mrs.Calla lastly submitted that there is an alternative remedy of filing an appeal under Rule 11 of the Rules, 2005 and the appellant has already availed of the remedy of appeal by filing the same before the Additional Director and the same is still pending for hearing, which could be taken up at the earliest. In the circumstances, according to Mrs.Calla, no interference is warranted with the order passed by the learned Single Judge and the appeal deserves to be dismissed.
5. Having heard the learned counsel appearing for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this Letters Patent Appeal is as to whether the learned Single Judge was justified in not entertaining the writ-application on the ground that though the appellant prayed for a writ of prohibition, but still availed of the alternative remedy of appeal by filing the same which is still pending before the Appellate Authority.
6. We have noticed that the learned Single Judge in paragraph 7(II) of the order has observed that as the appellant himself had chosen to file an appeal, the action of the authorities did not require to be condemned as it would be open for the appellant to raise all the points before the Appellate Authority. The learned Single Judge has also stated that the observation with regard to lack of jurisdiction was purely an observation to dismiss the petition for permitting the appellant to pursue the remedy and the observations could not come in the way of the appellant if the appellant is able to establish his case before the concerned authority. In our view, it could not be said that the view of the learned Single Judge is unreasonable or not in accordance with law so as to warrant any interference in this appeal. However, Mr.Mehta has raised an important question as regards alternative remedy vis-a-vis a writ of prohibition. As observed earlier, the main plank of Mr.Mehta's submission had been all throughout about the patent and inherent lack of jurisdiction of the State authorities to proceed against the appellant, as the appellant has carried out mining activities of major mineral, named, 'dolomite'. However, the question is as to whether the appellant has actually prayed for a writ of prohibition or has prayed for a writ of certiorari to quash and set aside the notice dated April 19, 2011 and the consequential order dated September 06, 2011.
7. We have gone through the prayer clause in the writ-application. Two main prayers in the writ-application are as under :
“44. In the premises aforesaid, the petitioner most respectfully prays that :
(A) Your Lordships may be pleased to issue a writ of prohibition and/or writ in the nature of prohibition and/or writ of certiorari and/or writ in the nature of certiorari and/or any other appropriate writ, order or direction to quash and set aside notice dated 19.4.2011 issued by respondent no.1 and order dated 6.9.2011 passed by respondent No.1;
(B) Your Lordships may be pleased to issue appropriate writ, order and/or direction to quash and set aside notice dated 19.4.2011 issued by respondent no.1 and order dated 6.9.2011 passed by respondent No.1 and direct respondent no.1 to consider the case of petitioner pursuant to Notice dtd. 30.12.2011/3.1.2012 issued by resp. no.2.”
8. It is apparent that the litigation started with a notice dated April 19, 2011. The notice dated April 19, 2011 was answered, which ultimately culminated in the order dated September 06, 2011. If it is the case of the appellant that the authorities had no jurisdiction to proceed against him, then we fail to understand as to why in the first instance itself i.e. at the stage of notice itself, the writ-petition was not preferred with a prayer for a writ of prohibition. The appellant not only answered the notice dated April 19, 2011, but also waited for the final order to be passed dated September 06, 2011. Such being the position, even if we assume for a moment that the appellant prays for a writ of prohibition, whether after the termination of the proceedings, a writ could be issued in the nature of prohibition. The Supreme Court in the well-known judgment of Hari Vishnu Kamath v. Ahmad Ishaque and others, reported in AIR 1955 SC 233, has explained the very succinctly the difference between the writ of prohibition and writ of certiorari.
9. It will be profitable in the facts and circumstances of the case to quote the observation passed by the Supreme Court in paragraphs 15 and 16 of the Constitution, which are as under :
“15. xxx xxx xxx What is stated there is that both writs of prohibition and 'certiorari' have for their object the restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of 'certiorari',' and on that, an order will be made quashing the decision on the ground of want of jurisdiction.
It might happen that in a proceeding before the inferior court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for 'certiorari' and prohibition-'certiorari' for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Authorities have gone to this extent that in such cases when an application is made for a writ of prohibition and them is no prayer for 'certiorari', it would be open to the Court to stop further proceedings which are consequential on the decision. But if the proceedings have terminated then, it is too late to issue prohibition and 'certiorari' for quashing is the proper remedy to resort to. Broadly speaking and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of 'certiorari' for quashing after they have terminated in a final decision.
16. Now, if a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of 'certiorari to quash, because it is directed against a decision which has been rendered by a court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled. In this context, the following passage from Juris Corpus Secundum, Volume 14, page 126 may be usefully quoted;
"Although similar to prohibition in that it will lie for want or excess of jurisdiction, 'dertiorari' is to be distinguished from prohibition by the fact that it......is 'directed to the cause or proceeding in the lower court, and not to the court itself, while prohibition is a preventive remedy issuing to restrain future action and is directed 'to the court' itself."
The decision in '1921-2 AC 570 (E), which was concerned with a writ of prohibition is, therefore, inapplicable to a writ of 'certiorari' to quash. It has also to be noted that in that case as the military Court had pronounced its sentence before the application was filed," a writ of prohibition was bound to fail irrespective of the question whether the Tribunal was 'functus officio' or not, and that is the ground on which Viscount Cave based his decision. He observed:"
A further difficulty is caused to the appellants by the fact that the officers constituting the so-called military Court have long since completed their investigation and reported to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition directed to them would be of no avail. (See 'In re Poe (1833), 5 B and Ad 681 (G), and -Chabot v. Lord Morpeth', (1848) 15 QB 446 (H)",
10. Bearing the aforesaid principle in mind, it is very clear that in the case of a total want of jurisdiction, it is open to a party to come to a Court at the earliest opportunity and seek a writ of prohibition. A writ of prohibition will lie when the proceedings are to an extent pending and a writ of certiorari will be an appropriate remedy after the proceedings have terminated in a final decision. It is also true that the existence of any other remedy as already held by the Supreme Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar and others, reported in AIR 1955 SC 661, that the existence of another remedy is a very material circumstance to be taken into account when the Court is called upon to issue a writ of certiorari, but wholly different considerations arise when the writ asked for is prohibition. Writ of prohibition is issued whenever a subordinate Court or Tribunal usurps jurisdiction which does not belong to it, and when that has been shown, the issue of the writ, “though not of course, is of right and not discretionary ”
11. In the present case, it is too late in the day now to issue any writ of prohibition. Thus, in our view, the learned Single Judge rightly relegated the appellant to pursue with the appeal which the appellant has already filed before the Competent Authority under the Rules and has also reserved the liberty for the appellant to raise all the contentions available, including the contention of inherent lack of jurisdiction with the State authorities to proceed against the appellant.
12. For the reasons aforesaid, we do not find any merit in this appeal and the same is consequently dismissed. Notice is discharged. No order as to costs.
13. However, we direct the respondent No.3-Additional Director (Appeals), Geology and Mining Department, Gandhinagar, to immediately take up the appeal filed by the appellant for hearing and dispose of the same in accordance with law within a period of four weeks from today without being influenced in any manner by any of the observations made by the learned Single Judge or by this Court in appeal. We also make it clear that we have otherwise not gone into the question as to whether Rule 23 of the Rules of Rules, 2005 would have any applicability so far as the major mineral 'dolomite' is concerned. We direct the respondent No.3-Additional Director (Appeals) to consider this aspect after giving opportunity of hearing to the appellant and decide the same in accordance with law.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar