Heard learned advocate for the petitioner and learned Assistant Government Pleader.
The petitioner, by way of this petition under Article 226 of the Constitution, approached this Court with following prayers:
"(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 19.04.2011 issued by respondent No. 1 and order dated 06.09.2011 passed by respondent No.1;
(B)In the alternative, your lordships may be pleased to issue appropriate writ, order and/or direction to quash and set aside notice dated 19.04.2011 issued by respondent no. 1 and order dated 06.09.2011 passed by respondent No.1 and direct respondent No.1 to consider the case of the petitioner pursuant to Notice dated 30.12.2011/3.1.2012 issued by respondent no.2.
(C) In the alternative, Your Lordships may be pleased to issue appropriate writ, order or direction; directing respondent No.3 to give an opportunity of personal hearing and consider aspect of jurisdiction and to supply all materials relied by respondent No.1 with regard to subject matter of notice dated 19.04.2011 and order dated 06.09.2011 and after giving reasonable opportunity of hearing, may pass appropriate interim order as prayed for before respondent No.3 within two weeks from the date of receipt of such direction and may pass appropriate final order within three weeks from the date of receipt of direction of this Hon'ble Court;
(D) Your Lordships may be pleased to issue appropriate writ, order or direction; directing respondent No.1 and 2 to hold joint inspection in presence of petitioner and Mining Engineer and expert with regard to pits from where the mineral are excavated by the petitioner;
(E) Pending hearing and final disposal of the petition, Your Lordships may be pleased to direct respondent No. 1 to permit the petitioner to carry out mining operation as per the terms and conditions of the lease deed and Mining Plan;
(F) An ex-parte ad-interim relief in terms of prayer (E) above may kindly be granted;
(G) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted.
The petitioner has narrated facts leading to filing of this petition which may refer to hereafter for the sake of understanding the controversy in a nutshell. The petitioner is holding license for carrying out mining activities in respect of Dolomite Major Mineral on the land mentioned in the memo of the petition. The petitioner was called upon to show cause vide show cause notice dated 21.05.2010 in respect of illegal mining and incidental activities mentioned in the notice. This notice was qua illegal mining from and within the area and outside the mining area assigned to the petitioner. This notice was replied by the petitioner vide its communication dated 01.06.2010 produced on page 45 of the compilation. In this communication, the petitioner appears to have outrightly denied the allegation with regard to carrying out any mining activities in forest area and the petitioner has assured the authorities for carrying out compliance with other lacunas and/or deficiencies or irregularities mentioned in the notice. This notice ultimately culminated into, as per the say of the petitioner, an order passed by the Forest Department levying penalty or charges qua 154 sq.mtrs area excavated within the forest area admittedly falling outside the area of the petitioner's mining. This is produced on page number 38. The order is dated 04.06.2011. The petitioner received a notice dated 19.04.2011 on page 34, in which the petitioner was called upon to answer the illegal mining activities alleged in the said petition. This notice was issued under the provision of Mines and Minerals (Development Regulation) Act, 1957 and also under Gujarat Mineral (Prevention of Illegal Mining, Transport and Search) Rules with special emphasis on Rule 3,5,6 and 8 and was called to explain why he should not pay Rs. 60,64,423/- towards charges for the unaccounted quantity of mining mineral alleged therein. This notice was replied by the petitioner vide communication dated 03.05.2011 wherein he called upon the respondent to give the documents i.e. (I) copy of Rojkam (II) measurement sheet (III) Plan of the excavated pits, if any. These three documents have been called for but they were not supplied, as per the say of the petitioner, and ultimately, the petitioner had to send in his reply of 10.06.2011, which is produced at page 48. This communication did not contain any grievance with regard to non-supply of the documents which have been referred to in reply dated 03.05.2011. In this reply, the petitioner has stated that the complaint with regard to not putting sign board, would not survive as the sign board has been placed and the photos were annexed. Filling is not to be carried out as there exists dolomite mineral beneath the wall pits also along with the mines closure plan, section plan, surface plan etc. were produced. It is not mentioned that they were already produced prior thereto. There is an admission on the part of the petitioner that through mistake the illegal mining in the forest land was carried out and penalty as charged by the forest department will be charged and paid. This order and explanation was found to be unsatisfactory, and hence, the impugned order dated 06.09.2011 came to be passed wherein it was also informed to the petitioner that the appeal to the Additional Director (Appeal) at Gandhinagar is provided which is to be proved in thirty days. Accordingly, as per the submission of the petitioner, he preferred an appeal which is pending. This appeal was preferred on 03.10.2011. During pendency of the said appeal, the present petition is preferred challenging that from order which is a subject matter of appeal filed by the petitioner before the concerned authority.
Learned advocate for the petitioner had contended that the Collector's order is an ex facie illegal and arbitrary and as the appellant authority is having control over the Collector, the appellate authority is not likely to entertain the appeal objectively, and therefore, this petition is maintainable.
Learned advocate for the petitioner has contended that in view of the provision of Rule 23 of the Gujarat Mineral (Prevention of Illegal Mining, Transport and Search) Rules, 2005 which have no applicability qua the major minerals coal 'dolomite'. Rule 23 was emphatically pressed into service to contend that these rules are not applicable to eventualities which are governed by the rules and regulation framed by Central Government, and therefore, when there exists two sets of regulation promulgated by the Central Government namely the mining conservation the mineral conservation and Development Rules, 1988 and Mineral Concession Rules, 1960 which are having applicability to the search conservation and development of mineral. These rules i.e. The Gujarat Rules will have no applicability. Learned advocate for the petitioner invited this Court's attention to Rule 22-A, 22-B, 22-D and 27 of the 60 Rules. Learned advocate relying upon Rules 9, 13, 11 and 18 of 88 Rules submitted that those rules are also governing the field and therefore the Gujarat Rules shall have no applicability to the facts and circumstances of the present case.
In order to support this contention, learned advocate for the petitioner relied upon decision of the Andhra Pradesh High Court in case of C. Narayana Reddy Vs. Commissioner of Panchayat Raj and ors. reported in AIR 2004 AP 234 and decision of the Apex Court in D.K.Trivedi & Sons and ors. vs. State of Gujarat and Ors. reported in 1986 (Suppl.) Supreme Court Cases page 20 and in case of State of Haryana Vs. Ram Kishan and ors. reported in 1988 (3) SCC 416 and in case of State of Tamil Nadu Vs. M.P.P. Kavery Chetty 1995 (2) SCC page 402. He also relied on decision of this Court dated 13.12.2011 passed in Letters Patent Appeal No. 681 of 2011. Relying upon these authorities, learned advocate attempted to indicate that the spheres of operation so far as the minor mineral and major mineral are concerned have been articulately defined and therefore, these are the authorities and development of law which may persuade this Court to hold that the Gujarat mineral rules are not applicable to the facts and circumstances of the present case.
This court is of the considered view that petition is required to be dismissed for the following reasons namely -
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. It is appropriate to set out the said provision herewith for ready reference:
"Section 23C: Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals, - (1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the fees to be paid therefor and powers of such authority for disposing of such applications; and
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
Notwithstanding anything contained in section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorized officers or any authority under the rules made under sub-sections (1) and (2).] Section : 30: Power of revision of Central Government, - The Central Government may, of its own motion or on application made within the prescribed time by an aggrieved party, revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under this Act [with respect to any mineral other than a minor mineral]."
Thus, if this petition is read in its spirit and letters, couple with the provisions of Section 30 of the Act, which is set out hereabove, one would be persuaded to hold that the petitioner's plea with regard to lack of jurisdiction or authority cannot be said to be acceptable or tenable, therefore, on this ground also, when the petitioner's counsel cannot establish absolute lack of authority so as to issue writ of prohibition under Article 226 of the Constitution of India, the same cannot be accepted.
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.
With this observations, petition is not entertained and is dismissed. Notice discharged. No costs.
(S.R.BRAHMBHATT, J.) pallav Top