In present petition, the petitioner has prayed that:- “13(B)Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the respondent authorities to issue the advance royalty passbooks and gate passbooks in triplicate to the petitioner on making necessary payment, so as to enable the petitioner to continue and to carry on her business of crushing plant of minor minerals – black trap, grit / kapchi;
(C) That this Hon'ble Court will be pleased to issued an appropriate writ,order or direction in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent authorities to issue advance royalty passbooks and gate passbooks in triplicate to the petitioner on making necessary payment of the royalty in advance;
(D) This Hon'ble Court will be pleased to issue interim direction to the respondent authorities to issue advance royalty passbooks and gate passbooks in triplicate to the petitioner on making necessary payment of the royalty amount in advance for carrying on her business activities of crushing plant at survey no.9 of village Nava Jashapar, Tal. Sayla, Dist. Surendranagar, in the name and style of Gurukrupa Quarry Works, till and pending hearing and final disposal of this petition;
OR IN THE ALTERNATIVE (D) This Hon'ble Court will be pleased to restrain the respondents, their agents and servants from preventing the petitioner, in any manner, from starting or carrying on the business of crushing plant at survey no.9 of village Nava Jashapar, Tal. Sayla, Dist. Surendranagar, in the name and style of Gurukrupa Quarry Works, on reasonable terms and conditions, as may be deemed just, fit and proper, during the pendency of this writ petition;”
2. So as to justify the reliefs prayed for in present petition, the petitioner has stated that the petitioner is running a stone crushing plant in the name and style of Gurukrupa Quarry Works at R.S.No.9, village Nava Jashapar, Tal.Sayala, Dist. Surendranagar.
It is also stated that the said unit was inspected by Senior Geologist on 12.3.2010.
After said inspection, the petitioner was asked to submit certain information with respect to said crushing unit.
The petitioner has claimed that subsequently vide communication dated 20.10.2010, the respondent authority again called for certain information from the petitioner.
The petitioner has asserted that in response to the said demand, under its communication dated 3.11.2010, the petitioner has supplied all requisite informations and record.
The petitioner has approached the Court with allegation that despite the fact that the petitioner has supplied relevant details to the respondent authorities, the respondent authorities are not issuing Chalan/Passes as a result of which, the petitioner is not in position to conduct and carry on its day-to-day business activities, which has adversely affected its business.
In background of aforesaid facts, the petitioner has preferred present petition.
3. The respondents have resisted the petition. Mr. Yagnik, learned AGP, has opposed the petition essentially on two counts viz.
(i) the petitioner has not supplied requisite details asked by the respondent authorities; and (ii) in mining area which is allotted to the petitioner's husband, certain irregularities have been detected by the respondent authorities. Therefore, the petitioner's request is not accepted.
3.1 So as to support the said aspects, the respondent authority has filed reply affidavits dated 7.3.2012, 25.7.2012 and 13.9.2012. In the last affidavit dated 13.9.2012, the respondent authority has, stated, inter alia, that:-
“2. I respectfully say and submit that in village Juna Jasapar, Taluka: Sayla, there are three quarry leases situated in survey no.61 and 61/2 which are as follows:
1. Jay Bharat Quarry Works.
2. Pratapsinh Laxmansinh Parmar.
3. Gurukrupa Quarry Works.
3. I respectfully say and submit that the husband of the petitioner is the owner of the Jay Bharat quarry works. I further say and submit that the husband of the petitioner was also handling all the above three quarry lease (statement dated 08.03.2008). I further say and submit that, the material used to be supplied to Gurukrupa Quarry Works (Crusher Plant) from the quarry lease of Pratapsinh Laxmansinh Parmar and Gurukrupa quarry works. The petitioner has registered with the office of deponent on 07.07.2008, for processing, storing and selling of minerals. ....
4. I respectfully say and submit that the owner of the said Gurukrupa Quarry Works (Crusher Plant) was the petitioner herein, the entire handling and controlling of the said crusher plant was in the hand of husband of the petitioner.
5. I further say and submit that the office of the deponent vide notice dated 26.10.2010 sought details of monthly and yearly records from the petitioner for the period 2003-2004, 2007-2008.
6. I further say and submit that the petitioner herein has supplied the details for the period of Oct-2009 to July-2010. Therefore, I say and submit that the present petitioner has not supplied required details pursuant to period of 2003-2004 to 2007- 2008 as sought by the office of the deponent herein. I further say that the office of Deponent has also issued Delivery Challan to the petitioner till 03.06.2010.
7. I respectfully say and submit that the office of the deponent vide notice dated 22.02.2010 informed to the petitioner regarding the site inspection to be carried out on 06.03.2012 and requested the petitioner to remain present at the site along with all the documents and record. But the petitioner has not remained present at the side on 06.03.2012. I further say and submit that the office of the deponent has issued another notice on 19.03.2012 and requested the petitioner to remain present before the office of the deponent on 02.04.2012 along with all records and evidence. I further say and submit that even there also the petitioner has not remained present ”
4. Mr. Champaneri, learned advocate for the petitioner, has submitted that there are no dues so far as petitioner's crushing unit is concerned. It is also submitted that the petitioner has supplied all details asked for by the respondent authorities.
Learned advocate for the petitioner has claimed that though there are no dues and the petitioner has supplied all documents asked for by the respondents, the respondent authorities are not issuing requisite challan/passes which would enable the petitioner to conduct its business activities. Learned advocate for the petitioner has prayed that the respondent authorities may be directed to supply necessary challan/passes as per the applicable regulations. Mr. Yagnik, learned AGP, has reiterated the details mentioned in the reply affidavit dated 13.9.2012 and submitted that on account of the aforesaid reasons, the respondent authority has denied issuance of challan/passes and therefore, the action of the respondent authority is neither illegal nor unjustified.
5. What emerges from the affidavit dated 13.9.2012 is that, there are three quarry lease situated at R.S.No.61 and 61/2 namely, Jay Bharat Quarry Works, Pratapsinh Laxmansinh Parmar and Gurukrupa Quarry Works.
So far as the petitioner is concerned, she has raised dispute in relation to the stone crushing plant working in name and style of Gurukrupa Quarry Works in present petition. The petitioner is the owner of the said undertaking where the petitioner is running a stone crushing unit.
So far as this aspect is concerned, the respondent authority has not disputed the said factual aspect.
5.1 However, the respondent claims that the husband of the petitioner is owner of a quarry lease i.e. Jay Bharat Quarry Works. It is claimed that from the said two quarry lease area i.e. Jay Bharat Quarry Works and Gurukrupa Quarry Works, material is being supplied to the said crusher plant. It is claimed that under notice dated 26.10.2010, the respondent had asked the petitioner to supply monthly and yearly records from 2003-2004 to 2007-2008. It is claimed by the respondent that the petitioner has supplied details from October-2009 to July-2010. In para-6 of the reply affidavit, the respondent has claimed that the petitioner has not supplied the required details from 2003-2004 to 2007-2008. It is also claimed that though the petitioner was asked to remain present at the time of inspection at the site, the petitioner did not remain present at the intimated time. The respondent has stated in the reply affidavit that the Government has issued notification dated 3.3.2012 declaring that delivery challan or royalty passes would not be issued to any lease holder who has defaulted in making payment of requisite duty/ penalty.
6. What is pertinent in the entire record of the petition is that no where, i.e. neither in the affidavit nor in any notice or even in any communication, the respondent authority has stated or even alleged that the petitioner has not paid any duty or any penalty and/or that any demand has been raised against the petitioner which is allegedly pending. Any case of such nature or effect is not even alleged, much less demonstrated against the petitioner. It is not even the case of the respondent authorities that the petitioner's unit is in default of making any payment towards royalty and/or penalty. Any material to make out such case is not placed on record.
Actually, from the record it does not emerge that any demand for any outstanding dues has been raised against the petitioner by the respondent authorities until now. Therefore, there is no justification in making reference of or relying on the notification dated 3.3.2012 which provide that the unit in default will not be issued any challan/passes.
Moreover, in light of the facts which have come on record, it appears that the reason or ground of outstanding dues is not available to the respondents against the petitioner, and any case to invoke said clause is not established.
The said aspect is not applicable in present case because the respondent authorities have failed to establish that the petitioner's unit is in default of any payment.
6.1 The only aspect which is now forthcoming from the said reply affidavit is that though the authority has demanded certain details, the said details have not been supplied by the petitioner.
Mr. Yagnik, learned AGP, has failed to show any provision which empowers the respondent authority to refuse to issue royalty passes merely because the details asked for by the authorities have not been supplied, more particularly when any demand or any dues are not outstanding or when any allegation about any irregularity against the petitioner's stone crushing unit is not made.
6.2 It is true that when the respondent authorities demand details/records, etc, it is the duty of the petitioner to supply such details/records.
However, in absence of any provision empowering the authority to refuse to issue challan/passes, more particularly when any outstanding dues are not pending and/or any allegation about any dues are not made or even any show-cause notice is not issued, the action of not issuing the delivery challan/passes does not appear justified, but, of course, subject to compliance of other requirements under the applicable provisions of the Act and applicable Rules.
Under the circumstances, it appears that present petition can be disposed of with below mentioned observations and clarifications.
(A) Though the petitioner has asserted in the petition that all details asked for by the respondent authorities have been supplied, the respondent authorities will, within 7 days specifically send a list of entire details regarding documents which are required and the period for which the documents, according to the respondents, have not been supplied by the petitioner and the petitioner, shall, thereafter, comply the said requirement, so as to enable the respondent authorities to proceed with necessary investigation/inspection.
The petitioner shall supply such details within period of 1 week after such intimation is received.
(B) If the petitioner is not in default in making any payment of any demand towards royalty or penalty and if any proceedings for recovery of dues are not pending against the petitioner, then, merely on the ground that the petitioner has not supplied required documents, the respondent authority, at this stage and without ascertaining liability, if any, will not refuse to consider petitioner's request for issuing delivery challan/passes merely on the ground of delay/default in supplying documents.
However, it is clarified that this order does not give liberty to the petitioner and/or this order should not be construed as liberty for not supplying the material asked for by the respondents. The petitioner shall supply the requisite data and material to the respondents within 7 days. If the petitioner fails to supply details, data, etc. it will be open to the respondents to take out appropriate application seeking modification/vacation of this order.
(C) The respondent authority will consider petitioner's request for issuing delivery challan/passes in accordance with law and applicable rules, and if the petitioner is not in default (as aforesaid) and if any proceeding is not pending against it, then, the petitioner's request for issuing delivery challan/passes will be considered and decided by the respondent competent authority independently and on its own merits, as expeditiously as possible, preferably within 1 week from receipt of such request in prescribed format.
With the aforesaid observations, clarifications and directions, present petition stands disposed of. Notice is discharged. Direct Service is permitted.
(K.M.Thaker, J.) kdc