1
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1017/2022
M/s Subhash Chand Mukesh Chand, Station Road, Bayana
Through The Partner Smt. Kamlesh Bhadana Wife Of Shri Atar
Singh Bhadana, Aged About 60 Years, Resident Of Sagar Farm,
Shergarh Bayana, Distt. Bharatpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Govt Of Rajasthan, Department Of Mines And Geology,
Secretariat, Jaipur
2. Joint Secretary, Govt Of Rajasthan, Mines (Group-2)
Department, Secretariat, Jaipur
3. Director, Mines And Geology, Govt Of Rajasthan,
Directorate Of Mines And Geology, Court Circle, Udaipur
4. Additional Director, Department Of Mines And Geology,
Jaipur Zone, Jaipur, Khaniz Bhawan, Jaipur
5. Assistant Mining Engineer, Department Of Mines And
Geology, Rupbas, District Bharatpur
----Respondents
For Petitioner(s) : Shri R.K. Agarwal, Sr. Advocate with Shri Ashwani Kumar Chobisa For Respondent(s) : Mr. Zakir Hussain, AGC with Shri Ajay Khandal Shri Vimal Choudhary with Shri Ankit Agrawal HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 23/09/2022 Although, as per order of this Court dated 1.9.2022, the matter was to be heard on stay application; but, on the (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 2 request of the learned counsels for the respective parties, the writ petition itself was heard on its merit at this stage.
This writ petition has been filed for quashing and setting aside the enquiry report dated 20.2.2020, enquiry report dated 8-9.4.2021, the show cause notice dated 22.6.2020, the orders dated 11.8.2020, 28.12.2021 and 30.12.2021 with a direction to the respondents to immediately restore the mining operation and business of the petitioner by issuing e-ravanna and refrain them from creating any hindrance or obstruction in the mining operation.
The relevant facts in brief as emerge from the memo of writ petition are that the petitioner is a partnership firm having in its favour a mining lease no.03/1993, Village Bhonda Gaon, Jagjeevanpur, Tehsil Weir, District Bharatpur which, initially was issued for mineral Silica sand and later on, mineral masonry stone was also added therein. Validity of the mining lease is upto 9.6.2047 and the petitioner has environment clearance from the Ministry of Environment and Forest for the mining activities. The petitioner was served upon with a show cause notice dated 22.6.2020 by the respondents, whereby, alleging irregularities in the mining activities, a fine of Rs.4,51,75,677 was proposed. The notice was replied by the petitioner on 6.8.2020. Vide order impugned dated 11.8.2020, a demand of Rs.4,51,75,677/- was raised towards fine and compound fee alleging illegal excavation and transfer of the minerals. (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 3 On petitioner's representation, the State Government, vide order dated 19.8.2020 constituted a three-member Committee to submit its report after enquiry within a period of a month. A two Member Committee constituted in pursuance of a corrigendum letter dated 26.3.2021, submitted its report on 9.4.2021 wherein, it broadly agreed with the earlier enquiry report dated 20.2.2020 whereupon, vide order impugned dated 30.12.2021, the demand raised vide order dated 11.8.2020 was maintained. Legality and validity of the inspection reports and the demand order has been assailed in the writ petition.
As per the reply filed by the respondents, inspection on both the occasions was carried out in presence of Shri Anil Parashar, a representative of the petitioner firm. It is stated that earlier also a committee was constituted on 5.11.2018 which, during its inspection on 13.12.2018, found certain irregularities entailing imposition of a penalty of Rs.48,15,642 which the petitioner deposited through challan dated 21.1.2019. In the inspection of the petitioner's mine carried out from 4.12.2019 to 20.12.2019, illegal excavation and transportation of 82379.84 tonne of masonry stone and 18136.37 tonne of silica sand was found which culminated into imposition of a penalty of Rs.4,51,75,677 vide order dated 11.8.2020. It is stated that on account of retirement of one Member of the Committee on attaining age of superannuation, the remaining two members of the Committee inspected the (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 4 site on 9.4.2021 and found the illegalities/irregularities in the mining activity based whereupon, the demand has been maintained. Dismissal of the writ petition is, therefore, prayed for.
The petitioner in rejoinder submitted that Shri Anil Parashar was neither its employee nor, he was ever authorised on its behalf to sign the inspection reports. It is submitted that while preparing the inspection report dated 20.2.2020, measurement of the pits already existing at the time the lease was granted to the petitioner in the year 1997, was not taken into consideration resulting into erroneous assessment and measurement of the mineral excavated.
Learned Senior Counsel Shri R.K. Agarwal, reiterating the averments made in the pleadings, submitted that since the show cause notice dated 22.6.2020 is based on the inspection report dated 20.2.2020 prepared, in turn, on the basis of inspection carried out behind petitioner's back, it cannot be sustained in the eye of law. He submits that the petitioner was never supplied with a copy of the enquiry report dated 20.2.2020 which otherwise also, was of no significance as it was prepared by the respondents in their office and not at the site. Learned senior counsel submitted that although, presence of Shri Anil Parashar is reflected in the inspection report; but, he was neither petitioner's employee, nor its authorised representative. He submits that in any case, inspection carried out without prior notice (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 5 is void ab initio. Inviting attention of this Court towards the inspection report dated 12.6.1993, learned senior counsel submitted that it reveals that before grant of mining lease no.03/1993 to the petitioner firm, a pit measuring 200 feet x 70 feet x 70 feet was already in existence with excavation of 70880.57 tonne of mineral and this report has not been taken into consideration while passing the order impugned raising demand. Referring to the inspection report dated 9.4.2021, Shri Agarwal submitted that therein, recording a categorical finding that it was not possible to assess the exact status of the excavation as on 4.12.2019, the earlier inspection report dated 20.2.2020 has been assumed to be correct, which cannot be sustained in the eye of law.
Learned Senior Counsel submitted that the order impugned dated 30.12.2021 has been passed without supplying the petitioner a copy of the enquiry report dated 9.4.2021 and the order is in violation of the principles of natural justice too inasmuch as neither a show cause notice nor, an opportunity of hearing was given before raising demand. He, therefore, prayed that the writ petition be allowed in terms of prayers made therein. Learned Senior Counsel for the petitioner relied upon following judgements in support of his submissions:
1) Grands Mining (a Partnership Firm), Bokaro Steel City vs. State of Jharkhand through Secretary, Department of Mines and Geology-(2022) 1 JLJR 63;
(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 6
2) Mewar Marbles Ltd. vs. State of Rajasthan-2002 WLC (Raj.) UC 213.
Per contra, learned State Counsel, Shri Zakir Hussain would submit that no prior notice was required to be given before carrying out inspection of the mine. He submits that inspection on both the occasions, i.e., on 4.12.2019 and 9.4.2021 was carried out in presence of Shri Anil Parashar, the authorised representative of the petitioner firm. He, in this regard, invited attention of this Court towards the supplementary agreement dated 24.1.2019 executed in between the parties wherein, Shri Anil Parashar stood as a witness on behalf of the petitioner firm. Learned counsel, referring to the application dated 13.1.2022 filed by Shri Anil Parashar under Right to Information Act, 2005, submitted that the documents obtained thereunder by him, have been annexed by the petitioner along with the writ petition. Learned counsel submits that the illegal excavation and transportation of the mineral is not only established from the inspection reports; but, also from the examination of e-ravanna. He submitted that during the inspection dated 13.12.2018 also, illegal excavation of the mineral was found which entailed a penalty of a sum of Rs.48,15,642 which was deposited by the petitioner on 21.1.2019. Shri Zakir Hussain submitted that non-supply of the enquiry report dated 20.2.2020 to the petitioner is of no consequence as it had filed reply to the show cause notice dated 22.6.2020 after receipt of a copy of the enquiry report dated 20.2.2020 under the Act of 2005. Learned counsel further (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 7 submitted that before passing the order dated 30.12.2021, the petitioner was not required either to be supplied with a copy of the inspection report dated 9.4.2021 or an opportunity of hearing as the demand already raised vide order dated 11.8.2020, was maintained.
Drawing attention of this Court towards the provisions of Rule 28(1) and Rule 54 of the Rajasthan Minor Mineral Concession Rules, 2017 (for brevity-`the Rules of 2017'), learned State Counsel submitted that since the petitioner was found guilty of illegal mining and transportation of the minerals, the demand vide order dated 30.12.2021 has rightly been raised. He, therefore, prayed for dismissal of the writ petition.
Shri Vimal Choudhary, learned counsel for the intervenor Shri Mukesh Chand, submitted that he was unceremoniously ousted from the partnership firm on 14.3.2016 and re-constitution of the petitioner firm is bad in law. He would submit that since re-constitution of the petitioner firm is in violation of the Rule 27 of the Rules of 2017, the instant writ petition is not maintainable. He, in support of submission, relied upon a judgement of Hon'ble Apex Court in the case of M/s. Gotan Limestone Khanij Udyog vs. State of Rajasthan-(2016) 4 SCC 469.
Learned Senior Counsel for the petitioner, relying upon the status report dated 23.10.2019 furnished by District Industries Centre, Bharatpur to the District Collector, Bharatpur, submitted that since the official respondents did (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 8 not find any illegality or irregularity re-constitution of the petitioner firm, the objection raised by the intervenor is not sustainable.
Heard. Considered.
The undisputed facts are that the petitioner firm was issued a show cause notice dated 22.6.2020 alleging illegal excavation and transportation of the mineral based on the enquiry committee report dated 20.2.2020. The notice was replied by the petitioner but, it did not find favour with the respondents and vide order dated 11.8.2020, a demand of Rs.4,51,75,677 was raised against it. Thereafter, on a representation by the petitioner, the State Government, vide its order dated 19.8.2020, ordered for a fresh inspection by a three-Member Committee which was carried out on 9.4.2021 by a two Member Committee and based thereupon, the demand raised vide order dated 11.8.2020, has been reiterated vide order dated 30.12.2021.
Submission of the learned senior counsel for the petitioner that entire exercise undertaken by the respondents is bad in law inasmuch as no prior notice before inspection was given to it, does not merit acceptance as this Court is not satisfied that before carrying out inspection of the petitioner's mine, any prior notice was required. In absence of any statutory provision under the Rules of 2017 mandating so, the respondents were at liberty to carry out surprise inspection. The judgement relied upon by the petitioner in the case of Mewar Marbles (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 9 Ltd. (supra) is of no help inasmuch therein, despite appointing a Committee for joint inspection by the official respondents themselves, no opportunity was afforded to the appellant to be present at site at the time of inspection. However, in the present case, no such situation obtains.
This Court is also not satisfied that that no demand could have been based on the inspections carried out in absence of authorised representative of the petitioner firm inasmuch as the inspection on both the occasions was carried out in presence of Shri Anil Parashar, who, undoubtedly, was a representative of the petitioner as is revealed from the supplementary agreement dated 24.1.2019 executed between the parties wherein, Shri Parashar has stood as a witness on behalf of the petitioner- firm as also from the fact that the documents obtained by Shri Anil Parashar under the RTI Act, 2005, have been relied upon by the petitioner firm to substantiate the averments made in the writ petition. Therefore, this Court has no hesitation in holding that inspections were carried out in presence of representative of the petitioner firm.
Contention of the learned Senior Counsel for the petitioner that the inspection report dated 20.2.2020 could not have been made basis of demand order inasmuch it was a table work having not been prepared at the site, cannot be countenanced. A perusal of the report dated 20.2.2020 reflects that it is based on the reports prepared by the Committee during the course of its inspection from (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 10 4.12.2019 to 20.12.2019. In view thereof, the judgement of Hon'ble High Court of Jharkhand in case of Grands Mining (supra) is of no assistance to the petitioner.
Submission raised by the learned Senior Counsel for the petitioner that inspection by a two Member Committee on 9.4.2021 was bad in law as the State Government has, vide order dated 19.8.2020, appointed a three Member Committee to carry out inspection and submit its report within a period of one month, does not merit acceptance inasmuch as the inspection by a three Member Committee is not a statutory requirement under the Rules of 2017 and even otherwise also, the petitioner could not satisfy this Court that the inspection carried out by the remaining two Members of the Committee after retirement of one of its Members, caused any prejudice to it.
However, this Court is not satisfied with the contention of learned State Counsel that since the demand raised vide order dated 11.8.2020 was maintained vide order dated 30.12.2021, they were required neither to supply a copy of the inspection report dated 9.4.2021 to the petitioner firm nor, to issue any show cause notice or afford it an opportunity of hearing before passing the order dated 30.12.2021. This specious argument is rather reflective of pre-determination of the respondents in maintaining the penalty imposed vide order dated 11.8.2020. This Court fails to comprehend as to how before objective examination of the inspection report dated 9.4.2021 prepared in (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 11 pursuance of direction of the State Government dated 19.8.2020 on a representation submitted by the petitioner being dissatisfied with the earlier inspection report dated 20.2.2020, the respondents could have arrived at conclusion that the demand raised vide order dated 11.8.2020 was to be maintained and therefore, in the considered opinion of this Court, the respondents were under an obligation not only to supply the petitioner a copy of the inspection report dated 9.4.2021; but, also to afford it an opportunity of hearing before passing the order dated 30.12.2021.
Contention of the learned counsel for the intervenor that the constitution of petitioner-firm being improper, the writ petition is not maintainable, is devoid of merit inasmuch as, the official respondents have, so far, not found any illegality or irregularity in re-constitution of the petitioner firm. Even otherwise also, as informed to this Court, the intervenor has assailed re-constitution of the petitioner firm by way of an independent writ petition which is pending consideration before this Court.
The upshot of the aforesaid discussion is that the writ petition deserves to be allowed in terms:
1) the order dated 30.12.2021 as also the order dated 11.8.2020 are quashed and set aside with consequences to follow;
(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) 12
2) the respondents are at liberty to pass an order afresh after affording the petitioner a reasonable opportunity of hearing.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA / (D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/09/2022 at 09:32:28 PM) Powered by TCPDF (www.tcpdf.org)