Andhra Pradesh High Court - Amravati

M/S.Tirumala Enterprises vs The State Of Andhra Pradesh on 8 February, 2021

Bench: D Ramesh

                HON'BLE SRI JUSTICE D. RAMESH

                WRIT PETITION No.43370 of 2018
ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief/s:

"...to issue the Writ, Order or direction more particularly one in the nature of Writ of Mandamus, declaring Demand Notice No.573/Q2/BG/2007 dated 05.11.2018 issued by the Assistant Director of Mines and Geology, Palamaneru, Chittoor District as wholly illegal, arbitrary and violative of Articles 14, 19 of the Constitution of India and consequently declare the petitioner is not entitled for payment of any amount as demanded by the respondents."

2. Heard learned counsel for the petitioner and

learned Government Pleader for Mines & Geology appearing

for the respondents.

3. The brief facts of the case are that the petitioner

was initially granted a quarry lease over an extent of 2.500

hectares in Sy.No.337/P and 333/P of Diguvapalem Village,

Thamballapalli Mandal, Chittoor District for Black Granite for

a period of 20 years vide proceedings No.23236/R-5-1/2007

dated 24.02.2010 and subsequently a lease deed was also

executed in this regard on 04.10.2010. The petitioner has

excavated certain quantities of mineral from the leased area

after execution of the above said lease deed. From 2013

onwards, the petitioner was not been doing any excavation as

the Environmental Clearance has not been issued by the

competent authority. On 04.12.2017, the Environmental

Clearance Certificate was obtained form the concerned

authorities to the petitioner and the same has been produced

before the 5th respondent office. While doing so, the technical

staff of the 5th respondent office inspected the quarry leased

area of the petitioner on 06.02.2018 and submitted

inspection and survey report to the 5th respondent. The said

inspection was done in the absence of the petitioner and

without issuing notice to him. Relying on the above said

inspection reports, the Assistant Director of Mines and

Geology, Palamaneru issued show cause notice dated

16.02.2018 and on the same day he has also requested the

Director of Mines and Geology to determine the mining lease

of the petitioner.

4. The petitioner has submitted his explanation to

the show cause notice dated 16.02.2018. But without

considering the explanation submitted by the petitioner, the

Joint Director of Mines and Geology, Government of Andhra

Pradesh, Vijayawada again issued another show cause notice

dated 13.04.2018 with regard to the breaches committed by

the petitioner. The petitioner again submitted his explanation

to the notice dated 13.04.2018. But without considering the

explanations submitted by the petitioner the Assistant

Director of Mines and Geology, Palamaneru issued Demand

Notice No.573/Q2/BG/2007 dated 05.11.2018 demanding

the petitioner to pay an amount of Rs.44,86,445/- towards

fine, market value and also Normal Seigniorage Fee for the

mineral that has been excavated without obtaining permits.

Further learned counsel for the petitioner firm relied on the

judgment of this Court in, "J M B Rocks V. State of Andhra

Pradesh and others1", and requested this Court to set aside

the impugned demand notice dated 05.11.2018.

5. Learned Government Pleader appearing for the

respondents stated that the, A.P. Government has issued

G.O.Ms.No.35, Industries & Commerce (Mines-III)

Department dated 01.07.2020 by amending the A.P. Minor

Mineral Concession Rules, 1966. In view of the amended rule,

the 2nd respondent is competent to impose penalty to control

illegal mining and transportation of minor minerals. Learned

Government Pleader further contended that the ratio decided

by this Court in J M B Rocks case (supra 1) is only for

imposing punishments. But in the instant case, the

respondent authorities have imposed penalty only. Hence, the

learned Government Pleader vehemently argued that the said

judgment does not apply to the present facts and

circumstances of the case.

6. This Court in J M B Rocks V. State of Andhra

Pradesh and others held as follows:

"13. The reading of the amended Rule 26(3)(ii) of the A.P.Minor Mineral Concession Rules shows that the following penalties can be imposed:-

2020 (6) ALT 85

(A) Punishment by imprisonment for a term which may extend to two years (or) with fine which may extend to Rs.5,00,000/- along with the market value of the mineral and seigniorage fee (or) both"

14. Therefore, in the opinion of this Court, this is the punishment that can be imposed by a Court of competent jurisdiction only. The earlier Rule has been drastically amended and the words fine "along with" market value and seigniorage fee or both have been incorporated. Higher punishment is proposed and the power to sentence the defaulter to imprisonment is also given. It is clear that the power of imposing the punishment of imprisonment with or without fine/market value etc., is conferred exclusively to the Courts of competent jurisdiction only and the same cannot be exercised by the Assistant Director of Mines and Geology(3rd respondent). The fine to be imposed is also linked to the market value and the seignorage fee. Imprisonment upto two years or fine along with market value etc., or both are the alternatives.

15. As per the law of the land, there are within the exclusive domain of the Courts only. Rule 8(4) of the Andhra Pradesh Mineral Dealer's License Rules, 2000 on which the respondent relies upon merely states that penalty can be imposed. This Rule does not override the amended Rule 26(3)(ii) of the Rules and it does not authorize the 3rd respondent to decide on the punishments. The old Rule may have authorized the officials to levy penalty but in this Court's opinion the new Rule by prescribing punishment of imprisonment upto two years or with fine and market value of the mineral etc., or both has taken this power out of the purview of the 3rd respondent and the like. As rightly submitted by the petitioner this is a penal provision and like all penal provisions it should be very strictly

construed. The law is well settled and need not be repeated here. The power to impose such punishments of imprisonment with other penalties is exercisable by the competent court's alone".

7. In the light of the judgment stated supra, this

Court is of the opinion that the 5th respondent has abrogated

himself the power which is to be exercised by the Courts

alone. Moreover, it is pertinent to mention that the

G.O.Ms.No.35, Industries & Commerce (Mines-III) Department

came into force on 01.07.2020 amending the A.P. Minor

Mineral Concession Rules, 1966. But the 4th respondent has

issued the impugned demand notice dated 05.11.2018 much

prior to the amendment without any statutory support.

8. In view of the facts and circumstances of the case,

the Demand Notice No.573/Q2/BG/2007, dated 05.11.2018

issued by the 5th respondent-Assistant Director of Mines &