N.Bhaskar, vs State Of Andhra Pradesh,
2021 Latest Caselaw 984 AP

Citation : 2021 Latest Caselaw 984 AP
Judgement Date : 19 February, 2021

Andhra Pradesh High Court - Amravati

N.Bhaskar, vs State Of Andhra Pradesh, on 19 February, 2021

Bench: D Ramesh

            THE HON'BLE SRI JUSTICE D.RAMESH

               WRIT PETITION NO.15574 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 1.967 hectares

in Sy.No.Gap Area of Suparvarajapuram Village, S.R.Puram

Mandal, Chittoor District for Colour Granite for a period of 20

years vide proceedings No.3694/Q2/2011, dated 25.04.2014 and

on the same day, a lease deed was also executed in this regard.

Since then, the petitioner has been regularly extracting mineral

and dispatching the same by duly obtaining dispatch permits

from the office of the respondent authorities by paying requisite

seigniorage fee. While doing so, the technical staff of the 4th

respondent office inspected the quarry leased area of the

petitioner on 17.12.2016 and thereafter, issued show cause

notice dated 31.01.2017. The petitioner has submitted his

explanation on 01.03.2017 to the said show cause notice. The

respondents vide proceedings No.3694/Q1/2011, dated

20.09.2017 conducted resurvey on 25.09.2017 but no orders

were passed basing on the resurvey. The 4th respondent issued

Demand Notice No.3694/Q1/2011 dated 03.10.2017 demanding

the petitioner to pay an amount of Rs.3,43,42,610/- towards

fine, market value and also Normal Seigniorage Fee for the

mineral that has been excavated without obtaining permits. The

demand that has been raised by the respondent authorities only

on presumption as no material on record or exact mineral that

has been excavated by the petitioner. Further learned counsel

for the petitioner 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 03.10.2017.

4. 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 4th

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) is only for imposing

. 2020(6) ALT 85

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.

5. 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:-

(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, they 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".

6. In the light of the judgment stated supra, this Court is of

the opinion that the 4th 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 03.10.2017 much prior to the amendment without

any statutory support.

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

Demand Notice No.3694/Q1/2011, dated 03.10.2017 issued by

the 4th respondent-Assistant Director of Mines & Geology,