Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs M/S. Southern Rocks And Minerals ... on 4 October, 2021
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE Mr. JUSTICE NINALA JAYASURYA
WRIT APPEAL Nos.218, 220, 221, 284, 287, 296,
339, 346, 347 & 350 of 2021
(Through Video-Conferencing)
W.A.No.218 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Chief Secretary, Industries and Commerce,
Mines Department, Secretariat Buildings, Velagapudi,
Guntur District, and others ... Appellants
Versus
M/s. Southern Rocks and Minerals Pvt. Ltd., rep by. its
Managing Director Pothula Rama Rao, 12-478/A,
adjacent to Industrial Estate, Kurnool Road, Ongole,
Prakasam District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. T. Sreedhar
W.A.No.220 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Kishore Granites Pvt. Ltd., rep. by its Managing
Director, Gottipati Ravi Kumar, 9th Lane, Pandaripuram,
Chilakaluripet, Guntur District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. P. Roy Reddy
W.A.No.221 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
HCJ & NJS, J
Velagapudi, Amaravati, Guntur District, and another ... Appellants
Versus
M/s. Kishore Granites Pvt. Ltd., rep. by its Managing
Director, Gottipati Radhika, 9th Lane, Pandaripuram,
Chilakaluripet, Guntur District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. N. Subba Rao
W.A.No.284 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Kamepalli Granites & Exports, rep. by its
Managing Partner Kamepalli Lakshmi Prasad,
Konidena village, Ballikurava Mandal,
Prakasam District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. N. Subba Rao
W.A.No.287 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Kishore Granites Pvt. Ltd., rep. by its Managing
Director, Gottipati Radhika, 9th Lane, Pandaripuram,
Chilakaluripet, Guntur District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. G. Madhusudhan Reddy
W.A.No.296 of 2021
The State of Andhra Pradesh, rep. by its Principal
HCJ & NJS, J
Secretary/Spl. Chief Secretary, Industries and Commerce, Mines
Department, A.P. Secretariat, Velagapudi, Amaravati, Guntur District,
and others ... Appellants
Versus
G. Ankamma Chowdary, S/o. Radhakrishna Murthy,
R/o.1-769, 10th Lane, Pandaripuram, Chilakaluripet,
Guntur District, A.P. ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. N. Subba Rao
W.A.No.339 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Sri Sai Lakshmi Granites, rep. by its Managing
Partner Kamepalli Lakshmi Prasad, D.No.9-204,
Martur, Prakasam District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. G. Madhusudhan Reddy
W.A.No.346 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Kishore Black Gold Granites Pvt. Ltd.,
Rep. by its Managing Director Gottipati Ravi Kumar,
D.No.6-179-1, Ganapavaram village, Nadendla Mandal,
Guntur District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. G. Madhusudhan Reddy
W.A.No.347 of 2021
HCJ & NJS, J
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
M/s. Kishore Granites Pvt. Ltd., Rep. by its Managing
Director Gottipati Ravi Kumar, 9th lane, Pandaripuram,
Chilakaluripet, Guntur District ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. P. Roy Reddy
W.A.No.350 of 2021
The State of Andhra Pradesh, rep. by its Principal
Secretary/Spl. Chief Secretary, Industries and
Commerce, Mines Department, A.P. Secretariat,
Velagapudi, Amaravati, Guntur District, and others ... Appellants
Versus
G. Ankamma Chowdary, S/o. Radhakrishna Murthy,
R/o.1-769, 10th Lane, Pandaripuram, Chilakaluripet,
Guntur District, A.P. ... Respondent
Counsel for the appellants : Mr. P. Sudhakara Reddy, AAG
Counsel for the respondent : Mr. N. Subba Rao
Date of hearing : 16.08.2021
Date of judgment :
COMMON JUDGMENT
(Arup Kumar Goswami, CJ)
W.A.Nos.220, 221, 284, 287, 296, 339, 346, 347 & 350 of 2021 are
preferred against a common judgment and order dated 02.03.2021
passed in W.P.Nos.17519, 8515, 8517, 8293, 17511, 8300, 8501, 17468
and 8516 of 2020, respectively, which were disposed of along with some
other writ petitions.
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2. W.P.No.8293 of 2020, W.P.No.8515 of 2020, W.P.No.17468 of
2020 and W.P.No.17519 of 2020 are filed by M/s. Kishore Granites Pvt.
Ltd. W.P.No.8517 of 2020 is filed by M/s. Kamepalli Granites and
Exports. W.P.No.8300 of 2020 is filed by Sri Sai Lakshmi Granites.
W.P.No.8501 of 2020 is filed by M/s. Kishore Black Gold Granites Pvt. Ltd.
W.P.No.8516 of 2020 and W.P.No.17511 of 2020 are filed by
Mr. G. Ankamma Chowdary.
3. W.A.No.218 of 2021 arises out of judgment and order dated
02.03.2021 passed in W.P.No.10457 of 2020, filed by Southern Rocks and
Minerals Pvt. Ltd., represented by its Managing Director P. Rama Rao.
The same is not part of the common judgment and order dated
02.03.2021 passed in W.P.No.17519 of 2020 and batch. The grievance
expressed relates to dispatch permits not being issued.
4. The grievance expressed in W.P.Nos.10457, 17468, 17511 and
17519 of 2020 relates to dispatch permits not being issued.
5. Challenge in W.P.Nos.8516, 8501, 8300, 8293, 8517 and 8515 of
2020 is to the show-cause notices issued to the petitioners therein. The
said show-cause notices are similar though issued on different dates.
6. W.P.No.13676 of 2020, W.P.No.13700 of 2020, W.P.No.13647 of
2020, W.P.No.13648 of 2020, W.P.No.13655 of 2020, W.P.No.13675 of
2020 and W.P.No.13646 of 2020 were also disposed of by the common
judgment and order dated 02.03.2021. Challenge in these writ petitions
was to the demand notices issued to the petitioners. No appeals have
been preferred against these writ petitions. The learned single Judge had
set aside the demand notices dated 31.07.2020 which were impugned in
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the said writ petitions on the ground that such notices were issued
committing breach of interim orders in pending writ petitions.
7. W.P.No.8803 of 2020 was also disposed of by the judgment and
order dated 02.03.2021 in W.P.No.13676 of 2020 and batch. In
W.P.No.8803 of 2020, it would appear from the cause-title of the
judgment that show-cause notice dated 19.03.2020 was under challenge.
However, it appears that no appeal has been preferred against the
judgment and order dated 02.03.2021 so far as it relates to W.P.No.8803
of 2020.
8. Mr. P. Sudhakara Reddy, learned Additional Advocate General,
submits that he will rely on the materials on record in respect of
W.A.No.221 of 2021 for the sake of convenience. The learned counsel
appearing for the writ petitioners also submit that they will refer to the
materials on record of W.A.No.221 of 2021.
9. The petitioners were granted quarry lease for black galaxy granite
in various survey numbers over different extents of land in Prakasam
District and it is the case of the petitioners that, accordingly, they have
been carrying on their operations in accordance with the terms and
conditions of lease as well as the provisions of the Mines and Minerals
(Development and Regulation) Act, 1957 (for short, "the Act of 1957")
and A.P. Mining and Minerals Concession Rules, 1966 (for short, "the
Rules of 1966).
10. The genesis of filing of the writ petitions challenging the show-
cause notices as indicated above has its roots in earlier show-cause
notices issued by the Additional Director of Mines and Geology, which
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came to be challenged in various writ petitions such as W.P.No.5068 of
2020 and batch filed by the aggrieved lease-holders.
11. In the aforesaid challenge mounted in W.P.No.5068 of 2020 and
batch, while allowing the writ petitions by the judgment dated 28.02.2020
on the ground that the Additional Director had no statutory power to
issue the show-cause notices, liberty was granted to the authorities to
issue fresh show-cause notices by enclosing relevant documents and
providing that the petitioners would have right to submit explanation by
taking all factual and legal pleas.
12. Subsequent to the passing of the aforesaid judgment dated
28.02.2020 passed in W.P.No.5068 of 2020 and batch, impugned show-
cause notices came to be issued by the Director of Mines & Geology.
13. The reasoning and discussion of the learned single Judge find
place in paragraphs 53 to 58. It is relevant to state that after paragraph
55, the next paragraph is numbered as paragraph 57. Learned single
Judge had placed reliance on the judgments in Siemens Ltd. v. State
of Maharashtra and others, reported in (2006) 12 SCC 33,
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and
others, reported in (1998) 8 SCC 1, D. Ramesh Sinha v. Cadre
authority for Key Personnel of Co-operative Central Banks/Apex
Bank, reported in 2001 SCC OnLine AP 1206, Kalari Nagabhushana
Rao v. The Collector, Panchayat Wing, Guntur and Ors, reported in
AIR 1978 AP 444, State of Punjab and another v. Gurdial Singh
and others, reported in (1980) 2 SCC 471, Rajaram Jaiswal v.
Collector (District Magistrate) Allahabad and another, reported in
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(1985) 3 SCC 1, Devinder Singh and others v. State of Punjab
and others, reported in (2008) 1 SCC 728, Anirudhsinhji
Karansinhji Jadeja and another v. State of Gujarat, reported in
(1995) 5 SCC 302, Manoharlal (dead) by Lrs v. Ugrasen (dead)
by Lrs. and others, reported in (2010) 11 SCC 557 and Ram and
Shyam Company v. State of Haryana and others, reported in
(1985) 3 SCC 267 for the conclusions drawn. Operative portion of the
judgment is reflected at paragraphs 59 and 60. Paragraphs 53 to 60 are
extracted herein-below for better understanding of the submissions of the
learned counsel for the parties as presented before this Court:
"53. Having heard all the counsel, and on perusal of
the records and provisions of the Act and Rules,
though the learned Additional Advocate General has
strongly relied on the G.O.Ms.No.504 dated 25.11.1997
and submitted that the Vigilance and Enforcement
Department has every power to conduct inspection
and take action against the persons who
contravenes/violate the Rules of any Department in the
State. Learned Counsel appearing on behalf of the
petitioners has contended that the G.O issued is only
an executive order passed under Article 162 of the
Constitution of India and such order cannot override
the provisions of the Statute. Hence the Vigilance and
Enforcement Department has no right to interfere with
the business of the petitioners and only the competent
authorities, has right to interfere and inspect the
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premises of the petitioners as per Rules. But at this
stage, this Court is not inclined to decide, the issue,
whether the Vigilance and Enforcement Department
has jurisdiction to conduct inspection of the premises
of the petitioner or not in consonance with the Rules.
But fact remains that, the impugned orders are issued
basing on the alert note dated 03.01.2020 submitted
by the Vigilance and Enforcement Department and in
the said report the Vigilance and Enforcement
Department has also determined penalty against the
petitioners and directed the respondents to take
action. Even the stand of the respondents as indicated
in the affidavit filed by them, would make it clear that
the impugned orders are issued basing on the alert
note submitted by the Vigilance and Enforcement
Department. A reading of Rule 35 and 35(a) of
A.P.M.M.C.Rules 1966 makes it clear that the
impugned orders are issued by the 2nd respondent
are, as directed by the 1st respondent, hence the same
is contrary to Rule 35 and 35(a) of the
A.P.M.M.C.Rules 1966 and also contrary to the ratio
laid down by the Hon'ble Apex Court as mentioned
supra in Devindeer Singh and others v. State of Punjab
and others and in Manohar Lal (dead) by Lrs v.
Ugrasen (dead) by Lrs. and others. No higher authority
in the hierarchy or an appellate or revisional authority
can exercise the power of the statutory authority. It is
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a clear case of exercise of powers on the basis of
external dictation/direction. That the decision of the
Hon'ble Apex Court referred to supra and the principle
laid down, in substance is applicable to the present
case.
54. As contended by the parties, the impugned notices
were issued with a pre-decisive/pre-determinative. No
doubt it is to be held that, the show cause notices are
followed by decisions. Hence they are contrary to the
principles laid down in the Hon'ble Apex Court as
mentioned above in Siemens Ltd. V.State of
Maharashtra and others wherein the Hon'ble Apex
Court has categorically held that when notice is issued
with pre determination writ petition would
maintainable and the same is evident in the instant
case. A bare reading of the impugned notices and the
statements made in the counter affidavit clearly
establishes that the authorities have already applied
their mind and formed an opinion regarding penalty,
even before issuing notices. Hence the same is held as
contrary to the law laid down by the Apex Court in the
above judgment.
55. As per the stand taken by the respondents in their
counter that as per section 23(b) of The Mines and
Minerals (Development and Regulation)Act, 1957 if any
gazetted officer of a Central or State authorized by the
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State in this behalf by general or special order has
power to inspect and search. On careful scrutiny of
G.O.Ms.504 and the 39 Rules governing the filed as far
as the position is concerned, this Court satisfied that
the State Government has not issued any special
order/general orders authorizing any particular officer
to search for contraventions to the Act or rules with
regard to the mineral or document in these batch of
cases. So without there being any specific order, the
said provision is not applicable to the present batch of
cases.
57. Given the circumstances, as contended by the
petitioners that subsequent to the interim directions
granted by this Court, the authorities have passed
consequential orders. Hence the same is contrary to
the principle laid down by Hon'ble Apex Court as
referred above in Manohar Lal (dead) by Lrs v.
Ugrasen (dead) by Lrs. and others wherein the Hon'ble
Apex Court has categorically held that any party to the
litigation cannot be allowed to take an unfair
advantage by committing a breach of an interim order
and escape the consequences thereof and held that
any action taken disobedience on orders passed by the
Court would be illegal and subsequent action would be
a nullity. The said principle is squarely applicable to the
present batch of cases.
HCJ & NJS, J
58. Learned Additional Advocate General has placed
reliance on the judgment of the Hon'ble Apex Court in
Union Bank of India & Others v Coastal Container
Transporters Association & Others as mentioned
above, to rebut his contention that the writ is not
maintainable against the show cause notice. Even
though in the said case, the Hon'ble Apex court held
that normally as against a show cause notice writ
petitions are not maintainable but in specific
circumstances held as maintainable. Hence the facts of
the present are different to the said case.
59. In view of the above stated reasons, this Court
is of the considered opinion that the impugned show
cause notices issued by the 2nd respondent
dt.20.3.2020 in W.P.No.8515 of 2020, dt.13.3.2020 in
W.P.No.8516 of 2020, dt.21.3.2020 in W.P.No.8517 of
2020, dt.21.3.2020 in W.P.No.8501 of 2020,
dt.19.3.2020 in W.P.No.8293 of 2020, dt.19.3.2020 in
W.P.No.8803 of 2020, dt.21.3.2020 in W.P.No.8300 of
2020 are set aside and further as per the ratio decided
by the Hon'ble Apex Court as referred to above in
Manohar Lal (dead) by Lrs v. Ugrasen (dead) by Lrs.
And others, the consequential demand notices issued
on 31.7.2020, are held as illegal and non-est in the eye
of law.
HCJ & NJS, J
60. In view of the setting aside the orders of the
show cause notice the competent authorities are
directed to consider the applications made by the
petitioners as per rule 34(1) of A.P.M.M.C. Rules 1966
and pass appropriate orders for dispatch permits,
forthwith. Accordingly, all the writ petitions are allowed.
As a sequel thereto, the miscellaneous petitions, if any,
pending in both the Writ Petitions shall stand closed."
14. The learned single Judge held that the impugned show-cause
notices were based on an Alert Note dated 03.01.2020 submitted by the
Vigilance and Enforcement Department, wherein penalty was also
determined. On a reading of Rule 35 and 35-A of the Rules of 1966, it was
also held that the impugned show-cause notices are contrary to the
aforesaid Rules and to the ratio laid down by the Hon'ble Supreme Court
in the case of Devinder Singh (supra) and Manohar Lal (supra),
inasmuch as show-cause notices were issued as directed by the
1st respondent being an appellate or revisional authority and that it is a
clear case of exercise of powers on the basis of external
dictation/direction.
15. It was further held that the impugned show-cause notices were
issued with pre-determination as statements made in show-cause notices
and the counter-affidavit clearly establish that the authorities had formed
an opinion for imposing penalty even before issuing notices and, as such,
the same falls foul with the principle laid down in Siemens Ltd. (supra).
The State Government had not issued any special order or general order
authorising any particular officer to search for contravention of the Act of
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1957 or the Rules of 1966 and, therefore, Section 23-B of the Act of 1957
is not applicable. It was observed that though normally a writ petition will
not be maintainable against a show-cause notice, in specific
circumstances, writ petition is maintainable.
16. Relying on Manohar Lal (supra), it was held that demand notices
issued while the interim directions were holding the field would be nullity.
17. With regard to the writ petitions seeking directions to issue
dispatch merits, as the show-cause notices were set aside, the
authorities were directed to consider the application for dispatch
permits as per Rule 34(1) of the Rules of 1966 and pass appropriate
orders.
18. The Alert Note dated 03.01.2020, which is referred to by the
learned single Judge is a note submitted by the Director General (VIG &
ENFT) and E.O. Principal Secretary to Government of Andhra Pradesh, by
which he had made certain recommendations to the Secretary to
Government (Mines, Industries, Infrastructure, Investment & Commerce
Department) to take action in respect of 20 quarry lease-holders and 8
polishing unit holders based on the findings arrived at on the basis of
verification of mining operations with reference to approved scheme of
mining, inspection of quarry leases, inspection of granite cutting and
polishing units and recovery of saleable granite from rock mass
excavation. The Vigilance enquiry was commenced, as the preamble of
the aforesaid Alert Note would indicate, on the basis of information
gathered during a route check. It is recited in the preamble to the Alert
Note that during the route check on Ballikurava-Martur BT Road at
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Nagarajupalli village of Martur Mandal on the intervening night of
07/08.09.2019, the Vigilance & Enforcement Unit, Ongole intercepted 8
vehicles transporting granite blocks and the drivers of the vehicles were
asked to produce documentary evidence in support of paying seigniorage
fee for the granite blocks as required under Rule 12(5)(h)(iii) of the Rules
of 1966. The drivers have produced transit passes generated through
online and on measurement of the granite blocks in the vehicles, huge
variations in quantities and time required to reach the destination was
noticed. Based on the confessions of the drivers, it was observed that the
vehicles were transporting another consignment from the same quarry
leases with the same transit passes to the same granite cutting and
polishing units, thus, establishing that vehicle owners, quarry lease
holders and granite cutting and polishing unit holders are conniving with
each other and resorting to illegal transportation of granite blocks causing
loss to state exchequer. As a sequel to this, further enquiries were
conducted along with officials from Mines & Geology Department between
22.11.2019 and 01.12.2019.
19. Before proceeding further, it will be appropriate to take note of the
decisions relied upon by the learned single Judge as the learned counsel
for the writ petitioners have relied on the same judgments in support of
their contentions while advancing submissions in these appeals.
20. In Siemens Ltd. (supra), the Hon'ble Supreme Court held that a
writ court may not exercise its discretionary jurisdiction in entertaining a
writ petition questioning a notice to show cause unless the same appears
to have been issued without jurisdiction or with pre-meditation.
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21. In Whirlpool Corporation (supra), the Hon'ble Supreme Court
has held that under Article 226 of the Constitution of India, the High Court
has discretion to entertain or not to entertain a writ petition depending
upon the facts of the case. However, the High Court has imposed upon
itself certain self-imposed restrictions, one of which is that if an effective
alternative remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has been held not to
operate as a bar in at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the fundamental
rights or where there has been a violation of the principles of natural
justice or where the order or proceedings are wholly without jurisdiction or
where the vires of an Act is challenged.
22. In Devinder Singh (supra), it was held that when an order is
passed without jurisdiction, it amounts to colourable exercise of power.
Formation of opinion must precede application of mind on the materials on
record.
23. In D. Ramesh Sinha (supra), this Court had held that if a
statutory authority acts at the behest of some other authority, who has no
statutory role to play in the matter, then such action/or any order passed
by him would be non est in the eye of law.
24. In Kalari Nagabhushana Rao (supra), this Court observed that
the opinion expressed by the District Collector before the appellate
authority against an order passed by him ought not to be taken into
account and the practice of calling for such reports and para-wise remarks
must be deprecated.
HCJ & NJS, J
25. The relevant portion of Gurdial Singh (supra), which was
extracted by the learned single Judge, dealt with colourable exercise of
power. It was held that the action is bad where the true object is to
reach an end different from the one for which the power is entrusted,
goaded by extraneous considerations, good or bad, but irrelevant to the
entrustment. When the custodian of power is influenced in its exercise by
considerations outside those for promotion of which the power is vested,
the Court calls it a colourable exercise of power.
26. Rajaram Jaiswal (supra) is also a case dealing with colourable
exercise of power.
27. In Anirudhsinhji Karansinhji Jadeja (supra), reference is made
to the decision in the case of Commissioner of Police, Bombay v.
Gordhandas Bhanji, reported in 1952 AIR 16, wherein the action of
the Commissioner of Police in cancelling the permission granted to the
respondent for construction of cinema hall in Greater Bombay at the
behest of the State Government was not upheld, as the rules concerned
had conferred this power on the Commissioner, because of which it was
stated that the Commissioner was bound to bear his own independent
and unfettered judgment and decide the matter for himself, instead of
forwarding an order which another authority had purported to pass.
28. On the factual matrix of the aforesaid case, in Anirudhsinhji
Karansinhji Jadeja (supra), it was held that if a statutory authority has
been vested with jurisdiction, he has to exercise it according to its own
discretion. If a discretion is exercised under the direction or in
compliance of instruction of some higher authority, then it will be a case
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of failure to exercise discretion altogether. In the aforesaid case, District
Superintendent of Police was vested with the power to grant approval for
recording of any information about the commission of offence under the
Terrorist and Disruptive Activities (Prevention) Act, 1987. The District
Superintendent of Police in the aforesaid case did not exercise his
jurisdiction and, on the contrary, had abdicated his jurisdiction and
referred the matter to the Additional Secretary, Home for permission to
invoke the provisions of Sections 3 and 5 of the said Act.
29. It will now be appropriate to take note of the submissions of the
learned counsel for the parties.
30. The learned Additional Advocate General submits that
G.O.Ms.No.504 dated 25.11.1997 conferred powers and jurisdiction upon
Vigilance and Enforcement Department to conduct enquiries against
specific allegations to prevent leakage of revenue and its jurisdiction in
these matters extend to all the departments of the State Government,
Public Sector Undertakings etc. and in terms of G.O.Ms.No.504 dated
25.01.1997, the Vigilance and Enforcement Department had inspected the
leased premises of the petitioners along with the officials of the Mines
and Geology Department. Based on reports, the competent authority, i.e.
the Director of Mines and Geology issued the impugned show-cause
notices in terms of the liberty granted by this Court vide order dated
28.02.2020 passed in W.P.No.5068 of 2020 and, therefore, there is no
illegality in the impugned show-cause notices, which are in conformity
with provisions of the Act of 1957 and the Rules of 1966. It is contended
that the learned single Judge committed error in holding that show-cause
notices were issued at the behest of respondent No.1 and, therefore, he
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has abdicated his power. It is submitted that no direction was given by
the Government or by any authority to the Director of Mines & Geology
and forwarding of the Alert Note for taking necessary action cannot be
construed as a direction to him to issue show-cause notices. It is
submitted that it is wrong to say that on the basis of Alert Note dated
03.01.2020, the show-cause notices were issued as in the show-cause
notices inspection reports dated 23.11.2019 and 24.11.2019 of the
Assistant Geologist were enclosed. It is submitted that when in the
earlier round of litigation in W.P.No.5068 of 2020 and batch, this Court
permitted the petitioners to raise all factual and legal pleas, the writ
petitions ought not to have been entertained. It is submitted that large
scale anomalies and irregularities are detected resulting in loss of State
revenue and the writ petitioners have avoided to respond to the show-
cause notices on one pretext or the other. It is submitted that the learned
single Judge erroneously held that the State Government had not issued
any special order/general orders authorizing any particular officer to
conduct search. It is further submitted that the finding of the learned
single Judge that the show-cause notices were issued with pre-
determination is not sustainable in law and in this connection he has
placed reliance on the decision of the Hon'ble Supreme Court in the case
of Gorkha Security Services v. Govt. of NCT of Delhi & Ors.,
reported in (2014) 9 SCC 105. A judgment dated 26.02.2019 of the
Hon'ble Supreme Court in the case of Union of India v. Coastal
Container Transporters Association & others, (CIVIL APPEAL NO.
2276 OF 2019), is also relied upon to contend that the writ petition ought
not to have been entertained. Learned Additional Advocate General
further submits that in view of proviso to Section 34(1) of the Rules of
HCJ & NJS, J
1966, as amended, inserted by G.O.Ms.No.19 dated 18.03.2021, the
learned single Judge fell in error in directing issuance of dispatch permits.
31. Mr. N. Subba Rao and Mr. P. Roy Reddy, learned counsel
appearing for the petitioners while supporting the impugned judgment
of the learned single Judge and placing reliance on the judgments cited
before the learned single Judge, submit that the impugned notices
issued by the 2nd respondent are illegal, arbitrary and mala fide. It is
submitted that they were issued based on Government Memo dated
29.01.2020, which, in turn, was based on an Alert Note dated
03.01.2020 of the Vigilance and Enforcement Department. Therefore,
such notices were issued by the Director of Mines & Geology by
surrendering his statutory jurisdiction at the dictates of external
authorities and not basing on any inspection conducted independently
by the parent Department. It is submitted that the entire exercise of
issuance of show-cause notices had begun with the Memo dated
29.01.2020 of the respondent No.1, who is the appellate authority. The
Alert Note was prepared on the basis of so-called confessions made by
various individuals which were recorded by the Vigilance and
Enforcement and, therefore, no reliance can be placed on the Alert
Note. The impugned notices were issued without any application of
mind and for extraneous reasons and the same are pre-determined and
pre-judged and, therefore, no useful purpose will be served even if the
petitioners submit any reply or explanation to the show-cause notices
as the outcome of the impugned show-cause notices is pre-ordained as
the lapses and the quantum of the penalty had already been
determined by the impugned show-cause notices. Action is sought to
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be initiated only because of the fact that some of the petitioners belong
to a different political party. It is submitted that reliance placed on
proviso to Rule 34(1) of the Rules of 1966, as amended, is
misconceived, as the conditions precedent as engrafted therein
enabling the State not to issue dispatch permits have not been fulfilled
in the instant cases.
32. We have considered the submissions of the learned counsel for the
parties and have perused the materials on record.
33. For the sake of convenience and better appreciation, relevant
portion of the notice dated 20.03.2020, which is annexed in W.A.No.221
of 2020 is extracted herein below as an illustration and specimen of the
notices issued to various petitioners:
"Ref: 1. DMG grant Proceedings No.:10489/R3-2/2013
dt:04.04.2014
2. ADM & G, Ongole, Proceedings No:8037/Q/2003
dt:23.05.2014
3. From GA (V&E) Dept. Alert Note No.04
(C.No.4145/V&E/NR.1/2019 dt.03.01.2020.
4. Govt. (Ind. Comm. Dept) Memo
No.460/Vig.A1/2020, dt.29.01.2020.
5. This Office Show Cause Notice No.873/V&E/2020-6
dt 13.2.2020
6. Common Judgement delivered by the Hon'ble High
Court of A.P. in W.P.No.4894 of 2020 dt. 28.02.2020
HCJ & NJS, J
In the reference 1st cited, M/s. Kishore Granties Pvt. Ltd.,
MD. Smt. Gottipati Radhika, has been granted a Quarry
Lease for Colour Granite duly clubbing of three Quarry
Leases for an extent of 3.093 Hect. In Survey No.103/P
Konidena Village, Ballikurava Mandal of Prakasam District
for an unexpired portion of the lease period upto
23.08.2026. The quarry lease deed was executed on
23.05.2014 (vide reference 2nd cited the lease will be in
force upto 23.08.2026.)
In the reference 4th cited, that the Government while
forwarding the report of GA (V&E) Dept., (reference 3rd
cited) has requested to take necessary action on the
violations of Rules committed by the lease holder
mentioned therein.
As per the report of GA (V&E) Dept., vide reference 3rd
cited, the subject quarry lease area held by M/s. Kishore
Granites, M.D. Smt. Gottipati Radhika, has been inspected
by the officials of the V&E Dept. and Department of Mines
& Geology on 23rd November, 2019 and 24th November,
2019 (Inspection & survey report is placed at Annexure -
I) in the presence of Sri T. Srinivasulu, Foreman.
Accordingly, a statement from Sri T. Srinivasulu, Foreman
has been recorded in this regard (Annexure - II) and
reported that the lessee company has committed the
following deviations/violations under APMMC Rules, 1966
and GCDR, 1999.
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1) There is a differential quantity of Granite arrived
out of the total rock mass excavated from the quarry pits
based on the average percentage recovery of saleable
granite after deducting the quantity of saleable granite
covered by the dispatch permits. The details of the
differential quantity of Granite and the mineral revenue to
be paid for the said quantity are given here under.
a. Details of the differential quantity of Granite arrived is as
follows:
Total rock Average Quantity of Quantity of Differential
mass (M3) percentage saleable saleable quantity
3)
of recovery granite (M granite (M3)
% covered by
dispatch
permits +
stock
(1) (2) (3) = (4) (5) + (3-4)
(1x2/100)
2,96,579 30 88,974 46,918 42,056
b. Details of the mineral revenue to be paid for differential quantity
of Granite arrived:
Normal
Market
Seigniorage Total
Differential quantity (M3) Value
Fee (Crores)
(Crores)
(Crores)
(1) (2) (3) (4)=(2+3)
42,056 9.17 78.14 87.30
2) Deviations of Mining operations with reference to approved
mining plans/scheme:
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a) XXX (Details not extracted by us)
b) XXX ( Do )
c) XXX ( Do )
d) XXX ( Do )
Action will be initiated under Rule 26(1) of APMMC Rules 1966,
Rule 12(5) (h) (iii) of APMMC, 1966 for having excavated and transported
42,056cum of Colour Granite from without payment of Seigniorage fee in
contravention to condition 5 of grant read with Rule 12(5) (h) (iii) of
APPMC, 1966 and under Rule 47 of Granite Conservation Development
Rules, 1999 as they have conducted mining operations which is gross
violation in accordance with Rule 18(2), 19(1), 31(1), 37 and 41 (a) & (b)
of Granite Conservation and Development Rules, 1999."
"The Hon'ble High Court of A.P in W.P.No.4894 of 2020
and batch pronounced the following Common Judgment on
28.02.2020 stating that the Additional Director has no
statutory power to issue show cause notices. In view of legal
infirmity, the impugned notices were set aside. However the
order will not preclude the authorities from issuing fresh show
cause notices to the petitioners through proper authority by
enclosing all the relevant documents, in which case, the
petitioners will have right to submit their explanation by taking
all the factual and legal pleas which are available to them. The
writ petitions are disposed of accordingly". Therefore fresh
show cause notice is being issued.
HCJ & NJS, J
In view of above circumstances, M/s Kishore Black Gold
Granite Pvt. Ltd. Mg.D Sri Gottipati Ravi Kumar is here by
directed to show cause within (15) days from the date of
receipt of this notice, as to why action should not be taken
against you/on your lease in accordance with Rule
12(5)(h)(xii) of APMMC Rules 1966 for the aforesaid violations
committed by you/your company. In case, no reply is received
within the stipulated time of (15) days, from the date of
receipt of the notice, it will be construed that the
lessee/company has no reply to be offered and necessary
action will be taken as per APMMC Rules, 1966 based on the
material available on record.
Encl:- 1) Annexure-I
2) Annexure-II
3) Annexure-III"
34. Annexure-I, Annexure-II and Annexure-III are an Inspection
Report relating to inspection conducted on 23.11.2019 and 24.11.2019,
Survey Report dated 04.12.2019 and a letter dated 12.03.2020 issued by
Principal Secretary, Industries and Commerce (M.II) Department of Mines
and Geology forwarding a copy of the judgment dated 28.02.2020 in
W.P.No.4894 of 2020 and batch and requesting to take necessary action,
respectively.
35. In Gorkha Security Services (supra), the Hon'ble Supreme
Court had laid down that the fundamental purpose behind serving of
show-cause notice is to make the noticee understand the precise case set
up against him which he has to meet. This would require the statement of
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imputations detailing out the alleged breaches and defaults he has
committed, so that he gets an opportunity to rebut the same. Another
requirement is the nature of action which is proposed to be taken for
such a breach. That should also be stated so that the noticee is able to
point out that proposed action is not warranted in the given case, even if
the defaults/ breaches complained of are not satisfactorily explained. The
Hon'ble Supreme Court laid down that a show-cause notice should meet
the following two requirements: i) The material/ grounds to be stated on
which according to the Department necessitates an action, ii) Particular
penalty/action which is proposed to be taken. The Hon'ble Supreme Court
further observed that even if the aforesaid is not specifically mentioned in
the show-cause notice, if it can be clearly and safely discerned from the
reading thereof, the same would be sufficient to meet the requirement.
36. In the show-cause notice, details of differential quantity of granite
and the mineral revenue to be paid for the said quantity was indicated. It
was also indicated that under different provisions, action would be
initiated. The very purpose of issuing show-cause notice is to enable the
noticee to give explanation that the allegations as contained in the show-
cause notice are not correct. If the details of violations are not indicated,
then the notice can be questioned as vague and bereft of material
particulars. A perusal of the show-cause notice would go to show that
the lease-holder was asked to show cause within 15 days from the date
of receipt of the notice as to why action should not be taken against
him/on his lease for the violations mentioned, indicating therein that if no
reply is received within the stipulated time of 15 days from the date of
receipt of the notice, it would be construed that the lessee has no reply to
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be offered and, therefore, necessary action would be taken as per the
Rules of 1966, based on the materials available on record. The narration
of the details of the differential quantity of mineral had been given in a
tabular form but the same does not amount to pre-determination. Recital
of the show-cause notice makes it clear that the petitioners were called
upon to tender explanation on the irregularities noticed by the competent
authority. The findings given and recommendations made by the
Vigilance and Enforcement Department are not conclusive. The show-
cause notice has neither given any finding nor has determined the
amount of penalty. By issuing show-cause notice, response and
explanation is called for and if the petitioners are able to dislodge the
allegations, correspondingly, appropriate conclusions would have to be
arrived at by the authority who issued the show-cause notice. In
Siemens (supra), a demand directing payment of cess was made
terming the same as a show-cause notice and in the aforesaid
circumstance, the Hon'ble Supreme Court had observed that the statutory
authority had already applied its mind and formed an opinion as regards
the liability or otherwise of the appellant and, therefore, only question
remaining for consideration being quantitative thereof, the notice does
not remain in the realm of a show-cause notice and, therefore, the writ
petition would be maintainable. The same is not the position in the
instant case as the show-cause notice was issued requiring the petitioners
to show cause why action should not be taken on the allegations and for
violations noted therein. Therefore, we are of the considered opinion that
it is not a case of pre-determined liability of the petitioners without
receiving any explanation unlike in the case of Siemens (supra).
Reliance placed in Devinder Singh (supra) and Manohar Lal (supra) in
HCJ & NJS, J
our considered opinion, is misplaced. The argument advanced that the
penalty is pre-determined and thereby no useful purpose will be served
by submitting reply to the show-cause notices, is misconceived.
37. G.O.Ms.No.504 dated 25.11.1997 was issued by the General
Administration (Vigilance & Enforcement-A) Department to consolidate all
the instructions issued in the form a single directive to all the Government
Departments/Government Undertakings/quasi-Government organizations
defining their responsibilities in relation to Vigilance and Enforcement
Department as the role of the Department of Vigilance and Enforcement
had become comprehensive in view of entrustment of various enquiries.
The Vigilance and Enforcement Department is part of General
Administration Department. The Department is headed by an Officer
designated as Director General (Vigilance and Enforcement), who is Ex-
Officio Principal Secretary to Government. He is assisted by Director
(Vigilance and Enforcement), who is of the rank of Inspector General of
Police. It will be appropriate to extract the salient features of the
aforesaid G.O.Ms.No.504 which are relevant for the purpose of this case.
The same read as follows:
"ORDER:
Instructions have been issued by the Government from time to
time to the administrative Departments of Secretariat, Heads of
Departments, District Collectors, and other Officers, to extend
co-operation and assistance to the Officers of Vigilance and
Enforcement Department, General Administration Department
during the course of their enquiries by making over records and
material information required by them. Of late, the Government
HCJ & NJS, J
have been entrusting the Department of Vigilance &
Enforcement with a variety of enquiries and the role of this
organization has now become quite comprehensive. It is,
therefore, necessary to consolidate all the instructions issued so
far in the form of a single directive to all the Government
Departments/Government Undertakings/Quasi Government
Organisations clearly defining their responsibilities in relation to
Vigilance and Enforcement Department.
"II. ROLE OF THE VIGILANCE AND ENFORCEMENT DEPARTMENT:
The Vigilance and Enforcement Department is an agency which
was constituted in G.O.Ms.No.269, General Administration (SC.D)
Department, dt.11.6.1985 by the Government to conduct
enquiries/Investigations into specific allegations affecting public
interest and to take effective measures through its own
machinery and with the help of other Vigilance bodies,
organizations and departments of the Government to achieve the
following objectives:
1) Prevention of leakage of revenues due to Government;
2) Detection of misuse or wastage of Government funds, resources,
materials and properties;
3) Prevention of loss of State's wealth and natural resources;
4) To prevent losses/wastage and graft in Public Sector
Undertakings and Government Companies;
5) To advise the Government regarding the changes needed in
laws and rules with a view to simplifying and streamlining the
procedures;
HCJ & NJS, J
6) To refer any complaint/allegation to the Anti-Corruption Bureau
for investigation/enquiry; and
7) To advise the Government on any matters that may be referred
to it from time to time.
In other words, it is expected to carry out Vigilance functions
where Government spending is involved and enforcement
functions in respect of the revenues due to Government."
IV. JURISDICTION:
The Vigilance and Enforcement Department has jurisdiction and
powers throughout the State of Andhra Pradesh in respect of
matters to which the executive authority of the state extends. The
jurisdiction of the Vigilance and Enforcement Department extends
to all Departments of the Government, State public Sector
Undertakings, State Government Companies, all local bodies like
Municipalities and Zilla Parishads and Quasi-Government bodies
and Organisations receiving the aid for assistance of the State
Government in any form.
38. The learned single Judge, though did not decide the issue as to
whether the Vigilance and Enforcement Department has jurisdiction to
conduct inspection of the premises of the petitioners, yet held that a
scrutiny of G.O.Ms.No.504 would reveal that the State Government had
not issued any special order or general orders in terms of Section 23-B of
the Act of 1957.
39. In this context, it is relevant to extract Rule 26 (1) to (3) of the
Rules of 1966, which reads as follows:
HCJ & NJS, J
"26. Penalty for unauthorised quarrying:- (1) If any person
carries on quarrying operations or transports minor minerals
in contravention of these rules, he shall be liable to pay as
penalty, such enhanced seigniorage fee together with
assessments as may be imposed by an Officer nominated by
the Director of Mines and Geology;
(2) Whenever any person raises or transports minor minerals
without any lawful authority, such minerals may be seized by
an Officer nominated by the Director of Mines and Geology in
this behalf in addition to the imposition of the penalty under
sub-rule (1):
Provided that in no case, the penalty shall exceed 3 [ten
times] the normal seigniorage fee and the lease or permit
already granted may, at the discretion of the Deputy Director,
be liable to be terminated or cancelled.
(3)(i) For the purpose of ascertaining the position of payment
of Mineral Revenue due to the Government or for any other
purpose under these rules, the person authorised under sub-
rule (2) may-
(a) enter and inspect any premises;
(b) survey and take measurements;
(c) weigh, measure or take measurements of stocks of
minerals;
(d) examine any document, book, register or record in the
possession or power of any person having the control of, or
HCJ & NJS, J
connected with any mineral including the processed mineral
and place marks of identification thereon and take extracts
from, or make copies of such document, book, register or
record; and
(e) order the production of any such document, book, register,
record as is referred in Clause (d).
(ii) If no documentary proof is produced in token of having
paid the mineral revenue due to the Government by any
person who used or consumed or in possession of any
mineral including the processed mineral, he shall
notwithstanding anything contained in sub-rule (1) be liable
to pay five times of the normal seigniorage fee as penalty in
addition to normal seigniorage fee leviable under the rules. 3
[Explanation:- It shall be competent to the officer nominated
by the Director of Mines and Geology to determine the
question whether quarrying operation or transportation of
minerals are carried or not within the meaning of this rule.]
40. It is evident that a person nominated/authorised under Rule 26(2)
of the Rules of 1966 has power to enter and inspect any premises, survey
and take measurements, weigh, measure or take measurements of stocks
of minerals, etc.
41. In this context, it is relevant to extract the proceedings being
Procg.No.16/JD/Vg/96 dated 30.04.1996 issued by the Director of Mines
and Geology, which reads as follows:
HCJ & NJS, J
"Sub: Mines & Minerals - Delegation of powers to certain
officers of Vigilance & Enforcement Department under APMMC
Rules 1966
Ref: G.O.Ms.No.339, Industries & Commerce Department
(MIV) dt. 10.7.1989
ORDER
In the G.O 1st cited, Director of Mines & Geology has been
empowered to nominate the officers under sub-rule 1 and 2 of
Rule 26 of APMMC Rules 1966.
"As per the delegated powers conferred under rule 2 of rule 26
of APMMC Rules 1966 through the reference cited the following
officers of Vigilance & Enforcement Department have been
nominated to exercise provisions 26(3)(1) of APMMC Rules, 1966.
1. Asst. Director of Mines & Geology, Royalty Inspector,
and Technical Assistant of Mines & Geology
Department who are working in the Vigilance &
Enforcement Department on deputation.
2. The officers of Revenue Department not below the
rank of Tahsildar/ MROs who are working on
deputation in Vigilance & Enforcement Department.
3. Police Officers not below the rank of Circle Inspectors
working n Vigilance and Enforcement Department.
HCJ & NJS, J
4. The Officers of Commercial Tax Department now
below the rank of DCTO working in Vigilance &
Enforcement Department on deputation."
42. A perusal of the above would go to show that vide G.O.Ms.No.339
dated 10.07.1989, the Director of Mines & Geology has been empowered
to nominate the officers under sub-rule 1 and 2 of the Rules of 1966 and,
accordingly, he had nominated the officers as indicated therein.
43. From the proceedings dated 29.05.2016, it is seen that pursuant to
G.O.Ms.No.37, Ind. & Com (M.II) Department dated 14.03.2016, Joint
Director of Mines & Geology, Deputy Director of Mines & Geology, Asst.
Director of Mines & Geology, Asst. Geologist, Royalty Inspector and
Technical Assistant had been empowered to exercise the powers under
sub-rule (1), (2) and 3 (ii) & (iii) of Rule 26 of the amended Rules of
1966.
44. The Vigilance and Enforcement officials along with the officials of
Mines and Geology Department had taken up detailed inspection between
22.11.2019 and 01.12.2019 on the quarry leases allegedly involved in
illegal transpiration of granite blocks along with other adjacent leases.
The Alert Note itself demonstrates that further enquiries were conducted
by the Vigilance and Enforcement Department officials with the officials of
the Mines and Geology Department. It will be relevant to note that the
Inspection Report (Annexure I to the show-cause notice) indicates that
the inspecting authority was Assistant Geologist, who was authorised
under Rule 26(2) of the Rules of 1966. Therefore, it is not correct as held
by the learned single Judge that the State Government had not
HCJ & NJS, J
authorized particular officers for the purpose of inspection. In the
affidavit though at certain paragraphs, it is stated that the impugned
show-cause notices were issued based on the reports of Vigilance and
Enforcement Department, such statement cannot be read in isolation as
in different paragraphs, it has been stated that show-cause notices were
issued, on the basis of the report of the officials of the Department.
45. The Alert Note dated 03.01.2020 was sent to the Additional
Director, Office of the Director of Mines and Geology, Ibrahimpatnam by
the Secretary to Government (Mines) Industries & Commerce (Mines &
Geology) Department by Memo dated 29.01.2020. The contents of the
Memo read as follows:
"A copy of the reference cited along with its enclosures is
herewith sent to the Addl. Director, O/o. Director of Mines &
Geology, Ibrahimpatnam. He is requested to initiate
necessary action in the matter, immediately."
46. A perusal of the above would go to show that the Additional
Director, Office of the Director of Mines and Geology, was requested to
initiate necessary action. There was no direction to take steps in a
particular manner and all that was said is that the Additional Director,
Office of the Director of Mines and Geology, should initiate necessary
action. The Additional Director, Office of the Director of Mines and
Geology, thought it fit to issue show-cause notice, which came to be set
aside by this Court by order dated 28.02.2020 in W.P.No.5068 of 2020
and batch holding that the Additional Director of Mines and Geology had
no statutory power to issue show-cause notice. Liberty was granted to
HCJ & NJS, J
the competent authority to issue fresh show-cause notice. Subsequently,
the Director of Mines and Geology had issued the impugned show-cause
notices. Mere reciting the Memo dated 29.01.2020 in the show-cause
notice by way of reference does not lead to the conclusion that statutory
authority has surrendered or abdicated its authority. It cannot, therefore,
be construed that the Director of Mines and Geology had surrendered his
statutory jurisdiction. The argument advanced that the show-cause
notices are issued as per the directions of the appellate authority in the
facts of the case, is not borne out of record and, therefore, the finding of
the learned single Judge that impugned show-cause notices fall foul of
Rule 35 and 35-A of the Rules of 1966, relating to appeal provision and
revision provision, is not tenable.
47. For the purpose of asserting that the State was justified in not
issuing dispatch permits to the petitioners, reliance was placed by the
learned Additional Advocate General on 2nd proviso to Rule 34(1) of the
Rules of 1966.
48. Rule 34(1) of the Rules of 1966 reads as follows:
"34. Despatch permit:- (1) No minor mineral shall be
dispatched from any of the leased areas without a valid permit
issued by the Assistant Director of Mines and Geology
concerned or an officer authorized in this behalf by the Director
of Mines and Geology:
Provided that any misuse of the transit forms without paying
Seigniorage Fee and not accompanied by the transit forms used
by the Assistant Director of Mines & Geology concerned or an
HCJ & NJS, J
officer authorized in this behalf by the Director of Mines &
Geology and any other contravention, shall result in forfeiture
of Security Deposit and levy of normal Seigniorage Fee along
with "five times" penalty by the Assistant Director of Mines &
Geology concerned or the Officer as authorized by the Director
of Mines & Geology.
Provided further that no dispatch permit shall be issued, if the
lease holder having any mineral revenue arrears or any
pending Demand Notices or any contraventions/violations
committed under these rules."
49. The 2nd proviso to Rule 34(1) of the Rules of 1966 was inserted by
G.O.Ms.No.19, Industries & Commerce (Mines-III) Department, dated
18.03.2021.
50. Rule 20 of the Rules of 1966 provides that subject to a contract to
the contrary, a quarry lease granted under the rules shall confer on the
lessee, the right to quarry, carry away, sell or dispose of the minor
mineral or minerals specified in the lease deed and found upon under the
lands specified therein. It is evident from Rule 34 of the Rules of 1966
that a lessee cannot dispatch minerals unless requisite dispatch permits
are obtained.
51. It has not been brought to our notice that there is any mineral
revenue in arrears, which are payable by the petitioners. There are also
no pending demand notices. The demand notices issued were set aside
by the learned single Judge and no appeal has been preferred by the
State as against the judgment interfering with the demand notices.
HCJ & NJS, J
No doubt, show-cause notices have been issued alleging
contraventions/violations of the Rules of 1966. Issuance of show-cause
notice does not mean that alleged contraventions/violations have been
committed by the petitioners. In the above background, refusal to issue
dispatch permits to the petitioners is arbitrary and illegal and, as such, no
interference is called for with regard to directions issued by the learned
single Judge in respect of issuance of dispatch permits.
52. Although arguments were advanced by the learned Additional
Advocate General that writ petitions ought not to have been entertained
as only show-cause notices were issued, the learned single Judge having
entertained the writ petitions and having recorded findings on issues
raised by the petitioners, it will not be necessary at this juncture to go
into the question whether the learned single Judge ought to have
exercised discretion to entertain the writ petitions.
53. The findings recorded by the learned single Judge in respect of the
show-cause notices having not been accepted by this Court, the decision
rendered in respect of writ petitioners in W.P.Nos.8516, 8501, 8300,
8293, 8517 and 8515 of 2020 allowing the writ petitions and setting aside
the show-cause notices is interfered with and the writ petitions are
dismissed. However, petitioners are at liberty to file reply to the show-
cause notices within a period of (3) weeks from today, if so advised.
54. Resultantly, W.A.No.221 of 2021, W.A.No.284 of 2021, W.A.No.287
of 2021, W.A.No.339 of 2021, W.A.No.346 of 2021 and W.A.No.350 of
2021 are allowed. W.A.No.218 of 2021, W.A.No.220 of 2021, W.A.No.296
HCJ & NJS, J
of 2021 and W.A.No.347 of 2021 are dismissed. No costs. Pending
miscellaneous applications, if any, shall stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
MRR
