Bombay High Court
Shri Kishan S/O Hiralal Motwani vs The State Of Maharashtra Thr. ... on 13 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5793 OF 2015
Kishan s/o Hiralal Motwani
aged about 32 years,
Occupation : Business,
R/o F-1, Ushaka Apartments,
Sumatra Nagar, Chandrapur,
Dist. Chandrapur. ... Petitioner
-vs-
1. The State of Maharashtra,
Thr. its Principal Secretary,
Revenue and Forests Department,
Mantralaya, Mumbai - 400 032.
2. The Additional commissioner,
Nagpur Division, Nagpur.
3. The Collector, District Gadchiroli.
4. Kanhaiyyalal s/o Hotumal Raheja,
aged about years, Occ. Business,
R/o Kannamwar Ward, Desaiganj,
Dist. Gadchiroli. ... Respondents.
Shri S. K. Mishra, Senior Advocate with Shri K. C. Deogade, Advcoate for
petitioner.
Ms T. Khan, AGP for respondent Nos.1 to 3.
Shri M. K. Kulkarni, Advocate for respondent No.4.
CORAM : A.S.CHANDURKAR, J.
DATE : JUNE 13, 2016
Oral Judgment :
Rule. Heard finally with consent of learned counsel for the parties.
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The petitioner is aggrieved by the order dated 26/06/2015 passed by
the respondent No.2 in appeal filed under Rule 82(1) of the Maharashtra
Minor Mineral Extraction (Development and Regulation) Rules, 2013 ( for
short, the said Rules).
In proceedings initiated by the respondent No.4, the Collector passed an
order on 29/04/2015 thereby cancelling the license which was granted to the
petitioner under provisions of Rule-79(3) of the said Rules. Similarly, for
breach of provisions of Rule 78 of the said Rules, a penalty was imposed on
the petitioner. This order was challenged by filing an appeal under Rule 82
(1) of the said Rules. The Additional Commissioner by the impugned order
dismissed the said appeal.
2. Shri S. K. Mishra, the learned senior counsel for the petitioner submitted
that the impugned order has been passed without assigning any reasons
whatsoever. The grounds raised in the statutory appeal filed by the petitioner
have not been considered and the order passed by the Collector has been
mechanically confirmed. According to him, there was no breach whatsoever
committed by the petitioner on account of which his license was liable to be
cancelled. It was submitted that in the reply filed on behalf of the respondent
Nos.2 and 3 it was now stated that the impugned orders should be read as
having been passed under Rule 76 of the said Rules. He submitted that such
course was not permissible.
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Ms T. Khan, the learned Assistant Government Pleader for respondent
Nos.1 to 3 supported the impugned order. A preliminary objection was raised
that the remedy of further appeal under Rule 82(2) of the said Rules before
the State Government was available to the petitioner. It was then submitted
that the Additional Commissioner having found the order passed by the
Collector to be proper, the same was maintained.
Shri M. K. Kulkarni, the learned counsel for the respondent No.4 also
supported the impugned order.
3. Considering the plea regarding availability of an alternate remedy, it
is to be noted against an order passed by the Collector or Additional
Commissioner, remedy of an appeal is available with the Divisional
Commissioner. This remedy under Rule 82(1) of the said Rules. Under Rule
82(2) of the said Rules, it has been stated that in case of any order passed by
the Divisional Commissioner, the Appellate Authority would be the State
Government. Even assuming that a further remedy of appeal is available to
the petitioner, considering the fact that there are no reasons whatsoever
assigned in the impugned order dated 26/06/2015, no useful purpose would
be served by directing the petitioner to avail the remedy of further appeal as
sought to be urged. Hence the petitioner cannot be non-suited on this count.
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4. Perusal of the impugned order indicates that there are no reasons
assigned in the same. The appeal memo indicates various grounds raised by
the petitioner in support of the appeal. The appeal having been preferred
under Rule 82(1) of the said Rules and the same being statutory in nature, the
Appellate Authority ought to have assigned reasons while deciding the same.
Hence on this short ground, the impugned order is liable to be set aside.
5.
Accordingly the following order is passed :
i) The order dated 26/06/2015 passed by the respondent No.2 is set
aside.
ii) The proceedings are remanded to the respondent No.2 for fresh
consideration on its own merits. The Appellate Authority while
deciding the appeal shall assign reasons for the conclusion at which
it arrives. The respective contentions of the parties on merits are
kept open.
iii) The parties shall appear before the respondent No.2 on 22/06/2016
so that the appeal can be heard on merits. The appeal shall be
decided within period four weeks from the date of appearance of the
parties.
iv) The interim order dated 28/10/2015 passed in the writ petition
directing that there shall be no coercive recovery of penalty shall
operate during pendency of the said appeal without prejudice to the
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rights of the parties.
v) Rule is made absolute in aforesaid terms with no order as to costs.
vi) Authenticated copy of this judgment/order be supplied to the
learned Assistant Government Pleader.
JUDGE
Asmita
