M/S Trikuta Stone Crusher & Others vs Union Territory J&K & Others
2021 Latest Caselaw 487 j&K

                               IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT JAMMU
                                            (THROUGH VIRTUAL MODE)

                                                       Reserved on: 09.04.2021
                                                       Pronounced on:19.04.2021

                                                       WP(C) No.308/2021
                                                       c/w
                                                       WP(C) No.358/2021
                                                       WP(C) No.438/2021
                                                       WP(C) No.455/2021
                                                       WP(C) No.456/2021
                                                       WP(C) No.457/2021
                                                       WP(C) No.458/2021
                                                       WP(C) No.499/2021
                                                       WP(C) No.530/2021
                                                       WP(C) No.571/2021
                                                       WP(C) No.604/2021
                                                       WP(C) No.638/2021
                                                       WP(C) No.1861/2020
                                                       WP(C) No.1862/2020
                                                       WP(C) No.1863/2020
                                                       WP(C) No.1865/2020
                                                       CCP(S) No.106/2021 in WP(C) No.358/2021
                                                       CCP(S) No.107/2021 in WP(C) No.308/2021


                        M/S Trikuta Stone Crusher & Others              ...PETITIONER(S)

                                                 Through: - Mr. Parag Sharma, Advocate.

                        Vs.

                        Union Territory J&K & Others                   ...RESPONDENT(S)
                                                 Through: - Mr. F. A. Natnoo, AAG.

                        CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                                       JUDGMENT

1) The petitioners have filed these petitions seeking, inter alia,

following directions:

(i) A direction to the respondents to allow them to procure raw material from lessees of the Geology and Mining Department;

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

(ii) A direction to the authorities of Power Development Department to restore power connections;

(iii) A direction to restrain the authorities of Geology and Mining Department from interfering in their business premises and allow them to operate their stone crushers;

(iv) A direction for quashing the orders passed by District Mineral Officer whereby the raw material lying in the units of the petitioners has been seized and the petitioners have been put on show cause notice for recovery of royalty and imposition of penalty on account of said seized material.

2) The directions prayed for have been sought on the following

grounds:

(i) That once this Court while disposing of WP(C) No.1980/2020

vide order dated 18th of December, 2020, and having passed

similar orders in other petitions, has allowed the petitioners to

operate their stone crushers on failure to accord consideration

to the representation within the stipulated period of four

weeks, provided they are legally established and legitimately

procured the raw material, the respondents on their failure to

accord such consideration cannot restrain the petitioners to

operate their stone crushers;

(ii) That the units of the petitioners have been established under a

single window system and provisions of SRO 302 could not

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

be applied to them, more so when SRO 302 is in conflict with

the provisions of SRO 105 of 2016;

(iii) That there is no justification for snapping the electricity

supply to the petitioner Units, more so when there is no

complaint of the petitioners operating their units during the

period they are sealed;

(iv) That the sealing of the petitioners' stone crusher units is

otherwise illegal as there is no such direction passed in

WPPIL No.19/2012 in this regard.

3) The writ petitions are opposed by the respondents contending,

inter alia, that the petitioner units were found running without obtaining

mandatory licence envisaged under SRO 302. They were also found

involved in illegal extraction from river Tawi in violation of the

directions passed by the Division Bench of this Court in WPPIL titled

Ashish Kumar vs. State & others. The committee constituted by the

respondents found huge material collected on the premises of the

petitioners which entailed closure of petitioner units after issuance of

notice to them. It is further contended that the petitioner units even after

sealing were found involved in illegal extraction of minerals which led

the competent authority to issue a direction for disconnection of their

electricity supply. It is submitted by the respondents that SRO 302 was,

in fact, framed for streamlining the registration of Minor Mineral based

units in pursuance of the directions passed by the Division Bench on

MOHAMMAD ALTAF BHAT 24th of July, 2015, in WPPIL No.794/2009 titled Mohammad Maqbool 2021.04.19 14:45 I attest to the accuracy and integrity of this document

Lone vs. State and others. It is also denied by the respondents that no

consideration has been accorded to the representation of the petitioners.

It is, however, concluded by the respondents by submitting that the

petitioner units are repeatedly indulging in illegal mining and,

therefore, are liable to be penalized under the relevant provisions of

law.

4) During the course of arguments, the learned counsel for the

parties were ad idem that the position has drastically changed after the

promulgation of S.O 60 dated 23rd of February, 2021, whereby the

Jammu and Kashmir Stone Crushers/Hot and Wet Mixing Plants

Regulation Rules, 2021, have been promulgated. S.O 60 of 2021, it is

submitted, has simplified things. It is, thus, urged by the learned

counsel appearing for the parties that these petitions can be settled by

directing the respondents to allow the petitioners to operate their stone

crushing units provided they are established in conformity with S. O.

60 of 2021 and the Government Orders issued on the subject

subsequent thereto from time to time. So far as the issue of imposition

of ten times penalty on the petitioner units is concerned, the same shall

be taken to have been imposed under Rule 70 of SRO 105 of 2016

against which an appeal is maintainable under Rule 85 of SRO 105 of

2016 before Director, Geology and Mining.

5) It is further urged that so far as the payment of royalty and

penalty is concerned, the same can be dealt with in terms of

communication No.MNG/Crusher/15/2021 dated 25th February, 2021. MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

It is also urged that in so far as the allegation of illegal mining from

river Tawi is concerned, there is no doubt that the same has been

prohibited by the Division in WPPIL titled Ashish Kumar vs. State &

others and the petitioners are ready to execute an undertaking that they

shall not be using any material in their stone crushing units extracted

from river Tawi and in case they do so, they would be liable for action

which may include the closure of their units.

6) Having heard learned counsel for parties and considered the

matter in the light of developments that have taken place after the

respondents liberalized the mining regime and issued the Jammu and

Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules,

2021, it is seen that SRO 302 of 2017 dated 19.07.2017, which had

mandated a licence for establishing stone crusher units/hot and wet

mixing plants and imposed other obligations, has now been superseded

by the aforesaid Rules. It is not disputed before me that in case a stone

crusher unit is found in possession of the raw material, the legitimate

procurement whereof is not established, the District Mineral Officers

concerned, in terms of Rule 70 of SRO 105 of 2016 is competent to

impose penalty which is ten times the royalty payable for such material.

7) Without going into the legalities of the issues raised in these

petitions and with the consent of parties, these petitions are disposed of

by providing as under:

(I) That the units of the petitioners if established or found to have

MOHAMMAD ALTAF BHAT been established in terms of the Jammu and Kashmir Stone 2021.04.19 14:45 I attest to the accuracy and integrity of this document

Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021

issued vide S.O 60 dated 23rd of February, 2021, shall be

permitted to operate. The respondents shall keep in view the

communication of Under Secretary to Government, General

Administration Department, bearing No.GDC/31/CM /2021

dated 5th of March, 2021, making a transitory provision for

facilitating operation of the units under S. O. 60 of 2021 for a

period of six months within which period the stone crusher

units/hot and wet mixing plants shall obtain the consent to

operate from the Jammu and Kashmir Pollution Control

Board.

(II) That the stone crusher units who have been issued show cause

notice(s) or have been directed to pay royalty and penalty,

shall be entitled to challenge the such order/orders by way of

an appeal(s) under Rule 85 of Chapter XIII of SRO 105 of

2016 before the Director, Geology and Mining. They shall

also be entitled to file further appeal before the Government

as provided under the aforesaid Rules.

(III) With a view to facilitate the availing of remedy of appeal as

envisaged under SRO 105 of 2016, and going by the

statement of Mr. F. A. Natnoo, Additional Advocate General,

made under the instructions from the District Mineral Officer,

Jammu, who is also present in the Court, the penalties

imposed or sought to be imposed shall be deemed to have MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

been made Rule 70 of Chapter IX of SRO 105 and, therefore,

appealable under Rule 85 of Chapter XIII of the said SRO. It

shall not be open to the respondents to contend that the order

of penalty passed or proposed to be passed against the erring

stone crushers is under SRO 302, which now stands repealed

vide S.O. 60 of 2021.

(IV) That pending disposal of the appeal/appeals, if any preferred

by the petitioners, the petitioners shall pay outstanding

royalty/penalty in terms of communication No.MNG/Crusher/

15/2021 dated 25th of February, 2021, and an undertaking in

this regard shall be submitted to the competent authority. The

payment of royalty/penalty to the respondents shall remain

subject to final determination of the appeal(s) envisaged

under SRO 105 of 2016 and the order/orders of penalty

attaining finality in law.

(V) That the petitioners shall submit a formal undertaking to the

District Mineral Officer concerned that they would operate

their stone crusher units by using the raw material obtained

from legitimate source(s) and that they will not extract or

procure such raw material from river Tawi and will faithfully

and sincerely adhere to the directions passed by the Division

Bench of this Court in Public Interest Litigation titled Ashish

Kumar vs. State & others. In case of any violation of the

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

undertaking by the petitioners, the respondents shall be free to

take any action against the petitioners as per law.

(VI) That in case the petitioners, whose electricity supply has been

snapped by Power Development Department, fulfils the

conditions mentioned hereinabove and are permitted by the

competent authority of Geology & Mining Department to

operate their stone crusher units, their electricity connections

shall be immediately restored by the authorities of Power

Development Department so as to facilitate operation of their

units, provided such units are not in default of payment of

arrears of electricity dues.

CCP(S) No.106/2021 in WP(C) No.358/2021 CCP(S) No.107/2021 in WP(C) No.308/2021

In view of the disposal of main petitions, there is no point in

keeping these contempt petitions pending, the same are, accordingly,

disposed of.

8) Copy of this order be placed on each file.

(Sanjeev Kumar) Judge

Srinagar;

19.04.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:         Yes/No
                                           Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.04.19 14:45
I attest to the accuracy and
integrity of this document