M/S Upkar Stone Crusher vs Ut Of J&K & Ors
2021 Latest Caselaw 612 j&K

Citation : 2021 Latest Caselaw 612 j&K
Judgement Date : 4 June, 2021

Jammu & Kashmir High Court

M/S Upkar Stone Crusher vs Ut Of J&K & Ors on 4 June, 2021

                                      1



                                                          Sr. No.134
                                                         Before Notice
       IN THE HIGH COURT OF JAMMU AND KASHMIR
                      AT JAMMU
                         (THROUGH VIRTUAL MODE)
                              WP(C)No.1135/2021
                               CM(4626/2021)
                               CM(4627/2021)


M/S UPKAR STONE CRUSHER                                ...PETITIONER(S)
          Through: Mr. Parag Sharma, Advocate.

                                      Vs.
UT OF J&K & ORS.                                     ....RESPONDENT(S)
              Through: Mr. F. A. Natnoo, AAG.

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

                                  ORDER

1. The petitioner has filed the instant petition seeking following

directions:

(i) Writ of Certiorari thereby quashing the impugned order No.DMO/J/Illegal Extraction/ 2020-21/3062-65 dated 10.02.2021 issued by respondent No.3 i.e. District Mineral Officer, Geology and Mining Department, Jammu;

(ii) Writ of Certiorari thereby quashing the impugned order No.MNG/Crusher/15/2021 dated 25.02.2021 issued by respondent No.1;

(iii) A Writ of mandamus directing and commanding the respondent No.1 to 3 to allow the petitioner to operate the stone crusher in view of S.O. 60 dated 23rd of February, 2021 called as "The Jammu and Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021".

2. The learned counsel appearing for the parties are at ad idem that

the case is covered by the judgment of this Court dated 19.04.2021

rendered in a bunch of writ petitions with lead case being WP(C)

No.308/2021.

3. In view of above, this petition is disposed of by providing as

under:

(I) That the unit of the petitioner if established or found to have been established in terms of the Jammu and Kashmir Stone 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 petitioner, if he has been issued show cause notice or has been directed to pay royalty and penalty, shall be entitled to challenge the such order by way of an appeal under Rule 85 of Chapter XIII of SRO 105 of 2016 before the Director, Geology and Mining. He shall also be entitled to file further appeal before the Governmentas 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 penalty imposed or sought to be imposed shall be deemed to have 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, if any preferred by the petitioner, the petitioner 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 envisaged under SRO 105 of 2016 and the order of penalty attaining finality in law.

(V) That the petitioner shall submit a formal undertaking to the District Mineral Officer concerned that he would operate his stone crusher unit by using the raw material obtained from legitimate source and that he 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 undertaking by the petitioner, the respondents shall be free to take any action against the petitioner as per law.

(VI) That in case the petitioner, whose electricity supply has been snapped by Power Development Department, fulfils the conditions mentioned hereinabove and is permitted by the competent authority of Geology & Mining Department to operate his stone crusher unit, his electricity connection shall be immediately restored by the authorities of Power Development Department so as to facilitate operation of his unit, provided his unit is not in default of payment of arrears of electricity dues.

(Sanjeev Kumar) Judge

Srinagar;

04.06.2021 "Bhat Altaf, PS"