Padam Kumar Jain vs State Of Jharkhand Through Its ...
2021 Latest Caselaw 4734 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(C) No. 1085 of 2018

Padam Kumar Jain, son of late Harak Chand Jain, resident of Gandhi Tola,
PO-Chaibasa, PS-Chaibasa (Sadar), District-Singhbhum West
                                                              ... Petitioner
                                Versus
1. State of Jharkhand through its Chief Secretary, Department of Industries,
Mines & Geology, Government of Jharkhand, Ranchi, having its office at
Project Building, Dhurwa, PO-Dhurwa, PS-Jagannathpur, District-Ranchi
2. Secretary, Department of Industries, Mines & Geology, Government of
Jharkhand, Ranchi, having its office at Nepal House, Doranda, PO-Doranda,
PS-Doranda, District-Ranchi.
3. District Mining Officer, Chaibasa, PO-Chaibasa, PS-Chaibasa, District-
Singhbhum West                                             ... Respondents
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(Through V.C.) CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. Nitin Kumar Pasari, Advocate Mr. Naveen Kumar, Advocate Mr. Naveen Toppo, Advocate Ms. Sidhi Jalan, Advocate For the State : Mr. Rajiv Ranjan, Advocate-General Mr. Mohan Dubey, AC to Advocate-General

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th Order No. 08/Dated: 10 December 2021

This is an assigned matter by an order dated 03 rd April 2018 passed on the administrative side by Hon'ble the Acting Chief Justice, High Court of Jharkhand.

2. This writ petition has been heard together with WP(C) No. 1083 of 2018 and WP(C) No. 816 of 2018.

3. By way of filing this writ petition, the petitioner has made the following prayer:

"For an appropriate writ(s)/order(s)/direction(s) for quashing the demand notice as contained in letter no. 1969/M dated 08.09.2017 (Annexure-3) issued by the District Mining Office, Chaibasa, whereby a sum of Rs. 7,12,74,942/- (Rs. Seven crore twelve lakh seventy four thousand nine hundred and forty two only) has been directed to be paid by 31.12.2017.

AND For further issuance of an appropriate writ/order/ direction restraining the respondents from giving effect to or acting pursuant to the demand notice as contained in letter no. 1969/M dated 08.09.2017 (Annexure-3) issued by the District Mining Office, Chaibasa."

4. The State has filed counter-affidavit in this matter.

5. The petitioner has challenged the demand notice dated 08th September 2017 purportedly issued in the light of the judgment in "Common Cause v. Union of India" (2017) 9 SCC 499.

6. Mr. Nitin Kumar Pasari, the learned counsel for the petitioner submits that the demand notice dated 08th September 2017 was issued in complete violation of the rules of natural justice inasmuch as no notice or an opportunity of hearing was afforded to the petitioner. The learned counsel for the petitioner refers to the judgment in "State of Orissa v. Dr. (Miss) Binapanai Dei" AIR 1967 SC 1269 to submit that it is mandated in law that even an administrative authority is required to afford an opportunity of hearing if the order proposed to be passed follows civil consequences.

7. The learned counsel for the petitioner further submits that the judgment in "Common Cause" in no case would become a decree of the Court on the basis of which the petitioner can be saddled with a huge penalty of Rs.7,12,74,942/- in the garb of sub-section 5 to section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (in short, MMDR Act). Alternatively, the learned counsel for the petitioner submits that in all fairness the matter requires an order of remand with a direction to the competent authority to pass a fresh order after hearing the petitioner.

8. The learned counsel for the petitioner refers to the amendment made in MMDR Act to the extent that the expression "without lawful authority" has been explained by way of amendment of 2021.

9. Section 21(5) of the MMDR Act, 1957 reads as under :

"21(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority."

10. The explanation incorporated in section 21 of the MMDR Act, 1957 reads as under:

"On and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2021, the expression "raising, transporting or causing to raise or transport any mineral without any lawful authority"

occurring in this section, shall mean raising, transporting or causing to raise or transport any mineral by a person without prospecting licence, mining lease or composite licence or in contravention of the rules made under Section 23-C."

11. The learned counsel for the petitioner would read out the statement of objects and reasons and the statement made by the Minister during the debate in the Parliament to submit that the Parliament when became aware of the difficulties faced by the mining industry proposed an amendment to obviate the difficulties faced by the industry due to the judgment of the Hon'ble Supreme Court rendered in "Common Cause".

12. The learned counsel for the petitioner refers to the judgments in "Zile Singh v. State of Haryana" (2004) 8 SCC 1 and "CIT v. Gold Coin Health Food (P) Ltd." (2008) 9 SCC 622 to submit that a clarificatory amendment would have a retrospective effect and while so in the light of the judgment in "Dayawati v. Inderjit" AIR 1966 SC 1423 the amendment made by the Parliament can be taken note of by the Court at appellate and revisional stage also. With reference to the judgment in "CBI v. Keshub Mahindra" (2011) 6 SCC 216, it is submitted that no decision by a Court can be read in a manner as to nullify the express provisions of an Act and, therefore, the amendment made in MMDR Act has to be given effect.

13. The learned counsel for the petitioner further submits that the demand notice dated 08th September 2017 suffers from serious calculation errors as well as errors of record.

14. The learned counsel for the petitioner refers to the order dated 21st February 2018 passed in WP(C) No. 7286 of 2017 and batch cases, particularly paragraph no.8, to submit that judicial proprietory and discipline require that either this writ petition is referred before the Hon'ble Division Bench to be heard alongwith WP(C) No. 7286 of 2017 and batch cases or await a decision by the Hon'ble Division Bench.

15. Finally, the learned counsel for the petitioner would submit that imposition of interest @ 24% is too harsh, onerous and causing serious prejudice to the petitioner. The learned counsel for the petitioner refers to the orders passed by the Hon'ble Supreme Court to submit that even the Hon'ble Supreme Court has accepted penalty with interest @ 12% only whereas the State of Jharkhand has arbitrarily chosen to impose interest

@ 24%.

16. The learned Advocate-General is assisted by Mr. Mohan Dubey, the learned AC to the learned Advocate-General.

17. On behalf of the State, it is contended that the judgment in "Common Cause" is binding on all authorities in view of Article 141 of the Constitution of India and, moreover, Ministry of Mines, Government of India has issued letter dated 27th September 2017 to all States for strict compliance of all the directions in "Common Cause". It is further contended that section 21(5) of the MMDR Act has been interpreted by the Hon'ble Supreme Court in a particular manner and the "2021 Amendment" by which the expression "without lawful authority" has been explained is not applicable in the present case. The learned Advocate-General submits that the statement of objects and reasons or statement of the Departmental Minister made in the Parliament cannot be resorted to avoid literal meaning of a provision in the statute [refer, "B.K. Pavitra v. Union of India" (2019) 16 SCC 129].

18. As regards applicability of the order dated 21st February 2018 passed in WP(C) No. 7286 of 2017 and batch cases, the learned Advocate-General refers to an order dated 10th September 2021 passed in WP(C) No. 1407 of 2020 by a coordinate Bench of this Court. It is contended that the benefit of the said order cannot be given to the petitioner in the present case.

19. The learned Advocate-General states that demand has been raised against the petitioner under section 21(5) of MMDR Act as per guidelines of order dated 02nd August 2017 of Hon'ble Supreme Court in "Common Cause". It is also submitted that Jharkhand State Pollution Control Board lodged a criminal complaint against the petitioner being C/7 Case No. 116/2012 for committing an offence under section 37 of the Air (Prevention & Control of Pollution) Act, 1981, section 44 of the Water (Prevention & Control of Pollution) Act, 1974 and section 15 of the Environment (Protection) Act, 1986.

20. The learned Advocate-General informs the Court that at the end of period of the mining lease, a supplementary lease-deed was executed in favour of the petitioner with a condition that he would pay all demands

raised under section 21(5) of MMDR Act. It is further stated that the petitioner has also tendered an undertaking that he would pay the fine amount imposed upon him for violations covered under section 21(5) of the MMDR Act.

21. This writ petition was filed on 26 th February 2018. It was listed on 30th November 2018, 21st December 2018, 01st February 2019, 01st March 2019 and 05th April 2019 when time was granted to file counter-affidavit and rejoinder affidavit. The writ petition was again listed on 03rd May 2019, 21st June 2019 and 26th July 2019 but on each occasion hearing was deferred at the instance of one or the other party.

22. This matter was last listed on 06th December 2021 and at the request of the learned counsel for the petitioner it was adjourned for today.

23. As is apparent from the aforesaid proceedings in this writ petition that no interim order as was passed in WP(C) No. 7286 of 2017 and batch cases has been granted in favour of the petitioner. The aforesaid proceedings would further indicate that the writ petition could not be heard also for the reason that complete information was not provided by the petitioner. Of course, adjournments were taken also on behalf of the State of Jharkhand but the fact remains that after 26th July 2019 no step was taken by the petitioner in the matter for hearing of the writ petition.

24. May be similar grounds are raised in WP(C) No. 7286 of 2017 and batch cases but where the writ petition remained pending for about four years, it would be improper for the Court to refer this writ petition before the Hon'ble Division Bench at this stage or to keep this writ petition pending awaiting a decision in WP(C) No. 7286 of 2017 and batch cases. The exercise of discretionary powers under Article 226 of the Constitution of India cannot be mechanical and automatic in every case. Mere filing of writ petition is not sufficient and the High Court may refuse to invoke its extraordinary powers if there is negligence or omission on the part of the applicant. The benefit of an order or a judgment is not extended automatically to all similarly situated persons - conduct of an applicant is a relevant consideration. This Court is of the opinion that may be the petitioner has made out an arguable case, this is not such a case in which the Court should exercise its discretionary powers under Article 226 of the

Constitution of India.

25. Subject to consent, contract or any agreement/undertaking by a party, the final decision in WP(C) No. 7286 of 2017 and batch cases shall finally govern liability of all mining lease holders who are saddled with demand notices pursuant to the decision dated 02 nd August 2017 passed in "Common Cause" in terms of section 21(5) of the MMDR Act. The petitioner may avail of other remedy as available to him in law and for that reason no coercive action shall be taken against him for the next 90 days. The petitioner may also approach the competent authority for making payment in installments with reduced rate of interest, and that shall of course be without prejudice to his rights, liabilities and other interests.

26. WP(C) No. 1085 of 2018 is disposed of.

(Shree Chandrashekhar, J.) R.K./Tanuj