Jayant Kumar Tarzan vs The State Of Jharkhand
2024 Latest Caselaw 9099 Jhar

Jharkhand High Court

Jayant Kumar Tarzan vs The State Of Jharkhand on 10 September, 2024

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
              L.P.A. No. 459 of 2024
Jayant Kumar Tarzan, aged about 39 years, son of Bhagwati Prasad
Shah, resident of village Kotalkhal, P.O., P.S. and District Sahebganj
(Jharkhand).
                                   ........        Appellant/Writ Petitioner
                   Versus
1. The State of Jharkhand
2. Deputy Director of Mines cum Appellate Authority, Santhal
   Pargana, P.O., P.S. and District - Dumka.
3. District Mining Officer-Pakur, P.O., P.S. & District- Pakur
                                       ...... Respondents/Respondents
                   ---------

CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI

---------

For the Appellant: Mr. Kalyan Roy, Advocate Mr. Sidhartha Roy, Advocate For the Respondents: Mr. Mohan Kumar Dubey, A.C. to learned Advocate General

---------

04/Dated: 10.09.2024 Per Sujit Narayan Prasad, A.C.J.

1) This appeal under Clause 10 of the Letters Patent is directed

against the order dated 24.07.2024 passed by the learned Single

Judge in W.P. (C) No. 4020 of 2019, whereby and whereunder the

writ petition has been dismissed on the ground of non-deposit of 50%

of amount before the appellate authority which is statutory in nature.

Factual Matrix

2) The brief fact, as per the pleadings made in the writ application,

needs to be referred herein below.

3) A lease was granted in favour of the writ petitioner over the area

and deed of lease was executed for the period 27.01.2010 to

26.01.2020. A demand notice dated 29.05.2018 has been issued by

the respondent No.3 i.e. the District Mining Officer, Pakur, demanding

a sum of Rs. 2,31,76,621 against the petitioner/appellant towards cost

-1 of 17- of alleged excess minerals extracted and transported by the appellant

in said leased mining area.

4) According to the writ petitioner, the District Mining Officer has

issued a demand of Rs.2,31,76,621/-, but before arising to such

conclusion of casting liability upon the writ petitioner, no adequate and

sufficient opportunity has been given, since, the very basis of the said

demand is upon the measurement said to be done of the area in

question where the mining operation has been carried out.

5) It is the case of the writ petitioner that no measurement has

been done and even if any measurement has been done, copy of the

report basing upon the said measurement has never been supplied

and, as such, even though the show-cause notice has been issued to

the writ petitioner, but in absence of such measurement report, the

said show-cause notice cannot be said to be effective one and

thereby the petitioner has been deprived from giving an opportunity

said to be adequate and sufficient.

6) The said aspect of the matter was raised before the Appellate

Authority also, but the Appellate Authority vide order dated

26.06.2018 has declined to go into the merits of the issue due to non-

deposit of 50% of the amount which is statutorily required to be

deposited before hearing of the appeal.

7) It is alleged that the Appellate Authority while passing such

order has not taken into consideration that when the issue is of

passing the demand notice without providing adequate and sufficient

opportunity which goes to the root of the issue and in that view of the

matter, the Appellate Authority ought to have taken into consideration

the issue of violation of principle of natural justice, but instead of doing

-2 of 17- so, he has gone into the prerequisite of depositing 50% of the amount

of total liability casted upon the petitioner and as such, the Appellate

Authority has not discharged its statutory duty.

8) Aggrieved with the aforesaid order of Appellate authority the

writ petitioner/ appellant has preferred writ petition being W.P. (C) No.

4020 of 2019 but the same was also dismissed against which the

present letters patent appeal has been preferred.

9) It is evident from factual aspect that that the District Mining

Officer has issued a demand of Rs.2,31,76,621/-, against the writ

petitioner. It is alleged by the writ petitioner that the very basis of the

said demand is upon the measurement said to be done of the area in

question where the mining operation has been carried out but before

arising to such conclusion of casting liability upon the writ petitioner,

no adequate and sufficient opportunity has been given.

10) It is the case of the writ petitioner that copy of the report basing

upon the said measurement has never been supplied and, the show-

cause notice has been issued to the writ petitioner, but in absence of

such measurement report, the said show-cause notice cannot be said

to be effective one and thereby the petitioner has been deprived from

giving an opportunity said to be adequate and sufficient.

11) It is further case of the writ petitioner that the matter was raised

before the Appellate Authority also, but the Appellate Authority vide

order dated 26.06.2018 has declined to go into the merits of the issue

due to non-deposit of 50% of the amount which is statutorily required

to be deposited before hearing of the appeal.

12) Aggrieved with the aforesaid order of the Appellate authority the

writ petitioner/ appellant has preferred writ petition being W.P. (C) No.

-3 of 17- 4020 of 2019 but the learned writ court has refused to pass any

positive direction in favour of the writ petitioner against which the

present letters patent appeal has been filed.

Argument of the learned counsel appearing for the appellant-writ

petitioner

13) Mr. Kalyan Roy, learned counsel appearing for the appellant-

writ petitioner, has submitted that the prerequisite to deposit 50%

amount of the total liability casted upon one or the other party is

required to be deposited, but if the issue of violation of principle of

natural justice is being raised, as the fact of the present case is

wherein show-cause notice although has been issued, but the report

of the measurement has not been provided to the petitioner, though it

is said that the measurement has been carried out and incorporated in

the report which is the basis of issuance of demand of

Rs.2,31,76,621/- and, as such, when the statutory authority himself

has failed in discharging his duty, where is the question to deposit

50% amount?

14) He has relied upon a judgment passed by this Court in the case

of M/s. J.K. Bricks and others Vs State of Jharkhand and others

[W.P. (C) No.3080 of 2020], wherein the issue of not supplying the

very fundamental of the show-cause has been taken into

consideration and the demand notice has also been quashed.

15) He has further submitted that while dismissing the writ petition,

the learned single judge has also not taken into consideration of the

aforesaid facts particularly the non-supply of the said report and

failure of the authority concerned in discharging his duty, as such

order passed by the learned writ Court may be interfered with.

-4 of 17- Argument of the learned counsel appearing for the respondent

state:

16) Mr. Mohan Kumar Dubey, learned counsel appearing for the

respondents-State, has submitted that the writ petitioner since has

approached the Appellate Authority, as such, as per the requirement

of as available under sub rule (3) of Rule 65 of the Jharkhand Minor

Mineral Concession Rules, 2004, 50% of the amount has to be

deposited for the purpose of maintaining the appeal.

17) The writ petitioner has since approached the Appellate Authority

and as such, in that pretext and by taking into consideration the

statutory requirement of prerequisite amount to be deposited to the

extent of 50% and on that ground, if the appeal has not been

entertained without entering into the merits, the same cannot be said

to be suffered from an error.

18) The learned single judge if on the basis of non-fulfillment of

statutorily criteria as enshrined in Rule 2004 if rejected the writ petition

the same cannot be said to be suffer from an error and such order

passed by the learned writ court requires no interference.

Analysis

19) We have heard the learned counsel for the parties, gone across

the pleadings made in the writ petition as also the orders passed by

the District Mining Officer, the Appellate Authority and the order

impugned passed by the learned Single Judge.

20) The undisputed fact in this case is that the writ petitioner was

allowed to carry out mining operation upon said land for which, a

lease was issued in favour of the writ petitioner.

-5 of 17-

21) Over the said leased area, a proceeding has been initiated by

the District Mining Officer for considering the liability. The authority

concerned has directed to call upon a report. The report was prepared

by measuring the leasehold area.

22) The District Mining Officer has proceeded on the basis of the

said report accepting the version of the team who has measured the

area said to be in presence of the writ petitioner and a demand of

Rs.2,31,76,621/- has been casted upon the writ petitioner.

23) The writ petitioner has carried the said order to appeal by

invoking the jurisdiction conferred under Rule 65 of the Jharkhand

Minor Mineral Concession Rules, 2004 (amended in 2007).

24) The said appeal was dismissed due to non-compliance of

statutory requirement as provided under Rule 65 of the Jharkhand

Minor Mineral Concession Rules, 2004 (amended in 2007), wherein

50% amount is to be deposited of the total liability casted upon the

litigant concerned.

25) The order passed by the Appellate Authority has been

challenged by filing writ petition under Article 226 of the Constitution

of India. The learned Single Judge has declined to interfere with the

order passed by the Appellate Authority, against which the present

appeal.

26) The ground has been taken on behalf of the petitioner that the

provision to deposit 50% prerequisite amount of the total liability as

provided under sub rule (3) of Rule 65 of the Jharkhand Minor

Mineral Concession Rules, 2004 (amended in 2007) is very rigorous

provision and as such, before casting such liability, it is the bounden

duty of the authority concerned to provide an effective opportunity of

-6 of 17- hearing, but, in the instant case, the same has not been provided due

to non-supply of the copy of the enquiry report along with the

measurement report.

27) In the aforesaid context this Court is to consider as to whether

the requirement of prerequisite amount to be deposited for filing the

appeal in a case where the principle of natural justice has been

violated can be given a go-bye by the Court of Law?

28) In the aforesaid context it needs to refer herein that it is the

cardinal rule of interpretation that where the statute provides that a

particular thing should be done, it should be done in the manner

prescribed and not in any way, reference in this regard be made to the

judgment rendered by Hon'ble Apex Court in the case of State of

Uttar Pradesh vs. Singhara Singh and Ors. AIR (1964) SC 358,

wherein it has been held as under:

25. "....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted...."

29) Similarly, the Hon'ble Apex Court in the case of Babu

Verghese and Ors. vs. Bar Council of Kerala and Ors., (1999) 3

SCC 422, has held at paragraphs 31 & 32 as under:

"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: "[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

-7 of 17-

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law."

30) Further, the Hon'ble Apex Court in the case of State of

Jharkhand & Ors. vs. Ambay Cements & Anr., (2005) 1 SCC 368,

has held at paragraph 26 as under:

"....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed....."

31) The Hon'ble Apex Court while reiterating the same view in the

case of Zuari Cement Ltd. vs. Regional Direction ESIC Hyderabad

& Ors. (2015) 7 SCC 690, has held at paragraph 14 as under:

"14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para 26)

26.... it is the cardinal rule of interpretation that where a

statute provides that a particular thing should be done,

it should be done in the manner prescribed and not in

any other way."

32) At the same time, it is also equally settled that before casting

liability upon one or the other, the requirement is to provide effective

opportunity of hearing to the party concerned before taking any

adverse decision which leads to civil consequence, as has been held

-8 of 17- by the Hon'ble Apex Court in the Maneka Gandhi v. Union of India,

(1978) 1 SCC 248.

33) It is evident from the factual aspect of the aforesaid case that

as per Section 10 of the Passports Act, 1967 which pertains to

impounding a passport and under Section 10(3) of the Act, the

competent authority has been conferred with the powers to impound

the passport, but without making any stipulation of providing an

opportunity. Therefore, said statutory provision, particularly, on the

basis no reference of providing any opportunity was the very basis to

challenge the said statutory provision.

34) The Hon'ble Apex Court although has not interfered with the

validity of the said provision, but the law has been laid down that even

though, there is no stipulation of observance of principle of natural

justice in the statutory provision, but it will be said to be string to the

statutory provision for the reason that if any decision is being taken

which leads to civil consequence, then the mandatory requirement to

follow the cardinal principles of natural justice.

35) For ready reference the relevant paragraph of the

aforesaid judgment is quoted as under:

"221. It is well established that even where there is no

specific provision in a statute or rules made thereunder for

showing cause against action proposed to be taken

against an individual, which affects the rights of that

individual, the duty to give reasonable opportunity to be

heard will be implied from the nature of the function to be

performed by the authority which has the power to take

punitive or damaging action. This principle was laid down

-9 of 17- by this Court in the State of Orissa v. Dr (Miss) Binapani

Dei [AIR 1967 SC 1269, 1271 : (1967) 2 SCR 625 : (1967)

2 LLJ 266] in the following words: "The rule that a party to

whose prejudice an order is intended to be passed is

entitled to a hearing applies alike to judicial tribunals and

bodies of persons invested with authority to adjudicate

upon matters involving civil consequences. It is one of the

fundamental rules of our constitutional set-up that every

citizen is protected against exercise of arbitrary authority

by the State or its officers. Duty to act judicially would,

therefore arise from the very nature of the function

intended to be performed: it need not be shown to be

superadded. If there is power to decide and determine to

the prejudice of a person, duty to act judicially is implicit in

the exercise of such power. If the essentials of justice be

ignored and an order to the prejudice of a person is made,

the order is a nullity. That is a basic concept of the rule of

law and importance thereof transcends the significance of

a decision in any particular case."

36) Further in the case of Rajesh Kumar v. CIT, (2007) 2

SCC 181 the Hon'ble Apex Court has observed which is

being quoted as under

30. In Swadeshi Cotton Mills v. Union of India [(1981) 1

SCC 664] Chinnappa Reddy, J., in his dissenting judgment

summarised the legal position in the following terms: (SCC

pp. 712-13, para 106)

-10 of 17-

"106. The principles of natural justice have taken deep root

in the judicial conscience of our people, nurtured

by Binapani [(1967) 2 SCR 625 : AIR 1967 SC 1269]

, Kraipak [A.K. Kraipak v. Union of India, (1969) 2 SCC

262] , Mohinder Singh Gill [Mohinder Singh Gill v. Chief

Election Commr., (1978) 1 SCC 405] , Maneka

Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC

248] . They are now considered so fundamental as to be

'implicit in the concept of ordered liberty' and, therefore,

implicit in every decision-making function, call it judicial,

quasi-judicial or administrative. Where authority functions

under a statute and the statute provides for the

observance of the principles of natural justice in a

particular manner, natural justice will have to be observed

in that manner and in no other. No wider right than that

provided by statute can be claimed nor can the right be

narrowed. Where the statute is silent about the observance

of the principles of natural justice, such statutory silence is

taken to imply compliance with the principles of natural

justice. The implication of natural justice being presumptive

it may be excluded by express words of statute or by

necessary intendment. Where the conflict is between the

public interest and the private interest, the presumption

must necessarily be weak and may, therefore, be readily

displaced."

37) In the instant case it is evident that the writ petitioner has

preferred an appeal against the order which has been dismissed

-11 of 17- on the ground of non-deposit of 50% amount as required under

Rule 65(3) of Jharkhand Minor Mineral Concession Rules, 2004

(amended in 2007) can be taken as a ground to give go-bye to

non-observance of the principles of natural justice. Since both

the issues are identical, the same are being taken together.

38) Adverting to the factual aspects of the present case in order to

appreciate the argument on behalf of the parties, the issue of violation

of principles of natural justice is the ground taken so as to consider

the decision taken by the Appellate Authority by not complying the

provision as provided under Rule 65(3) of the Jharkhand Minor

Mineral Concession Rules, 2004 (amended in 2007).

39) The natural justice is the cardinal principle, which cannot be not

said to be a mere formality rather it requires consideration by the court

of law, as has been held by Hon'ble Apex Court in the case

of Maneka Gandhi vs. Union of India and Anr. (Supra) as referred

to hereinabove, and hence, if the effective and adequate opportunity

is not being granted to the concerned litigant, then what would be its

effect?

40) The principle of natural justice is a not a mere formality, rather it

is for the purpose to have the effective, adequate and sufficient

opportunity. The adequate and sufficient opportunity will be said to be

an opportunity if all the materials which led the authority in coming to

the decision of casting any civil consequence of any nature is to be

taken into consideration.

41) Herein, the admitted fact is that a demand was casted upon the

writ petitioner to the tune of Rs.2,31,76,621/-. It would be evident from

the order passed by the District Mining Officer dated 29.05.2018, as

-12 of 17- appended as Annexure-2, wherein a demand has been casted upon

the writ petitioner on the basis of the measurement of the land and by

virtue of the same, a report was prepared, as would appear from the

report available at page 81 of the paper book.

42) The fact about non-supply of the enquiry report which contains

the measurement of the land in question is not in dispute. The ground

has been taken on behalf of the writ petitioner that whatever area has

been measured showing the mining operation to which the writ

petitioner is not in any way concerned.

43) Therefore, when the very issue of showing concern with the

area of the land is the quo, and as such, in view thereof, this Court is

of the view that the same goes to the root of the issue and hence,

while issuing the show-cause notice, it was bounden duty of the

authority concerned to append the said enquiry report along with the

measurement of the land which has been carried out and supply the

same to the writ petitioner.

44) The learned State Counsel has submitted that the

measurement was carried out in presence of the writ petitioner even

accepting the same to be correct, then also, merely because the area

was measured in presence of the writ petitioner, it is not available for

the authority concerned not to supply the said measurement along

with the report.

45) The same since goes to the root of the issue, therefore, this

Court is of the view that the authorities who were also duty-bound to

discharge their statutory duty after observance of the cardinal

principles of natural justice, which the District Mining Officer has failed

-13 of 17- to discharge as would be evident from the bare reading of the order

passed by the District Mining Officer.

46) The question whether the fact has been taken into

consideration by the statutory authority or any document is the part of

the show-cause is there or not is to be evident from the bare perusal

of the aforesaid order and if there is no reference of the same, then

the implied meaning of the same would be that no such document or

no consideration of any plea has been taken by the authority

concerned. Even if the said document is being supplied subsequently

and the fact has been tried to be improved, the same cannot improve

the stipulation made by the statutory authority while passing such

order. It is on the principle that if a decision has been taken by an

authority, the same cannot, in any way, be allowed to be improved by

way of any supportive document, if not available in the impugned

order, as per the ratio laid down by Hon'ble Apex Court in the case

of Mohinder Singh Gill and Anr. vs. The Chief Election

Commissioner, New Delhi and Ors. [(1978)1 SCC 405], wherein at

paragraph 8, it has been held as under:

"8.The second equally relevant matter is that when a

statutory functionary makes an order based on certain

grounds, its validity must be judged by the reasons so

mentioned and cannot be supplemented by fresh reasons

in the shape of affidavit or otherwise. Otherwise, an order

bad in the beginning may, by the time it comes to Court on

account of a challenge, get validated by additional grounds

later brought out.

-14 of 17-

47) Likewise, the Hon‟ble Apex Court in the judgment rendered

in East Coast Railway and Anr. Vs. Mahadev Appa Rao and Ors.,

[(2010) 7 SCC 678] at paragraph 9 has been pleased to held as

under:

"9. There is no quarrel with the well-settled proposition of

law that an order passed by a public authority exercising

administrative/executive or statutory powers must be

judged by the reasons stated in the order or any record or

file contemporaneously maintained. It follows that the

infirmity arising out of the absence of reasons cannot be

cured by the authority passing the order stating such

reasons in an affidavit filed before the court where the

validity of any such order is under challenge."

48) Now the second question is that if on that pretext the writ

petitioner has preferred an appeal, can it be a ground not to entertain

the issue of natural justice?

49) Since we have already come to the finding that the issue of

natural justice goes to the root of the issue and as such, even if the

writ petitioner has approached to the appellate authority, then also, it

cannot be said and it will not be appropriate to say that the principle of

natural justice is to be given a go-bye.

50) The order passed by the learned Single Judge against the order

passed by the Appellate Authority wherein the provision of depositing

50% of the amount of the total casted liability as per the provision of

Rule 65(3) of the Jharkhand Minor Mineral Concession Rules, 2004

(amended in 2007) has been taken into consideration and the learned

Single Judge has dismissed the writ petition.

-15 of 17-

51) But this Court is of the view that when the issue of natural

justice is the core, it goes to the root and as such, merely on the

ground of requirement of deposit of prerequisite amount which is to be

followed in its strict sense by the litigant concerned as per the

statutory requirement, then it is equally accountability of the authority

concerned to pass the order after taking into consideration the issue

in entirety so as to have the effective opportunity of hearing to the

party concerned and then only, the balance will said to be there so far

as the compliance of the statutory requirement is concerned. This

Court, therefore, is of the view that the order passed by the learned

Single Judge is to be interfered with.

52) Accordingly, the order dated 24.07.2024 passed by the learned

Single Judge in W.P. (C) No. 4020 of 2019 is hereby quashed and set

aside. Further, the order passed by the Appellate Authority dated

26.06.2018 is also hereby quashed and set aside.

53) In consequence thereof, since we have come to the conclusion

that there is a violation of principle of natural justice and in that view of

the matter, the order passed by the original authority dated

29.05.2018 is also to be interfered with. Accordingly, the order dated

29.05.20218 passed by the District Mining Officer is also quashed and

set aside.

54) The matter is remitted before the District Mining Officer, Pakur

to pass order afresh, but before passing such order, the District

Mining Officer is directed to supply the copy of the enquiry report

along with the measurement of land within two weeks from the date of

receipt/production of a copy of this order.

-16 of 17-

55) The learned counsel for the petitioner has undertaken to

respond to the show-cause within a further period of two weeks from

the date of receipt of such show-cause.

56) The District Mining Officer, Pakur is directed to pass order, in

accordance with law, within a further period of four weeks from the

date of receipt of such response.

57) With the aforesaid directions and observations, this instant letter

patent appeal stands disposed of.

(Sujit Narayan Prasad, A.C.J.)

(Arun Kumar Rai, J.) A.F.R. Manoj/Cp.2 Uploaded

-17 of 17-