Spml Infra Limited vs The State Of Bihar
2022 Latest Caselaw 2104 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.927 of 2019
                                            In
                   Civil Writ Jurisdiction Case No.20638 of 2012
     ======================================================

SPML Infra Limited (Formerly known as Subhash Projects and Marketing Limited), having its registered office at F-27/2, Okhla Industrial Area, Phase- II, New Delhi-110020 and its Regional Office at 22, Camac Street, Block-A, 3rd Floor, Kolkata-700016

... ... Appellant/s Versus

1. The State of Bihar through the Principal Secretary, Mines and Minerals Department, Govt. of Bihar, Patna

2. District Magistrate-cum-Collector Jamui, Bihar

3. Mining Development Officer Jamui, Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Harsh Singh, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha (GA-7) Mr. Uday Shankar Pandey, AC to GA -7 For the Mines : Mr. Naresh Dixit, Advocate Mr. Sumit Shekhar Pandey, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 13-04-2022 Heard Mr. Harsh Singh, learned Advocate for the

appellant and Mr. Sumit Shekhar Pandey for the respondent/mines

department.

A demand notice from the respondent/department asking

the appellant to pay up Rs. 83.41 lakhs as also the revisional order

sustaining the same are under challenge.

The learned single Judge has sustained the demand

notice.

Patna High Court L.P.A No.927 of 2019 dt.13-04-2022

Hence, the appeal.

The appellant, a company incorporated under the

Companies Act and dealing as construction and infrastructure

developer was awarded a contract by the Central Public Works

Department for construction of State Highway in the State of Bihar

under the RSVY Scheme in the district of Jamui. The appellant

was required to construct and widen the roads from Jamui to

Jhajha to Chakai till the borders of the State of Jharkhand.

The appellant had set up a crusher-machine for

facilitating the aforesaid work after obtaining necessary

permission from the District Magistrate, Jamui as well as from the

Circle Officer, Chakai. A No Objection Certificate had also been

obtained from the Bihar State Pollution Control Board.

There was some typographical error in the letter of

consent by the Bihar State Pollution Control Board permitting the

appellant to establish the aforesaid crusher-machine with respect to

its output. The appellant had not made any wrong statement with

regard to the output which was 80 MT per hour, which erroneously

had been typed as 80 MT per day. Much later, it was found by the

Mines Department that the license fee which was paid by the

appellant for establishing such crusher-machine was wrongly

calculated because of the wrong projection of the output and Patna High Court L.P.A No.927 of 2019 dt.13-04-2022

therefore, by the impugned demand notice, the appellant was

asked to pay an amount of Rs. 83.41 lakhs as the fee payable for

running a crusher-machine of a higher output namely of 80 MT per

hour.

It is the contention of the appellant that under the Bihar

Minerals (Prevention of Illegal Mining, Transportation and

Storage) Rules, 2003, a license is only required to be obtained for

carrying business of major minerals beyond the leasehold area.

An amendment had been brought in the aforesaid rules

in the year 2014 by adding a proviso to Rule 7 of the 2003 Rules,

prohibiting any person from erecting, installing or operating a

stone-crusher outside the leasehold area or stock stone minerals in

any form outside the leasehold area for the purpose of being used

by the stone-crusher.

The year of operation of the appellant was between the

years 2007-09 and therefore, the appellant was not obligated to

pay any license fee for having erected a crusher which was not

prohibited then. Be that as it may, without inquiring any further, on

being asked to pay an amount of Rs. 3.25 lakhs as license fee, the

same was paid by the appellant. The appellant had also paid the

renewal charges of Rs. 5000/- per year. With the completion of the

project in time, such crusher-machine was removed. Patna High Court L.P.A No.927 of 2019 dt.13-04-2022

It has therefore been urged on behalf of the appellant

that the learned single Judge did not take into account that the

aforesaid amendment in Rule 7 of 2003 Rules would have been

applicable only from 2014 on-wards. The imposition of the penalty

and the license fee for such period, taking the plea of the crusher-

machine of the appellant being of higher output, amounts to

implementing an ex-post facto law which is not permissible in the

eyes of law.

Apart from this, it has also been urged by the appellant

that there is no schedule of fee prescribed which would be

dependent on the output or the capacity of the crusher. In that case,

even in the first instance, the assessment of the license fee was

highly arbitrary but since the appellant had already paid the same,

he does not make any issue with respect to that in the present

appeal.

However, the appellant has urged that the demand notice

and the imposition of the penalty as also the fee is absolutely

unwarranted and therefore cannot be enforced.

The learned counsel for the appellant reiterates that there

was no false representation on behalf of the appellant and till date

there is no schedule of fee prescribed which is chargeable on the

output of the crusher-machine.

Patna High Court L.P.A No.927 of 2019 dt.13-04-2022

The learned counsel for the Mines Department was

asked to explain the aforesaid poser which has not been done. The

counter affidavit which has been filed on behalf of respondent nos.

1 and 3 merely reiterates Rule 7 clause (d) of the Bihar Minerals

(Prevention of Illegal Mining, Transportation and Storage) Rules,

2003 which does not at all answer the poser.

This aspect of the matter was not considered by the

learned single Judge and therefore, we, in our opinion, do not

consider it sustainable in the eyes of law.

The order passed by the learned single Judge is,

therefore, set aside.

Consequently the demand notice asking the appellant to

pay the amount so referred to in such notice and the revisional

order sustaining such demand are quashed.

The appeal stands allowed and disposed off accordingly.

(Ashutosh Kumar, J)

(Anjani Kumar Sharan, J)

krishna/-

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Uploading Date          18.04.2022
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