M/S Subhash Chand Mukesh Chand vs State Of Rajasthan
2022 Latest Caselaw 6337 Raj/2

                                                1

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                        S.B. Civil Writ Petition No. 1017/2022

 M/s Subhash Chand Mukesh Chand, Station Road, Bayana
 Through The Partner Smt. Kamlesh Bhadana Wife Of Shri Atar
 Singh Bhadana, Aged About 60 Years, Resident Of Sagar Farm,
 Shergarh Bayana, Distt. Bharatpur, Rajasthan.
                                                                                        ----Petitioner
                                                 Versus
 1.          State Of Rajasthan, Through Additional Chief Secretary,
             Govt Of Rajasthan, Department Of Mines And Geology,
             Secretariat, Jaipur
 2.          Joint Secretary, Govt Of Rajasthan, Mines (Group-2)
             Department, Secretariat, Jaipur
 3.          Director,        Mines         And      Geology,          Govt        Of     Rajasthan,
             Directorate Of Mines And Geology, Court Circle, Udaipur
 4.          Additional Director, Department Of Mines And Geology,
             Jaipur Zone, Jaipur, Khaniz Bhawan, Jaipur
 5.          Assistant Mining Engineer, Department Of Mines And
             Geology, Rupbas, District Bharatpur
                                                                                 ----Respondents

For Petitioner(s) : Shri R.K. Agarwal, Sr. Advocate with Shri Ashwani Kumar Chobisa For Respondent(s) : Mr. Zakir Hussain, AGC with Shri Ajay Khandal Shri Vimal Choudhary with Shri Ankit Agrawal

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

23/09/2022

Although, as per order of this Court dated 1.9.2022,

the matter was to be heard on stay application; but, on the

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

request of the learned counsels for the respective parties,

the writ petition itself was heard on its merit at this stage.

This writ petition has been filed for quashing and

setting aside the enquiry report dated 20.2.2020, enquiry

report dated 8-9.4.2021, the show cause notice dated

22.6.2020, the orders dated 11.8.2020, 28.12.2021 and

30.12.2021 with a direction to the respondents to

immediately restore the mining operation and business of

the petitioner by issuing e-ravanna and refrain them from

creating any hindrance or obstruction in the mining

operation.

The relevant facts in brief as emerge from the memo

of writ petition are that the petitioner is a partnership firm

having in its favour a mining lease no.03/1993, Village

Bhonda Gaon, Jagjeevanpur, Tehsil Weir, District Bharatpur

which, initially was issued for mineral Silica sand and later

on, mineral masonry stone was also added therein. Validity

of the mining lease is upto 9.6.2047 and the petitioner has

environment clearance from the Ministry of Environment

and Forest for the mining activities. The petitioner was

served upon with a show cause notice dated 22.6.2020 by

the respondents, whereby, alleging irregularities in the

mining activities, a fine of Rs.4,51,75,677 was proposed.

The notice was replied by the petitioner on 6.8.2020. Vide

order impugned dated 11.8.2020, a demand of

Rs.4,51,75,677/- was raised towards fine and compound

fee alleging illegal excavation and transfer of the minerals.

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

On petitioner's representation, the State Government, vide

order dated 19.8.2020 constituted a three-member

Committee to submit its report after enquiry within a period

of a month. A two Member Committee constituted in

pursuance of a corrigendum letter dated 26.3.2021,

submitted its report on 9.4.2021 wherein, it broadly agreed

with the earlier enquiry report dated 20.2.2020 whereupon,

vide order impugned dated 30.12.2021, the demand raised

vide order dated 11.8.2020 was maintained. Legality and

validity of the inspection reports and the demand order has

been assailed in the writ petition.

As per the reply filed by the respondents, inspection

on both the occasions was carried out in presence of Shri

Anil Parashar, a representative of the petitioner firm. It is

stated that earlier also a committee was constituted on

5.11.2018 which, during its inspection on 13.12.2018,

found certain irregularities entailing imposition of a penalty

of Rs.48,15,642 which the petitioner deposited through

challan dated 21.1.2019. In the inspection of the

petitioner's mine carried out from 4.12.2019 to 20.12.2019,

illegal excavation and transportation of 82379.84 tonne of

masonry stone and 18136.37 tonne of silica sand was found

which culminated into imposition of a penalty of

Rs.4,51,75,677 vide order dated 11.8.2020. It is stated

that on account of retirement of one Member of the

Committee on attaining age of superannuation, the

remaining two members of the Committee inspected the

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

site on 9.4.2021 and found the illegalities/irregularities in

the mining activity based whereupon, the demand has been

maintained. Dismissal of the writ petition is, therefore,

prayed for.

The petitioner in rejoinder submitted that Shri Anil

Parashar was neither its employee nor, he was ever

authorised on its behalf to sign the inspection reports. It is

submitted that while preparing the inspection report dated

20.2.2020, measurement of the pits already existing at the

time the lease was granted to the petitioner in the year

1997, was not taken into consideration resulting into

erroneous assessment and measurement of the mineral

excavated.

Learned Senior Counsel Shri R.K. Agarwal, reiterating

the averments made in the pleadings, submitted that since

the show cause notice dated 22.6.2020 is based on the

inspection report dated 20.2.2020 prepared, in turn, on the

basis of inspection carried out behind petitioner's back, it

cannot be sustained in the eye of law. He submits that the

petitioner was never supplied with a copy of the enquiry

report dated 20.2.2020 which otherwise also, was of no

significance as it was prepared by the respondents in their

office and not at the site. Learned senior counsel submitted

that although, presence of Shri Anil Parashar is reflected in

the inspection report; but, he was neither petitioner's

employee, nor its authorised representative. He submits

that in any case, inspection carried out without prior notice

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

is void ab initio. Inviting attention of this Court towards the

inspection report dated 12.6.1993, learned senior counsel

submitted that it reveals that before grant of mining lease

no.03/1993 to the petitioner firm, a pit measuring 200 feet

x 70 feet x 70 feet was already in existence with excavation

of 70880.57 tonne of mineral and this report has not been

taken into consideration while passing the order impugned

raising demand. Referring to the inspection report dated

9.4.2021, Shri Agarwal submitted that therein, recording a

categorical finding that it was not possible to assess the

exact status of the excavation as on 4.12.2019, the earlier

inspection report dated 20.2.2020 has been assumed to be

correct, which cannot be sustained in the eye of law.

Learned Senior Counsel submitted that the order

impugned dated 30.12.2021 has been passed without

supplying the petitioner a copy of the enquiry report dated

9.4.2021 and the order is in violation of the principles of

natural justice too inasmuch as neither a show cause notice

nor, an opportunity of hearing was given before raising

demand. He, therefore, prayed that the writ petition be

allowed in terms of prayers made therein. Learned Senior

Counsel for the petitioner relied upon following judgements

in support of his submissions:

1) Grands Mining (a Partnership Firm), Bokaro Steel City vs. State of Jharkhand through Secretary, Department of Mines and Geology-(2022) 1 JLJR 63;

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

2) Mewar Marbles Ltd. vs. State of Rajasthan-2002 WLC (Raj.) UC 213.

Per contra, learned State Counsel, Shri Zakir Hussain

would submit that no prior notice was required to be given

before carrying out inspection of the mine. He submits that

inspection on both the occasions, i.e., on 4.12.2019 and

9.4.2021 was carried out in presence of Shri Anil Parashar,

the authorised representative of the petitioner firm. He, in

this regard, invited attention of this Court towards the

supplementary agreement dated 24.1.2019 executed in

between the parties wherein, Shri Anil Parashar stood as a

witness on behalf of the petitioner firm. Learned counsel,

referring to the application dated 13.1.2022 filed by Shri

Anil Parashar under Right to Information Act, 2005,

submitted that the documents obtained thereunder by him,

have been annexed by the petitioner along with the writ

petition. Learned counsel submits that the illegal excavation

and transportation of the mineral is not only established

from the inspection reports; but, also from the examination

of e-ravanna. He submitted that during the inspection dated

13.12.2018 also, illegal excavation of the mineral was found

which entailed a penalty of a sum of Rs.48,15,642 which

was deposited by the petitioner on 21.1.2019. Shri Zakir

Hussain submitted that non-supply of the enquiry report

dated 20.2.2020 to the petitioner is of no consequence as it

had filed reply to the show cause notice dated 22.6.2020

after receipt of a copy of the enquiry report dated

20.2.2020 under the Act of 2005. Learned counsel further

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

submitted that before passing the order dated 30.12.2021,

the petitioner was not required either to be supplied with a

copy of the inspection report dated 9.4.2021 or an

opportunity of hearing as the demand already raised vide

order dated 11.8.2020, was maintained.

Drawing attention of this Court towards the provisions

of Rule 28(1) and Rule 54 of the Rajasthan Minor Mineral

Concession Rules, 2017 (for brevity-`the Rules of 2017'),

learned State Counsel submitted that since the petitioner

was found guilty of illegal mining and transportation of the

minerals, the demand vide order dated 30.12.2021 has

rightly been raised. He, therefore, prayed for dismissal of

the writ petition.

Shri Vimal Choudhary, learned counsel for the

intervenor Shri Mukesh Chand, submitted that he was

unceremoniously ousted from the partnership firm on

14.3.2016 and re-constitution of the petitioner firm is bad

in law. He would submit that since re-constitution of the

petitioner firm is in violation of the Rule 27 of the Rules of

2017, the instant writ petition is not maintainable. He, in

support of submission, relied upon a judgement of Hon'ble

Apex Court in the case of M/s. Gotan Limestone Khanij

Udyog vs. State of Rajasthan-(2016) 4 SCC 469.

Learned Senior Counsel for the petitioner, relying upon

the status report dated 23.10.2019 furnished by District

Industries Centre, Bharatpur to the District Collector,

Bharatpur, submitted that since the official respondents did

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

not find any illegality or irregularity re-constitution of the

petitioner firm, the objection raised by the intervenor is not

sustainable.

Heard. Considered.

The undisputed facts are that the petitioner firm was

issued a show cause notice dated 22.6.2020 alleging illegal

excavation and transportation of the mineral based on the

enquiry committee report dated 20.2.2020. The notice was

replied by the petitioner but, it did not find favour with the

respondents and vide order dated 11.8.2020, a demand of

Rs.4,51,75,677 was raised against it. Thereafter, on a

representation by the petitioner, the State Government,

vide its order dated 19.8.2020, ordered for a fresh

inspection by a three-Member Committee which was carried

out on 9.4.2021 by a two Member Committee and based

thereupon, the demand raised vide order dated 11.8.2020,

has been reiterated vide order dated 30.12.2021.

Submission of the learned senior counsel for the

petitioner that entire exercise undertaken by the

respondents is bad in law inasmuch as no prior notice

before inspection was given to it, does not merit acceptance

as this Court is not satisfied that before carrying out

inspection of the petitioner's mine, any prior notice was

required. In absence of any statutory provision under the

Rules of 2017 mandating so, the respondents were at

liberty to carry out surprise inspection. The judgement

relied upon by the petitioner in the case of Mewar Marbles

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

Ltd. (supra) is of no help inasmuch therein, despite

appointing a Committee for joint inspection by the official

respondents themselves, no opportunity was afforded to the

appellant to be present at site at the time of inspection.

However, in the present case, no such situation obtains.

This Court is also not satisfied that that no demand

could have been based on the inspections carried out in

absence of authorised representative of the petitioner firm

inasmuch as the inspection on both the occasions was

carried out in presence of Shri Anil Parashar, who,

undoubtedly, was a representative of the petitioner as is

revealed from the supplementary agreement dated

24.1.2019 executed between the parties wherein, Shri

Parashar has stood as a witness on behalf of the petitioner-

firm as also from the fact that the documents obtained by

Shri Anil Parashar under the RTI Act, 2005, have been

relied upon by the petitioner firm to substantiate the

averments made in the writ petition. Therefore, this Court

has no hesitation in holding that inspections were carried

out in presence of representative of the petitioner firm.

Contention of the learned Senior Counsel for the

petitioner that the inspection report dated 20.2.2020 could

not have been made basis of demand order inasmuch it was

a table work having not been prepared at the site, cannot

be countenanced. A perusal of the report dated 20.2.2020

reflects that it is based on the reports prepared by the

Committee during the course of its inspection from

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

4.12.2019 to 20.12.2019. In view thereof, the judgement of

Hon'ble High Court of Jharkhand in case of Grands Mining

(supra) is of no assistance to the petitioner.

Submission raised by the learned Senior Counsel for

the petitioner that inspection by a two Member Committee

on 9.4.2021 was bad in law as the State Government has,

vide order dated 19.8.2020, appointed a three Member

Committee to carry out inspection and submit its report

within a period of one month, does not merit acceptance

inasmuch as the inspection by a three Member Committee

is not a statutory requirement under the Rules of 2017 and

even otherwise also, the petitioner could not satisfy this

Court that the inspection carried out by the remaining two

Members of the Committee after retirement of one of its

Members, caused any prejudice to it.

However, this Court is not satisfied with the contention

of learned State Counsel that since the demand raised vide

order dated 11.8.2020 was maintained vide order dated

30.12.2021, they were required neither to supply a copy of

the inspection report dated 9.4.2021 to the petitioner firm

nor, to issue any show cause notice or afford it an

opportunity of hearing before passing the order dated

30.12.2021. This specious argument is rather reflective of

pre-determination of the respondents in maintaining the

penalty imposed vide order dated 11.8.2020. This Court

fails to comprehend as to how before objective examination

of the inspection report dated 9.4.2021 prepared in

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

pursuance of direction of the State Government dated

19.8.2020 on a representation submitted by the petitioner

being dissatisfied with the earlier inspection report dated

20.2.2020, the respondents could have arrived at

conclusion that the demand raised vide order dated

11.8.2020 was to be maintained and therefore, in the

considered opinion of this Court, the respondents were

under an obligation not only to supply the petitioner a copy

of the inspection report dated 9.4.2021; but, also to afford

it an opportunity of hearing before passing the order dated

30.12.2021.

Contention of the learned counsel for the intervenor

that the constitution of petitioner-firm being improper, the

writ petition is not maintainable, is devoid of merit

inasmuch as, the official respondents have, so far, not found

any illegality or irregularity in re-constitution of the

petitioner firm. Even otherwise also, as informed to this

Court, the intervenor has assailed re-constitution of the

petitioner firm by way of an independent writ petition which

is pending consideration before this Court.

The upshot of the aforesaid discussion is that the writ

petition deserves to be allowed in terms:

1) the order dated 30.12.2021 as also the order

dated 11.8.2020 are quashed and set aside with

consequences to follow;

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

2) the respondents are at liberty to pass an order

afresh after affording the petitioner a reasonable

opportunity of hearing.

(MAHENDAR KUMAR GOYAL),J

RAVI SHARMA /

(D.B. SAW/441/2022 has been filed in this matter. Please refer the same for further orders)

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