Telangana High Court

Sri P.Pramod Kumar vs The State Of Telangana on 12 January, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 40440 OF 2022

ORDER:

Challenge in this writ petition is to the demand

notice dated 20.10.2022 issued by the 3rd respondent to the writ

petitioner demanding the seigniorage fees and penalty for the

illegal excavation of minor mineral within and outside lease area

of writ petitioner.

2. The facts disclosed that writ petitioner is a quarry

lease-holder for rough stone and road metal admeasuring 4

hectares in Survey No. 208, Ramlingampalli Village,

Bommalaramaram Mandal. He was granted lease vide

proceedings dated 28.10.2009 by the 3rd respondent. Initially,

lease was for 10 years and subsequently, it was extended vide

proceedings dated 13.09.2023 for further 20 years. While so,

there were encroachments on North-West corner of lease area of

petitioner by neighbouring lease-holders i.e. (1) M/s. S.V.

Associates represented by Managing Partner Smt. Suhasini

Reddy, (2) M/s Sai Metal Industries represented by A. Jayram

Reddy and (3) M/s. Ravi Hitech Infra Projects (India) Pvt. Ltd.

Petitioner made a complaint dated 07.03.2011 to the

Department of Mines and Geology requesting to take action and

re-fix boundaries, on 07.03.2011. Further representation was

made on 04.02.2013 to the Director, Mines and Geology

bringing to notice of illegal and high-handed quarrying activity

of A. Jayram Reddy, Managing Parnter of M/s. Sai Metal

Industries. Acting upon such representation, the Director,

Mines and Geology issued Memo dated 11.02.2013 to Deputy

Director, Mines and Geology Department, Hyderabad and also

Assistant Director, Mines and Geology Department, Nalgonda to

inspect the area and submit a detailed report for further course

of action.

In response to Memo issued by the Director, Mines

and Geology, panchnama was conducted on 21.09.2016 by the

officials of Mines and Geology including its Vigilance

Department, Tahsildar in the presence of local villagers to

determine boundaries of M/s Bhagyanagar Stone Crusher,

Pramod Kumar and Narra Sridhar, quarry lease-holders. The

said Panchnama clearly reveals that illegal mining was done by

A.Jayram Reddy in Survey Nos.208 & 312 on the Western side

of lease area of petitioner.

The 3rd respondent issued show-cause notice

dated 08.03.2017 to petitioner alleging that he had done illegal

mining outside the lease area to the tune of 95216 cubic meters

for collection of seigniorage fees and penalty under Rule 26 read

with Section 34 of T.S. Miner Mineral Concession Rules, 1966.

In response to the show-cause notice, he addressed the letter

dated 26.03.2017 to the 3rd respondent to furnish 18

documents in order to give a suitable reply to the show-cause

notice. The 3rd respondent vide letter dated 15.05.2017 had

issued only two documents out of 20 sought by petitioner to give

a suitable reply. Once again, petitioner submitted letter dated

25.05.2017 seeking remaining documents enabling him give

suitable reply to show-cause notice, however, there was no

response from the 3rd respondent. In these circumstances,

petitioner furnished a preliminary reply dated 05.06.2017 to the

show-cause notice. The 3rd respondent in his letter dated

05.09.2017 addressed to Regional and Enforcement Officer,

Nalgonda, who sent clarification in response to Vigilance

Department letter and in the said clarification, there is a clear

admission that authorities had conducted inspection of quarry

lease area and measured the pits on 01.09.2014 and gave

details of quantities extracted in the table thereunder. In the

said clarification, a clear case is made out that excavation done

outside the lease area was a patta land of A.Jayram Reddy.

Thus, a show-cause notice was issued to him and when there

was no response, a demand notice was issued for payment of

normal seigniorage fees along with 10 times penalty. The

explanation furnished by other quarry lease-holder M/s. Ravi

Hitech Infra Projects (India) Pvt. Ltd. shows that he had stopped

quarrying in 2011 due to passing of Hi-Tension Electrical Line.

On account of preoccupation of DGPS Survey, further action

could not be taken to measure the quarry lease area of M/s.

Ravi Hitech Infra Projects (India) Pvt. Ltd. From such

correspondence, it is clear that even as per the records of

respondents, A.Jayram Reddy had illegally excavated material

from the pits in question and validly raised payment of

seigniorage fees and penalty.

Petitioner again submitted representation dated

20.03.2018 to the Director General, Vigilance & Enforcement

Department, Hyderabad, Director of Mines & Geology,

Hyderabad, Regional Vigilance & Enforcement Officer, Nalgonda

and Deputy Director of Mines & Geology, Hyderabad with regard

to issuance of show-cause notices to M/s S.V. Associates, M/s

Sai Metal Industries and M/s Ravi Hi-tech Infra Projects (India)

Pvt. Ltd. and imposition of penalty on them for excavating

material in excess of their permits. Those show-cause notices

clearly show that lease holders have not excavated any material

from their lease area but they have dispatched permission. Such

material clearly indicates illegal excavation of miner mineral

from outside their lease area. Further, writ petitioner has no

access to the area where illegal mining was done and the tracks

created on account of transportation clearly demonstrates lifting

of material from illegal-mining area to the crusher owned by

A.Jayram Reddy, which was located half-kilometer away from

illegal mining area. The reports of the Advocate-Commissioners

appointed by this Court also testify the same.

Ignoring all the above materials, the 3rd respondent

again issued fresh show-cause notice dated 29.11.2018 to

petitioner. Further reply was given on 25.01.2019 reiterating the

previous stand of petitioner and illegal mining done by M/s S.V.

Associates, M/s Sai Metal Industries and Ravi M/s Ravi Hitech

Infra Projects (India) Pvt. Ltd. Unsatisfied with the said

explanation, the present impugned demand notice was issued,

which is arbitrary, illegal and without any authority and in

violation of principles of natural justice.

3. The counter-pleadings of respondents show that

they admit the lease held by petitioner and subsequent renewal

for 20 years. There was joint survey and inspection of quarry

lease area located in Survey Nos.208 & 312 by the Regional

Vigilance & Enforcement Officer and the Assistant Director,

Mines & Geology, Revenue Officials on 19.12.2016, 20.12.2016,

21.12.2016 & 28.12.2016 and fixed boundaries of quarry area

and noticed encroachment of quarry lease area held by

petitioner and two illegal pits found on North-West and South-

West of the lease area, which was falling under Survey No.312.

On physical measurement of outside pits, extracted quantity

arrived at 95,216 cubic meters. The details are hereunder:-

S. Encroachment Pit Volume of the Quantity Normal 10 Times Total N in Sy. No. No. pit Seigniorage fee Penalty o.



1    312            1/1   50,182M2 X      60,216M3   45,15,750         4,51,57,500   4,96,73,250
                          12 Mts



2    312            2/1   5,000M2 X 7     35,000M3   26,25,000         2,62,50,000   2,88,75,000
                          Mts



                                          95,216M3 71,40,750           7,14,07,500   7,85,48,250

Consequent to the joint inspection, a show-cause

notice dated 08.03.2017 was issued to petitioner and directed

him to submit explanation. Subsequently, DGPS/ETS Survey

was conducted in coordination with the officials of RV & EO,

ADM & G, Revenue Officials and Telangana State Remote

Sensing Application Center in the presence of lease-holders in

Survey No.208 and such a survey was done on 24.11.2017,

20.12.2017 and 03.01.2018. Such data was super-imposed on

the village map and found correct. While conducting such

DGPS/ETS Survey, alignment of boundary line was taken

between Survey Nos.208 & 312. The Telangana State Remote

Sensing Application Center (TRAC) measured the quantities of

mineral extracted from existing/determining quarry leases of six

lease holders. Their details are hereunder:-

S. Name of the Lease- Encroachment Pit Area of Average Total No holder in Sy. No. No. the pit depth of Volume . in the pit in Cu.M Hects. in Mts 1 Sri. P. Pramod Kumar 208 A 0.16 8.6 13,760 2 Sri. P. Pramod Kumar 208 B 0.47 5.2 24,440 3 Sri. G. Shankar 312 C 0.20 12 24,000 Reddy

S. Name of the Sy. No. Area of Average Total No Lease-holder the pit depth of the Volume in . in Hects. pit in Mts Cu,M 1 M/s. S. V. Associates 208 0.25 10 25,000 2 M.s. Ravi Hi-tech 208 0.85 8.5 72,250 Stone Crusher 3 Ms/. Bhagyaangar 208 0.46 5 23,000 Stone Crusher, Mg.

Partner Sri P. Krishna 4 Sri. P. Pramod Kumar 208 2.91 10.2 2,96,820 5 Sri. Narra Sridhar 208 0.55 6.5 35,750 6 Sri. G. Shankar 208/312 0.66 11.8 77,800 Reddy

Quarry leases were granted to lease holder with reference to

alignment falling between Survey Nos.208 & 312. DGPS Survey was

done by taking large number of reference points and using Satellite data

and such survey was accurate than previous survey. On the directions

of Regional Vigilance & Enforcement Officer, Nalgonda, Additional

Director, Mines & Geology, Bhuvanagi issued a show-cause notice dated

29.11.2018 to petitioner giving details of illegal excavation inside and

outside area of quarry lease falling in Survey No.208. Considering the

explanation, the impugned demand was raised. He prays for dismissal of

Petition. The other lease-holders within the Survey Number have

approached this Court and conditional stays were granted that if

petitioners therein pay normal seigniorage fee raised in the demand

notice, there shall be stay on the penalty.

4. Learned counsel for petitioner Sri P. Soma Sekhara Naidu

contends that demand notice was result of violation of principles of

natural justice on account of non-furnishing of required documents to

give suitable reply to show-cause notice and if those documents were

furnished, suitable reply would have been submitted, which could have

resulted in a different findings. Out of 20 documents, which were

foundation for giving reply, only 2 were furnished. Hence, suitable reply

could not be filed bringing to the notice of authorities to arrive at proper

conclusion. Such action of respondents amounts to unfair treatment

and violation of principles of natural justice. He also contends that the

impugned notice is result of lack of jurisdiction. Initial finding of facts

made in joint inspection and joint panchnama conducted in 2016 clearly

demonstrates that illegal pits were outside the lease area of petitioner

and such excavations were done by A.Jayram Reddy, patta holder in

Survey No.312 and those two pits were falling under Survey No.312 and

not under Survey No.208. Basing on such survey, a demand notice was

issued to A.Jayram Reddy in addition to petitioner and that the

authorities found the quantity of 1,35,234 metric cube mineral was

illegally excavated by A.Jayram Reddy and normal seigniorage fee along

with 10 times penalty was assessed and demand was raised in demand

notice dated 04.09.2017. Such proceedings have attained finality. There

is no whisper in the impugned demand notice for change of decision and

initiating fresh DGPS Survey ignoring manual survey conducted in joint

inspections by various officials involved in the process. Through fresh

DGPS survey, boundaries are changed and including the various illegal

excavation done by other lease holders from Survey No.208 in the lease

area of petitioner. Basing on the recent survey, they changed the

location of illegal pits and came to a different conclusion ignoring the

penalty of demand notice dated 04.09.2017 issued to A. Jayram Reddy.

Such action of the 3rd respondent amounts to review of his previous

findings and giving fresh findings which resulted present demand notice.

Such a power is not vested with the authorities. The review is a

conformant of Statute. In the absence of such power in the Statute, the

authorities cannot exercise power of review and take a different stand.

The demand notice issued to petitioner is without jurisdiction and the

same is unsustainable.

Learned counsel also contends that the findings of facts

arrived in the joint inspection done in 2016 clearly make out that illegal

excavations found either in Survey No.208 or 312 were done by

A. Jayram Reddy and not by petitioner. Subsequently, DGPS Survey

only changed location of pits either in Survey No.208 or 312, but the fact

remains is that illegal excavation has been done by A.Jayram Reddy and

other lease holders. It is also his contention that lease area of M/s S.V.

Associates, M/s. Ravi Hitech Infra Projects (India) Pvt. Ltd. clearly

demonstrates that dispatch permits were given without any excavation

in lease area. From the correspondence between Mining Authorities, this

clearly makes out that illegal excavations were done by other lease

holders in Survey No.208 and the petitioner is unconcerned with such

activity. The demand notice was result of non-application of mind and

the same is without jurisdiction.

5. Learned counsel appearing for respondents contends that

Writ Petition is not maintainable on the ground of alternative remedy. It

is also his contention that Minor Mineral Concession Rules provide

Appeal to the Director and Revision to the Government. Without availing

such remedies, Writ Petition is not maintainable before this Court.

Learned counsel also contended that though there is manual survey in

2016, such a survey was not accurate and accurate survey was opted

with the help of Telangana Remote Sensing Agency (TRAC) and technical

survey of DGPS were undertaken in terms of policy. These surveys were

done by taking help of various TRAC agencies to fix lease areas of

different lease holders in Survey No.208. After such a fixation only, with

the help of Remote Sensing Agencies, illegal mining areas were

determined and quantities were also determined. There is anomaly

between actual excavated area quantities and dispatched permits

obtained by petitioner. Basing on such conclusions, illegal quantity of

excavation was within the area and outside area arrived. Consequently,

demand was raised. Therefore, impugned demand notice does not suffer

from any infirmity.

6. Facts, which are not in dispute, are that there are multiple

lease-holders in Survey No. 208 of Ramalingampalli Village and

petitioner is one amongst such lease-holders. His lease area is 4

hectares in Survey No.208. It is also not in dispute that he made a

complaint on 07.03.2011 to the Assistant Director, Mines and Geology,

Nalgonda informing illegal excavations by M/s S.V. Associates within the

lease area of petitioner. A further complaint was also lodged to the

Director, Mines and Geology on 04.02.2013 bringing to their notice

encroachments in his lease area. Criminal cases were also lodged

against the encroachers in FIR No.78 of 2011 against the encroachers

over the lease area. The Investigating Officer sought details from the

Tahsildar of the mandal concerned, revenue officials and the Tahsildar

had given his opinion on 15.11.2011 holding that there is an

encroachment over the lease area of petitioner.

7. It is also not in dispute that acting upon the letter of

petitioner dated 04.02.2013, Director, Mines & Geology instructed the

Deputy Director, Mines & Geology to inspect the area and submit a

detailed report by conducting survey. On the basis of such directions,

repeated surveys were made manually by the officials of Vigilance,

Additional Director, Mines &Geology, Revenue Officials and local

persons. Panchnama was conducted on 21.09.2016, which clearly

demonstrates that the authorities found 2 illegal pits on the Western

side of lease area of petitioner and the said pits were found to be in patta

land of A.Jayram Reddy in Survey Nos.208 &312 and the said pits were

excavated by him.

8. It is also not in dispute that pursuant to the joint

inspections conducted on 19.12.2016, 20.12.2016, 21.12.2016,

29.12.2016, 95216 cubic meters of minor mineral was lifted illegally in

Survey No.312. Show-cause notices were issued to petitioner proposing

to collect seigniorage fee and penalty. Subsequent to the notice to

petitioner, simultaneously, show-cause notices were also issued to

A.Jayram Reddy for illegal excavation of mines for the quantity of

1,35,234 cubic meters and when there was no response, demand notice

dated 04.09.2017 was issued to A.Jayram Reddy. This fact is not in

dispute and the same is made out from the letter dated 05.09.2017,

which document is not in dispute. Demand notice issued to A.Jayram

Reddy was result of determination of claims in respect of illegal mining

found in Survey Nos. 208 & 312. Initial show-cause notices issued to

petitioner is part and parcel of same illegal excavation. Once the

authorities came to the conclusion upon inspection that A.Jayram

Reddy was the person who excavated illegally minor mineral from the

pits, the claim with regard to illegal mining had come to an end. It is not

known that such order has been challenged and reversed. Once such

order has attained finality, for the reasons best known to the authorities,

a fresh survey was done in 2017 at the instance of Regional Vigilance

Officials and that survey was done in the form of DGPS, which was a

satellite survey. Basing on the satellite survey and findings, a fresh

demand notice was issued to petitioner based on sophisticated survey.

This demand notice is virtually amounting to review of previous

conclusions of facts arrived at by the third respondent. Once the

findings arrived at in the previous surveys and panchnama with regard

to the persons responsible for the illegal excavation which culminated to

issuance of demand notice have attained finality, allowing re-survey and

issuing fresh determination proceedings amounts to review of previous

proceedings, which is impermissible. Neither the Act or the Rules

dealing with minor mineral empowers the authority to review his own

order and come to a different conclusion. The demand notice in the

present case is result of lack of jurisdiction. This ground is sufficient to

set aside the impugned demand notice.

9. The manual survey conducted in 2017, admittedly, has no

matching and there is a mis-match of demarcation of boundaries, extent

of illegal excavation and quantity of excavation. Admittedly, the Minor

Mineral Concession Rules require fixation of boundaries while granting

lease to lease-holder. In the present case, lease has been granted basing

on the manual survey and in the same manner, manual survey was

conducted in 2016. On account of sophisticated survey through

Satellite, there is mis-match in the boundaries. The entire litigation

arose due to claims and rival claims with regard to boundaries among

various lease-holders including A.Jayram Reddy.

10. Petitioner had already notified encroachments to the Mining

Authorities and in fact, criminal cases have also been lodged. Such a

situation was existing from 2011 onwards. Unfortunately, the

authorities kept quiet and allowed the illegality by the encroachers to

excavate the mineral outside the mining area either with the support of

their leases or without leases from the competent authority. Even DGPS

Survey could only be able to locate the areas of illegal excavation by

fixing the boundaries of lease areas. There is no material on record to

the authorities to demonstrate that illegal excavations were done by

petitioner. On the contrary, complaints, FIRs. and initial survey and

panchnamas of the authorities clearly go to show A.Jairam Reddy and

others have illegally excavated the mineral, which, unfortunately, found

to be in the lease area fixed by the Authorities consequent upon the

satellite survey. The satellite survey cannot determine as to who is

actually responsible for the illegal excavation. When there is serious

dispute regarding boundaries of lease areas existing from 2011, the

authorities should have resorted to early fixation of such a dispute in

order to put into illegal mine activities in the guise of boundary disputes.

The explanation offered by petitioner clearly shows that M/s S.V.

Associates or M/s Ravi Hi-tech Infra Projects (India) Pvt. Ltd. had

obtained dispatched permits for minor mineral without there being any

excavation and such material from their lease. This is sufficient enough

to show that illegalities have been done by the lease-holders in Survey

No.208 and for such illegal excavations, liabilities sought to be lifted and

fixed on petitioner in the background of sophisticated surveys without

there being any material to show that such illegal activity was done by

petitioner. Viewed from any angle, the demand notice lacks merit and

unsustainable.

11. Coming to the contention of learned Government Pleader

that Minor Mineral Concession Rules provide Appeal and Revision

against the demand notice, hence, Writ Petition is not maintainable as

there is an alternative remedy. On the contrary, learned counsel for

petitioner contended that existence of alternative remedy is not bar to

invoke the jurisdiction under Article 226 when there is no dispute with

regard to the question of fact. Writ Petition is being filed based on the

departmental admitted material and further, the demand notice is result

of lack of jurisdiction. It is also contended that once Writ Petition is

taken up for hearing and pleadings are exchanged, it cannot be

dismissed on the ground of availability of alternative remedy except

where there is a disputed question of fact involved.

12. There is no power to the 3rd respondent to take a

different stand when demand notice issued to A.Jayram Reddy and fresh

demand notice to petitioner which amounts to exercise of review power,

which is not vested with them. To answer the said contention, it is

appropriate to refer some judgments of the Hon'ble Apex Court in State

of U.P. and Ors. Vs. Ehsan: MANU/SC/1137/2023 dealing with the

alternative remedy, which are hereunder:

" 28. We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/ affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ Petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion."

In Commissioner of Income Tax Vs. Chhabil Dass

Agarwal (MANU/SC/0802/20132014)1SCC 603), it is held as under:

" 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

13. As seen from the above judgments, bar of writ petition

when there is an efficacious alternative remedy exists, is a self-imposed

bar and when there are no disputed questions of fact and when writ

petition was taken up and pleadings were exchanged, it cannot be

dismissed solely on the ground of existence of alternative and efficacious

remedy. In the present case, entire case is proceeded on the undisputed

fact existed from the correspondences and material made out from the

joint inspection of the authorities themselves. They clearly demonstrate

that initial conclusions arrived at by the authorities were that illegal

excavations were done by A.Jayram Reddy and other lease-holders and

in fact, demand notice was also issued to A.Jayram Reddy, and ignoring

the said demand notice, they sought to re-assess the liability in the form