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Madhya Pradesh High Court · body

2013 DIGILAW 1068 (MP)

Ravi Mohan Trivedi v. State of M. P.

2013-09-05

Sujoy Paul

body2013
ORDER 1. By filing this petition under Article 226 of the Constitution, the petitioner has called in question the legality, validity and propriety of the order dated 8.8.2013 (Annexure P/10). By this order, the respondent No. 2 has penalised the petitioner under Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 (hereinafter called as “2006 Rules”) directing to deposit Rs. 263,18,76,000/-. 2. Criticizing the said order, Shri Kishore Shrivastava, learned senior counsel submits that the petitioner was given licence on 4.1.2012 (Annexure P/4) which is valid up to 3.1.2017. The petitioner’s licence gives him authority for the purpose of transporting, storing and trading mineral or its products. He further submits that the petitioner has done it in accordance with rules. It is contended that a show cause notice dated 16.7.2013 (Annexure P/5) was issued and petitioner filed his detailed reply. He submits that the Collector without considering his reply passed the impugned order (Annexure P/10). His contentions raised in the reply are not dealt with. No spot inspection was done. The Collector exercised power of compounding under 2006 Rules, which was not permissible inasmuch as there was no admission of guilt by the petitioner. Learned counsel for the petitioner submits that exercise of power by Collector in impugned order is not in consonance with the enabling provision of 2006 Rules and, therefore, this petition may be directly entertained despite availability of statutory alternative remedy under rule 19 of 2006 Rules. Pleadings in this regard are made in para 3 of the writ petition. It is contended that in cases of violation of principle of natural justice, the petition can be directly entertained. Reliance is also placed on the order passed in Writ Appeal No. 1320/2011 dated 21.3.2012, wherein the Division Bench has interpreted rule 18 of 2006 Rules. 3. Smt. Nidhi Patankar, learned Government Advocate for the other side submits that bare perusal of show cause notice shows that the petitioner stored the mineral in certain lands and survey numbers other than the land and survey numbers for which licence was granted. She submits that highly disputed questions of fact are involved in this matter and, therefore, appeal is the proper remedy. She submits that the petitioner may be directed to avail the remedy of appeal. 4. I have heard learned counsel for the parties and perused the record. 5. She submits that highly disputed questions of fact are involved in this matter and, therefore, appeal is the proper remedy. She submits that the petitioner may be directed to avail the remedy of appeal. 4. I have heard learned counsel for the parties and perused the record. 5. I deem it proper to deal with the question of alternative remedy first. 6. The contention of learned senior counsel is correct inasmuch as it is contended that the availability of alternative remedy is not a bar to entertain a writ petition. It is true that despite availability of alternative remedy the writ petition can be entertained in certain circumstances like violation of principle of natural justice, when the order impugned is passed by an independent authority, vires of the provision is challenged, etc. However, in catena of judgments the apex Court held that entertaining a petition despite statutory remedy is a matter of policy. This is a self imposed restriction on the Court and it is a matter of discretion and not of compulsion. In the facts and circumstances of a particular case, the Court may decide whether the petition should be directly entertained or the person should be relegated to avail the alternative remedy. 7. This is not in dispute between the parties that rule 19 of 2006 Rules provides a statutory alternative remedy. In the present case, the competence of Collector is not in question. The petitioner has alleged violation of principle of natural justice and questioned the impugned order on the ground that “due process” is not followed. In addition, the order is challenged on merits. 8. In (2005) 8 SCC 264 (U.P.State Spg. Co. Ltd. v. R.S.Pandey), the apex Court opined as under:- “Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.” (Emphasis added) 9. As per the judgment in R.S.Pandey (supra), it is clear that the apex Court in specific words have stated that the High Court should not entertain the writ petitions unless it is shown that the order is passed by an officer, who has no jurisdiction and relegating to avail an alternative remedy will cause injustice. In the opinion of this Court, there is no material on record which shows that the Collector was either not competent or relegating the petitioner to avail alternative remedy will cause any palpable injustice to him. The petitioner can very well raise these grounds raised herein before the appellate authority and can also rely on the judgment passed in Writ Appeal No. 1320/2011. 10. Apart from this, this Court in Writ Petition No. 7611/2012 (Rajesh Sharma v. State of MP and others) passed the order dated 17.12.2012. The petition challenging an order which was appealable under rule 57 of 1996 Rules was not entertained by reserving liberty to avail the appellate remedy. The Division Bench in Writ Appeal No. 21/2013 did not entertain the appeal and affirmed the order passed by this Court. 11. Considering the aforesaid, in my opinion, this petition is not entertainable. Hence, petition is not entertained by reserving the liberty to the petitioner to avail the aforesaid remedy. 12. It is made clear that this Court has not expressed any opinion on the merits of the case. Petition is disposed of.