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2013 DIGILAW 629 (HP)

Harbhajan Singh v. State of H. P.

2013-07-02

A.M.KHANWILKAR, R.B.MISRA

body2013
JUDGMENT A. M. Khanwilkar, Chief Justice: This common Judgment will dispose of all the four petitions together, since the same involve similar and overlapping issues. 2. In all these writ petitions, the respective petitioners have challenged the show cause notices and orders of the State Geologist rejecting the plea of the petitioners and calling upon them to pay the amounts as demanded. 3. In the leading writ petition, the show cause notice was issued on 22nd December, 2010 and the order was passed by the State Geologist on 2nd February, 2011. In the companion writ petitions, the show notices are dated 7th June, 2010 and the orders passed by the State Geologist are dated 26th September, 2010, respectively. Except the difference in date of issuance of show cause notices and of the orders, in the concerned matters, the background in which the matters have been brought before this Court is identical. In the leading matter, the show cause notice was issued on the premise that the statement of accounts and quantitative stocks which became available indicated the actual productions. The statement of accounts and quantitative stocks furnished by the said petitioner in the previous proceedings before the High Court were on the basis of the three stone crushers, whereas it was noticed that the said petitioner had obtained five short term permits of 5000 MT quantity and had thus produced 200054 MT grit/bajri by carrying out unauthorized mining. Further, in view of the directions issued by the High Court in the earlier writ petition, bearing CWP No.2632 of 2009, titled as Harbhajan Singh versus State of H.P. and others, the State Geologist called upon the noticee (petitioner in the leading petition) to deposit the outstanding royalty to the tune of Rs.2,11,576/-, (Rupees two lac, eleven thousand, five hundred and seventy six only) and interest accrued thereon. The production figures were arrived at on the basis of the consumption of seven units of electricity for one ton. The State Geologist accordingly notified the said petitioner to pay the demanded amount forthwith. The said petitioner filed reply contesting the claim of the State Geologist and, inter alia, asserting that the direction contained in CWP No.2632 of 2009 was inapplicable to his case. After considering the said reply, the State Geologist passed the impugned order, dated 2nd February, 2011. The State Geologist accordingly notified the said petitioner to pay the demanded amount forthwith. The said petitioner filed reply contesting the claim of the State Geologist and, inter alia, asserting that the direction contained in CWP No.2632 of 2009 was inapplicable to his case. After considering the said reply, the State Geologist passed the impugned order, dated 2nd February, 2011. We deem it apposite to reproduce the reasons recorded in the said order to reject the stand taken by the said petitioner. The same reads thus: “After due considerations to the reply submitted by you to the Show Cause Notice as mentioned above, it is clarified that: (1) Prior to 1.7.005, the royalty was being charged at the fixed rate of Rs.4000/- per stone crushing unit per month irrespective of the extraction/production of grit/bajri. After 30.6.2005, the production was to be calculated on the basis of electricity consumption at the rate of 7 units per tonne of grit/bajri produced or through other measures. Firstly you had disclosed only three electricity meters from which you were drawing electricity, which in fact are eight meters installed in the crusher complex, as has been verified by the Mining Officer, Kangra and secondly you never submitted the details of opening stock, production of raw material, production of bajri, sales and the balance stock year-wise, which was required for arriving for the purpose of calculation of royalty and legal/illegal workings. 2. As you had not filed any annual returns with regards to opening stock, production of raw material, production of bajri, sales and the balance stock, it was presumed that the stock was prior to the 1.7.2005, your contention that the grit was produced before 1.7.2005 and was given final touches after this date, holds no ground be caused no body would run the material twice through the stone crusher. 3. You had requested to measure the stock lying at your complex, which was measured to a tune of 1,51,935 M.T. during the year 2007. 3. You had requested to measure the stock lying at your complex, which was measured to a tune of 1,51,935 M.T. during the year 2007. As per the Statement of Accounts filed by you n the Hon ’ble High Court in C.W. P. No.635/2006 on 17.12.2007 for the period 1998-1999 to 30.9.2007, the total balance stock for the three stone crusher i.e. M/s Guru Nanak Stone Crusher, M/s G.K. Stone Crusher and M/s A. D. Stone Crusher was to a tune of 1,72,495 M.T. (variation of about 12% may be due to undulation surface where the stock was lying). Your contention that the grit was given final touches after 2005 and that much of electricity was not required holds no ground, as nobody would run the material twice through the stone crusher. 4. It is admitted that in C.W.P. No.2563/10 it was admitted by the Department that huge quantity of material was lying at the crusher site prior to 30.6.2005 and that all dues have been paid and that you are not doing any illegal mining. At that time, the Department was not in the knowledge that you were running eight electricity meters in your complex as you have only disclosed three meters. Further, you had not submitted the details year-wise of your production, production of raw material, production of bajri, sales and the balance stock. It was only through the Statement of Accounts filed by you in the Hon ’ble High Court in C.W. P. No.635/2006 on 17.12.2007 for the period 1998-1999 to 30.9.2007, that the position became clear with respect to the details of production of the three stone crusher units. Your contention that you had given final touches to the grit produced before 30.06.2005 also hold no ground because in the Statement of Account, you have also given details of production of raw material from 1998-99 onwards to 30.9.2007. While arriving at the production of bajri and you have approximately given 30% losses over this figure. 5. The report of the copy of experts which arrived at the methodology of arriving the factor of 7 units of electricity consumption required to make one tonne of bajri is being sent to you. However, Mining Officer, Kangra vide his letter dated 27.9.2010 addressed to you has also clarified on this issue. 6. 5. The report of the copy of experts which arrived at the methodology of arriving the factor of 7 units of electricity consumption required to make one tonne of bajri is being sent to you. However, Mining Officer, Kangra vide his letter dated 27.9.2010 addressed to you has also clarified on this issue. 6. That the Orders of the Hon ’ble High Court dated 11.5.2010 in C.W.P. No.2632/2009 titled as Harbhajan Singh Vs. State of H. P. & Others are also applicable in you case, because the Hon ’ble high Court has very clearly mentioned that “By way of abundant caution, we make it clear that the Petitioner (in this case yourself) shall also not be spared in case the Petitioner himself is to be proceeded against in the light of the above judgement.” Further, as per the production calculated on the basis of three electricity meters during 1.7.2005 to 30.9.2007 i.e. 62,729 M.T. you have paid the royalty i. e. at the rate of 7 units per tonne of bajri/grit produced. However, as per the details of quantitatively stock of the three units filed by you in the State of Accounts filed in the Hon’ble High Court in C.W.P No.635/2006 titled as Harbhajan Singh Vs. State of H.P. & Others for the period 1998-1999 to 30.9.2007, the actual production of grit/bajri of all the three stone crushers has been shown as 2,05,554 M.T. w. e.f. 1.7.2005 to 30.9.2007. Further, during this period, Short Term Permits to a tune of only 5000 M.T. was issued by the Mining Officer, Kangra w.e.f. October, 2006 to April, 2007 and there was no permission granted to you from 1.7.2005 to September, 2006. Taking all factors into consideration, you have carried out unauthorized mining to produce 2,00,054 M.T. of grit/bajri. In view of the above facts, the plea taken by you, in your reply dated 8.10.2011 received in this office on 12.1.2011 holds no ground and is rejected. In view of the Hon ’ble High Court Order dated 11.5.2010, an amount of 10,02,77,000 (Rs.Ten crores two lakhs and seventy seven thousand) has been calculated as compounding fees as per details given below: Quantity of minor mineral illegal extracted/transported Converted to Nos. of trucks Compunding feecalculated as perrates approved by theState Level Committee 1 2 3 2,00,554 M.T. 20,055.4 10,02,77,000/- (Rupees Ten crores two lakhs seventy seven thousand). of trucks Compunding feecalculated as perrates approved by theState Level Committee 1 2 3 2,00,554 M.T. 20,055.4 10,02,77,000/- (Rupees Ten crores two lakhs seventy seven thousand). Accordingly, you are here upon called to pay a sum of Rs.10,02,77,000/- (Ten Rupees Ten crores two lakhs seventy seven thousand) only by depositing into the government Treasury through Mining Officer, Kangra at Dharamshala as compounding amount within 30 days of this demand notice failing which action to recover this amount shall be initiated as per the provision of law. Yours faithfully, Sd/- State Geologist Himachal Pradesh.” (emphasis supplied) 4.In the companion writ petitions, as aforesaid, the factual position is no different. The State Geologist, in furtherance of direction issued by this Court in previous writ petition bearing CWP No.2632 of 2009, issued show cause notice to the respective petitioners. We would reproduce the show cause notice issued by the State Geologist to the petitioner in Writ Petition No.31 of 2011, the same reads, thus: “No Udyog-Bhu (Khani-4) Laghu-451/09-II-2316 Government of Himachal Pradesh *Department of Industries* Geological Wind Dated:Shimla-171001, the 7 June, 2010. To Sh.Hari Parkash Abhi, Prop: Abhi Stone Crusher Co., Old G.T. road, Damtal, Tehsil Indora, Distt.Kangra, H.P. Subject: Payment of penalty/compounding fee for carrying out illegal extraction of minor mineral in the light of Order dated 11/5/2010 passed by the Hon ’ble High Court of H.P. in CWP No.2632/09 titled- Harbhajan Singh V/s State of H. P. and others—Demand of balance penalty/ compounding fee thereof. Sir, The issue of penalty for illegal extraction of minor minerals for the period for July 2005 to March 2007 done by you and other similarly situated persons paid as compounding fee to the Mining Officer, Dharamshala, Distt.Kangra was pending adjudication before the Hon ’ble High Court of H.P. in CWP No.2632/2009 titled- Harbhajan Singh V/s State of H.P. & others. The Hon ’ble Court vide its order dated 11/5/2010 disposing of the above mentioned petition has directed the undersigned to take action in accordance with law laid down by the Hon ’ble court in its order referred to above. The Hon ’ble Court vide its order dated 11/5/2010 disposing of the above mentioned petition has directed the undersigned to take action in accordance with law laid down by the Hon ’ble court in its order referred to above. The penalty by way of compounding fee has been re­calculated in terms of the law laid down by the Hon ’ble Court as Rs.45,65,000/- (Rupees Fourty five lacs sixty five thousand) only in terms of the amount prescribed by the State Level Committee in its meeting dated 20/2/2007 for the extraction and transportation of unauthorized mined minerals as per details given below:- Quantity of minor mineral Converted to Compounding fee illegally extracted/ No. of trucks calculated as per transported rates approved by the State Level Committee. 1. 2. 3. 9,130 M.T. 913 Rs.45,65,000/- Already paid i)One time compounding fee Rs. 5,000 ii) Compounding fee paid @ Re 1 per tonne Rs.9,130 Balance penalty/compounding Rs.45,65,000-14,130 = Fee to be paid 45,50,870 (Rupees Forty five lacs fifty thousand eight hundred seventy) only Accordingly, you are here upon called to pay a sum of Rs.45,50,870 (Rupees Forty five lacs fifty thousand eight hundred seventy) only by depositing into the Govt. Treasury through Mining Officer, Kangra as balance compounding fee within 30 days of this demand notice, failing which action to recover this amount shall be initiated as per provision of law. Yours faithfully, Sd/- State Geologist, Himachal Pradesh.” 5. The show cause notice issued in the other writ petitions (CWP Nos.32 and 34 of 2011) is verbatim, except the amount demanded from the respective petitioners. In the companion writ petition No.32 of 2011, the amount is Rs.51,49,670/-, (Rupees fifty one lacs, forty nine thousand, six hundred and seventy only), and in Writ Petition No.34 of 2011, it is Rs.88,15,000/-, (Rupees eighty eight lacs and fifteen thousand only). The petitioners in these three writ petitions filed objections before the State Geologist taking identical and overlapping stand. The State Geologist by separate orders passed in the three cases on the same date i.e. 22nd September, 2010, negatived the stand of the petitioners and called upon the respective petitioner to pay the specified amount as per notice dated 7th June, 2010. The State Geologist by separate orders passed in the three cases on the same date i.e. 22nd September, 2010, negatived the stand of the petitioners and called upon the respective petitioner to pay the specified amount as per notice dated 7th June, 2010. The State Geologist decided the controversy keeping in mind the dictum of this Court in judgment dated 30th August, 2010 in CWP Nos.4747 of 2010 to 4755 of 2010, CWP Nos.5376 to 5379 of 2010 and 5381 & 5382 of 2010 and, more particularly, in CWP No.2632 of 2009, in which all the petitioners before this Court were parties and which decision was binding on them. We deem it apposite to reproduce the relevant extract of the decision of the State Geologist, which reads thus: “I have carefully gone through the objections raised in your letter dated 14/9/2010 and statement made on 15/9/2010 and the objections have been considered in light of the judgment passed by the Hon ’ble High court as well as on the basis of the guidelines issued by the State Level Committee and my findings on the above issues are as under:- xxxvii) The detailed report with regards to the excess material generated from source other than legal source, was submitted by me after collecting material from all the stone crusher owners, details of electricity bills from the Electricity Board taking assistance of Geologists and Surveyors and physically verifying the mining sites. Based on the quantity mentioned in the report, you had got your case compounded from the quantity from the Mining Officer, Kangra. In the present case the issue is not with regards to the illegal extracted quantity but the amount of compounding fees. xxxviii) The compounding fee realized by the Mining Officer Kangra was not appropriately levied inspite of the amount prescribed by either in the Act or by the State Level Committee. The Hon ’ble High Court vide its order dated 11/5/2010 has also observed that in case the penalty has not been appropriately levied, it will always be open to the State to protect its interest by taking steps to levy the same in accordance with law. The Hon ’ble High Court further directed the State Geologist and the competent authority to take fresh steps in the light of the law laid down by this court in the judgment with notice to the parties concerned. The Hon ’ble High Court further directed the State Geologist and the competent authority to take fresh steps in the light of the law laid down by this court in the judgment with notice to the parties concerned. xxxix) That the demand notice dated 7/6/2010 has been raised as balance compounding fees wherein the quantity of minor minerals illegally extracted/transported, have been converted into trucks and compounding fee calculated as per the rates approved by the State Level Committee i. e. Rs.5000/- per truck. xl) It is not disputed that the compounding of offence cannot be done without your consent. You had earlier consented and paid Rs.5000/- and Rs.One as compounding fee apart from royalty on the quantity of illegally extracted material. Through present notice you have been afforded an opportunity to get the case compounded or else action to recover this amount shall be initiated as per the provisions of law. No where you are being forced to get the case compounded. xli) The recommendations of the State Level Committee with regards to imposing the penalty for illegal extraction of minerals is not contrary either to the Mines and Minerals (Development & Regulation) Act, 1957 on the H.P. Minor Minerals (Concession) Revised rules 1971. As per Section 23-A of Mines and Minerals (Development & Regulation) Act, 1957 “In case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence”. Since in this case both imprisonment and fine have been provided, the compounding fees can exceed to the limit which may prove deterrent to discourage the offender. Further to discourage the officers/officials to levy compounding charges as per their whims the State Level Committee fixed the compounding norms. xlii) Your contention that the recommendation of the committee cannot be made applicable retrospectively has merit, as you were not aware of the quantum of penalty. But you have filed affidavit to the effect that the levy of any further amount for compounding of offence would be subject to the outcome of the decision in C.W.P. No.2632 of 2009. Present demand notice has been issued in compliance to the high Court order in C.W.P. No.2632 of 2009. Although vide your letter representation/objection dated 14.9.2010, you have requested to refund the earlier compounding amount paid and that further action be taken as per law. Present demand notice has been issued in compliance to the high Court order in C.W.P. No.2632 of 2009. Although vide your letter representation/objection dated 14.9.2010, you have requested to refund the earlier compounding amount paid and that further action be taken as per law. However during personal hearing given to you on 15.09.2010 you have given statement/agreed to get the case re- compounded to the extent as provided in terms of section 21(5) of MM(D&R) Act 1957 and that it would be beyond your capacity to pay any other compounding amount. The Section 21(5) of MM(D&R) Act 1957 provides that:- “Whenever any person raises, without any lawful authority, any mineral from any land, the State Govt. may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.” That on the other side the impleaded respondent No.3 i.e. Sh.Harbhajan Singh was also afforded an opportunity of hearing in the process on 17.9.2010 and he submitted his representation. Through his representation dated 15.09.2010 he has again reiterated that the orders passed by the Hon ’ble High court on 11.05.2010 requires strict adherence and implementation more so in light of the orders dated 30.08.2010 of the Hon ’ble High court in CWP No.4747/2010 and that interest be also charged on delay in payment of compounding fees as per notice dated 7.06.2010. In view of the above, your request for getting the cases re- compounded under the provision of Section 21(5) of MM (D&R) Act 1957 is beyond my competence and against the principle laid down by the Hon ’ble High court in its orders dated 11/5/2010. Further, I have already issued notice dated 7.06.2010 and reminder thereof on dated 6.08.2010 in compliance to the orders of the Hon ’ble High court dated 11/5/2010 passed in CWP no.2632 of 2009. Keeping in view the position explained herein above I find no merit in the objections raised by you because the Hon ’ble High court has already laid down the principle in the Judgment dated 11/5/2010 and your representation stands disposed of accordingly. Keeping in view the position explained herein above I find no merit in the objections raised by you because the Hon ’ble High court has already laid down the principle in the Judgment dated 11/5/2010 and your representation stands disposed of accordingly. Yours faithfully, Sd/- State Geologist, Himachal Pradesh.” 6.As aforesaid, the background in which all these four petitions have been filed in this Court is common. Even the issues raised therein are common. It is not in dispute that the petitioner in the respective petition was party in CWP No.2632 of 2009 and, therefore, decision in the said writ petition was binding on them, having allowed it to attain finality. 7. The petitioners, however, would contend that they have not indulged in any illegal mining activity since 30th June, 2005. They did not agree for compounding of the alleged illegal mining activity. The demand made was not in conformity with the provisions of law. In any case, the petitioner cannot be forced to compound the alleged illegal mining activity. Even that can be no basis to initiate prosecution against the petitioners. It is submitted that the amount demanded from the respective petitioner towards compounding fees was neither ascribable to Section 21 or Section 23A of the Mines and Minerals (Development and Regulation) Act, 1957. Fine or for that matter compounding charges can be associated only with prosecution. In the absence of prosecution, it is not open to the Authority to demand any amount, muchless compounding charges from the concerned petitioner. Moreover, the offences committed prior to the coming into force of the Rules which is the basis for compounding charges, in particular, in relation to the activities between June, 2005 till July, 2007, was completely impermissible. That amount cannot be demanded in the guise of penalty or for that matter compounding charges. Section 23A of the Act of 1957 does not specify any compounding amount. The attempt to specify compounding amount was made by the Study Committee constituted by the Court. The recommendation of the Committee cannot be the basis to make demand against the petitioners. Further, compounding of the alleged illegality committed by the petitioners was already done; consequent to collection of charges in that behalf and even for this reason, second forced compounding was without authority. The action of the State Geologist was hit by Article 20 of the Constitution of India. Further, compounding of the alleged illegality committed by the petitioners was already done; consequent to collection of charges in that behalf and even for this reason, second forced compounding was without authority. The action of the State Geologist was hit by Article 20 of the Constitution of India. These were the broad submissions canvassed before us to persuade us to quash and set aside the show cause notices as well as the orders passed by the State Geologist against each of the petitioner. 8. To buttress the above argument, counsel for the petitioners has relied on the decision of the Orissa High Court in the case of Abhaya Charan Choudhury and another versus State of Orissa and another1. While considering the scope of Section 23A of the Act of 1957, the Court declared that the unilateral act of compounding by officer-in-charge and collection of sum from accused for releasing his vehicle was unlawful. The Court noted that compounding is permissible only when the accused agrees for compounding. The Court went on to observe that where at the time of seizure the person concerned challenges the set of seizure itself on the ground that no offence is committed, the authority to compound under Section 23A cannot clothe himself with the power to determine the amount and collect the same as condition precedent for releasing the truck in question. 9. Our attention was also fairly invited by the counsel for the petitioners to another decision of Madras High Court in the case of Vairasundaram versus District Collector, Nagapattinam and another2. In that case, the Court proceeded on the finding that the petitioner did not complain that no show cause notice was issued to him before conducting inquiry. On that basis, the Court rejected the challenge of the petitioner for having acquiesced in the proceedings. Relying on the observations in this decision, it was submitted that it ought to follow that compounding cannot be forced upon by the Authority. 10. Reliance is also placed on another unreported decision of the Bombay High Court in the case of Bank of Baroda versus Pune Municipal Corporation in CWP No.9343 of 2009, decided on 17th November, 2009. The Court was considering the efficacy of Section 398 of the Bombay Provincial Corporation Act, 1949 and Rule 40 framed thereunder. 10. Reliance is also placed on another unreported decision of the Bombay High Court in the case of Bank of Baroda versus Pune Municipal Corporation in CWP No.9343 of 2009, decided on 17th November, 2009. The Court was considering the efficacy of Section 398 of the Bombay Provincial Corporation Act, 1949 and Rule 40 framed thereunder. The Court held that Section 398 of that Act was only an enabling power in the Corporation to inform the party, who is liable for prosecution or is being prosecuted, that the offence can be compounded by paying the fine as demanded and if such party refused to compound the offence, the Corporation cannot force such party to pay the compounding fine. That action will be clearly without jurisdiction. Further, it is only on conviction that there is power to impose fine within the meaning of the said provision. 11. Per contra, the learned Advocate General contended that it is not open to the petitioners to open the concluded issues in the previous proceedings. In that, in the previous proceedings before this Court, it has been plainly held that each of the petitioners herein had indulged in illegal mining activity during the relevant period. This Court has already found that the petitioner in the leading petition, who had filed successive writ petitions, purported to be public interest litigation, had not approached the Court with clean hands and was giving distorted and misleading information. According to the learned Advocate General, the petitioners cannot be permitted to question the direction issued by the Division Bench of this Court in the previous writ petition to which they were party, by raising issues about the legality and permissibility of the demand made by the State Geologist, which is founded on those directions. Further, the arguments now canvassed could have been raised by the petitioners in the said proceedings. The sum and substance of the orders passed by the State Geologist, which are impugned in the respective petitions, was to give effect to the directions issued by this Court to collect the specified amount. The State Geologist has had no option but to collect the said amount in view of the directions given by this Court in CWP No.2632 of 2009. The order of the State Geologist is in furtherance of the directions of this Court and not independent thereof. The State Geologist has had no option but to collect the said amount in view of the directions given by this Court in CWP No.2632 of 2009. The order of the State Geologist is in furtherance of the directions of this Court and not independent thereof. That order cannot be questioned because it has loosely used the expression ‘compounding fees’. The amount demanded from the respective petitioners was towards outstanding royalty and payable under the High Court order in Writ Petition No.2632 of 2009. It was neither fine nor compounding fees as such. The order of this Court has been allowed to attain finality by the petitioners, and, in fact, the Supreme Court has dismissed the Special Leave Petition against the said order on 13th September, 2010 and has reiterated the direction given by this Court in CWP No.2632 of 2009. Thus, the State was under obligation to take steps to recover the amount as per the directions of the High Court. He further submits that the State in addition to collecting the said amount, will be free to launch prosecution against the petitioners on the basis of the finding recorded by this Court in the previous round of writ petition against the petitioners of having indulged in illegal mining activity. The State will be free to take recourse to other measures including seizure as envisaged by Section 21 of the Act of 1957 and including to recover the amount from the concerned petitioners as arrears of land revenue. He submits that the edifice, on the basis of which the petitioners have attempted to challenge the orders passed by the State Geologist, is completely untenable and overlooks the core issue that the show cause notices as well as orders have been passed by the State Geologist only in furtherance of and in consonance with the directions given by this Court to the State Authorities to recover the amounts from the concerned persons including the petitioners before this Court, as contained in the order, dated 11th May, 2010, in CWP No.2632 of 2009. Inviting our attention to the said decision, the learned Advocate General pointed out that the question regarding permissibility of the demand has already been decided by this Court and even if that opinion is wrong, it cannot be questioned by the petitioners by way of present writ petitions, having allowed the earlier decision to attain finality and moreso, when that decision has been upheld by the Apex Court by dismissal of Special Leave Petition on 13th September, 2010. He submits that the petitions are devoid of merits and ought to be dismissed. 12.Before we examine the rival submissions, it may be worthwhile to mention that the petitioner in the leading writ petition had filed CWP No.635 of 2006 purported to be public interest litigation praying that the lease of the land of the petitioner and other share holders made by respondent No.3 (the State Geologist) in favour of private respondents 6 to 30 therein in March, 2006 as well as other Crusher holders may be quashed and set-aside and registration of private respondents 6 to 30 and other Crusher owners made on the basis of said lease deed be quashed and set-aside. The petitioner also prayed for granting suitable compensation for the use and occupation of his land by private respondents 6 to 30 for having extracted minor minerals therefrom acting upon the lease deeds granted in their favour by the State Geologist. The said petitioner also sought direction to initiate prosecution against the officials of the Industries Department and the Stone Crusher holders i.e. private respondent No.6 Association and private respondents 7 to 30. The said writ petition, however, was finally withdrawn by the petitioner on 8th April, 2008. It is argued by the respondents that withdrawal of that writ petition was in objectionable circumstances as the petitioner realized that the interim orders passed in the said writ petition were inconvenient to the petitioner himself and the Court had declined to modify the same. We do not intend to dwell upon this aspect in detail, which, at best, would reflect on the conduct of the petitioner in the leading writ petition. 13. We do not intend to dwell upon this aspect in detail, which, at best, would reflect on the conduct of the petitioner in the leading writ petition. 13. The core issue that arises for consideration is: whether the impugned show cause notices issued by the State Geologist to the respective petitioners are in furtherance of and in consonance with the directions issued by this Court in the previous writ petition to which each of these petitioners were parties being CWP No.2632 of 2009. If this argument of the State is to be accepted, no other question raised by the petitioners would be of any avail, rather, the same cannot be gone into by this Court in the present writ petition since the petitioners have allowed the decision in CWP No.2632 of 2009 to attain finality and more so, because that decision has since been upheld by the Apex Court in SLP(C) No.25070/2010, titled as M/s Krishana Stone Crusher & Anr. versus State of H.P. & ors., on 13th September, 2010, by reiterating the directions given by this Court. The order of the Supreme Court reads thus: “After arguing the case for some time and realising that this Court is not inclined t interfere with the impugned order, learned counsel for the petitioners made a request that his clients may be permitted to withdraw the special leave petitions. The request of the learned counsel is accepted and the special leave petitions are dismissed as withdrawn. A copy of this order be sent to the High Court of Himachal Pradesh by fax. The Registrar General of the High Court is directed to place the same before the Hon ’ble the Chief Justice of the High Court.” 14. For examining the issue under consideration, we may usefully turn to the judgment dated 11th May, 2010 in CWP No.2632 of 2009. The Registrar General of the High Court is directed to place the same before the Hon ’ble the Chief Justice of the High Court.” 14. For examining the issue under consideration, we may usefully turn to the judgment dated 11th May, 2010 in CWP No.2632 of 2009. Even that writ petition was filed by the petitioner in the leading writ petition, praying for the following reliefs: “That in view of submissions made heretobefore, it is prayed that an appropriate writ, order or directions may kindly be issued for:- i) For writ of mandamus or any other appropriate writ to the respondents for taking strict action in accordance with applicable laws/rules against the illegal mining & stone crushing pertains going on in Damtal area in District Kangra, in respect of existence of which fact finding report is already there with the recommendations made in B.C. Negi Report-annexure P-6, report is already there with the respondent Department in form of annexure-P-11. ii) For writ of mandamus or any other appropriate writ to the respondents for strictly adhering to the recommendations made in B.C. Negi Report annexure P-6, report of respondents­annexure P-8, notification dated 26.7.2005-anexure P-9, report submitted in CWP No. 635/2006-annexure P-12. iii) For a writ of mandamus or any other appropriate writ to respondents to take action against the erring officials who failed to discharge their official duties in checking and curbing the manace of illegal mining and stone crushing operations in Damtal area of District Kangra, which are going on, in patent violation of recommendations made in various reports submitted in this regard. iv) For a writ of mandamus or any other appropriate writ to the respondents to ensure stern and drastic action against the offenders who indulge in illegal mining and stone crushing operations so that petitioner who are undertaking legal and lawful mining and stone crushing operations do not suffer in their business because of such illegal activities. v) For direction to the respondents to bring the record of the case specifically the record pertaining to quantity of illegally extracted material and compounding fee realized till date in each case of violation. vi) For directing the respondents to seal the premises of defaulting units till full compounding fee is paid by them ad realized by the department. vii) For passing any appropriate order, interim order or direction in furtherance of the relief claimed. vi) For directing the respondents to seal the premises of defaulting units till full compounding fee is paid by them ad realized by the department. vii) For passing any appropriate order, interim order or direction in furtherance of the relief claimed. viii) Any other order or direction as deemed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner.” 15. Notably, this writ petition was filed by the petitioner in the leading writ petition on 31st July, 2009. The same was disposed of by the Division Bench of this Court on 11th May, 2010 by a speaking order. The Court noted that the petition was being entertained as Public Interest Litigation since it raised issues of larger public interest in respect of levy of compounding fee. The permissibility of recovering such amount with regard to the illegal mining activity was tested on the sweep of Section 23-A of the Act of 1957 read with the Rules framed by the State - the Himachal Pradesh Minor Minerals (Concession) Revised Rules, 1971 - in particular Rules 53 and 54 thereof and on the basis of the recommendations of the State Level Committee constituted by the State of Himachal Pradesh on 20.2.2007. After having adverted to those provisions and material placed before it, the Division Bench proceeded to hold that the provisions would show that the mining operation can be undertaken by any person only in accordance with the terms and conditions of the Mining lease/contract or permit, granted under the Rules. In the event of any contravention thereof, it is punishable with imprisonment for the specified period or with a fine which may extend to Rs.5000/-. Further, in case of continuing contravention, an additional fine, which may extend upto Rs.500/- for every day during which the contravention continues after the conviction of the first such contravention, is also prescribed. The Court then noted that in cases where the offence has been compounded and if still the contravention continues, it is doubtful whether for the continuing contravention, a levy at the rate of Rs.500/- per day is permissible. The Court then noted that in cases where the offence has been compounded and if still the contravention continues, it is doubtful whether for the continuing contravention, a levy at the rate of Rs.500/- per day is permissible. Having said this, the Court then went on to examine the matter with regard to the core question as to what is the offence committed by a grantee or lessee in the case of a continuing contravention of the provisions of the grant/contract or lease, and what is the fine to be levied, if the same is compounded. We may usefully produce paragraphs 8 onwards of the said decision, which read, thus: “8. Be that as it may. Under Section 23-A in the matter of compounding of offence, it is clear that only in a case which is punishable with fine alone, the compounding can be limited to the maximum of fine, which may extend to Rs. 5,000/- (as prescribed). It is also clear from the provision that once an offence is compounded, no further proceedings shall be taken against the offender in respect of the offence, so compounded. 9. The simple question is, what is the offence committed by a grantee or lessee in the case of a continuing contravention of the provisions of the grant/contract or lease, and what is the fine to be levied, if the same is compounded. 10. Before dealing with the above question, we may also deal with one vehement submission made by the learned Advocate General as well as the learned counsel for the private respondent that the above issue may not be examined at the instance of a person, who himself is engaged in a similar industry and in whose case there are several violations. We are only in the process of analyzing a grave issue of serious public interest and of high stake for the State as well, where the State is apparently helpless and the law is stated to be powerless to effectively check the illegal mining at the hands of the lessee. Therefore, we are unable to be persuaded by the persuasive submissions made by the learned counsel for the respondents that the petitioner is to be non-suited and this court may not go into any further question arising out of a writ petition, filed by a person, like the writ petitioner. 11. Therefore, we are unable to be persuaded by the persuasive submissions made by the learned counsel for the respondents that the petitioner is to be non-suited and this court may not go into any further question arising out of a writ petition, filed by a person, like the writ petitioner. 11. It is seen from the stand taken in the affidavit of the State Geologist, dated 10th May, 2010 that even if a guarantee or lessee indulges in illegal mining beyond the permitted date and beyond the permitted quantity, the penalty levied, as on today, is only as follows - ‘One time compounding fee of Rs. 5,000/-, irrespective of the fact as to whether the illegal mining continued for days or weeks or months and irrespective of the fact whether the quantify thus illegally extracted is one tonne or several lacs of tonnes plus Rupee 1/- per tonne in addition to the royalty in respect of the quantity thus illegally extracted.’ 12. It is also stated in the affidavit that steps are taken to recover an amount of Rs. 500/- per day of such continuing contravention in terms of Rule 52. The guidelines, State Level Committee has issued, which we have extracted above, shows that the penalty has to be recovered in respect of the quantity as measured in terms of the vehicles which have transported those minerals. 13. Learned counsel for the respondents, however, point out that levy of the penalty per truck or per vehicle etc. can be levied only if the transporter is found transporting the minerals illegally. In other words, such levy is permissible only if a truck and the material or the vehicle and the materials are seized by the authorized officer. Technically, the learned counsel is right. But, what is the intention of the Legislature in the above circumstances which we have analyzed, is the question. In having admittedly paid the extra royalty at the rate of Rs. 1/- per tonne of the unauthorized mining, it cannot be disputed that the quantity for which the extra amount has been paid had not been transported. But, what is the intention of the Legislature in the above circumstances which we have analyzed, is the question. In having admittedly paid the extra royalty at the rate of Rs. 1/- per tonne of the unauthorized mining, it cannot be disputed that the quantity for which the extra amount has been paid had not been transported. Therefore, if the law has to be understood, analyzed and applied logically to the situation, it has to be held that for the unauthorized quantity mined and transported, the guarantee, lessee are liable to be visited with the penalty in terms of the amounts prescribed by the State Level Committee for the transportation of the unauthorizedly mined minerals. 14. Learned counsel for the respondents and the learned Advocate General point out that in terms of the action already taken in respect of the mines of the respondents, it may not be possible for the State to re-work the penalty in terms of the judgment and at the best it can only be implemented prospectively. We are afraid that submission also cannot be appreciated since we are informed that the parties, who have been granted the lease, have filed affidavits to the effect that the levy of any further amounts for compounding of offence would be subject to the outcome of the decision in this case, namely CWP No. 2632 of 2009. Even otherwise, according to us, it is a hyper technical objection, in the sense that once the persons, who have been engaged in unauthorized mining, are found liable to pay the penalty and compounding fee, as prescribed under law and in case the penalty has not been appropriately levied, it will always be open to the State to protect its interest by taking steps to levy the same in accordance with law. 15. In the above circumstances, this writ petition is disposed of directing the State Geologist and the competent authority to take fresh steps in the light of the law laid down by this court in this judgment, with notice to the parties concerned. By way of abundant caution, we make it clear that the petitioner shall also not be spared in case the petitioner himself is to be proceeded against in the light of the above judgment. By way of abundant caution, we make it clear that the petitioner shall also not be spared in case the petitioner himself is to be proceeded against in the light of the above judgment. It is also made clear that this would apply to all those grantees/lessees engaged in unauthorized mining and minerals, be they are parties in this writ petition or not. The needful action in this regard shall be taken by the State/competent authority within three months of receipt of the copy of this judgment. 16. The petition stands disposed of.” (emphasis supplied) 16.We may now turn to the show cause notices. On plain reading of the show cause notices which have been extracted hitherto, there is no manner of doubt that the same are issued in furtherance of the direction given by the Division Bench of this Court and were not independent thereof. In other words, the show cause notices are for compliance of the direction contained in the abovesaid order of this Court. It is not in dispute that the abovesaid decision has been allowed to attain finality by the petitioners herein and that the said decision has, in fact, been affirmed by the Apex Court upon dismissal of SLP on 13th September, 2010. The fact that the demand made by the State Geologist was in furtherance of the abovesaid decision of the High Court is reinforced from the reasons recorded by the said Authority in its impugned decisions passed against each of the petitioners. The relevant extracts of the reasons recorded have also been reproduced hitherto. 17. The opinion recorded by the State Geologist with regard to the stand taken by the petitioners before him is unexceptionable. The State Geologist, in substance, has merely resorted to arithmetical calculations on the basis of directions given by the High Court in CWP No.2632 of 2009, titled Harbhajan Singh vs. State of H.P., dated 11th May, 2010. The electricity consumption was taken as the base for working out the liability incurred by each of the petitioners on the basis of the quantity of stock lying with the concerned petitioners. The electricity consumption was worked out on the basis of number of meters installed in the crusher complex. The figures considered by the said Authority is on the basis of material available on its record. The electricity consumption was worked out on the basis of number of meters installed in the crusher complex. The figures considered by the said Authority is on the basis of material available on its record. It is not the case of the petitioners that the Authority has committed manifest error in reckoning those figures. 18. Thus understood, no fault can be found with the conclusion reached by the State Geologist in the impugned orders by converting the total stock of minor mineral illegally extracted/transported to number of trucks and then demanding the amount from the respective petitioners. This approach is in conformity with the observations found in paragraphs 13 & 14 of the above said decision in CWP No.2632 of 2009. Notably, in the said decision the petition filed by the petitioner in the leading writ petition, the Court made it amply clear that the State Authority should not spare even the said petitioner and he be proceeded against in the light of the decision, as can be discerned from paragraph 15 of the judgment. 19. In other words, the demand by the State Geologist is to effectuate the direction contained in the judgment delivered by this Court in CWP No.2632 of 2009 and not independent of that. If the petitioners had any reservation regarding the opinion expressed in the said decision, they ought to have resorted to appropriate remedy. However, having allowed the said decision to attain finality, it is too late in the day for the petitioners to raise legal issues which they could have legitimately raised in the earlier writ petition. The decision in CWP No.2632 of 2009 is binding on each of these petitioners, who were parties by name in the said proceedings, before this Court. That decision is not only binding on the petitioners but also on this Court and the petitioners cannot be permitted to reopen the legal issues answered in the said decision and more so when the demand made by the State Geologist was only in furtherance of and in conformity with the said decision. 20.Having said this, it is not necessary for us to dilate on the efficacy of Sections 21 to 23A and 25 of the Act of 1957 or for that matter Rules 52 to 54 of the Rules of 1971. Those matters ought to have been canvassed in the earlier round of petition between the parties. 20.Having said this, it is not necessary for us to dilate on the efficacy of Sections 21 to 23A and 25 of the Act of 1957 or for that matter Rules 52 to 54 of the Rules of 1971. Those matters ought to have been canvassed in the earlier round of petition between the parties. It is also not open for this Court to sit in appeal over the finding of fact recorded against the petitioners in the leading writ petition, being CWP No.635 of 2006, at interlocutory stage though. The said petitioner chose to withdraw the said writ petition for reasons best known to him. The said petitioner made unsuccessful attempt for modifying the finding and interim directions given in the said writ petition, which was prejudicial to him. That application was also dismissed with a speaking order. In view of the findings recorded against the said petitioner by this Court, it is not open for him to raise the same issues or to contend that he has not indulged in illegal mining activity during the relevant period. 21.The argument of the petitioners that the Authority cannot force the petitioners to compound the offence, completely overlooks the first principle that the amount demanded by the State Geologist was in furtherance of the directions of the High Court. The petitioner cannot take benefit of the loosely worded description given by the State Geologist “of compounding amount”. For all purposes, the demand was in furtherance of the direction given by the High Court which direction has been allowed to attain finality and upheld by the Apex Court vide order dated 13th September, 2010. 22. It is not open for us to deal with other issues raised by the petitioners. As aforesaid, those issues could have been raised by the petitioners in the earlier round of writ petition being CWP No.2632 of 2009. As a matter of fact the said directions have been invited by the petitioner in the leading writ petition. The Apex Court in the case of Karnataka Rare Earth and another vs. Senior Geologist, Dept. of Mines and Geology and another3, has opined that recovery of price of mineral under Section 21(5) is intended to compensate the State for the loss of the mineral owned by it and caused by a person who was held not entitled in law to raise the same. of Mines and Geology and another3, has opined that recovery of price of mineral under Section 21(5) is intended to compensate the State for the loss of the mineral owned by it and caused by a person who was held not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory. The marginal note “penalties” will be of no avail. 23. Suffice it to observe that having upheld the opinion recorded by the State Geologist in the impugned decisions as also the approach of computing the amount payable by the respective petitioners, as a necessary corollary, this petition ought to fail. 24. Our attention was invited to the State Government notification dated 20th September, 2012 whereby the amendment to the Himachal Pradesh Minor Minerals (Concession) Revised Rules, 1971 is effected. We may not be understood to have expressed any opinion on the correctness or otherwise of the said amendment. At the same time, we cannot resist from observing that the compounding fee, referred to therein, may require some reconsideration as it is not commensurate with the magnitude of the illegal mining activity, but provides for only fixed one time compounding fee irrespective of the nature of the illegal mining activity. That however is a matter which the State has to ponder over and take corrective measures, if so advised. 25.While parting, we may make it clear that dismissal of this petition or upholding of the demand made by the State Geologist in the impugned decision will be no impediment for the State to proceed against the petitioners and similarly placed persons in accordance with law and including by lodging prosecution for the alleged illegal mining activities committed by them as also to resort to seizure and to recover the amount as arrears of land revenue. 26.Accordingly, all the four petitions are dismissed, so also the pending applications, if any. Interim orders, if any, are vacated forthwith.