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2016 DIGILAW 1215 (RAJ)

Pawan Kumar Sharma v. State of Rajasthan

2016-08-23

ANUPINDER SINGH GREWAL, MOHAMMAD RAFIQ

body2016
ORDER : Mohammad Rafiq, J. 1. For stated reasons, delay in filing Review Petition No. 41/2016 is condoned. Application bearing inward No. 22457 dated 25.07.2016 stands disposed of. 2. These two review petitions, filed by Pawan Kumar Sharma and Jai Prakash Sharma, who are respectively father and son, seek review of the judgment of Division Bench of this court dated 25.08.2015. By that judgment, six appeals arising out of common judgment dated 24.04.2014 passed by learned Single Judge, whereby fifteen writ petitions were disposed of with certain directions, were dismissed. Aggrieved by division bench judgment dated 25.08.2015, review-petitioners filed Special Leave Petitions before the Supreme Court, which were eventually dismissed as withdrawn with liberty to review-petitioners to file review petitions. Hence, these review-petitions. Review Petition No. 6/2016 3. Mining lease for masonry stone for an area measuring 4000 square meter at 'Moda Pahad', Jhunjhunu, Rajasthan, was granted to one Bhola Ram for ten years under the Rajasthan Minor Minerals Concession Rules, 1986 (for short, 'the Rules of 1986'). Subsequently, the lease was transferred to petitioner in accordance with Rule 15 of the Rules of 1986 and lease deed was registered in his favour and came into effect for the period from 15.12.1995 to 14.12.2014. On the basis of inspection carried out on 28.09.2001, a show cause notice was served on the review-petitioner on 10.10.2001 alleging that he has excavated 1115.1 MT of masonry stone outside the mining lease area, calling upon him to explain why penalty of ten times the royalty should not be charged. In reply thereto, the review-petitioner denied the allegation of illegal excavation outside mining lease area. He asserted that all monthly returns were furnished in time and no such objection was raised by respondents with regard thereto at any point of time. The area where illegal excavation is alleged was in fact the result of 'barsati nala' of the hill, wherefrom loose stones fell down and many loose stones remained like hanging wall. It were the labourers, who, after doing mining work in the sanctioned area, must have felled the stones behind the walls of the loose stone from safety point of view, but it was not within the knowledge of the review-petitioner. It were the labourers, who, after doing mining work in the sanctioned area, must have felled the stones behind the walls of the loose stone from safety point of view, but it was not within the knowledge of the review-petitioner. Even then, for every grit of stone felled by the labourers, which were removed from the mining area to outside against the 'ravannas' issued by the mining department, royalty was paid to the contractor. Yet, the review-petitioner under protest deposited a sum of Rs. 55,755/- on 22.07.2002. Another inspection was carried out on 19.07.2004, in which it was found that review-petitioner was working within the four corners of the boundary of the mining lease granted to him after demarcation. A notice was issued by the Mining Engineer to the petitioner on 15.07.2010 alleging violation of Clause 4(7) of the Agreement and Rule 18(6) of the Rules of 1986 stating that the petitioner has not erected the boundary pillars and that the review-petitioner had not placed sign boards on the mining lease area and the mining work was not being carried by following safety measure. No allegation was made about any illegal or unauthorized excavation. Review-petitioner submitted reply to the notice on 02.08.2010. 4. The Government of Rajasthan, on a complaint dated 25.10.2010 made by one Mr. Om Prakash Absuaria, constituted a committee to carry out the site inspection of the mining area of the mines existed at 'Moda Pahad'. The committee determined that 36650.25 MT of masonry stone was mined by the review-petitioner from an area not allotted to him, though no equipments, vehicle etc. were found outside the mining area of review-petitioner. Respondents then again carried out inspection on 08.12.2010, in report of which, it was clearly mentioned that all four pillars as well as the sign boards were existing. There was no sign of illegal excavation. Even then, the Mining Engineer sent a letter to the SME, Jaipur on 07.01.2011 with copy thereof to the review-petitioner stating that the notice was issued to him that the boundary pillars and sign boards were not erected. The mining lease of the petitioner was determined on 08.01.2011 with forfeiture of the security amount. Petitioner filed appeal on 31.01.2011. Even then, the Mining Engineer sent a letter to the SME, Jaipur on 07.01.2011 with copy thereof to the review-petitioner stating that the notice was issued to him that the boundary pillars and sign boards were not erected. The mining lease of the petitioner was determined on 08.01.2011 with forfeiture of the security amount. Petitioner filed appeal on 31.01.2011. During pendency of the appeal, the Mining Engineer issued a notice to review-petitioner on 11.03.2011 stating that an inspection team was constituted to investigate whether unauthorized mining was being carried out in the lease area. The inspection team carried out inspections from 28.10.2010 to 31.10.2010 and from 12.11.2010 till 14.11.2010 and it was found that 36650.25 MT of masonry stone was illegally excavated and directed the review-petitioner to deposit ten times royalty. Review-petitioner submitted reply to that notice on 28.03.2011. In the meantime, the Additional Director, Mines, vide order dated 03.05.2011 allowed the appeal and set aside the order dated 08.01.2011, determining the lease. However, the lease then was restored in appeal on 13.07.2011 and possession was handed over to the review-petitioner. The Mining Engineer, without considering the reply of the review-petitioner and without taking into account the fact that lease was determined on 08.01.2011 and restored belatedly, required the review-petitioner to deposit ten times royalty amount of Rs. 46,19,569/- and compound fee of Rs. 5000/-. It is against this order that the review-petitioner filed S.B. Civil Writ Petition No. 11902/2011 before this court, which was disposed of by learned Single Judge on 07.12.2011 on the ground of availability of alternative remedy. 5. Review-petitioner then filed revision petition under Rule 47 of the Rules of 1986, which was rejected by the revisional authority vide order dated 23.03.2012. During pendency of the revision petition, the State Government, on the instructions of the Lokayukta, constituted a committee for inspection on complaints of illegal mining in 'Moda Pahad'. The said committee also conducted inspection of the site from 24.11.2011 to 26.11.2011 and furnished the inspection report on 18.02.2012 along-with the composite map, according to which total excavation from 25.01.1997 till 2012 was 63395 MT. During pendency of the writ petition, the Mining Engineer issued fresh notice/demand on 03.05.2012 to the effect that the committee found illegal excavation reported in the year 2001 to be 1115.10 MT, in the year 2010 to be 36650.25 MT and in the year 2012 to be 311431.20 MT. During pendency of the writ petition, the Mining Engineer issued fresh notice/demand on 03.05.2012 to the effect that the committee found illegal excavation reported in the year 2001 to be 1115.10 MT, in the year 2010 to be 36650.25 MT and in the year 2012 to be 311431.20 MT. After reducing the quantity of illegal excavation in the year 2010, the remaining quantity is 275896.10 MT of mineral masonry stone, which was illegally mined, for which total outstanding amount of royalty payable was Rs. 6,06,97,142/-. Review-petitioner submitted reply on 23.05.2012 to the notice dated 03.05.2012. The respondents again issued notice to the review-petitioner on 23.05.2012 itself on the basis of inspection carried out on 14.03.2012 and 16.03.2012. In compliance of the judgment of learned Single Judge, the respondent again constituted a committee to carry out the inspection regarding illegal excavation. According to petitioner, the Mining Engineer, without considering reply of the review-petitioner to show cause notice dated 11.03.2011, proceeded to hold that review-petitioner has carried out 35535.15 MT of minerals being in violation of Rule 48 of the Rules of 1986 and held him liable to deposit ten times royalty amounting to Rs. 46,19,569/- with compound fee of Rs. 5000/-. 6. Mr. Aruneshwar Gupta, learned counsel appearing for review-petitioner, has argued that judgment of the division bench suffers from an error apparent on the face of the record because it has dismissed the appeal considering all the matters to be identical in nature. Neither learned Single Judge nor the Division Bench appreciated that the case of the review-petitioner is entirely different from others. Since all the appeals were considered together, facts of each case could not be separately appreciated. The facts of the case of Rishi Kumar Morwal in D.B. Special Appeal (Writ) No. 1859/2014 were made basis for deciding the matters by common judgment. It was not appreciated that the penalty of Rs. 55,755/- was deposited by review-petitioner on 22.07.2002 under protest. In the case of Rishi Kumar Morwal, rider agreement pursuant to order dated 09.05.2008 was executed for the shifted area, but no such rider agreement was executed in the case of petitioner, thus the question of regularization of possession was not involved in his case. The judgment passed by the division bench suffers from error apparent on the face of record. 7. The judgment passed by the division bench suffers from error apparent on the face of record. 7. Learned counsel further argued that the penalty on the basis of application of Rule 48(5) of the Rules of 1986 could not have been imposed upon the review-petitioner. It is an admitted fact that by order dated 09.05.2008 the excavation on the shifted possession was regularized, and the regularization was only held to be illegal by learned Single Judge while dismissing the writ petition on 24.04.2014 and before that date, the order dated 09.05.2008 was in force. Permission to excavate in the shifted area was granted by the department itself, which was valid till 24.04.2014. The excavation under order dated 09.05.2008, which was declared to be illegal vide order dated 24.04.2014 of learned Single Judge, could not be said to be unauthorized excavation with retrospective effect. The stand of the review-petitioner throughout was that review-petitioner has not excavated any quantity of mineral outside the sanctioned lease area. Demand notices dated 11.03.2011 and 23.08.2011 were absolutely vague. The respondents had acted in mala-fide manner. Review-petitioner filed an application for re-demarcation of the leased area and for reassessment of the alleged illegal excavation. Various committees have already been taken from own measurement. They failed to consider that demarcation was not proper. The order dated 27.03.2012 passed by the Deputy Secretary was without any authority of law. No show cause notice was served on the review-petitioner and other affected persons prior to passing the order. The impugned judgment of learned division bench deserves to be reviewed and recalled and matter should be heard afresh on merits. 8. Learned counsel has relied on judgment of the Supreme Court of United Kingdom in James Rhodes v. OPO (by his litigation friend BHM) and Another - (2015) UKSC 32 and argued that imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. Review Petition No. 41/2016 9. Mr. Mukesh Kumar Meena, learned counsel for review-petitioner, largely adopted the argument made Mr. Aruneshwar Gupta, learned counsel in Review Petition No. 6/2016, and additionally submitted that the department has issued short term permits to various persons for excavating minerals in and around the area in question, without specifying the exact location and boundaries, where from such minerals were excavated. Mr. Mukesh Kumar Meena, learned counsel for review-petitioner, largely adopted the argument made Mr. Aruneshwar Gupta, learned counsel in Review Petition No. 6/2016, and additionally submitted that the department has issued short term permits to various persons for excavating minerals in and around the area in question, without specifying the exact location and boundaries, where from such minerals were excavated. This fact was acknowledged in the inspection report dated 25.10.2010 (Annexure-9). It is argued that the department deputed three official guards to keep a watch over the mining area of 'Moda Pahad'. In the presence of official guards, it was impossible for any one to illegally excavate from 2004 to 2011. No action has been taken by the department against the official guards or any other officer, if at all they were convinced that illegal excavation has taken place. All the minerals that were excavated, were fully accounted before the same were removed from the mining area against 'ravanna' and royalty was paid. The review-petitioner never excavated any mineral outside the leased out area. It is argued that no notice was given to the review-petitioner before the committee constituted by learned Single Judge, carried out the inspection. 10. Mr. G.S. Gill, learned Additional Advocate General for the State, opposed the review petition and argued that the scope of review is specifically and clearly confined to the facts, which are already on record but could not be noticed by the court while deciding any case in its original jurisdiction or in appellate jurisdiction; but a new case cannot be set up in review proceedings. Referring to sub-rule (1) of Rule 27 of Order 41 of the CPC, learned counsel argued that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. This Rule contains certain exception that if the court against whose judgment appeal is preferred, refused to admit evidence, and that the evidence which is refused is such evidence, which ought to have been admitted. This restriction equally applies to review petition. 11. This Rule contains certain exception that if the court against whose judgment appeal is preferred, refused to admit evidence, and that the evidence which is refused is such evidence, which ought to have been admitted. This restriction equally applies to review petition. 11. Learned Additional Advocate General argued that learned Single Judge had in fact constituted a fresh team of officers of (1) Geological Survey of India, Jhalana Doongari, Jaipur (2) Indian Bureau of Mines, (3) College of Technology, Mining Department, Udaipur and (4) MBM Engineering College, Jodhpur, and that order was passed as a consent order on the agreement of the parties. After this order, respondents constituted the committee for inspection of illegal mining at 'Moda Pahad' area to submit the report within specified period. A fresh inspection was carried out and petitioner's mines found 137751.59 MT of illegal excavation of masonry stone in violation of the Rules of 1986. It is on the basis of report of the Committee, the review-petitioner was directed to pay 10 times royalty against such illegal excavation of mines outside the mining lease area so made. The Committee before inspecting the site, issued notice to the parties. Learned Single Judge, taking note of the fact that certain officers of the department were also in connivance with the mine-holders in carrying out illegal mining, required the Anti Corruption Bureau (ACB), to expedite the investigation, including filing of progress report before it. That order of learned Single Judge when challenged before the Division Bench, was upheld. The present review petition is nothing but an attempt at rehearing of the matter all over again. A review petition can be entertained only when there is an error apparent in the judgment. Detection of such error should not require detailed arguments. Review petition be therefore dismissed. 12. It is argued that in writ petition challenge was made to demand made on the basis of survey report dated 25.10.2010 and 18.02.2012 and learned Single Judge scrapped both the said reports and with the consent of both the parties constituted an independent committee, which submitted its report and on the basis of the report of the expert committee, the demand notices were issued to 21 illegal excavators, out of which seven persons deposited full and final amount and action is under process against remaining excavators. If the review-petitioners are aggrieved about the quantity of illegal excavation, they may prefer an appeal under Rule 43 of the Rules of 1986. 13. Learned Additional Advocate General, in support of his arguments, has relied on the judgments of the Supreme Court in - Lily Thomas v. Union of India - AIR 2000 SC 1650 , Satya Narayan v. Malikarjun - AIR 1960 SC 137 , Parson Devi and Others v. Sumiti Devi - (1997) 8 SCC 715 and State of Nagaland and Another v. Toulvi Kibami and Another - (2003) 8 SCC 671 . 14. We have given our anxious consideration to the rival arguments and perused the material on record. 15. The Division Bench upheld the judgment of learned Single Judge, taking into consideration the arguments which were advanced at the time of hearing and on that basis, scrutinizing the finding recorded by learned Single Judge. Review petitioners now in the present case has sought to make several such arguments, which they did not agitate before the single bench or the division bench. In fact, as rightly argued by learned Additional Advocate General, once the learned Single Judge directed formation of independent committee, the reports of the first inspection committee, and the second inspection committee have lost their significance. Such committee did not include any official of the mining department. Constitution of such committee was made by a consent order on the basis of agreement between the parties. The committee consisted of the officers of the Geological Survey of India, officers of the Indian Bureau of Mines, Officers of the College of Technology, Mining Department, Udaipur, and the Representatives of the MBM Engineering College, Jodhpur. 16. This court is not inclined to countenance the argument that the area where illegal excavation is alleged was in fact the result of 'barsati nala' of the hill, wherefrom loose stones fell down and many loose stones remained like hanging wall and that it were the labourers, who, after doing mining work in the sanctioned area, must have felled the stones behind the walls of the loose stone from safety point of view, and that this fact was not in the knowledge of the review-petitioner. Also equally unacceptable is the argument of review-petitioner that the 'ravannas' were issued for all the minerals that were excavated and the royalty was paid because the question that was considered by learned Single Judge was with regard to excavation of minerals outside the mining area leased out to the review-petitioners. Kind of explanation, which the review-petitioners are offering does neither appeal to reason nor logic. Learned Single Judge has found that officials of the mining department were hand-in-glove with the miners of that area where illegal mining outside the leased out area was carried out for a long period, by not just one but several of the miners. This is a factual finding based on inspection carried out by the independent committee. In fact, first such inspection was carried out by the departmental authority and another inspection was carried out by the committee constituted by the Lokayukta. When the extent of the illegal excavation was disputed by the petitioners/appellants, learned Single Judge constituted an independent committee, which has, by use of scientific method, made the computation of illegal excavation. A mistake or an error apparent on the face of the record means a mistake or an error which is prima facie visible and does not require any detailed examination. Mere discovery of new or important matter or evidence is not sufficient ground for review. In the present case the review-petitioners have not been able to point out any error apparent on the face of the record. We do not find any error apparent on the face of the record in the judgment so as to justify review and recall the same. 17. The Supreme Court in Inderchand Jain (dead) through LRS v. Motilal (dead) through LRs. - (2009) 14 SCC 663 , held that an application of review would lie only when the order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. First thing that would be seen to entertain a review petition is that an order of which review is sought, suffers from an error apparent on the face of record and permitting the order to stand would lead to failure of justice. In the absence of any such order, finality attached to the order cannot be disturbed. First thing that would be seen to entertain a review petition is that an order of which review is sought, suffers from an error apparent on the face of record and permitting the order to stand would lead to failure of justice. In the absence of any such order, finality attached to the order cannot be disturbed. The power of review can also be exercised by the court in the event of discovery of new and important matter or evidence which, after the exercise of due diligence was not within knowledge of the party or could not be produced by him at the time when the order was made. Review court does not sit in appeal over its own order. Rehearing of matter in the guise of review is impermissible in law. Exercise of inherent jurisdiction cannot be invoked for reviewing any order. 18. In Parsion Devi and Others v. Sumitri Devi and Others - (1997) 8 SCC 715 , it was held by the Supreme Court that an error, which is not self-evident and has to be detected by process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. In exercise of review jurisdiction, it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between the erroneous decision and error apparent on the face of record. While the first can be corrected by the higher forum, the latter can only be corrected only by exercise of review jurisdiction. 19. This court is of the considered opinion that order dated 25.08.2015 passed by this court does not warrant any interference for review as there is no error apparent on the face of the record. 20. Consequently, review petitions are dismissed.