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2016 DIGILAW 389 (ORI)

BRG Iron and Steel Company (P) Limited. v. State of Odisha

2016-05-18

B.R.SARANGI, VINEET SARAN

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JUDGMENT : Vineet Saran, J. The petitioner-company, which is an integrated Steel Plant being incorporated as a Registered company under the Companies Act, 1956 and has its industry situated in the district of Dhenkanal, has filed this application challenging the demand and penalty made by the authorities on account of extraction of earth in the industrial premises, which was acquired and purchased by it in exercise of power under the Orissa Minor Mineral Concession Rules, 2004 2. The factual matrix of the case in hand is that the petitioner-company executed a Memorandum of Understanding (MOU) with the Govt. of Odisha on 04.05.2005 for establishment of a Steel Plant at Kurunti in the district of Dhenkanal and for the purpose of establishment of said plant the State Government had acquired the land, provided raw materials, energy, water supply and fuel available in the State with an objective to achieve the industrial growth, mineral development, economic growth and generation of employment in the State. As per the MOU, the petitioner’s initial estimated investment was about Rs.228.05 crores for setting up of such industries. The Govt. of Odisha agreed to hand over about 250 acres of land through Odisha Industrial Infrastructure Development Corporation (IDCO) for construction of plant and allied facilities. In addition to the same, the company also purchased some extent of land and got the same mutated in its name. Accordingly, the petitioner-company set up its factory and plant in the year 2007 and the production started in the year 2008. It has also borne a cost of Rs.2.00 crores for conversion of kissam of land in terms of the provisions contained in Orissa Land Reforms Act, 1962. The petitioner-company had utilized and removed the earth from its premises. Consequentially, the Tahasildar, Odapada vide letter no.2430 dated 16.12.2009 called upon the petitioner-company to show cause within three days from the date of receipt of the letter as to why action under OMMC Rules, 2004 shall not be taken on the strength of the report of the Revenue Inspector, Motanga for use and extraction of 299250 CMs of earth for the purpose of use by it within the area acquired by it in OMMC No. 49 of 2009. Submission of show cause reply within three days practically could not have been done, but the petitioner company filed show cause reply on 21.12.2009 denying the allegations stating that the proceeding has to be dropped and urged that copy of the report of the Revenue Inspector as mentioned in the show cause reply be provided to it to give its effective reply, but the same has not been supplied to it. Against the said order, the petitioner company had earlier approached this Court by filing W.P.C. No. 18666 of 2010 and this Court disposed of the said writ petition vide order dated 3.9.2014 granting liberty to the petitioner to file appeal under Rule 64 of the Orissa Minor Minerals Concession Rules, 2004. Accordingly, OMMC Appeal Case No. 1 of 2014 was filed on 20.11.2014, which was disposed of on 19.02.2015 rejecting the contention raised by the petitioner and directing payment of Rs.42,14,500/-pursuant to the letter no.2562 dated 24.12.2009 of the Tahasildar, Odapada and another notice no.2313 dated 31.07.2014 to deposit Rs.70,63,200/-by compounding the principal with interest after lapse of long five years. Hence, this petition. 3. Mr. P.K. Mohanty, learned Sr. Counsel appearing for the petitioner strenuously urged that adequate opportunity of hearing has not been given to the petitioner-company nor the order has been passed in compliance to the principles of natural justice. He contended that the demand so raised is arbitrary and unreasonable and violative of the provisions contained in OMMC Rules and as such the order so passed by the authorities cannot sustain in the eye of law. Thereby, he seeks for quashing of the same. 4. Mr. P.K. Muduli, learned Addl. Standing Counsel for the State-opposite parties justifying the order passed by the authorities states that the petitioner-company is liable to pay the demand raised by the authorities, which is in consonance with the provisions contained in OMMC Rules, 2004. To substantiate his contention, reliance has been placed on the judgment of the Apex Court in State of Orissa and others v. Union of India and another, (2001) 1 SCC 429 . 5. On the basis of the facts pleaded above, both the parties do not dispute the factual matrix of the case and have agreed to dispose of the matter at the stage of admission. Accordingly, with the consent of the parties, the matter is heard and disposed of. 6. 5. On the basis of the facts pleaded above, both the parties do not dispute the factual matrix of the case and have agreed to dispose of the matter at the stage of admission. Accordingly, with the consent of the parties, the matter is heard and disposed of. 6. The facts having not been disputed by the parties, it appears that vide letter no.2430 dated 16.12.2009 in OMMC No. 49 of 2009 vide Annexure-4, the Tahasildar, Odapada issued a show cause notice on illegal extraction and use of minor minerals basing on the report of the R.I. Motanga stating that the petitioner-company had extracted 299250 CMs of earth for the purpose of use by it within the area acquired by it without any supporting papers, which contravenes the provisions of OMMC Rules, 2004 and called upon the petitioner-company to show cause within three days of receipt of the letter as to why action will not be taken against it under OMMC Rules 2004, failing which action would be taken as per law. In response to the show cause notice issued on 16.12.2009, the petitioner-company requested vide letter dated 19.12.2009 to give at least one week time for complying the notice of show cause and finally it had submitted its reply on 21.12.2009 vide Annexure-6. In its reply, it has been specifically stated that the petitioner-company never used/extracted the above quantity of earth for the purpose of use by the company. The report of the R.I. Motanga in that regard is totally baseless and at no point of time, the R.I. Motanga had inspected the plant site in presence of the officials of the company. More so, request has been made to supply the report of the R.I. Motanga regarding illegal extraction of 299250 CMs earth for the use of the company for hearing of the matter. Without serving the said copy, demand has been raised for payment of royalty and penalty for use of minor mineral on 24.12.2009 vide Annexure-7. Challenging the same, the petitioner had earlier approached this Court by filing W.P.(C) No. 18666 of 2010 and this Court vide order dated 3.9.2014 disposed of the said writ petition with liberty to avail the alternative remedy under Section 64 of the Orissa Minor Minerals Concession Rules, 2004. Challenging the same, the petitioner had earlier approached this Court by filing W.P.(C) No. 18666 of 2010 and this Court vide order dated 3.9.2014 disposed of the said writ petition with liberty to avail the alternative remedy under Section 64 of the Orissa Minor Minerals Concession Rules, 2004. Accordingly, the petitioner preferred OMMC Appeal Case No. 1 of 2014 raising similar grounds with regard to non-supply of the report of the R.I. Motanga and the calculation of extraction of 299250 CMs of earth basing upon which the royalty and penalty has been demanded. But the appellate authority without considering the same passed the order impugned directing for payment of Rs.70,63,200/-. 7. On perusal of the materials available on record, it appears that though the notice to show cause in Annexure-4 was issued solely basing upon the report of the R.I. Motanga that it has extracted 299250 CMs of earth for the purpose of use by the company, the report of the R.I. Motanga was not supplied to the petitioner-company even though the same was asked for. Further more with undue haste, the petitioner-company was called upon to file show cause reply within three days. This clearly indicates that the petitioner-company has not been given adequate opportunity to show cause and as such there has been violation of principle of natural justice which goes to the root of the matter. 8. In A.R. Antulay v. K.S. Nayak, AIR 1988 SC 1531 , the Apex Court held that by all standards, rules of natural justice are great assurances of justice and fairness. 9. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 , it is held that the object underlying rules of natural justice is to protect fundamental liberties and civil and political rights. They, .therefore, should be interpreted liberally so that they may conform, grow and tailor to serve public interest liberally and respond to the demands of an evolving society. 10. In Canara Bank v. Awasthy, AIR 2005 SC 2090 and plethora of decisions of the Apex Court, it has been held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. 11. 10. In Canara Bank v. Awasthy, AIR 2005 SC 2090 and plethora of decisions of the Apex Court, it has been held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. 11. There is no dispute with regard to the law laid down by the Apex Court in State of Orissa and others mentioned (supra) referred by the opposite parties. But the present case factually stands on different footing than that of the judgment cited by learned Addl. Standing Counsel for the State. Therefore, this Court is of the considered view that the judgment relied upon by the Addl. Standing Counsel is not applicable to the present context. 12. In view of the law laid down by the Apex Court as discussed above, applying the same to the present context, it appears that the authorities have not complied the provisions of principles of natural justice inasmuch as while disposing of the W.P.(C) No. 18666 of 2010, this Court granted liberty to the petitioner to prefer appeal and in appeal also such question was raised but the same has not been answered by the appellate authority. 13. Merely by issuing notice to show cause, without supplying the material (which was the report of R.I. in the present case) and not .granting adequate time to file reply, would not amount to compliance of the principles of natural justice. The purpose of issuing show cause notice is to give proper opportunity to the party to submit its reply, for which, not only sufficient time should be granted, but the requisite material should also be provided, as well as furnish reasons/grounds for which cause is to be shown, or else it would only be an empty formality. 14. In the present case, the show cause notice dated 16.12.2009 issued to the petitioner merely states that it was reported by the R.I., Motenga that the petitioner 'used/extracted 2,99,250 C.Ms of earth for the purpose of use by the company' and the reply was to be submitted within three days. The notice neither says as to when the earth was extracted or used by the company nor was the report of the R.I. provided to the petitioner, despite their asking for the same. 15. The notice neither says as to when the earth was extracted or used by the company nor was the report of the R.I. provided to the petitioner, despite their asking for the same. 15. In view of the aforesaid, this Court is of the considered view that neither the petitioner was provided the requisite material and information on the basis of which reply was to be furnished nor was sufficient time given to the petitioner to submit the reply. As such, the issuance of show cause notice was an empty formality, which does not comply with the principles of natural justice. 16. For the foregoing reasons, this Court has no hesitation to quash the notice of show cause dated 16.12.2009 (Annexure-4) and the consequential action taken as well as the demands raised vide Annexures-7, 9, 11 and 12. Accordingly, the same are hereby quashed and remanded to the Tahasildar, Odapada to take necessary steps in consonance with the provisions of law and in compliance with the provisions of natural justice, in the light of the observations made herein above. 17. With the aforesaid observations and directions, this writ petition stands allowed to the extent indicated above. However, there is no order as to costs.