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2017 DIGILAW 575 (UTT)

Panwar Stone Crusher v. State of Uttarakhand

2017-10-31

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. The petitioner was granted license/permission by the District Magistrate/Collector, Pauri Garhwal for the purpose of mining activities under the provisions of Mines and Minerals (Development and Regulations) Act, 1957 read with the Rules framed thereunder. 2. The lease was granted to the petitioner on 01.05.2009. Petitioner was issued a show-cause notice on 21.12.2009 on the basis of recommendations made by Sub-Divisional Magistrate, Ukhimath on 07.12.2009. Petitioner submitted his reply to the show-cause notice on 30.12.2009. 3. Petitioner was called upon to deposit a sum of Rs.5,89,264/- by the District Magistrate. Thereafter, the District Magistrate reviewed his order and ordered the petitioner to deposit a sum of Rs.29,46,320/- on 01.04.2010. 4. Petitioner filed a revision before the State Government. The Principal Secretary, Industrial Development Department, Govt. of Uttarakhand reduced the amount of penalty by 50% vide order dated 04.04.2012. 5. The attention of this Court has been drawn to Rule 21 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules) applicable in the present case. As per sub-Rule (2) of Rule 21 of the Rules, the State Government is authorized by notification in the Gazette to amend the First Schedule so as to include therein or exclude therefrom or enhance or reduce the rate of royalty in respect of any mineral with effect from such date as may be specified in the notification. 6. The State Government has modified the Schedule and has fixed the rate @ Rs.45/- per cubic meter. However, the District Magistrate, without there being any express power of review, has reviewed his previous order dated 30.03.2010 and ordered the petitioner to deposit the penalty of Rs.29,46,320/-. 7. It is an admitted case of the parties that there is no provision in the Rules to review the order. The review of the order could be made only if there is express provision of review. 8. In AIR 1966 SC 641 , in the case of “Harbhajan Singh vs. Karam Singh & others”, their Lordships of the Hon’ble Supreme Court, while interpreting the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1950 have held that there is no provision in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act granting express power of review to the State Government under Section 42 of the Act. In absence of any such express power, it is manifest that the Director, Consolidation of Holdings, cannot review his previous order. Their Lordships have held as under: - “6. There is no provision in the Act granting express power of review to the State Government with regard to an order made under s. 42 of the Act. In the absence of any such express power, it is manifest that the Director, Consolidation of Holdings, cannot review his previous order of 3rd April, 1958 dismissing the application of Harbhajan Singh under S. 42 of the Act. It follows therefore that the order of the Director dated 29th August, 1958 is ultra vires and without jurisdiction and the High Court was right in quashing that order by the grant of a writ under Art. 226 of the Constitution. 8. We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holding had no power to review his previous order dated 3rd April, 1958 rejecting the application of Harbhajan Singh under s. 42 of the Act. It follows that the subsequent order of the Director, Consolidation of Holdings dated 29th August, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court.” 9. Similar view has been taken by their Lordships of the Hon’ble Supreme Court in AIR 1970 SC 1273 , in the case of “Patel Narshi Thakershi & others vs. Pradyumansinghji Arjunsinghji”, whereby their Lordships have held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. Their Lordships have held as under:- “4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was Liable to be set aside.” 10. Learned Standing Counsel, appearing for the State, submits that the Rules have been framed in the year 2015 whereby the penalty has been enhanced to five times. The Rules of 2015 would not be applicable in the present case and the same will apply prospectively. 11. No provision has been brought to the notice of this Court whereby the penalty could be enhanced to five times from Rs.5,89,264/- to Rs. 29,46,320/-. 12. Accordingly, the writ petition is allowed. The impugned orders dated 01.04.2010 and 04.04.2012 are quashed and set-aside. 13. The amount of Rs.5,00,000/-, deposited by the petitioner, pursuant to the orders of this Court, is ordered to be released in favour of the petitioner. However, the petitioner is permitted to deposit a sum of Rs.5,89,264/-, if not already deposited, with the respondents within eight weeks from today. 14. Pending application, if any, stands disposed of accordingly.