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Gujarat High Court · body

2019 DIGILAW 775 (GUJ)

Larsen and Toubro Limited v. State of Gujarat

2019-08-19

A.Y.KOGJE

body2019
JUDGMENT : 1. RULE. Learned AGP Mr.A.J.Jadeja waives service of Rule on behalf of the respondents. 2. This petition is filed seeking quashing of order dated 26.02.2015 passed by respondent No.3- Geologist, order dated 13.07.2015 passed by respondent No.4-Additional Director (Appeals) and order dated 02.01.2016 passed by respondent No.1-Secretary, Industries and Mines Department. The issue is under the Mines and Minerals (Development and Regulations) Act 1957. The petitioner who is engaged in construction of road on national highway No.8A and was under quarry permit to excavate ordinary clay for a temporary period and after said period was over, on the basis of inspection carried out by the Mining Department, the petitioner was allegedly found to have excavated more than permitted quantity and had excavated beyond the permitted area and for that reason, proceedings initiated. 3. Learned Senior Advocate for the petitioner submitted that the petitioner is inter alia engaged in construction of 4/6 laning of the section of road from Gandhidham (Kandla) to Mundra Port forming part of national highway No.8A (0.00 km to 71.40 km). For the said Kandla-Mundra road project, the petitioner required ordinary clay in large quantity. Therefore, the petitioner made application dated 27.08.2012 to respondent No.3 under Rule 61(1) of the Gujarat Minor Minerals Concession Rules, 2010 for quarry permit in respect of land bearing survey No.276/5, mouje Meghpar Borichi, Tal. Anjar, admeasuring 2.00 ha. By order dated 29.10.2012, the competent authority granted quarry permit to the petitioner for excavation of ordinary clay in the said land up to the quantity of 75,000 MT for a period of 90 days, on the conditions mentioned in the said order dated 29.10.2012. 3.1 It is submitted that the petitioner received notice dated 26.08.2014 issued by respondent No.3 pursuant to the site inspection on 02.07.2014. While it was not mentioned as to under which provision of law the said notice was issued, respondent No.3 had stated that the same had been issued pursuant to the inspection carried out by its officers purportedly under Rules 19(a) to 19(e) of the Rules. While it was not mentioned as to under which provision of law the said notice was issued, respondent No.3 had stated that the same had been issued pursuant to the inspection carried out by its officers purportedly under Rules 19(a) to 19(e) of the Rules. In the said notice, respondent No.3 had alleged that pursuant to the measurement done during the site inspection on 02.07.2014, it was found that the petitioner had excavated a total of 1,64,620.24 MT of ordinary clay from the said land and that it had excavated another 1,60,164.85 MT from area outside the permitted area i.e. adjacent to the said land. It was further alleged that the petitioner had committed offence in view of the alleged breach of Rules 5 and 6 of the Rules and that the said offence allegedly committed by the petitioner could be compounded in view of the provisions of Rules 13(2) and 14 of the Rules. Respondent No.3 computed that the petitioner was liable to make payment of Rs.1,69,72,284/- and inquired if the petitioner was agreeable to make payment of the said amount. 3.2 It is submitted that the petitioner addressed reply on 17.09.2014 to respondent No.3. The petitioner inter alia submitted that it had only excavated 64,902 MT or ordinary clay and that the alleged illegal excavation must have been carried out by some other unauthorized person after the petitioner had excavated the site. The petitioner brought to the attention of respondent No.3 that the petitioner had last excavated from the said land on 25.01.2013 and had vacated the said land immediately thereafter. 3.3 It is submitted that respondent No.3 failed to consider submissions made by the petitioner in its reply dated 17.09.2014 and passed the impugned order dated 26.02.2015 without assigning any reasons whatsoever. It submitted that the petitioner filed appeal before respondent No.4 being Appeal No.13 of 2015 on 16.03.2015. 3.4 It is submitted that the petitioner noticed that its applications in respect of other borrow areas pending before the office of respondent No.3 were not getting processed. On making inquiry, the petitioner was informed that the said applications in respect of other borrow areas were not getting processed as the petitioner had not made payment towards the demanded amount of Rs.1,69,72,284/-. On making inquiry, the petitioner was informed that the said applications in respect of other borrow areas were not getting processed as the petitioner had not made payment towards the demanded amount of Rs.1,69,72,284/-. The petitioner addressed letters dated 16.03.2015 and 23.03.2015 to respondent Nos.4 and 2 respectively, thereby requesting to direct respondent No.3 to process its applications in respect of other borrow areas. 3.5 It is submitted that respondent No.4 heard the appeal filed by the petitioner and passed the impugned order dated 13.07.2015, whereby it upheld the impugned order dated 26.02.2015 passed by respondent No.3. 3.6 It is submitted that the site inspection was carried out on 02.07.2014 after a considerable delay of 17 months from the date of last excavation undertaken by the petitioner on the said land. It is submitted that such site inspection was carried out by the office of respondent No.3 after a period of 17 months from the date of last excavation, during which period the petitioner was not in possession of the said land. It is submitted that there have been instances wherein unauthorized persons have been found to illegally excavate ordinary clay from borrow areas, including the said land after the same was vacated by the petitioner. 3.7 It is submitted that respondent No.3 undertook such inspection only after a period of 17 months after the petitioner had vacated the said land and which fact was also informed to respondent No.3 by way of letter dated 08.03.2013. Respondent No.3, with a view to overcome the aforesaid delay in site inspection, has falsely claimed that the site inspection has been carried out under the provisions of Rules 19(a) to Rule 19(e) of the Rules. The falsity of the said claim is evident from the “rojkam” prepared by the officers of respondent No.3 after the site visit on 02.07.2014, wherein it is clearly mentioned that the site inspection was carried out in view of the completion of the excavation activity which was intimated in March 2013. 3.8 It is submitted that the impugned orders have been passed in complete violation of the principles of natural justice inasmuch as the petitioner has never been provided with either the copy of the “rojkam” dated 02.07.2014 or the alleged map and/or alleged computerized measurement sheets, which are the very basis of allegations made in the notice dated 26.08.2014. 3.8 It is submitted that the impugned orders have been passed in complete violation of the principles of natural justice inasmuch as the petitioner has never been provided with either the copy of the “rojkam” dated 02.07.2014 or the alleged map and/or alleged computerized measurement sheets, which are the very basis of allegations made in the notice dated 26.08.2014. 3.9 It is submitted that respondent No.3 imposed penalty upon the petitioner without assigning any reason and in absence of any evidence to show that the petitioner had excavated ordinary clay in breach of the quarry permit granted to it. It is submitted that while respondent No.3 has not even relied upon any evidence, respondent No.4 has upheld the order of respondent No.3 only in view of the fact that the petitioner had not informed the appropriate authority about the completion of the excavation immediately thereafter. 3.10 It is submitted that the impugned order dated 02.01.2016 has been passed in violation of the principles of natural justice inasmuch as, the alleged data received from the National Remote Sensing Centre and relied upon by respondent No.2 has also not been provided to the petitioner. In the circumstances, the petitioner was not permitted to defend itself efficaciously. 4. As against this, learned AGP submitted that the petitioner company by letter dated 08.03.2013 addressed to the office of respondent No.3 forwarded statements of royalty passes and information showing details of the royalty pass numbers, quantity of mineral, vehicle number and driver name. It is submitted that the contention of the petitioner that it has submitted all royalty passes to the office of respondent NO.3 is not correct as the petitioner has only submitted the statement whereas it is required to submit all royalty passes along with weighment slip of weighbridge for verifying whether the permit holder or lease holder has dispatched the same quantity of mineral as shown in the royalty passes from the permit area or lease area. The petitioner company purposely after more than two months from the date of completion of the permit, submitted royalty pass information statement to the office of respondent No.3. The petitioner company also failed to inform about the completion of the work immediately to the office of respondent No.3. The petitioner company purposely after more than two months from the date of completion of the permit, submitted royalty pass information statement to the office of respondent No.3. The petitioner company also failed to inform about the completion of the work immediately to the office of respondent No.3. It is further submitted that the petitioner company failed to explain in its petition the reasons for delay of more than two months in informing and providing royalty pass information statement to the office of respondent No.3. Respondent No.3 resumed charge as Geologist, Kutch-Bhuj in August 2013 and when it came to the knowledge required exercise of carrying out inspection is pending, respondent No.3 immediately directed the subordinate to carry out the inspection and measurement of the area where permit was issued to the petitioner company. 4.1 It is submitted that the petitioner company failed to comply with condition No.10 of the permit grant order dated 29.10.2012 till date. Condition No.10 of the grant order clearly provides that the permit holder has to keep the weighment slip of every truck or carrier. The petitioner company till date has not submitted the weighment slip along with royalty passes statement for verification of the royalty passes despite several oral instructions. 4.2 It is submitted that the team of the office of respondent No.3 inspected the site where permit was granted in presence of the representative of the petitioner company on 02.07.2014. It is further submitted that the measurement of the area was carried out by the inspection team and it was found after preparation of measurement sheet that the petitioner company had carried out excavation of 1,60,164.85 MT of mineral ordinary clay outside the permit area. The petitioner company has also carried out excavation of total 1,64,620.24 MT of mineral inside the permit area whereas it was shown by the petitioner company as per the royalty pass information statements submitted on 08.03.2013 that it has excavated only 64,902 MT of mineral which establishes that the petitioner has excavated excess quantity of 99,718.24 MT of mineral and dispatched the same without royalty passes illegal. Therefore, total quantity of mineral excavated by the petitioner company illegally amounts to 2,59,883.09 MT of mineral ordinary clay. 4.3 Referring to the orders passed, it is submitted that the revisional authority also the high resolution data dated 12.03.2013 of National Remote Sensing Centre, Government of India. Therefore, total quantity of mineral excavated by the petitioner company illegally amounts to 2,59,883.09 MT of mineral ordinary clay. 4.3 Referring to the orders passed, it is submitted that the revisional authority also the high resolution data dated 12.03.2013 of National Remote Sensing Centre, Government of India. The excavation found in high resolution data provided by the National Remote Sensing Centre is in conformity with the measurement sheet prepared by the inspection team. The revisional authority in its order observed that the petitioner company submitted the royalty pass information statement on 08.03.2013 and therefore, it is not in question that they are in possession of the permit area till 08.03.2013 and the high resolution data is of 12.03.2013 and therefore, it does not seem possible that some unknown person excavated huge quantity of 2,59,883.09 MT in only five days. 5. Having heard learned Advocates for the parties and having perused documents on record, the petitioner applied for grant of quarry permit in respect of land bearing survey No.276/5, mouje Meghpar Borichi, Tal. Anjar, Dist. Bhuj-Kutch, admeasuring 2.00.00 hectare by way of application dated 27.08.2012. The office of respondent No.3 vide letter dated 26.09.2012 forwarded the said application of the petitioner with all necessary opinions and documents to the office of the Commissioner, Geology and Mining for further consideration. The Industries and Mines Department, Government of Gujarat vide order dated 29.10.2012 granted quarry permit to the petitioner for excavation of mineral ordinary clay for quantity of 75,000 MT for a period of 90 days. 6. The conditions, specifically condition No.1 under the permission provides for inspection by the District Officer when 90% of the permitted excavation is carried out. It was also obligatory upon such officer to vigilantly carry out inspection and take care that excavation beyond the permitted quantity does not take place. As mentioned in the permission itself, ordinary clay of 75,000/- MT was permitted to be excavated within a period of 90 days. The period of 90 days was over on 29.01.2013. The mining activity concluded on 25.01.2013. However, on 08.03.2013, intimation was given to the Geologist about completion of mining activity as per the permit. The conditions of permit does not specify requirement of intimation of completion of mining. Even if it be so, when the intimation was given on 08.03.2013, the respondent-Department carried out inspection on 02.07.2014. The mining activity concluded on 25.01.2013. However, on 08.03.2013, intimation was given to the Geologist about completion of mining activity as per the permit. The conditions of permit does not specify requirement of intimation of completion of mining. Even if it be so, when the intimation was given on 08.03.2013, the respondent-Department carried out inspection on 02.07.2014. The map produced by the respondents along with their affidavit as well as narration of show cause notice clearly indicate that the inspection was carried out on 02.07.2014. The affidavit filed by the respondents does not give any explanation as to why inspection was carried out after almost 17 months. The show cause notice does not specify the manner in which the respondents assessed excavation of 1,64,620.24 MT of ordinary clay from the area covered under the permit and 1,60,164.85 MT from the area beyond the permitted area. For coming to such conclusion, obviously, delayed intimation given on 08.03.2013 about completion of mining as on 25.01.2013 cannot be treated as a reason to believe illegal excavation. Moreover, on perusal of the order impugned, the reasoning adopted is that excavation has taken place between the date of closing of mining activity and the date of intimation and within this period, such huge quantity of excavation is not possible by small time illegal miners. Such reasoning explanation, without any evidentiary foundation, cannot be considered to be valid. Even the method adopted by the Department to arrive at quantity of ordinary clay excavation also appears to be primitive. Merely by measuring depth of pit, assessment of quantity of excavation cannot be treated as conclusive evidence. Especially in presence of latest modern equipments, it was the duty of the respondent-Department to adopt more better and accurate method for making such assessment. 7. In para-5 of order of the Commissioner dated 02.01.2016 in Revision Application No.3 of 2015, it is held as under:- “(5) As the data of the National Remote Sensing Centre was available for dated 12/03/2013, it was obtained and according to that, the excavation was done inside and outside the permitted areas of its plans. It is consistent with the details mentioned in the measurement of the Surveyor of the district office, which makes clear that the measurement done by the district office is proper. It is consistent with the details mentioned in the measurement of the Surveyor of the district office, which makes clear that the measurement done by the district office is proper. Moreover, the license was expired on 26/01/2013 and the applicant, with intention to get the royalty of 20% additional stock refund which was paid at the time of obtaining license, has submitted the accounts of the license on 08/03/2013, which proves that the possession of the licensed area was with him until 08/03/2013. The data of the scientifically excavated area received from the National Remote Sensing Centre is of 12/03/2013, therefore, it doesn’t seem possible that other persons took away 259883.09 Metric Ton within duration of 05 days and therefore, there is reason to believe that the said excavation was done by the applicant. The appellant has not contended for the measurement besides the accounts produced on 08/03/2013 and earlier also, the appellant was penalized for the illegal mining.” 8. However, in the show cause notice and subsequent adjudication, there is no mention of the data and map available on the basis of National Remote Sensing Centre and if it be so, the same ought to have been supplied to the petitioner along with the show cause notice. 9. When the petitioner has produced on record photographs of the mining activity being carried out in the very area even after issuance of show cause notice, the Court can safely presume that local persons other than the petitioner are also indulging in the mining activity in the same area. This fact was also brought to the notice of the respondent-Department and hence, the respondent-Department ought to have taken into consideration such relevant aspects. It appears to the Court that the Department did not take any vigilant action to carry out the inspection even while the mining activity was going on during the permitted period or even thereafter immediately. Thereafter, it is not open for the Department to put entire burden of all the excavation of ordinary clay in the area on the shoulders of the petitioner and that too without any substantial evidence of illegal mining by the petitioner. 10. In view of the aforesaid, it would be appropriate to set aside order dated 26.02.2015 passed by respondent No.3-Geologist, order dated 13.07.2015 passed by respondent No.4-Additional Director (Appeals) and order dated 02.01.2016 passed by respondent No.1-Secretary, Industries and Mines Department. 10. In view of the aforesaid, it would be appropriate to set aside order dated 26.02.2015 passed by respondent No.3-Geologist, order dated 13.07.2015 passed by respondent No.4-Additional Director (Appeals) and order dated 02.01.2016 passed by respondent No.1-Secretary, Industries and Mines Department. The same are accordingly quashed and set aside. 11. As the fact of excavation of ordinary clay in the area is very much there, such activity cannot be disregarded and therefore, it is still left open for the respondent-Department to initiate any action based on sound, scientific evidence against the persons responsible for such illegal excavation of ordinary clay. The action can also be initiated by the Department on the basis of any other and further evidence beyond the evidence on the basis of which decision is taken so far, even against the petitioner. 12. The petition stands allowed to the aforesaid extent. Rule is made absolute. No order as to costs.