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2021 DIGILAW 220 (GUJ)

Arvindbhai Parvatbhai Bariya v. State of Gujarat

2021-03-12

VIPUL M.PANCHOLI

body2021
ORDER : 1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed for the following relief/s : “A. This Hon'ble Court be pleased to issue a writ of or in the nature of certiorari or mandamus or any other appropriate writ, order or direction: (i) To direct the respondent No.3 to reopen the online ATR account having bearing number QL1404030514 for issuance of Royalty Pass in respect of lease of ordinary sand situated at Survey No.356, 365, Panam River Mauje: Boriyavi, Taluka : Sehra, District: Panchmahal; (ii) Quashing and setting aside of impugned notice dated 28.09.2020 issued by the Respondent No.3 at Annexure A: B. Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent No.3 to immediately open the online virtual account bearing number QL1404030514 for issuance of Royalty Pass in respect of lease of ordinary sand situated at Survey No.356, 365, Panam River Mauje: Boriyavi, Taluka : Sehra, District: Panchmahal C. Ex parte ad interim relief in terms of prayer B above may be granted. D. Such other and/or further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.” 2. Heard learned advocate Mr. Jay N. Shah for the petitioner and learned Assistant Government Pleader Mr. Ishan Joshi for the respondents. 3. The brief facts leading to filing of the present petition are as under : 3.1. It is the case of the petitioner that he is engaged in the business of storage and selling of ordinary sand pursuant to grant of lease registration vide registration order bearing number AGG/QL/1876/895 dated 16.02.2012 passed by the respondent No.2. The Royalty Passes were issued to the petitioner as per the procedure and the Rules prescribed by the respondents. It is stated that all the transactions of the petitioner are generated subject to the approval of the authorities through online All time Royalty Passes (ATR) account of the petitioner bearing No.QL1404030514, wherein, the net quantity of the stock is always maintained and royalty is also levied on every transaction only after monitoring the available stock and quantity and after duly verifying the veracity of such transactions. 3.2. 3.2. It is the grievance of the petitioner that on 07.07.2018, the respondent No.3, suddenly, has locked the online ATR account of the petitioner without issuance of any notice and without passing any order. The petitioner, therefore, requested to supply necessary information under the Right to Information Act. Certain information were provided to the petitioner. On the basis of the same, petitioner came to know that one Thakor Sandeepkumar Anupsinh made a representation on 01.05.2018 and alleged about illegal mining of sand in the leased area of the petitioner. On the basis of the said compliant, respondent No.3 prepared a Panchnama after conducting the inspection at the place in question. However, thereafter, without issuance of notice and without passing any order, the impugned action has been taken by the respondent nos.2 and 3. Petitioner, therefore, made a representation to the respondents and requested to open online ATR account of the petitioner. However, no steps were taken by the respondents for opening of the said account. 3.3. At this stage, it is also stated that now the impugned show cause notice has been issued by the concerned respondent on 28.09.2020, wherein it is stated that every month petitioner is required to pay 10% of royalty in District Mineral Foundation (DMF) within stipulated time and therefore petitioner is required to pay the total outstanding amount Rs.1,20,281/-. It is also stated in the said notice that if the petitioner fails to pay the aforesaid amount within a period of three days from the date of receipt of the said notice, the online ATR account of the petitioner will be locked. The petitioner has, therefore, filed the present petition. 4. Learned advocate Mr. Shah appearing for the petitioner has mainly contended that before locking the said online ATR account of the petitioner, no notice was issued to the petitioner and without passing any order, the online ATR account of the petitioner has been locked and thereby the respondents have violated the principles of natural justice as well as the provisions contained under Rule 5(4) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules of 2017 (hereinafter referred to as the 'Rules of 2017'). It is also contended that online ATR account of the petitioner is already locked in July 2018, in spite of that, in September, 2020, in the impugned notice it has been wrongly stated that if the petitioner fails to deposit the amount, which the petitioner is required to pay in DMF within a period of three days, the said account will be locked. Thus, it is submitted that impugned show cause notice has been issued without application of mind. Learned advocate for the petitioner, therefore, has urged that impugned action of the respondents be quashed and set aside and thereby direction be issued to the respondents to unlock the online ATR account of the petitioner. 5. Learned advocate for the petitioner has also placed reliance upon the orders passed by this Court in similar type of matters. Copies of the said orders are placed on record. 6. On the other hand, learned Assistant Government Pleader Mr. Ishan Joshi has opposed this petition. It is stated that there is delay in filing the present petition. It is submitted that the respondent has already locked online ATR account of the petitioner in the year 2018. It is further submitted that the said account was locked on the basis of the written complaint dated 01.05.2018 filed by one Thakor Sandeepkumar Anupsinh. He also submitted that similar ATR accounts of 23 other leaseholders were also locked and therefore no illegality is committed by the respondents. It is also submitted that petitioner is required to pay DMF dues as per the Rules and when petitioner has not deposited the said amount, the impugned show cause notice has been issued. It is, therefore, urged that this Court may not entertain the present petition. 7. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that online ATR account of the petitioner has been locked in July, 2018 without issuance of notice to the petitioner and without passing any order in writing against him. In fact the respondent No.3 has admitted in para 6 of the reply that online ATR account of the petitioner has been locked in the year 2018. The petitioner has immediately made representation to the respondents and thereafter information was also asked for under the Right to Information Act. In fact the respondent No.3 has admitted in para 6 of the reply that online ATR account of the petitioner has been locked in the year 2018. The petitioner has immediately made representation to the respondents and thereafter information was also asked for under the Right to Information Act. However, no steps were taken by the respondents for unlocking of the said online ATR account of the petitioner. In the meantime, surprisingly impugned show cause notice has been issued on 28.09.2020, wherein the reference of non-payment of 10% of royalty amount in DMF by the petitioner is given. It is stated in the said show cause notice that if the said amount is not paid within a period of three days from the date of receipt of the said notice, the online ATR account of the petitioner will be locked. It appears that the said notice is nothing but non application of mind on the part of the concerned respondent. In fact it is not in dispute that online ATR account of the petitioner has been locked since July, 2018. Therefore, there is no question of once again locking of the said online ATR account by the respondents. 8. At this stage, this Court would like to refer to the provisions contained in sub-rule (4) of Rule 5 of the Rules of 2017, which reads as under : “(4) The Authorised Officer shall issue a special security permit papersheet which shall be used by the holder of a mineral concession or a trader, to print the Transit Permit or the Delivery Challan, as the case may be. The special security permit papersheet shall be issued in such manner as may be specified by the Government. The Transit Permit or Delivery Challan shall be in triplicate and machine numbered with the book number and serial number thereof. The special security permit papersheet shall be issued in such manner as may be specified by the Government. The Transit Permit or Delivery Challan shall be in triplicate and machine numbered with the book number and serial number thereof. [Provided that Government may, for the reasons to be recorded in writing, suspend issuance of transit permit as contemplated under sub-rule (2) above or delivery challan as contemplated under sub-rule (3) above, to the holder of a mineral concession or to a trader, as the case may be, in case (a) any dues or penalties have been levied by the Authorised Officer on such holder or trader and are outstanding; or (b) the trader or the owner of the relevant carrier has not procured registration for storage or transportation of mineral, as the case may be.]” 9. From the proviso of the aforesaid Rule, it is clear that issuance of transit permit can be suspended for the reasons to be recorded in writing. It appears that before locking the online ATR account of the petitioner and before suspending the transit permit, no show cause notice was issued to the petitioner and no order in writing has been passed by the respondent. 10. In almost similar type of cases, this Court has quashed and set aside the action taken by the respondents and direction was issued to the concerned respondent to unlock/open the online ATR account of the concerned petitioner. A copy of one of order is placed on record at Page No.2 of the compilation. 11. In view of the aforesaid discussion, the action of the concerned respondent authority of locking of online ATR account of the petitioner bearing No.QL1404030514 for issuance of Royalty Pass in respect of lease of ordinary sand situated at Survey No.356, 365, Panam River Mauje: Boriyavi, Taluka : Sehra, District: Panchmahal is quashed and set aside. The respondent No.3 is hereby directed to unlock/reopen the online ATR account of the petitioner forthwith. The impugned show cause notice issued by the concerned respondent authority is also quashed and set aside on the ground of non-application of mind. However, it is open for the respondents to issue fresh show cause notice to the petitioner and after giving an opportunity of hearing to the petitioner, it is open for the respondents to take appropriate decision in accordance with law. 12. However, it is open for the respondents to issue fresh show cause notice to the petitioner and after giving an opportunity of hearing to the petitioner, it is open for the respondents to take appropriate decision in accordance with law. 12. With the aforesaid observation and direction, the present petition is allowed to the aforesaid extent. Direct service permitted.