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2021 DIGILAW 50 (MP)

Khajuraho Minerals v. State of Madhya Pradesh

2021-01-20

MOHAMMAD RAFIQ, VIJAY KUMAR SHUKLA

body2021
ORDER : Mohammad Rafiq, CJ. Hearing convened through Video Conferencing. 1. This writ petition has been filed by petitioner-M/s. Khajuraho Minerals challenging the show cause notice dated 05.12.2020 (Annexure P-1) issued by the Collector, District Chhatarpur in Case No. 0201/A-67/Minerals/2020-21 and also challenging the report dated 04.11.2020 (Annexure P-2) submitted by the Mines Inspector, District Chhatarpur and Panchnama dated 31.10.2020 (Annexure P-3) prepared by the officials of the Mines and Revenue Departments. 2. The factual matrix of the case, as emerging from the pleadings of the writ petition, is that the petitioner is holding a mining lease in respect of land admeasuring 4 Hectares comprising in Khasra No. 1259 and 11 Hectares comprising in Khasra No. 1293 both in Mouza Budaur. The respondents, on receiving complaint against the petitioner for illegal and unauthorised excavation of minerals outside the leasehold area, got an inspection conducted jointly by the representatives of the Mines and Revenue Departments. A panchnama of the inspection was prepared on 31.10.2020 (Annexure P-3). According to the panchnama, the inspection was carried out in the presence of certain villagers by the officers of the Mines Department and the Mines Inspectors, Tehsildar, Revenue Inspector, Chhatarpur, Patwari of Halka Chhatarpur, Patwari of Halka Bagauta, Patwari of Halka Deri and Chainman. The representatives of the petitioner-Company were also present. On inspection it was found that while the petitioner-Company was undertaking the mining activities within the sanctioned lease area of 11 Hectares in Khasra No. 1293 but illegal excavation was being carried out outside the lease area of 4.000 Hectares in Khasra No. 1259 to the extent of 0.180 Hectares. The depth of the pit was found to be nine meters. The Mining Inspector submitted the report to the Collector, Chhatarpur vide report dated 04.11.2020 (Annexure P-2) stating therein that as per the amended Rule 53(1) of the Madhya Pradesh Minor Mineral Rules, 1996 (for short "the Rules of 1996"), for the illegal excavation carried out on the first occasion, the defaulter mining lease holder is liable to a minimum 30-times penalty on the royalty of illegally extracted minerals but the amount of fine in any case shall not be less than Rs. 10,000/-. 10,000/-. However, as per Sub-Rule (6) of Rule 53 of the Rules of 1996, upon the illegal extractor submitting an application for compounding and disposal of mineral in the event of first time violation, 25-times penalty of the royalty of illegally excavated minerals or Rs. 10,000/-, whichever is more, shall be imposed. 3. The Collector, Chhatarpur served a show cause notice on the petitioner vide Annexure P-1 dated 05.12.2020 in terms of Rule 53(1)(a) of the Rules of 1996, that as per the aforesaid inspection, the quantity of the illegally excavated stone was approximately 16200 cubic meter for which an amount of Rs. 19,44,000/- was payable as royalty and 30-times thereof being Rs. 5,83,20,000/-, is the proposed penalty. The petitioner was, therefore, called upon to appear before the Collector on 21.12.2020 at 02.00 p.m. to submit his reply along with the documents, failing which the penalty shall be imposed upon him as per the rules. 4. Shri Prashant Singh, learned senior counsel for the petitioner has argued that the petitioner is a reputed Partnership Firm in the field of mining and it is for the first time in the history that the petitioner has been subjected to biased action by the respondents by impugned show cause notice. The quarry lease for extracting stones and for establishing stone crusher for making Gitti was granted to the petitioner for a period of 10 years over the aforesaid Khasra Nos. 1259 and 1293 vide orders dated 23.09.2002 and order dated 30.01.2003 respectively, which was further renewed for a period of 10 years. The possession of the demarcated area was handed over to the petitioner for extraction of the minor minerals. It is contended that the respondents-State authorities are biased and prejudiced with the petitioner because one of its partner, Shri Alok Chaturvedi is an elected M.L.A. belonging to opposition party i.e. Congress-I and another partner, Smt. Neelam Chaturvedi is wife of a veteran political leader belonging to Congress-I. The action of the respondents is, therefore, actuated by reasons of mala fide. It is contended that the petitioner has only carried out mining operation within the lease area and not outside. The panchnama (Annexure P-3) has been prepared behind the back of the petitioner and it does not contain the signature of any of his representatives. It is contended that the petitioner has only carried out mining operation within the lease area and not outside. The panchnama (Annexure P-3) has been prepared behind the back of the petitioner and it does not contain the signature of any of his representatives. It is wrongly stated that the inspection was carried out in the presence of several villagers as it does not contain the signature of any one of them. In fact, this panchnama has been prepared by the respondents in their office. 5. Learned senior counsel for the petitioner argued that the quantity of minerals has also been arrived at arbitrarily without due application of mind, only on the basis of alleged depth of the pit but without giving any specification of the length x depth x width. The quantity of 16200 cubic meter has thus been worked out arbitrarily. It is further contended that the respondents have referred to the provisions of Rule 53(1)(a) of the Rules of 1996 while the State Government, in exercise of powers conferred upon it under Section 15(1) of the Mines and Minerals (Development and Regulation) Act, 1957 has brought into force the amended Rules of 1996. From perusal of the amended Rule 53(1) of the Rules of 1996 it would become clear that it is mandated in law that the Collector or any officer authorised by him not below the rank of Deputy Collector, shall after giving an opportunity of being heard to the person who allegedly extracted and transported the minerals in contravention of the said Rules, shall impose penalty in the manner prescribed under Rule 53(1) of the Rules of 1996. In the present case, however, the respondents have acted with a biased mind. The Mining Inspector has quantified the amount of penalty which has received the seal of approval from the Collector. The show cause notice issued by the respondents in such facts, is thus an empty formality. The impugned show cause notice is therefore liable to be quashed on the ground of malice in law, as the respondents-State authorities have acted in utter violation of the provisions of Rule 53 of the Rules of 1996. 6. The show cause notice issued by the respondents in such facts, is thus an empty formality. The impugned show cause notice is therefore liable to be quashed on the ground of malice in law, as the respondents-State authorities have acted in utter violation of the provisions of Rule 53 of the Rules of 1996. 6. Relying upon the judgment of the Supreme Court in the case of Oryx Fisheries Private Limited vs. Union of India and others, (2010) 13 SCC 427 , learned senior counsel for the petitioner argued that the Supreme Court in that case has held that the person proceeded against must be told of all the charges against him at the stage of show cause notice itself so that he can take his defence and prove his innocence. At that stage, the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusion of his alleged guilt. If that is done, the entire proceedings initiated by the show cause notice get vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony. 7. Learned senior counsel also relied upon the judgment of the Supreme Court in the case of Siemens Ltd. vs. State of Maharashtra and others, (2006) 12 SCC 33 , to argue that the Supreme Court in that case has held that if the statutory authority has already applied its mind and formed an opinion as regards the liability or otherwise of the appellant, the only question which remains for its consideration is quantification thereof, which then does not remain in the realm of a show cause notice. Learned senior counsel, therefore, argued that the respondents having issued the show cause notice to the petitioner with predetermined mind, the interference should be made by this Court even at the stage of show cause notice. 8. Having heard learned senior counsel for the petitioner, we have given our anxious consideration to the submissions made and studied the cited judgments. 9. Whether or not the petitioner has illegally excavated the minerals from area admeasuring 0.180 Hectares outside his lease area of 4.000 Hectares comprising in Khasra No. 1259, is essentially a question of fact. 8. Having heard learned senior counsel for the petitioner, we have given our anxious consideration to the submissions made and studied the cited judgments. 9. Whether or not the petitioner has illegally excavated the minerals from area admeasuring 0.180 Hectares outside his lease area of 4.000 Hectares comprising in Khasra No. 1259, is essentially a question of fact. The respondents have issued the show cause notice to the petitioner on the basis of inspection carried out by the office of the Mines Department and Mines Inspector, the Tehsildar concerned, the Revenue Inspector of Chhatarpur, three Patwaris of Halka Chhatarpur, Bagauta and Deri along with Chainman. The petitioner is disputing the fact about the presence of villagers and representatives of the petitioner-Company but the panchnama contains a stipulation to the contrary. The Mines Inspector in his report to the Collector merely submitted a proposal to impose penalty on the petitioner for illegally excavating the minerals. In second part of the report he makes a reference to Rule 53(1) and 53(6) of the Rules of 1996 and in third and last part of the report all that has been stated is quantification of the proposed amount of penalty and further that the report is submitted for perusal and for further action. The Collector in the show cause notice, on the basis of the aforesaid report, refers to the measurement of the area in which excavation was illegally carried out by the petitioner and the depth of the pit and on that basis the computation of the amount of royalty and proposed penalty amount of 30-times thereof. The Collector takes precaution to state that this was the proposed penalty and that the petitioner is required to submit his reply to the show cause notice along with documents by personally appearing before him on 21.12.2020 at 02.00 p.m. In the facts of the present case, therefore, it cannot be said that the Collector has served the notice on the petitioner with pre-determined mind or that he has already framed the opinion. 10. 10. According to the respondents, once the inspection jointly carried out by the officials of the Mining and Revenue Departments has found some illegal excavations, they are entitled in law to not only indicate the extent of illegal excavation and the tentative quantity of the minerals illegally excavated but also indicate the proposed amount of the royalty and on that basis, the amount of penalty arrived at by them by applying the relevant Rules. It is therefore that the Collector in the show cause notice has specifically mentioned the amount as the proposed penalty and called upon the petitioner to reply to the show cause notice. Such quantification, therefore, has to be taken only as tentative for the purposes of taking the final view after considering the reply to the show cause notice submitted by the petitioner. 11. Ratio of the judgments in Siemens Ltd.'s case (supra) and Oryx Fisheries Private Limited's case (supra) relied upon by the learned senior counsel for the petitioner does not in any manner apply to the facts of the present case as both these judgments are distinguishable on facts. The allegation of mala fide that the action against the petitioner-Firm has been taken only because one of the partners of the petitioner-Firm happens to be an MLA belonging to Congress party and another being the wife of veteran political leader are wholly irrelevant for deciding the present petition because the petitioner has neither specifically made any allegation against any of the officers or authority in the Government nor has he impleaded any one of them as party on allegations of mala fides. In absence thereof, such allegations cannot be entertained. 12. In view of the above discussion, we do not find any merit in the present writ petition, which is accordingly dismissed, however, with a direction to the Collector to provide opportunity of hearing to the petitioner through its representative and take final decision on the impugned show cause notice within a period of three months from the date the certified copy of this order is produced before him, by passing a reasoned and speaking order.