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2023 DIGILAW 1238 (AP)

Evershine Monuments v. State of Andhra Pradesh

2023-08-24

SUBBA REDDY SATTI

body2023
ORDER : Subba Reddy Satti, J. This Writ Petition is filed to declare the Memo No.1665046/M.I(1)/2022 dated 16.12.2022 issued by the 1st respondent, partly modifying the Demand Notice No.1652/D13- 2/2021 dated 11.02.2022, as illegal and arbitrary. 2. a) In the affidavit, it was contended that the petitioner was granted quarry lease for Grey Granite for a period of five years from 05.01.1984 to 04.01.1989. Thereafter the Director of Mines & Geology, granted renewal for a period of 5 years from 05.01.1989 to 04.01.1994. The Director of Mines & Geology granted fresh quarry lease over an extent of Ac.8.50 cents in S.No.10 at Kanamanapalli village, Gudupalli Mandal, Chittoor District for a period of 15 years by proceedings No.23023/K2/94 dated 16.10.1994. The lease was extended from 14.12.2009 to 13.12.2029. While extending the lease, the extent was reduced from 3.441 hectares to 2.024 hectares. b) The Joint Director of Mines & Geology through Lr.No.4552/M4/PLMR/2008 dated 30.06.2009 approved the mining plan. As per the approved plan, the probable recovery of salable granite blocks by the lessee was fixed @15% of total material extracted. Petitioner got environmental clearance certificate from the State Level Environmental Impact Assessment Authority on 25.10.2013 for quarrying 1400 cubic meters of mineral each year. c) The technical staff of Mines & Geology Department inspected the quarry lease area on 26.11.2020. A show cause notice No.1652/D13-2/2021 dated 19.02.2021 was issued, for which petitioner submitted on 15.03.2021. The 2nd respondent issued Demand Notice No.1652/D13-2/2021 dated 11.02.2022. Aggrieved by the same, petitioner filed revision before the 1st respondent. The revisional authority modified the demand notice and directed the petitioner to pay Rs.22,11,056/- towards normal seigniorage fee and Rs.22,11,056/- towards penalty. The remaining amount of Rs.88,44,223/- is waived off. Challenging the same, the above writ petition is filed. 3. This Court by order dated 30.01.2023 granted stay of all further proceedings subject to deposit of 50% of demand amount as per the order of the revisional authority within a period of eight weeks. 4. Counter affidavit was filed on behalf of the respondents 1 to 4. The 4th respondent deposed to the affidavit. In the counter affidavit, it was contended, interalia, that petitioner did not deposit the amount as per the direction of this Court on 30.01.2023. 5. Heard Sri Kirthi Teja Kondaveeti, learned counsel for petitioner and the learned Government Pleader for Mines and Geology for respondents. 6. The 4th respondent deposed to the affidavit. In the counter affidavit, it was contended, interalia, that petitioner did not deposit the amount as per the direction of this Court on 30.01.2023. 5. Heard Sri Kirthi Teja Kondaveeti, learned counsel for petitioner and the learned Government Pleader for Mines and Geology for respondents. 6. In the show cause notice issued by the 2nd respondent, two of the breaches among the other are: - "1. On calculation with percentage of recovery mentioned in Approved Mining Plan 15%, the yield of useful Granite in the quarry lease is 1637.513 Cbm. As per the records of ADM&G, Palamaneru, the lease holder have obtained permits for a quantity of 2482.518 Cbm. There is a stock of 451.78 Cbm within the leased area. Hence, the total quantity comes to 2934.298 Cbm. There is a variation for a quantity of 1296.786 Cbm excess to the limit approved in mining plan and EC without obtaining approved modified Mining Plan/ Scheme. Hence, the lease holder transported 1296.786 Cbm of colour Granite more than the approved mining plan quantity which is a breach of Clause (h)(iii) of Sub Rule 5 of the APMMC Rules, 1966". "4. The lessee transported 1296.786 cbm of colour Granite more than the approved mining plan quantity from the leased area violated under Rules of APMMC Rules, 1966. Hence, initiate necessary action for the misuse of 1296.786 CBM of the permits of the Colour Granite from the leased area". 7. In the explanation submitted on behalf of petitioner dated 15.03.2021, it was specifically pleaded that lessee has not transported 1296.786 Cbm of granite material which is more than the approved limit in mining plan as pointed out by the Special Team. The lessee is holding the quarry lease since 1989 and operating the quarry in a standard manner and not transported the granite material more than approved quantity. 8. In the Demand Notice dated 11.02.2022 issued by 2nd respondent, the following violation is pointed out: "The lease holder transported 1296.786 Cbm of Colour Granite without paying advance seigniorage fee and the same is contrary to Rule 12 (5) (h)(iii) of APMMC Rules, 1966 and accordingly, the authority determined Rs.1,32,66,335/-". 9. In the revision before the Revisional Authority, it was specifically pleaded that the demand notice was issued for some other reason, which was not mentioned in the show cause notice. 9. In the revision before the Revisional Authority, it was specifically pleaded that the demand notice was issued for some other reason, which was not mentioned in the show cause notice. The show cause notice was issued alleging that the petitioner excavated 1296.786 Cbm of Colour Granite in excess to the limit approved in mining plan and EC. However, the Demand Notice was issued alleging that the petitioner transported 1296.786 Cbm of Colour Granite without paying advance seigniorage fee. Against the specific plea, the observation of the Revisional Authority is as follows: "The Demand Notice issued only for the excess transported for a quantity of 1296.786 Cbm and further action will be initiated on other breaches committed by the Lessee in separate orders." 10. In UMC Technologies Private Limited v. Food Corporation of India and Ors., (2021) 2 SCC 551 , the Hon'ble Apex Court held thus: "At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent." 11. In Nasir Ahmad v. Assistant Custodian General, Evacuee Property, Uttar Pradesh, Lucknow and Ors., (1980) 3 SCC 1 , the Hon'ble Apex Court held thus: "It is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the notice to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard." 12. Case at hand, as stated supra, in the show cause notice, it was mentioned that the authority found violation of quantity of 1296.786 Cbm of Colour Granite in excess to the limit approved in mining plan and EC. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard." 12. Case at hand, as stated supra, in the show cause notice, it was mentioned that the authority found violation of quantity of 1296.786 Cbm of Colour Granite in excess to the limit approved in mining plan and EC. When it comes to Demand Notice, it was stated that the petitioner transported 1296.786 Cbm of Colour Granite without paying advance seigniorage fee. 13. It is pertinent to mention here that in the show cause notice, it was mentioned that lease holder obtained permits for a quantity of 2482.518 Cbm. Thus, the conclusion of the authority that petitioner transported 1296.786 Cbm of Colour Granite, without paying advance seigniorage fee, is beyond the show cause notice. In the revision, as stated supra, a specific ground was raised, and the Revisional Authority noted the same in Ground No.3. However, the Revisional Authority did not advert to the said ground and passed the order impugned in the writ petition. 14. Learned counsel for petitioner would submit that in the show cause notice, the authority pointed that petitioner committed breach of Clause (h)(iii) of Sub Rule 5 of the APMMC Rules, 1966, whereas in the Demand Notice, the authority pointed out that petitioner violated Rule 12 (5) (h)(iii) of APMMC Rules, 1966. 15. In view of discussion supra, since the violations pointed out in the Demand Notice dated 11.02.2022, as confirmed by the Revisional Authority, is beyond deviations/violations mentioned in the show cause notice, the Memo No.1665046/M.I(1)/2022 dated 16.12.2022 issued by the 1st respondent and the Demand Notice No.1652/D13-2/2021 dated 11.02.2022 are set aside. The matter is remanded to the 2nd respondent for fresh consideration. The 2nd respondent shall consider the objections filed by the petitioner and pass a reasoned order, strictly in a accordance with law, by affording an opportunity of personal hearing to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order. 16. Accordingly, the Writ Petition is allowed. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.