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2024 DIGILAW 1132 (AP)

KMC Constructions Ltd. , Hyd v. Prl Secymines Hyd

2024-08-19

K.MANMADHA RAO

body2024
JUDGMENT : The Court made the following Order: The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “…..to issue a writ, order or direction more so one in the nature of mandamus declaring the impugned Memo No.4917/M.II(1)/2012-5, dt.21-02-2013 of the 1st Respondent passed in the statutory Revision Application dt.26-03-2012 challenging the demand notice No.2560/TP/2008 dt.07-02- 2008 of the 4th Respondent as illegal, arbitrary, violative of the well settled principles of natural justice apart from being violative of the provisions of the Mines and Minerals (Development & Regulation) Act, 1957 and the Rules made thereunder and Article 14 of the Constitution of India and consequently set aside the same…….” 2. Brief facts of the case are that the petitioner is a company incorporated under the Companies Act, 1956, doing the business of laying of roads more particularly for the National Highway Authority of India. The petitioner company awarded the project of completion of four-lane Road between Kurnool to Kadapah (NH-18) by way of contract by the NHAI authorities. To complete the project, the petitioner company required Gravel, as such it has applied for issuance of temporary permits to the office of 4th respondent, after duly obtaining No Objection Certificate from the office of Tahsildar, Khajipeta Mandal, vide reference No.A.303/10, dated 13.11.2010 for doing quarrying operations in an extent of 1205.62 Acres in Survey No.569 of Pullur Village, Khajipet Mandal, Kadapa district. The petitioner company obtained 13,500Cbm quantity temporary permits after duly paying challans. Thereafter, the petitioner company vide Challan dated 13.04.2011 paid an amount of Rs.2,64,000/- into the Government Treasury for issue of temporary permits to the tune of 12,000 Cbm. But the 4th respondent refused to issue temporary permits in favour of the petitioner company for lifting of the Mineral in an extent of 12,000 Cbm of Gravel. While things stood thus, the office of the 4th respondent issued Notice No.2560/TP/2008, dated 13.01.2012 stating that the 4th respondent have done joint inspections along with other officials on 09.11.2011 and 31.12.2011 and found that the petitioner company has excavated 25,875 Cbm of Gravel by measuring the pits in Survey No.569 of Pullur Village, Khajipeta Mandal, YSR Kadapa district. While things stood thus, the office of the 4th respondent issued Notice No.2560/TP/2008, dated 13.01.2012 stating that the 4th respondent have done joint inspections along with other officials on 09.11.2011 and 31.12.2011 and found that the petitioner company has excavated 25,875 Cbm of Gravel by measuring the pits in Survey No.569 of Pullur Village, Khajipeta Mandal, YSR Kadapa district. The 4th respondent further stated in the notice that the petitioner has obtained permits by paying the advance amount of Rs.2,97,000/- and obtained permits to the tune of 13,500 Cbm only and there is a shortfall of 12,375 Cbm after measuring the pits. Immediately, the petitioner company vide letter dated 24.02.2012 informed the 4th respondent that they have no knowledge with regard to the alleged inspections and further denied that they have not excavated any quantity of mineral illegally. Thereafter, the 4th respondent issued demand notice dated 07.02.2012 for payment of Rs.29,94,750/- towards normal Seigniorage fee plus ten times penalty. Challenging the same, the petitioner filed Statutory Appeal/Revision Application dated 26.03.2012 to the office of the 1st respondent under Rule 35/35-A of A.P.Minor Mineral Concession Rules, 1966. The 1st respondent after hearing the case, disposed the said Revision Application directing the petitioner to pay the Normal Seigniorage Fee along with three times penalty raised in demand Notice No.2560/TP/2008, dated 07.02.2012 of the 4th respondent (if not paid earlier) within thirty days, as the grounds of revision and the arguments of the petitioner are not satisfactory. Aggrieved by the same, the present writ petition has been filed. 3. The 4th respondent filed counter affidavit denying all the allegations made in the writ petition. It is further stated in the counter affidavit that, on 09.11.2011, the then Assistant Director of Mines and Geology, Kadapa along with the then staff i.e., Assistant Geologist, Royalty Inspector and Surveyor of office of 4th respondent; AMO; Office of ZJDM & G, Kadapa; Office of ADM&G, Yerraguntla and the Tahsildar, Khajipeta Mandal and their staff i.e., Mandal Revenue Inspector, Mandal Surveyor and V.R.O. have conducted the Joint Inspection over the temporary permit obtained area by petitioner company in Survey No.569 of Pullur Village, Khajipeta Mandal, YSR Kadapa district. Further, on 31.12.2011, the then Assistant Director of Mines and Geology, Kadapa along with Surveyor of office of 4th respondent has inspected again the above said area and assessed the quantity of 25,875Cbm of Gravel which was excavated by petitioner company from the subject area. As per the office records of 4th respondent, the petitioner obtained temporary permits for 13,500 Cbm of Gravel by paying requisite amount of Seigniorage Fee of Rs.2,97,000/- and the petitioner company has excavated 12,375 Cbm quantity without obtaining permission from the 4th respondent. Hence, the 4th respondent issued show cause notice to petitioner company dated 13.01.2012, with a request to submit the compliance within a week from the date of receipt of letter. But the petitioner company neither submitted any documentary proof nor submitted any compliance report in the matter within time. Hence, the 4th respondent issued Demand Notice No.2560/TP/2008, dated 07.02.2012 demanding the petitioner to pay Rs.29,94,750/- within 15 days from the date of receipt of the notice. The Government vide Memo No.4917/M.II(1)/2012-5, dated 21.02.2013 directed the petitioner company to pay normal seigniorage fee plus three times penalty. 4. Heard Mr.Pannala Srinivas, learned counsel for the petitioner, who appeared virtually through video conferencing and learned Assistant Government Pleader for Mines and Geology appearing for the respondents. 5. On hearing, learned counsel for the petitioner submits that the 1st respondent failed to see that the demand notice of the 4th respondent is based on assumptions and presumptions without any evidence sustainable in the eye of law. The 1st respondent failed to take notice of Memo No.15953/M.II/03-02, dated 04.02.2004, wherein the State of A.P. in similar facts and circumstances of the case, has issued a direction to obtain information with regard to the quantities of minerals consumed by the Contractors and collect normal Seigniorage fee only and not to collect penalty from the said contractors. The 1st respondent failed to see that the inspection and enquiry done by the various officials on 09.11.2011 and 31.12.2011 were behind the back of the petitioner company without any formal notice. He further submits that the demand notice dated 07.02.2012 passed by 4th respondent, as confirmed by the 1st respondent vide the non-speaking impugned Memo dated 21.02.2013 is ex-facie illegal being violative of the well settled principles of natural justice and error being apparent on the face of the record. Therefore, learned counsel requests this Court to pass appropriate orders. He further submits that the demand notice dated 07.02.2012 passed by 4th respondent, as confirmed by the 1st respondent vide the non-speaking impugned Memo dated 21.02.2013 is ex-facie illegal being violative of the well settled principles of natural justice and error being apparent on the face of the record. Therefore, learned counsel requests this Court to pass appropriate orders. 6. Learned Assistant Government Pleader for Mines and Geology submits that the petitioner has obtained temporary permits for 13,500 Cbm, but excavated 25,875 Cbm without obtaining permission for the remaining 12,375Cbm quantity. Against the same, the 4th respondent issued show cause notice to the petitioner. As the petitioner company did not turn up to showcause notice, the 4th respondent has issued demand notice No.2560/TP/2008, dated 07.02.2012 demanding the petitioner to pay Rs.29,94,750/- within 15 days from the date of receipt of the notice. Challenging the same, the petitioner filed a Revision Application on 26.03.2012 before the 1st respondent. Later, the Government-1st respondent vide Memo No.4917/M.II(1)/2012-5, dated 21.02.2013 directed the petitioner company to pay normal seigniorage fee plus three times penalty, after giving an opportunity for personal hearing and taking the material on record and the grounds of the petitioner. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 7. Perused the material on record. 8. On a perusal of the material on record, this Court observed that, the 1st respondent vide Memo No.4917/M.II(1)/212-5, dated 21.02.2013 has disposed of the revision application filed by the petitioner with the following lines: “Heard the case, duly giving opportunity for personal hearing on 23.01.2013. After taking the material made availabe into consideration and the grounds of the petitioner as mentioned and the arguments put forth by the petitioner during the hearing in specific, petitioner is hereby permitted to pay the Normal Seigniorage Fee along with three times penalty raised in Demand Notice No.2560/TP/2008, dated 07.02.2012 of the ADM&G, Kadapa (If not paid earlier) within (30) days, as the grounds of the revision and the arguments of the petitioner are not satisfactory”. 9. On hearing the submissions of both the learned counsels and upon perusing the entire material on record, this Court is of the view that, the impugned order passed on the revision application filed by the petitioner is not proper. 9. On hearing the submissions of both the learned counsels and upon perusing the entire material on record, this Court is of the view that, the impugned order passed on the revision application filed by the petitioner is not proper. The respondent authorities without applying its mind and without going into the merits of the case, disposed of the revision application simply saying that the grounds and arguments of the petitioner are not satisfactory which is gross violation of principles of natural justice. 10. In view of a close scrutiny of the impugned order shows, as rightly argued by learned counsel for petitioner, after noting in detail the allegations, the respondent has issued proceedings, without conducting any enquiry. 11. Therefore, it is needless to emphasize the order is devoid of reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that no opportunity of hearing was afforded to the petitioner therein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand. 12. No doubt, it is argued by learned Government Pleader for respondents that an appeal provision is provided in the concerned rules and thereby the writ is not maintainable. I am not convinced with this argument for the reason, in the instant case there is a discernible violation of principles of natural justice as noted supra. 13. Though admittedly the petitioner submitted his written explanation, the same was not considered and no personal hearing was also granted to the petitioner at the time of enquiry. Therefore, the writ petition is maintainable. 14. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22 = MANU/SC/0664/1998 regarding maintainability of writ petition in the context of availability of alternative and efficacious remedy, the Apex Court held thus: “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied).” The instant case falls in one of the exceptions carved out by the Apex Court, the principles of natural justice is a casualty here. 15. Having regard to the facts and circumstances of the case and submissions of both the counsel, the impugned proceedings in Memo No.4917/TP/2012-5, dated 21.02.2013 issued by the 1st respondent is hereby set aside. Further, the matter is remanded back to the 1st respondent with a direction to conduct fresh enquiry and pass appropriate reasoned orders, by giving opportunity to the petitioner, in accordance with law, within a period of four (04) months from the date of receipt of a copy of this order. 12. With the above observations, the Writ Petition is disposed of. No costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.