LAWS(GJH)-2013-4-137

PALA & COMPANY. Vs. STATE OF GUJARAT

Decided On April 18, 2013
Pala And Company. Appellant
V/S
STATE OF GUJARAT Respondents

JUDGEMENT

(1.) THE present Petition has been filed by the Petitioner under Articles 14 and 19(1)(g) read with Article 226 of the Constitution of India as well as under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act") for the following prayers on the grounds stated in the memo of Petition:

(2.) IT is contended inter alia that the order passed by the District Collector, Surendranagar in purported exercise of power under Section 21(5) of the Act is arbitrary and illegal. It is contended that the Petitioner has been granted a lease, and therefore, entitled to sale and market the mineral, for which royalty is paid to the Government. It is also contended that the Respondent had called upon the Petitioner vide letter dated 10.2.2006 to pay the amount of interest on the so called outstanding dues of the royalty to the tune of Rs.49, 217/- for the year 2004-2005. The said letter was replied by letter dated 25.2.2006. It is also contended that the attention of the Respondent was invited to a letter dated 21.12.2005 received from the office of the Accountant General, wherein it has been clarified that nothing was due and payable. It is contended that the Petitioner has been paying royalty at regular intervals and there is no violation of breach committed by the Petitioner. Therefore, the present Petition has been filed challenging the recovery.

(3.) LEARNED Advocate Shri Raval submitted that if there is a breach of conditions of the license, the recourse can be had, as provided in Chapter IX. However, no such remedy has been resorted by the Respondent Authority and they have resorted to exercise of power under Section 21(5) of the Act, which is illegal. He submitted that the notice has not been given, and therefore, such exercise of power is without any justification. He submitted that it is not even the case of the Respondent that there is any encroachment, which would justify the exercise of power under Section 21(5) of the Act. Learned Advocate Shri Raval has referred to and relied upon the judgment of the Hon'ble Apex court reported in AIR 2004 SC 2915- Karnataka Rare Earth and another v. Senior Geologist, Dept. of Mines and Geology and another, and pointedly referred to the observations made in paragraphs 7, 9, 11 and 15. He has also referred to and relied upon the judgment of the Hon'ble Calcutta High Court reported in AIR 1986 (Cal) 1 ­ Chandeswar Prosad Singh and another v. Sub Divisional Land Reforms Officer. Learned Advocate Shri Raval submitted that, therefore, the remedy under the agreement as per the provisions of the Act could be availed of. If the dues are not paid, then the remedy is provided. He submitted that if the lease is valid and it is covered under Sections 4 and 9 of the Act, the Respondent cannot resort to Section 21(5) of the Act. He pointedly referred to Annexure-D and other papers, which is a notice by the Collector calling upon the Petitioner to make the payment, and submitted that it does not refer to Section 21(5) of the Act. He also referred to Annexure-E, which is another notice by the Collector, Surendranagar dated 16.5.2006 for the same purpose, and submitted that the notice refers to the recovery under Section 21(5) of the Act stating that there is unauthorized excavation. However, learned Advocate Shri Raval submitted that the excavation was offered by communication dated 26.5.2006, which has not been considered, and the order has been passed at Annexure-G, which is erroneous. He therefore submitted that even the order at Annexure-D clearly referred to some difference in the quantity, but it cannot be said to be an unauthorized excavation. He submitted that, for such excavation or the difference in the quantity, at the most, royalty could be demanded, but resorting to Section 21(5) of the Act is illegal as at the most it is a matter of some shortfall or the irregularity, for which there could be a royalty, some interest or the penalty, but no such recovery could be made. He has again referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 2915 (supra) and submitted that the Hon'ble Apex Court has considered that, when Section 21(5) of the Act could be resorted. He submitted that the alternative remedy would not be a bar to the maintainability of the petition inasmuch as, when the order is without jurisdiction and authority, and it goes to the root of the matter, and therefore, the petition would be maintainable. He submitted that when the authority or the jurisdiction is exercised without any power, the alternative remedy is no bar for judicial review, and exercise of discretion under Article 226 of the Constitution of India. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2003) 2 SCC 107-Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others.