Jharkhand High Court
M/S Central Coalfields Limited vs The State Of Jharkhand on 10 August, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5009 of 2013
M/s Central Coalfields Limited, Saunda D Colliery, P.O. Saunda, P.S.
Ramgarh, District-Ramgarh, through its Project Officer-Shri Jaydeo Ghosh,
Son of late Shiv Ram Ghosh, Saunda D Colliery, P.O, P.S-Ramgarh,
District-Ramgarh. ....... Petitioner
Versus
1.The State of Jharkhand
2.The Secretary, Department of Mines & Zoology, Government of
Jharkhand
3.The Director (Mines), Government of Jharkhand.
4.The Commissioner, North Chhotanagpur Division, Hazaribagh.
5.The Additional Collector, Hazaribagh.
6.The District Mining Officer, Hazaribagh. .... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Amit Kumar Das, Advocate
: Mr. Shivam Utkarsh Sahay, Advocate
For the Respondents : Mr. Rahul Saboo, G.P-II
: Mr. Gaurang Jajodia, A.C. to G.P-II
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th
12/Dated: 10 August, 2022
1. The writ petition is under Article 226 of the Constitution of India, having been filed by Central Coalfields Limited, seeking therein the following reliefs:
"(a) For issuance of an appropriate writ, order or direction for quashing the order dated 31.05.2013 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh (Respondent no.4) in Certificate Revision Case No.77/2006, whereby and whereunder he has been pleased to dismiss the revision; And
(b) For issuance of further writ order or direction for quashing the order dated 25.03.2006, passed by the learned Additional Collector, Hazaribagh in Certificate Appeal No.1/2003, whereby and whereunder he has been pleased to dismiss the appeal; And
(c) For issuance of further writ, order or direction for quashing the order dated 19.02.2003, passed by learned Certificate Officer (Mining), North Chhotanagpur Circle, Hazaribagh in Certificate Case No.1/2002-03, whereby and whereunder he has been pleased to direct the petitioner to pay 2 the entire dues against the certificate demand after deducting the royalty for 347 metric tone of grade-c coal and 318 metric tone of grade-E coal, which was distributed amongst the workmen;"
2. The brief facts of the case as per the pleading made in the writ petition, which requires to be enumerated, reads hereunder as:
The petitioner, Central Coalfields Limited is a coal company, under the Public Sector, owned by the Government of India, works in the development of new collieries by acquiring Coal Bearing Areas acquired under the Coal Bearing Areas (Acquisition and Development) Act, and Land Acquisition Act.
The petitioner-company, therefore, is liable to pay royalty on the coal, which is being mined and removed from the lease hold area under Section 9 of the Mines & Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as 'the Act, 1957). The rate of royalty is different for different grades of coal, but, the petitioner, coal company is required to declare the grade of coal extracted in course of mining and pay royalty accordingly. The petitioner-company, in course of the aforesaid business, has been remitting the royalty on the mineral extracted from time to time, but the petitioner-company has received a notice on 05.10.2002 issued under Section 7 of the Bihar & Orissa Public Demand Recovery Act, 1914 (hereinafter referred to as 'the Act, 1914'), wherein, a demand of Rs.37,48,492.00 was raised towards royalty and Rs.14,75,427.20.00 was made towards interest (total amounting to Rs.52,23,919.20.00).3
The Certificate Officer, on receipt of such requisition, has issued notice upon the petitioner company, inviting objection, required to be filed under Section 9 of the Act, 1914.
The petitioner, in terms thereof, has filed an objection by taking the point that an amount, equal to, the mining of 347 Metric Tone of Grade-C coal in the month of March, 2000 and an amount of 318 Metric Tone of Grade-E coal in the month of November, 2000, was distributed amongst its workmen and on the remaining quantity the royalty has not been paid, but are ready to pay the same.
The Certificate Officer, accordingly, has disposed of the aforesaid certificate proceeding directing the petitioner to deposit the royalty for the amount of coal after deducting the amount equal to 347 Metric Tone of Grade-C and 318 Metric Tone of Grade-E coal.
By virtue of order dated 19.02.2003 passed in Certificate Case No.1/2002-03, the writ petitioner had moved to this Court by filing writ petition being W.P.(C) no.2113 of 2003, which, was disposed of vide order dated 06.05.2003 by giving liberty to the writ petitioner to move before the appellate authority as also it has been observed that if any appeal along with payment of requisite amount and a petition for condonation of delay is preferred by the writ petitioner within four weeks, the appellate authority will condone the delay and decide the appeal on merit.
The writ petitioner, accordingly, has filed the appeal by depositing the requisite amount to the extent of 40% of the demand amount before the Additional Collector, Hazaribagh, being the appellate authority in Certificate Appeal No.1 of 2003. The said appeal was dismissed vide order dated 25.03.2006. 4
The writ petitioner, being aggrieved with the order of the appellate authority, has preferred a revision, being Certificate Revision Case No.77 of 2006 before the Commissioner, North Chhotanagpur Division, Hazaribagh, but, the same has also been dismissed vide order dated 31.05.2013.
The writ petitioner, being aggrieved with the orders passed by the original, appellate and the revisional authority moved before this Court by filing the instant writ petition by taking the ground that the specific plea has been taken at the time of filing objection, required to be filed under Section 9 of the Act, 1914, raising the issue of the qualities of coal and depending upon the same the amount of royalty will differ, but, the same has not been considered and therefore, the order passed by the original authority is cryptic and mechanical.
The point has also been agitated that the aforesaid issue has been raised before the appellate as also the revisional authority but there is no consideration of the same, as would appear from the very face of the order passed by the appellate authority and the revisional authority and hence since there is non-consideration of the plea raised at the time of filing of objection under Section 9 of the Act, 1914, therefore, the orders impugned are not sustainable in the eye of law.
3. The State has appeared and filed counter affidavit.
4. Mr. Rahul Saboo, learned G.P-II appearing for the State of Jharkhand has however taken the plea that since there is concurrent finding of the authorities right from the original up to the revisional, therefore, this Court may not interfere with the impugned orders by issuing writ of certiorari.
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However, so far as the ground agitated on behalf of the petitioner about non-consideration of the plea raised in the objection filed under Section 9 of the Act, 1914, the same has not been disputed, since, there is no averment to that effect in the counter affidavit as also it is not being reflected from the impugned orders about such consideration.
5. This Court has heard learned counsel for the parties, perused the documents available on record as also the impugned orders passed by the authorities concerned.
The primary issue which has been raised on behalf of the petitioner about non-consideration of the plea having been taken by the writ petitioner at the time of filing objection required to be filed under Section 9 of the Act, 1914. Therefore, the contention which has been raised on behalf of the petitioner about non-consideration of the defence, which according to the writ petitioner ought to have been mandatorily considered, keeping the very object of Section 9 of the Act, 1914.
6. This Court, in order to answer the aforesaid issue, deem it fit and proper to refer the provision of Sections 7 and 9 of the Act, 1914, which reads hereunder as:
"7.Service of notice and copy of certificate on certificate debtor.-When a certificate has been filed in the office of a certificate officer under section 4 or section 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate.
9. Filing of petition denying liability.-(1) The certificate debtor may within thirty days from the service of the notice required by section 7, or where the notice has not been duly served then within thirty days from the execution of 6 any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part.
(2) if any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal."
It is evident from the provision of Section 7 of the Act, 1914 that in case any requisition is being made before the Certificate Officer for realisation of an amount, which comes under the form of Section 3, declaring the said amount to be a public demand, such requisition is required to be referred before the Certificate Officer.
Section 9 stipulates that the certificate debtor may within thirty days from the service of notice as required under Section 7 represent to the Certificate Officer in the prescribed form signed and verified in the prescribed manner, denying his liability whole or in part.
The purpose of the provision of Section 9 of the Act, 1914 is to provide an adequate and reasonable opportunity to the concerned, who is going to be declared to be a certificate debtor and consequence of the same will be of recovery of the amount requisitioned. Therefore, the provision of Section 9 is to provide adequate and reasonable opportunity, before taking any decision for recovery of the requisitioned amount by way of public demand. The moment Section 9 has been inserted to provide a reasonable opportunity to the concerned, the same is mandatorily required to be considered and 7 once the purpose is to provide adequate and reasonable opportunity the same requires to be considered by the authority concerned.
The consideration means the active application of mind on the plea being put forth by the concerned authority as has been held by the Hon'ble Apex Court in the case of (Chairman, Life Insurance Corporation of India and Ors. vs. A Masilamani), reported in (2013) 6 SCC 530, wherein at paragraph 19, it has been held, which reads hereunder as:
"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider"
postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithlabhai Patel v. State of Gujarat.)"
7. It is, thus, evident that where the adequate and the reasonable opportunity is the statutory provision, the same requires to be considered, meaning thereby, there must be active application of mind by the authority concerned before taking any decision, otherwise, the meaning of providing adequate and reasonable opportunity will be a mere formality.
8. Herein in the instant case, admittedly, on issuance of notice to under Section 7 of the Act, 1914 an objection has been filed under Section 9 of the Act, 1914, raising the issue about the quality of coal, as would be evident from the objection petition appended by the writ petitioner in the supplementary affidavit dated 27.02.2021, wherein as 8 under paragraph-7 thereof the plea has been taken to the effect, which is being referred herein:
"7. That the certificate case has been started against your petitioner behind the back. The certificate Holder did not even gaze returns before filing certificate case. As a matter of fact the C.dr. had not reduced grade of coal from B to C and accordingly it is also not correct to say that C. dr. had paid Royalty amount from grade „B‟ to grade „C‟ coal. The C.dr had despatched the coal through Rail and realized the Royalty amount from the consumer on the basis of grade „C‟ and paid the Royalty at the rate of grade „C" to the certificate Holder. It is also to state that Royalty rate of amount of grade „A‟ and „B‟ is the same. Those coals which are not upto the mark and not in good quality and even consumer does not like to make payment at the rate of grade „B‟. So the purported demand of Royalty is not according to law and it is fit to be set-aside."
9. This Court after taking into consideration the specific stand having been taken by the writ petitioner, as under paragraph-7 of the objection petition, as quoted and referred hereinabove, has gone across the impugned order dated 19.02.2003 passed in Certificate Case No.1 of 2002-03, wherefrom it is evident that there is no consideration of the grades of coal, which is the subject matter of consideration for quantifying the amount of royalty.
This Court has also considered the appellate order dated 25.03.2006, as has been appended as Annexure-3 to the writ petition, wherefrom it is evident that there is no such consideration of the aforesaid aspect of the matter so as there is no consideration by the revisional authority.
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10. It is, thus, evident that the stand which has been taken on behalf of the petitioner in the objection filed under Section 9 of the Act, 1914, there is no consideration of the same, since, nothing to that effect has been referred.
It may be a situation that the authority may discard the aforesaid ground/reason but discarding also requires active application of mind. But having not done so, according to the considered view of this Court, the authorities without consideration of the objection furnished by the petitioner as under Section 9 of the Act, 1914 has accepted the amount transmitted by the requisitioning authority, therefore, the same cannot be held to be sustainable in the eye of law.
11. Accordingly, the orders dated 19.02.2003, 25.03.2006 and 31.05.2013 passed in Certificate Case No.1/2002-03, Certificate Appeal No.1/2003 and Certificate Revision Case No.77/2006 by the original/appellate and the revisional authority respectively are hereby quashed and set aside.
12. Since this Court has not gone into the merit of the issue, rather, on the issue of consideration of the plea agitated by the petitioner, therefore, deem it fit and proper to remit the matter before the authority for adjudication afresh, i.e., by taking into consideration the plea agitated by the petitioner as under paragraph 7 of the objection filed under Section 9 of the Act, 1914, as quoted and referred hereinabove by taking decision afresh.
13. This Court, is further of the view, since the objection has already been filed under Section 9 of the Act, 1914, there is no need to supplement it, rather, the authority is required to decide the issue on 10 the basis of the plea agitated by the petitioner in the objection filed under Section 9 of the Act, 1914.
A question may arose that the remand at which stage, either before the revisional, appellate or the original authority.
This Court, in order to answer the aforesaid issue, is of the view that since the notice has been issued by the original authority after accepting the requisition under Section 7 of the Act, 1914 in order to invite objection to be filed under Section 9 of the Act, 1914 and hence it is incumbent upon the authority who has issued the notice under Section 7 inviting objection under Section 9 of the Act, 1914 so to consider the plea agitated by the petitioner.
Therefore, the objection which has been submitted by the petitioner before the concerned authority, who has issued the notice under Section 7 is required to consider the plea agitated and filed under Section 9 of the Act, 1914. If the matter will be remitted either at the stage of appellate or the revisional authority the same will not be proper, reason being that the discrepancy or the error which has been crept up at the initial stage will not be rectified, reference in this regard may be made to the judgment of the Hon'ble Patna High Court rendered in the case of Ramnandan Prasad & 2 others vs. The State of Bihar & Ors. reported in 1983 PLJR 266 (FB) wherein at paragraph 11, it has been held, which reads hereunder as:
"11. ........ In Farid Ahmed Abdul Samad v. The Municipal Corporation of the City of Ahmedabad ((1976) 3 SCC 719 :
A.I.R. 1976 Supreme Court 2095) it was held that when the order at its inception is invalid, the invalidity cannot be cured by its approval of the Standing Committee or by confirmation of the State Government. Therefore, if the order, at the inception, is invalid, approval by the superior or appellate authority cannot cure it of its initial invalidity.11
Similarly, in Kashiram Dalmia v. The State of Bihar (A.I.R. 1978 Patna 264) a Bench of this Court held that the fact that adequate opportunity was afforded to the aggrieved party at the appellate stage did not cure the defect of want of notice by the original authority. Therefore, I am inclined to take the view that once the initial order cancelling the licence by the Collector is held to be invalid, such invalidity cannot be cured by the fact that the petitioners had an opportunity to say, whatever they had to say, before the appellate or revisional authority."
14. This Court, taking into consideration the fact that the authority who has to consider the objection is required to adjudicate the issue afresh by passing order afresh.
Therefore, the matter is to be remitted before the original authority, i.e., the Certificate Officer.
Accordingly, the certificate proceeding bearing Certificate Case No.1 of 2002-03 is restored to its original file for consideration of the objection filed on behalf of the petitioner as under paragraph 7 of the objection petition filed under Section 9 of the Act, 1914.
The concerned authority will pass order afresh within a period of six weeks from the date of receipt of copy of the order.
The payment of the amount, will depend upon the final outcome of the order passed by the concerned authority(s).
15. Accordingly, the writ petition stands disposed of.
(Sujit Narayan Prasad, J.) Saket/-
A.F.R