Andhra Pradesh High Court - Amravati
The Challenge In This Writ Petition Is To ... vs Ac.128.15 Cents In Sy.No on 31 December, 2021
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Writ Petition No.4206 of 2017
ORDER:
The challenge in this writ petition is to the proceedings in D.Dis.Pro.No.22844/R2-1/2015, dt: 05.12.2016 of the 2nd respondent determining the laterite mining lease of the petitioner over an extent of Ac.128.15 cents in Sy.No.1, Chinthaluru Village, Prathipadu Mandal, East Godavari District as illegal, arbitrary and for a consequential direction to set aside the aforesaid proceedings.
2. Petitioner's case succinctly is thus:
(a) Petitioner was granted mining lease for excavation of laterite mineral in an extent of Ac.128.15 cents in Sy.No.1 of Chinthaluru Village, Prathipadu Manal, East Godavari District for 20 years from 28.03.2007 to 27.03.2027 vide lease deed dt: 28.03.2007.
(b) While so, W.P (PIL) No.48/2016 was filed before the High Court of Andhra Pradesh by one Adabala Nagarjuna Rao seeking a direction to the respondent authorities to take action against the unofficial respondent Nos.12 to 18 therein basing on the report of Vigilance and Enforcement Department dated 07.07.2015. Petitioner herein was arrayed as respondent No.13 in the PIL. Interim order was passed directing the official respondents to stop mining activities and subsequently PIL was disposed of with a direction that respondent No.7 - Director of Mines and Geology shall decide within 10 days as to whether they would like to issue show cause notice to respondent Nos.12 to 18 for the alleged irregularities committed by them and respondents shall submit their reply and then 2 respondent No.7 shall decide the show cause notice within one week after granting an opportunity of being heard to the respondents. It was ordered that till the show cause notice was decided, respondent Nos.12 to 18 shall not carry out any quarrying operations on the basis of the mining lease and if ultimately respondents succeeded, respondent No.7 shall compensate the period lost in the process.
(c) Pursuant to the above direction in the PIL, a show cause notice dated 20.07.2016 was issued to the petitioner. In the show cause notice it was alleged that
(i) The petitioner excavated and transported 8,85,090 Mts of Laterite without obtaining environmental clearance in violation of G.O.Ms.No.25, Ind. & Com. (M III), Department, dated 13.02.2007.
(ii) The petitioner excavated 13,53,556 Mts of Laterite as against the permitted quantity of 10,45,955 Mts and whereby excavated excess quantity of 3,07,601 Mts transported without obtaining dispatch permits on which seigniorage fee, market value totaling to Rs.11,53,50,375/- is payable.
(iii) Petitioner violated Rule 7-A(i) of APMMC Rules, 1966. The petitioner did not leave safety zone of 7.50 Mts around the mining lease as per the approved scheme. The petitioner worked in the GRID area which is not falling in the area as per approved scheme. The petitioner conducted mining operations without maintaining bench mark.
3
(d) The petitioner submitted detailed reply dated 31.07.2016. However, without considering the said reply, the 2nd respondent passed the impugned proceedings vide D.Dis.Pro.No.22844/R2-1/2015, dated 05.12.2016 and determined the mining lease on presumptions and assumptions.
3. The petitioner's plea is that the show cause notice and the impugned lease determination proceedings were based on the report of the Vigilance & Enforcement Department dated 07.07.2015 wherein it was proclaimed that an inspection was conducted on 22.12.2014 and certain lapses mentioned supra were found in the leasehold mines of the petitioner. However, the said inspection and survey were allegedly conducted without any notice to the petitioner and in an unscientific and primitive manner without employing proper equipment in utter disregard to the order of this Court in W.P.No.10994/2015.
4. With regard to the first allegation in the show cause notice the plea of the petitioner is that he made an application dated 24.03.2007 to the Ministry of Environment & Forest, Government of India for grant of environmental clearance and after public hearing, environmental clearance has given on 18.08.2011 and consent for operation was given on 29.09.2011 and further renewed by order dated 24.08.2015 which is valid for five years. All the above were given when the mining is in operation and no objection was raised by the Government of A.P. which is evident from the fact that dispatch permits to an extent of 10,45,955 metric tons were issued by the Assistant Director till 15.05.2015 after thorough 4 inspection and by collecting due royalty. The Vigilance & Enforcement Department in its report made a reference in this regard and Department of Mines. & Geology forwarded the same by way of recommendations to the Government but the Government ignored to consider the said issue and gave show cause notice. Thus it is highly improbable for the 2nd respondent to choose the same as a ground for allegation and to determine the petitioner's lease. Hence, the lease determination is unjust and illegal.
5. The second allegation is concerned, the petitioner has excavated 10,45,955 metric tons of laterite mineral and obtained transit permits for the same extent from 3rd respondent. However, on assumptions and presumptions show cause notice was issued as if the petitioner excavated 13,53,556 metric tons of laterite and he is liable to pay seigniorage fee and penalty accordingly. The petitioner filed W.P.No.35465/2015 challenging the show cause notice No.3351/M/Vg/2015-1 dated 21.09.2015 for alleged transportation of excess quantity of 3,07,601 MTS of laterite and this Court granted stay order dated 30.10.2015 and the same is pending. The third allegation is concerned, Rule 7A(i) of the APMMC Rules, 1966 was amended by G.O.Ms.No.56, Industries & Commerce, dated 30.04.2016 which has no application to the present case as it operates prospectively for the leases granted after 30.04.2016.
(a) The further allegation that the petitioner conducted mining operations in deviation of the sanctioned mining plan is concerned, the petitioner has been maintaining the buffer zone of 7.50 metres on all the three sides of the leased area as showing in the mining plan. While so, the 5 Government granted two mining leases in favour of third parties which are adjacent to his lease and so the petitioner submitted a letter dated 16.02.2012 to Director General of Mines Safety, Hyderabad for granting permission under Regulation 113 of Metalliferrous Mines Regulations, 1961 to reduce the common barrier between the adjoining mines and after due examination, permission was granted by way of letter dated 29.10.2012. The same was informed to 3rd respondent. There is a common boundary of 7.50 meters between the petitioner's lease area and the mining area of T.Gangadhar Reddy and even in the absence of same no prejudice would be caused.
(b) The allegation that the petitioner operated in the area at Grid North 9900-10300, East 5200-5400, North 10100-10500-E-5200-5500 L- 17018'46.2, 82016'18.6", which is not falling in the mining lease area as approved for first and second five year scheme is concerned, when the same was brought to the notice of the petitioner he immediately stopped the operations in that area and confining himself to the mining plan. So far as allegation that the petitioner conducted mining operations without maintaining bench marks in violation of the approved mining plan is concerned, the approved mining scheme dated 17.08.2013 which was valid for the years 2013-17 and the bench marks were shown at different locations and one bench mark is common in Maheswari Minerals and petitioner's mine situated at the common boundary and in view of the permission obtained from Director General of Mines Safety, Hyderabad by way of a letter dated 29.10.2012 the said allegation is unsustainable. Further the bench mark is only for the purpose of taking contours of the 6 leased area and conduct mining operations within that leased area. In the absence of contours some untoward incident occur is a mere rectifiable one. Thus, the allegations in the show cause notice and determination order are manifestly arbitrary and unreasonable.
Hence, the writ petition.
6. The 3rd respondent filed counter opposing the writ petition.
(a) Mining lease was granted in favour of the petitioner for Ac.128.15 cents in Sy.No.1 of Chinthaluru Village and lease was executed vide proceedings No.5865/M/1995, dated 28.03.2007 and lease will be in force up to 27.03.2027.
(b) Pursuant to the orders in W.P (PIL) No.48 of 2016, the 3rd respondent submitted determination proposals vide Lr.No.5865/M/1995, dt:15.07.2016 to the 2nd respondent, basing on which show cause notice vide SCN No.22844/R2-1/2015, dt:20.07.2016 was issued by the 2nd respondent for certain lapses committed by the lessee. Meanwhile, the W.P. (PIL) No.48 of 2016 was reopened vide order dated 30.09.2016. Thereafter, the 2nd respondent issued proceedings in D.Dis.No.22844/R2- 1/2015, dt: 05.12.2016 and determined the lease held by the petitioner as he committed violations 1, 2, 3 and 4 mentioned in the show cause notice and no written or oral evidence was advanced by the lessee. Further, the petitioner involved in mining and dispatching the laterite worth Rs.11,53,50,375/-, which was arrived after due enquiry by GA (Vigilance & Enforcement) Department. Hence, mining lease was determined. It is further stated that pursuant to the complaints received from Sri Mylapalli 7 Satyanarayana that the existing leaseholders i.e., the writ petitioner, T. Gangadhara Reddy, Sri S. Lakshmana Reddy and M/s Maheswari Minerals have encroached in the mining lease applied area in Sy.No.1 of Chinthaluru Village, the District Collector formed an enquiry team and the said team surveyed the leased area and reported that leaseholders are conducted mining operations within the leased area granted to them i.e., Ac.200.00 cents as per the executed sketches and not encroached in the Thotapalli RF or into area demarcated for the proposed mining lease in an extent of Ac.100.00 cents in favour of M/s. Satya Santhi Sankshema Seva Samithi, led by its president Sri Mylapalli Satyanarayana, the complainant. The said survey was conducted by fixing the boundaries of the leased area only but not quantification of the excavated area or on deviation mining. At present survey was done basing on complaints received from Sri Lingampali Satyanarayana, Lampakalova Village, Prathipadu Mandal, East Godavari District and identified deviations on Mining Plan and quantification of Mineral excavated in the leased areas. The survey team of Mines and Geology Department along with Vigilance and Enforcement officials have identified that the lessee has not conducted mining operations as per the approved mining plans. As per the report, it was identified that lease holder conducted the mining operations beyond mining plan approvals. Basing on the report of survey team of Mines and Geology Department, the Regional Vigilance and Enforcement officials issued letter narrating the omissions pointed out by the survey team, as the lease holder has obtained permits for quantity of 10,45,955 Mts of laterite but as per the survey report, he has excavated 14,24,796 Mts and thus 8 lessee has transported an excess quantity of 3,78,841 Mts of laterite mineral illegally without obtaining dispatch permits. The survey team conducted the survey in the presence of Mines Manager, Supervisors, Foreman as representatives of the petitioner. The 2nd respondent forwarded the report of General Administration (Vigilance & Enforcement) Department and directed to take immediate necessary action on the recommendations of General Administration (Vigilance & Enforcement) Department vide Memo dated 28.08.2015. In this regard the joint inspection was conducted by the Mines and Geology Department along with Vigilance and Enforcement Officials in October, 2014 and May, 2015 and identified that the petitioner transported 3,07,601 Mts of laterite without payment of royalty. The Deputy Director, Mines and Geology, Kakinada issued notice dated 21.09.2015 to the petitioner for excess transportation of mineral. The petitioner filed W.P.No.35465 of 2015 challenging the show cause notice dated 21.09.2015 and in W.P.M.P.No.45561 of 2015 stay was granted. Thereafter, Government has issued show cause notice dated 03.02.2016 for his lapses and the petitioner submitted reply. Reply submitted by the petitioner against the allegations was considered by the 2nd respondent and reply averments were found to be not valid and they were found to be not germane reasons to come to a different conclusion and hence lease was determined by virtue of the impugned order. There are no merits in the writ petition and hence, the same may be dismissed.
9
7. Heard Sri K.V. Bhanu Prasad, Senior counsel representing Sri Kalyan C.R, learned counsel for the petitioner and learned Government Pleader for Mines and Geology representing the respondents.
8. Both the learned counsel reiterated their pleadings in their respective arguments. It is the contention of the learned counsel for the petitioner that as against the each allegation levelled in the show cause notice he gave detailed explanation showing how the allegations are unsustainable, but however, without considering his reply averments in a proper perspective, the 2nd respondent passed the lease determination order which is illegal. He would further argued that as against the show cause notice No No.3351/M/Vg/2015-1, dt:21.09.2015 alleging that the petitioner has made an excessive excavation and transportation of 3,07,601 Mts of laterite and hence he was liable to pay an amount of Rs.1,59,95,262/- towards royalty, the petitioner filed W.P.No.35465 of 2015 challenging the show cause notice and the High Court of Judicature at Hyderbad granted interim stay and the same is pending. In spite of the same, the 2nd respondent held that the petitioner excavated only 13,53,556 Mts of laterite. In the process the 2nd respondent has not given any opportunity to the petitioner to produce his accounts to show that he obtained permission and excavated laterite only to an extent of 10,45,955 Mts. The other allegations made against the petitioner are also not correct. On the other hand, learned Government Pleader argued that the averments in the reply are not supported by any material. The petitioner was not having environmental clearance certificate between 2007 and 2010. But 10 he conducted excavation operations. Further, having obtained dispatch permit for 10,45,955 Mts, the petitioner excavated 13,53,556 Mts i.e., 3,07,601 Mts excess quantity which fact was confirmed during the inspection conducted by the officials of Mining and Vigilance & Enforcement Departments. Considering the same and other deficiencies, the petitioner's lease was determined. He thus prayed to dismiss the writ petition.
9. The point for consideration is whether there are merits in the writ petition to allow ?
10. Point: I gave my anxious consideration to the lease determination order dated 05.12.2016 and the respective arguments of learned counsel relating to the impugned order. The said order would show as many as four violations were attributed to the petitioner. Of course, violation Nos.1 and 4 are identical to the effect that the petitioner has conducted mining operations without obtaining environmental clearance certificate despite giving undertaking that he will operate the mining after obtaining the said clearance. Therefore, the entire case can be viewed in the context of the three violations of which violation Nos.1 and 2 are main ones or important.
11. As stated supra, violation Nos.1 and 4 are to the effect that the petitioner has conducted mining operations without obtaining environmental clearance certificate.
11
12. Admittedly, the petitioner was granted mining lease over an extent of Ac.128.15 cents vide G.O.Ms.No.25, dated 13.02.2007 for a period of 20 years i.e., upto 27.03.2027. The allegations would show that at the time of lease the petitioner has not obtained environmental clearance certificate and informed that he submitted application on 24.03.2007 to the Secretary, Ministry of Environment & Forests, Government of India and ultimately environmental clearance certificate was granted only on 13.08.2011. However, the violation Nos.1 and 4 show that the petitioner has conducted mining operations without environmental clearance certificate between 13.02.2007 and 12.08.2010. The petitioner's reply is that he applied for environmental clearance certificate on 24.03.2007 and lease deed was executed by the respondents in his favour on 28.03.2007 i.e., pending his application for environmental clearance certificate. He obtained environmental clearance certificate on 13.08.2011. However, in the interregnum period, the respondent authorities without posing any objection granted permission for excavation of 10,45,955 Mts by collecting royalty. Therefore, at this juncture, it does not lie in the mouth of respondents to allege that he committed some violation.
13. I find considerable force in the submission of learned counsel for the petitioner. When admittedly, the respondent authorities granted permission to the petitioner to excavate 10,45,955 Mts by accepting royalty during the period when the petitioner was not possessing the environmental clearance certificate, they cannot now clamour that the petitioner conducted the excavation without obtaining environmental 12 clearance certificate. By conduct, the respondents are estopped from impugning the petitioner.
14. Nextly, violation No.2 is a major one. According to the respondents, the petitioner excavated 13,53,556 Mts of laterite as against the permitted quantity of 10,45,955 Mts whereby he excavated an excess quantity of 3,07,601 Mts of laterite for which he liable to pay normal seigniorage fee and market value towards penalty totaling Rs.11,53,50,375/-. The excess quantity seems to have been arrived at by the Department on the basis of the joint inspection conducted by the Mining and Vigilance & Enforcement Department officials and by taking the measurements of the pits during the survey.
15. Per contra, the contention of the petitioner is that he was given permission to excavate only 10,45,955 Mts. and indeed he excavated that much quantity only and when he sought for transit permits, the officials on an intense inspection of the mining pits, accounts and other records only granted him transit permissions. Thus, there is no scope for him to excavate more quantity. His further case is that the 2nd respondent has not considered this aspect and wrongly sustained the violation.
16. A perusal of the impugned order shows that the 2nd respondent did not accept the petitioner's contention on the main ground that except harping that he has excavated only 10,45,955 Mts but not 13,53,556 Mts, the petitioner did not produce any supporting records or other scientific or technical parameters of measurements of existing stock other than the pit 13 measurement. On this observation the 2nd respondent held that violation No.2 was established. Thus, as can be seen, the pit measurements taken by the inspecting team said to be in the presence of petitioner's officials were accepted by the 2nd respondent. It is true that the petitioner has not produced records to probablize his case, however, having regard to the fact that the allegation is grave to the effect that the petitioner has clandestinely over excavated 3,07,601 Mts of laterite, interest of justice requires that an opportunity should be given to the petitioner to submit records before the 2nd respondent to substantiate his plea. However, since he has not produced any record at the first instance before the 2nd respondent, such an opportunity can be given to him only on suitable terms. So far as violation No.3 is concerned, in my view the petitioner can be given another opportunity to vindicate his stand as against the said violation also.
17. Accordingly, the writ petition is allowed and the lease determination order in D.Dis.Pro.No.22844/R2-1/2015, dt: 05.12.2016 passed by the 2nd respondent is set aside and matter is remitted back to the 2nd respondent on the condition of petitioner depositing seigniorage fee of Rs.2,30,70,075/- within eight (8) weeks from the date of this order. Upon such payment, the 2nd respondent shall fix the date of hearing and issue notice in advance to the petitioner and afford an opportunity of personal hearing and producing record and other material in respect of violation Nos.2 and 3 mentioned in the impugned order and after considering the material, pass an order on merits in accordance with the governing law 14 and Rules expeditiously, but not later than twelve (12) weeks from the date of receipt of a copy of this order. Till such exercise is completed, no coercive action shall be taken against the petitioner for realization of balance amount of Rs.9,22,80,300/- as mentioned in the lease determination order. No costs.
As a sequel, interlocutory applications, if any, pending for consideration shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 31.12.2021 KRK/MVA 15 THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO W.P Nos.4620 and 4120 of 2021 31st December, 2021 mva/krk