Andhra HC (Pre-Telangana)
Progressive Construction Ltd., ... vs The Government Of A.P., Department Of ... on 9 January, 2003
Equivalent citations: 2003(1)ALD643, 2003(1)ALT593, AIRONLINE 2003 AP 16
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, N.V. Ramana
JUDGMENT B. Sudershan Reddy, J.
1. These three writ petitions may be disposed of by a common order, since the same are directed against the common order dated 4-2-2002 passed by the Government in exercise of its revisional power under Rule 35-A of the Andhra Pradesh Minor Mineral Concession Rules, 1966 and consequential demand notice dated 20-2-2002 issued by the Director of Mines and Geology.
W.P. No. 6916 of 2002
2. The petitioner-company invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records relating to the order passed by the first respondent-Government in Memo No. 8817/ M.II.(1)/2001-6, dated 4-2-2002 and the consequent demand notice No. 4823/MR2/99-3, dated 20-2-2002 of the second respondent-Director of Mines and Geology and the proceedings of the third respondent-Deputy Director of Mines and Geology in Lr. No. 2946/Q2/ 2001-3, dated 28-3-2002 and quash the same. The proceedings, according to the petitioner-company, are illegal, arbitrary and violative of the rights guaranteed under Articles 14 and 19 of the Constitution of India. The petitioner-company also prays for a consequential direction directing the first respondent-Government to refund a sum of Rs.30,33,450/- together with interest at the rate of 18% per annum from 30-11-2000 till the date of payment.
3. The impugned orders are challenged on various grounds.
4. Before adverting to the question as to whether the petitioner-company is entitled for any relief as such, it may be appropriate to notice the relevant facts leading to filing of this writ petition:
5. The petitioner-company is engaged in the business of construction, engineering and civil works. During the course of its business activities, the petitioner-company had participated in the tenders invited by the Bharat Heavy Electricals Limited (BHEL) for the purpose of executing their part of the contract with the N.T.P.C. for levelling and grading (Part of Group I Tender No. 808) of 2 x 500 MW Simhadri Thermal Power Project, Parawada, Visakhapatnam. The BHEL awarded a contract dated 4-1-1999 to the petitioner-company for execution of part of the said work with an estimated value of Rs.7,87,33,290/-.
6. It is the case of the petitioner-company that the material required for the purpose of execution of the said contract in terms of the specifications prescribed under the contract shall be earth, morrum, gravel a mixture of these or any other material approved by the BHEL engineers. The material is required to be free from lumps and clouds, boulders or rock pieces, roots and vegetation, harmful salts and chemicals, organic materials, loose silts, fine sands and expansive clays in order to provide stable embankment.
7. It is claimed that the petitioner-company had obtained rights for excavation of good earth from the riots of patta lands in the vicinity as well as from the gravel quarry leaseholders. The petitioner-company had been supplying the material from the source in which they obtained rights for excavation of material. It is submitted that the petitioner-company altogether supplied a total quantity of 14,68,089 cubic meters of material under the contract, but the BHEL had computed as 13,61,894.25 cubic meters only. According to the petitioner-company, out of the said quantity, it had supplied a quantity of 1,66,031 cubic meters of gravel from the source of gravel quarry leases issued by the department, which was treated as gravel under the licence itself, for which the seigniorage fees was paid and admittedly transit bills were also issued at the relevant time.
8. The Assistant Director of Mines and Geology, Visakhapatnam by his notice dated 1-4-2000 required the BHEL to show cause as to why action should not be initiated to realise a sum of Rs.46,02,77,940-00 towards seigniorage fee at the rate of Rs.10/- per M3 of filling material which includes five times penalty over and above the normal seigniorage fee. The normal seigniorage fee payable in respect of the filling material is assessed to be at Rs.7,67,12,990-00 and five times of the normal seigniorage fee is imposed as penalty. The Assistant Director required the BHEL to produce documentary evidence, if any, with regard to the source from where the material has been procured along with the permits issued by the Department. The BHEL got issued a detailed reply notice dated 11-4-2000 disputing its liability in the matter. In the reply it is inter alia stated that the required application for allotment of quarries and other formalities will be directly done by the sub-contractors concerned. The agencies have been paying the seigniorage fee directly to the Department of Mines and Geology. There is a reference to the meeting held between the agencies and Department of Mines and Geology, BHEL and all the five contractors. Detailed minutes were drawn on 4-9-1999, according to which, the Director of Mines and Geology expressed that the type of filling material and its classification may have to be decided by the Department of Mines and Geology and not by the contractors themselves. Thereafter, another meeting of the sub-contractors, NTPC and BHEL representatives was convened and held on 26-5-2000.
9. The third respondent had raised demand notice dated 28-7-2000 as against the petitioner-company demanding a total amount of Rs.7,79,16,900-00 towards the seigniorage fee including five times penalty. In the said demand notice, it is stated that as per the information supplied by the BHEL to the Vigilance and Enforcement Department, the petitioner-company had supplied 12,98,61 M3 of filling material. It has been decided that the filling material is partly gravel, and partly ordinary clay in respect of which seigniorage fee is liable to be paid. The petitioner-company sent reply letters dated 19-8-2000 and 21-8-2000 requesting the authority to withdraw the demand while agreeing to pay the seigniorage fee, under protest, for the quantity of 3,00,000 cubic meters of material, which allegedly consist clay particles of material.
10. The Assistant Director of Mines and Geology again sent demand notice dated 13-2-2001 to BHEL duly informing that the original demand notice dated 1-4-2000 continued to be in force and accordingly required the amounts to be paid on or before 17-2-2001.
11. The Deputy Director of Mines and Geology raised demand notice dated 24-2-2001 directing the petitioner-company to pay an amount of Rs.89,25,190-00 being the balance of seigniorage fee after giving credit to the fee already paid by the petitioner-company, amounting to Rs.46,93,750-00.
12. At this stage, the petitioner-company submitted detailed representation dated 28-3-2001 to the Secretary (Mines), Industries and Commerce Department, Government of Andhra Pradesh, inter alia highlighting the various contradictory notices issued by the Assistant Director and Deputy Director of Mines and Geology.
13. The Government of Andhra Pradesh vide its Memo dated 4-7-2001, in exercise of suo motu revisional jurisdiction under Rule 35-A of the Andhra Pradesh Minor Mineral Concession Rules, 1966 set aside the revised demand issued by the Deputy Director of Mines and Geology, Visakhapatnam confirming the original demand, and accordingly by letter dated 6-7-2001 the Deputy Director of Mines and Geology requested the petitioner-company to pay the balance amount immediately.
14. The order dated 4-7-2001 passed by the Government is a composite one in respect of four sub-contractors including the petitioner herein. M/s. Nagarjuna Constructions Limited filed W.P. No. 15370 of 2001 challenging the revisional order dated 4-7-2001 of the Government. This Court by its order dated 20-7-2001 allowed the said writ petition at the admission stage holding that the order of the State Government is misconceived and unsustainable on account of having been issued without any notice and opportunity to the effected persons. However, leave has been granted to the Government to initiate fresh proceedings, if it so desires, if permitted by law, after notice and opportunity to the effected parties.
15. Thereafter, the first respondent-Government issued notice dated 20-8-2001 to all the sub-contractors including the petitioner herein to appear for the hearing on 27-8-2001 personally or through the authorised persons and furnish their objections, if any, to the orders issued by the Government in Memo dated 4-7-2001. The petitioner-company submitted its explanation dated 22-9-2001. Thereafter, the Government issued the impugned proceedings dated 4-2-2002 upholding the initial demand notice dated 28-7-2000 issued by the Deputy Director of Mines and Geology. It is that order which is impugned in this writ petition on various grounds.
16. It is submitted that the first respondent-Government ought not to have passed the impugned order clubbing the petitioner-company with other sub-contractors of BHEL, inasmuch as the demands raised by the third respondent-Deputy Director in respect of each of the parties are totally different. The quantity and the nature of material supplied by each one of them and their sources are different and the merits of each case are required to be gone into separately.
17. It is also contended that the order of the first respondent-Government is based on surmises and assumptions and vitiated for the reason of non-application of mind. It is further submitted that the first respondent-Government committed an illegality in imposing seigniorage fee on the total quantity of earth material supplied by the petitioner company with utter disregard to the analysis report of the material and without any authority to do so.
18. It is also submitted that the petitioner company was not supplied with a copy of the report submitted by the Deputy Director of Mines and Geology who was instructed to inspect the area and to ascertain the nomenclature of material supplied by the sub-contractors to the BHEL.
19. It is the case of the petitioner-company that the first respondent-Government could not have ignored the test and analysis report of the Department of Civil Engineering and Soil Mechanics Division of Andhra University, which is a relevant piece of evidence.
20. A detailed counter affidavit has been filed on behalf of the respondents by the Joint Director of Mines and Geology, Department of Mines and Geology, Hyderabad. The allegations and averments made and the contentions raised by the petitioner-company are seriously disputed. It is inter alia stated that the petitioner-company had suppressed many true and relevant facts and, therefore, not entitled for any relief from this Court under Article 226 of the Constitution of India.
21. From the averments made in the counter affidavit, one thing is absolutely clear that the then Deputy Director of Mines and Geology, Visakhapatnam played havoc in the matter. The said Deputy Director of Mines and Geology has been placed under suspension on the ground that he colluded with the petitioner and other sub-contractors in the matter of levy and collection of seigniorage fee. Various charges were framed against him and the Enquiry Officer appointed to make enquiry into charges of misconduct submitted report dated 11-4-2002 holding the charged officer guilty of four charges out of five serious charges of misconduct levelled against him. The matter is at the stage of scrutiny of enquiry report and consideration by the disciplinary authority for taking an appropriate decision in the matter. We restrain ourselves from making any further comment about the role played by this officer. The facts speak for themselves. The plea of the government that he acted in collusion with the petitioner herein and other sub-contractors is not without any basis.
22. One of the important aspects highlighted in the counter affidavit relates to the Notice No. 1557/Q/98, dated 1-4-2000 issued by the Additional Director of Mines and Geology requiring the BHEL (the principal contractor) for payment of normal seigniorage fee of Rs.7,67,12,990/- and five times penalty of Rs.38,35,64,950/-, aggregating to Rs.46,02,77,940/- towards the filling material utilised by them in the civil works relating to Simhadri Thermal Power Project. In reply to the said show cause notice, the BHEL has furnished the list of five sub-contractors including the petitioner herein, who are entrusted with the said levelling work. In the said reply, it is inter alia stated that the agencies have paid certain amounts towards seigniorage fee for the quantities borrowed from foot of the hills. It is further stated, "in line with provisions of the contract, the agencies are under obligation to accept and deal with the mining department directly." It is further stated, "no mens rea exists on the part of BHEL and we have been making concert effort to ensure payment of seigniorage fees by the agencies. We have been under the impression that the matter would have been decided upon as the department has inspected the sources presumably in the presence of agencies as agreed in the meeting held on 4-9-1999." The liability to pay seigniorage fee as such is not denied in toto even by the BHEL in the reply to the earliest show cause notice issued to it.
23. It is also stated in the counter affidavit that the petitioner-company failed to produce any documentary evidence. The Deputy Director of Mines and Geology, Visakhapatnam basing on the information furnished by the principal contractor (BHEL) and his inspection issued demand notice for a quantity of 12,98,615 cubic meters directing the petitioner-company to pay normal seigniorage fee of Rs.1,29,86,150/- and five times penalty of Rs.6,49,30,750/-, aggregating to Rs.7,79,16,900/-.
24. It is significant to note that the BHEL vide its letter dated 8-3-2000 furnished the details of total quantities of filling material supplied by sub-contractors including the petitioner herein in the levelling work. According to the data, the petitioner-company has supplied 12,98,615 cubic meters of filling material. The petitioner-company has not produced any documentary evidence in support of having paid the seigniorage fee for the filling material supplied by it. It is under those circumstances, the authorities directed a show cause notice as against BHEL demanding the total seigniorage fee payable in respect of the material consumed by all the sub-contractors. Since BHEL failed to pay the said amount, a notice dated 1-4-2000 was issued to BHEL demanding the payment. In response to the said notice, BHEL vide its letter dated 11-4-2000 inter alia stated that the letter dated 10-2-2000 has been sent to all the agencies for immediate compliance.
25. In the counter affidavit, it is further stated that the Government had already placed the third respondent-Deputy Director under suspension for colluding with the sub-contractors and, therefore, the petitioner-company cannot be permitted to rely upon the No Objection Certificate given by the third respondent-Deputy Director, who was found guilty of collusion.
26. Another aspect highlighted in the counter affidavit is that in spite of the repeated requests, the petitioner-company never cared to apply for and obtain any quarry lease nor obtained the permits.
27. The impugned order passed by the Government, it is asserted, is not vitiated for any reason whatsoever.
28. The main controversy that arises for consideration in this writ petition relates to the nature of the soil utilised by the petitioner-company in the levelling and grading work undertaken by it under agreement with BHEL.
29. Various pleas have been taken by the petitioner-company contending that it is not liable for payment of any seigniorage fee whatsoever except the amounts already paid by it to the department.
30. Sri E. Manohar, learned Senior Counsel appearing on behalf of the petitioner-company submitted that the petitioner paid the seigniorage fee in respect of the gravel purchased from the leaseholders and no seigniorage fee is liable to be paid in respect of the earth material used by the petitioner-company for filling purposes. The bulk of the material utilised by the petitioner-company is earth and the same is not seigniorable. It is contended that the suo motu exercise of revisional power by the Government and the orders passed pursuant to the said exercise are absolutely illegal inasmuch as the order ignored the material available on record. It is also submitted that the Government committed a serious irregularity in considering the case of the petitioner-company by clubbing the same with the cases of other sub-contractors. The petitioner-company had supplied gravel from the quarry leases and the ordinary earth from the patta lands and, therefore, the general assumption made by the Government, while disposing of the revision, that the total material received by BHEL was partly gravel from the sources of foot hills and partly ordinary clay from tank beds and therefore the said material is seigniorable, is vitiated for the reason that the petitioner-company never supplied the material from the foot hills and tank bed lands.
31. It is lastly contended that the levy of penalty is wholly illegal and unjustified. There was no conscious disregard of statutory obligations and suppression of fact by the petitioner-company, which would alone attract the levy of penalty.
32. The learned Advocate General submitted that but for the collusion of the concerned Deputy Director with the petitioner-company and his giving No Objection Certificate for release of the amounts by the BHEL, the petitioner-company has no case whatsoever. It is submitted that the petitioner-company is guilty of suppression of material facts. It is also submitted that in a proceeding under Article 226 of the Constitution of India, it would neither be possible nor desirable for this Court to make any roving enquiry so as to find out the nature of the soil utilised by the petitioner-company as filling material in fulfillment of its contractual obligation. The learned Advocate General submits that the Government order is not vitiated for any reason whatsoever. Adequate opportunity has been provided and the petitioner-company made a detailed representation and the Government examined each of the contentions advanced by the petitioner company and arrived at a reasonable and just conclusion. It is submitted that the details furnished by the BHEL, being the principal Contractor, itself would reveal the nature of soil utilised by the petitioner-company as filling material and according to that information, the soil utilised by the petitioner-company as filling material is seigniorable. The learned Advocate General further submits that the so called technical reports of Andhra University are of no use in order to decide the question as to whether the material utilised by the petitioner-company is seigniorable or not. The learned Advocate General submits that the Government rightly invoked the Rule 26 of the Andhra Pradesh Minor Mineral Concession Rules, 1966 (for short 'the Rules') and accordingly levied five times penalty and such levy does not suffer from any legal infirmity.
33. We have given our anxious consideration to the rival submissions made during the course of hearing of this writ petition. We have perused the records made available by the learned Advocate General pursuant to the rule nisi issued by the Court.
34. Before adverting to the question as to whether the impugned order suffers from any legal infirmity, it may be necessary to notice certain admitted and salient features of the case on hand.
35. The petitioner-company has been awarded a contract for execution of civil works by M/s. Bharat Heavy Electricals Limited vide agreement dated 4-1-1999. Para 3.03.01 of the specifications of the contract under Volume-II reads:
"The material used for constructing the embankment by earth filling shall be Morram, Gravel, a mixture of these or any other material approved by the Engineer......."
36. The Deputy Director of Mines and Geology, Visakhapatnam after conducting a joint inspection along with the Assistant Director of Mines and Geology, by his letter dated 22-3-1999 informed both the NTPC and BHEL that the material being utilised by the sub-contracts comes under the category of gravel/ordinary clay. Thereafter, a meeting was held on 4-9-1999 by the Director of Mines and Geology with the officials of BHEL and some other sub-contractors to discuss about the payment of seigniorage fee. Certain procedures were agreed upon. The sub-contractors were specifically required to disclose the locations of their excavation to enable the Department to decide the nature of the material excavated. Initially none of the sub-contractors identified any such source from where the materials were excavated until it was mutually agreed upon in the joint meeting held on 4-9-1999. The fact remains that neither the petitioner-company nor other sub-contractors have obtained any permission for quarrying of any mineral as is required under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the Act') and the Rules framed thereunder.
37. We have already referred to the show cause notice dated 1-4-2000 issued to the BHEL requiring it to show cause as to why seigniorage fee along with five times penalty shall not be collected. This was followed by a notice dated 28-7-2000 issued by the Deputy Director of Mines and Geology, Visakhapatnam to the petitioner-company raising the demand for an amount of Rs.1,29,86,150/- towards normal seigniorage fee and Rs.6,49,30,750/- towards five times penalty for the quantity of minor mineral used by them. The petitioner-company by its letter dated 21-8-2000 requested the Deputy Director to reconsider the issue. The Deputy Director of Mines and Geology by his proceedings dated 8-12-2000 revised the demand confining it to a sum of Rs.33,440/- and thereafter issued No Objection Certificate for release of the amount by BHEL to the petitioner-company under the proceedings dated 22-12-2000. The Director of Mines and Geology vide his Memo dated 16-2-2001 required the Deputy Director of Mines and Geology, Visakhapatnam to collect the amounts as per the original demand. The mistake committed by him in drastically reducing the demand has been pointed out. The Deputy Director vide demand dated 24-2-2001 required the BHEL to pay an amount of Rs.39,00,000/- ignoring the Director's communication. Thereafter, by letter dated 24-2-2001 the Deputy Director revised the demand notice directing the petitioner-company to pay normal seigniorage fee of Rs.89,25,190/-. The conduct of the Deputy Director is self-evident. He did not even care for the communication from the Director of Mines and Geology. These facts speak for themselves. The Deputy Director acted in an unbridled manner and went on revising the demand notices without any basis whatsoever. He has even gone to the extent of issuing No Objection Certificate enabling the petitioner-company to withdraw the amounts from the BHEL, principal Contractor. It is true that the Government vide its Memo dated 4-7-2001 in exercise of suo motu revisional power under Rule 35-A of the Rules set aside the demand notice issued by the Deputy Director of Mines and Geology dated 24-2-2001 reviewing his own earlier demand. But the same has been set aside by this Court in W.P. No. 15370 of 2001 at the instance of M/s. Nagarjuna Constructions Limited on the ground that the order of the Government is misconceived and unsustainable on account of having been issued without any notice and opportunity to the effected parties.
38. The Government, thereafter, issued notice to the petitioner-company vide its Memo dated 4-9-2001 providing an opportunity of being heard in the matter. The petitioner herein along with other sub-contractors participated in the hearing and all of them were represented by their respective advocates. After considering the submissions made and upon perusal of the material available on record, the impugned order dated 4-2-2002 has been passed by the Government disposing of the revision.
39. The sequence of events as disclosed by the record supports the allegation of collusion of the concerned Deputy Director with the sub-contractors. The fact remains that neither the petitioner-company nor any other sub-contractor has obtained any permission to quarry the minor mineral as is required in law. Neither the petitioner-company nor the other sub-contractors made available any details of the purchase/lease of private lands for the purpose of excavation of material. All along their contention is that they have been utilising only the earth material for filling purposes and the same is not seigniorable. The petitioner's version cannot be accepted as a gospel truth. The conduct of the petitioner-company and other sub-contractors suggests that they were playing hide and seek game with the statutory authorities.
40. The power to grant mining leases and quarry leases in respect of minor minerals vests in the State Government. Section 15 of the Act authorises the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and for purposes connected therewith. The Government of Andhra Pradesh accordingly made the rules known as "Andhra Pradesh Minor Mineral Concession Rules, 1966".
41. Rule 10 of the said Rules provides that seigniorage fee shall be charged on all minor minerals dispatched or consumed from the land at the rate specified in Schedule I and Schedule II, as the case may be. Item 6 of the Schedule I provides the rates of levy of seigniorage fee and it says:
"Gravel, Murrum, Shingle and other such material used for commercial purpose as filling material in Roads and constructional works - Rs.10/- (Rupees ten) per cubic meter".
42. This Court vide its judgment dated 3-3-1999 in W.P.Nos.1990, 2271 and 2741 of 1999 filed by the very sub-contractors (not by the petitioner herein), held that "the power to collect seigniorage fee at the rates mentioned in Schedule I read with Rule 10 is subject to filling material being declared as minor mineral under Section 3 (e) as the fact that Earth is a "filling material" cannot be disputed. As the State Government under Section 15 has the power to levy fee in respect of the minor mineral as declared by the Central Government under Section 3 (e) by notification in the official Gazette, and since no proceeding is placed before me declaring Earth as a minor mineral by the Central Government by a notification published in the official gazette, and in the absence of a notification issued by the Central Government declaring Earth as minor mineral, the State Government is not competent to collect seigniorage fee under Rule 10 read with Schedule I".
43. The Central Government vide its notification in GSR No. 95(E), dated 3-2-2000 notified the "earth" as a minor mineral. That has enabled the State government to levy seigniorage fee under Rule 10 of the Rules on earth also.
44. In the light of the decision of this Court referred to hereinabove, the schedule was amended and the entries are re-numbered. Item 8 replaced the old Item 6 in Schedule I and it reads as follows:
"Item 8: Morram/Gravel - Rs.13/- (Rupees thirteen) per cubic meter."
45. On 24-8-2000, once again by G.O.Ms.466, dated 24-8-2000, item No. 8 was amended and it reads as follows:
"Morram/Gravel and ordinary Earth".
46. At any rate, there is no dispute whatsoever that by the time the amendment has come into force enabling the State to levy and collect the seigniorage fee on earth; the contract itself has come to an end. Therefore, the amendment as such is not really relevant for our present purpose. At the relevant time when the contract was subsisting and the petitioner-company and other sub-contractors were using the material for filling purposes, levy of seigniorage charges was permissible as against "the gravel, morram, shingle and any other filling material except the ordinary soil/earth". The learned Advocate General, however, submitted that only that ordinary earth which does not contain any mineral content whatsoever alone was exempted from payment of seigniorage fee. It is submitted that hardly there is any earth, which does not contain fine particles or other minerals, in respect of which seigniorage fee is liable to be charged.
47. Rule 26 of the Rules provides for penalty for unauthorised quarrying. The same reads as under:
"26. Penalty for unauthorised quarrying:- (1) If any person carries on quarrying operations or transports minor minerals in contravention of these rules, he shall be liable to pay as penalty, such enhanced seigniorage fee together with assessments as may be imposed by an Officer nominated by the Director of Mines and Geology.
(2) Whenever any person raises or transports minor minerals without any lawful authority, such minerals may be seized by an Officer nominated by the Director of Mines and Geology in this behalf in addition to the imposition of the penalty under sub-rule (1):
Provided that in no case, the penalty shall exceed ten times the normal seigniorage fee and the lease or permit already granted may, at the discretion of the Deputy Director, be liable to be terminated or cancelled.
(3) (i) For the purpose of ascertaining the position of payment of Mineral Revenue due to the Government or for any other purpose under these rules, the person authorised under sub-rule (2) may
(a) enter and inspect any premises;
(b) survey and take measurements;
(c) weigh, measure or take measurements of stocks of minerals;
(d) examine any document, book, register or record in the possession or power of any person having the control of, or connected with any mineral including the processed mineral and place marks of identification thereon and take extracts from, or make copies of such document, book, register or record, and
(e) order the production of any such document, book, register, record as is referred to in Clause (d).
(ii) If no documentary proof is produced in token of having paid the mineral revenue due to the Government by any person who used or consumed or in possession of any mineral including the processed mineral, he shall notwithstanding anything contained in sub-rule (1) be liable to pay five times of the normal seigniorage fee as penalty in addition to normal seigniorage fee leviable under the rules.
Explanation:- It shall be competent to the officer nominated by the Director of Mines and Geology to determine the question whether quarrying operation or transportation of minerals are carried or not within the meaning of this rule.
48. We shall have to bear in mind the stated legal background in order to adjudicate the issue that arises for our consideration.
49. A plain reading of the Rule referred to hereinabove would make it abundantly clear that there is no provision for making any provisional assessment of the seigniorage fee and/or other mineral dues. The rules mandate that the seigniorage fee shall be charged on all minor minerals dispatched or consumed from the land at the rates specified in Schedule I and Schedule II, as the case may be. The seigniorage fee is required to be paid before the mineral is removed from the leased area. Rule 5 of the Rules prohibits quarrying of any minor mineral in any area, except under and in accordance with the terms and conditions of a quarry lease or a permit granted under the Rules.
50. A learned single Judge of this Court, while disposing of W.P. No. 4579 of 2001 filed by one of the sub-contractors - M/s. Gayatri Projects Limited, directed the Director of Mines and Geology as well as the Deputy Director of Mines and Geology, Visakhapatnam to issue the petitioner therein a provisional assessment of the seigniorage fee and/or other mineral dues. The Court further directed that the said assessment to be issued shall contain the statements setting out the basis on which the assessment is arrived at and shall set out the amounts already paid by the petitioner in this regard and the principles or reasons for the amounts arrived at. Liberty was given to the petitioner therein to submit its objections to any such provisional assessment communicated to it by the respondents. We find it difficult to agree with the reasoning assigned by the learned single Judge that no levy of seigniorage fee could be imposed without making a provisional assessment order as such. The Rules do not require any such provisional assessment. The order has no precedent value since it has been disposed of at the admission stage even without any rule nisi issued.
51. The petitioner and for that matter any of the sub-contractor not obtained any prior permission from the competent authority for quarrying any minor mineral. It is, however, submitted that the petitioner-company purchased the rights from the pattadars of the lands to excavate the earth and accordingly utilised the earth from patta lands and the same has been completely ignored by the respondents. Reliance is placed upon the letter of the Deputy Director dated 1-7-2000 addressed to the Head of the Department, Civil Engineering, Andhra University, forwarding the samples of material collected from the patta lands with a request to make analysis and give perfectly the nomenclature of the gravel, soil and clay contained in the samples. The Department of Civil Engineering, Andhra University in its turn found the samples to be the earth materials without any gravel and with low Clay content. No reliance could be placed upon the said letter and the so-called analysis report of the Department of Civil Engineer, Andhra University for more than one reason:
Firstly, no reliance could be placed upon any one of the acts of the Deputy Director for the reasons which we have already noticed. Secondly, no evidence has ever been made available by the petitioner-company evidencing that it had obtained any rights for excavation of the so-called earth from the patta lands. On the other hand, the material available on record would show that no documentary evidence of purchase/lease of any patta lands for the aforesaid purpose has been made available by the petitioner-company. Thirdly, the BHEL being the principal contractor furnished the details of the land development work done by the petitioner-company against the work awarded to it, in which it is shown that the petitioner-company predominantly used sandy clay and red sandy clay as filling material. The details so furnished in turn refer to the Andhra University report, according to which, the material used by the petitioner-company predominantly consists of sand and fine particles. This is totally at variance with the test results supplied by the Department of Civil Engineering, Andhra University upon which reliance is placed by the learned Senior Counsel for the petitioner-company.
52. The short question that falls for consideration is as to whether the impugned order passed by the Government suffers from any errors?
53. We have already noticed that the petitioner-company has been served with the order dated 4-7-2001 passed by the Government in Memo No. 8817/MI(1)/2000-1, whereunder the proceedings of the Deputy Director of Mines and Geology, Visakhapatnam levying normal seigniorage fee of Rs.1,29,86,150/- and five times penalty of Rs.6,49,30,750/-, aggregating to Rs.7,79,16,900/- has been upheld. The said order has been challenged only by M/s. Nagarjuna Construction Company Limited in W.P. No. 15370 of 2001 and this Court disposed of the said writ petition on 30-7-2001 at the admission stage on the purported concession to have been made by the learned Government Pleader resulting in setting aside the order and remitting the matter for fresh consideration by the Government in exercise of its revisional jurisdiction. Strangely enough, the petitioner-company preferred a revision petition, once again before the Government, against the said order dated 4-7-2001 of the Government. The so-called revision is absolutely incompetent and not maintainable in law. However, the Government in order to provide an adequate opportunity to the petitioner-company appears to have treated the so called revision petition filed by it as explanation to the notice of date of hearing of suo motu revision resulting in passing of the impugned order. Strictly speaking the order dated 4-7-2001 has become final so far as the petitioner-company is concerned. The petitioner-company is not entitled to take advantage of the order passed by this Court in W.P. No. 15370 of 2001, yet the Government provided the petitioner of reasonable opportunity of being heard in the matter.
54. The contention that the Government ought not to have clubbed the case of the petitioner-company along with other sub-contractors, in our considered opinion, is totally misconceived. If the petitioner's case is not clubbed along with the cases of other sub-contractors, the order dated 4-7-2001 imposing the liability of seigniorage fee together with penalty remains unchallenged. The Government even after clubbing all the cases together, since the issue that arises for consideration is one and the same, did not dispose of the revision without considering the merits of each of the cases. The petitioner's case has been considered in detail and the grounds raised in the memorandum of so-called revision petition filed by the petitioner-company have been taken into consideration. The Government, in fact, was under no legal obligation to take those grounds into consideration. The Government as well could have dismissed the so-called revision petition filed by the petitioner-company on the ground of maintainability, since no revision lies against the revisional order passed by the Government.
55. It is further contended by the learned Senior Counsel that the Government committed an error in observing as if the petitioner-company also consumed the material from the foothills and tank bed lands like the other sub-contractors, whereas the petitioner excavated the material from the patta lands, which has been totally ignored. The contention has no merit. There is no evidence that the petitioner-company had acquired any rights to excavate the earth from the patta lands. On the other hand, the report of the Deputy Director made available for the perusal of the court would reveal that the patta lands from where the petitioner quarried the material are filled with fine particles of ordinary clay derived out of adjoining hillocks consisting khondalite suit of rocks. The Government relied upon the fact that the material supplied by the petitioner-company and other sub-contractors during the relevant period has been technically inspected and classified as gravel and ordinary clay on which seigniorage fee is leviable.
56. However, it is urged that the said inspection report is not made available either by the Department or the Government so as to enable the petitioner-company to file its objections. The petitioner-company admittedly supplied some quantity of gravel also. The source from whom the gravel is purchased and the details of transit waybills are not furnished by the petitioner-company at any point of time. No efforts ever have been made by the petitioner-company to identify and reveal the source of supply of material consumed and utilised by it for the purpose of filling in fulfillment of its contractual obligation. Everything is shrouded in mystery. Neither the petitioner-company nor the other sub-contractors responded to the repeated queries of the department. The record contains the inspection notes of the sites from where the petitioner-company excavated the material. The memorandum of grounds, which has been treated as an explanation, does not contain any objection as to the non-supply of the inspection report. There is no plea of any prejudice having been caused on account of non-supply of the said inspection notes. It is not as if the petitioner-company demanded for the inspection notes during the hearing of the revision and the Government failed to furnish the same. In the absence of any such plea and demonstration of any prejudice having been caused on account of non-supply of the inspection notes, the impugned order cannot be set aside on that score.
57. The next question relates to non-consideration of the test and analysis reports of Civil Engineering Department of Andhra University. Rules do not contain any provision for sending the samples for any test and analysis. The report of the Civil Engineering Department as to the nature of soil and material cannot be said to be conclusive. That apart, some of the reports of the Department of Civil Engineering of Andhra University would reveal that even the samples were sent by the petitioner-company itself. The Department had readily undertaken the task of testing of the samples of the material sent by the petitioner-company. The self-serving devise adopted by the petitioner-company leading to analysis of the soil sample by the Department of Civil Engineering of Andhra University is of no consequence. The same has been rightly ignored by the Government. The Government, in fact, adverted to this aspect of the matter and observed that the nomenclature of minerals can be decided by way of physical examination. Chemical analysis will be resorted to only in order to know the grade of the particular mineral. The Government noticed that in the instant case irrespective of grade of gravel and ordinary clay, the contractors have used the material without resorting for selective mining; and the entire material in a particular area has been removed by using the proclaims. Therefore chemical analysis has no role to play in this case. The Government on careful analysis came to the conclusion that "by virtue of chemical analysis alone one cannot determine the nomenclature of a particular mineral." The Government further came to the conclusion that "the material used by the contractors is as per the specification given by BHEL under item No. 3.03.01 of the technical specification for site levelling." The Government having authorised the Deputy Director of Mines and Geology, Visakhapatnam as the competent authority to decide about the nomenclature accepted the conclusion reached by him that the material utilised by the contractors is partly gravel and partly ordinary clay. Both of them are liable for seigniorage fee.
58. These findings of fact arrived at by the Government after hearing of the parties concerned cannot be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
59. It is a clear case where the petitioner-company in company with the concerned Deputy Director made all possible efforts to confuse the issue and successfully prevented the authorities concerned from imposing and charging the seigniorage fee on the material consumed by it. The matter has been considered at several stages.
60. However, the learned Senior Counsel strenuously contends that the imposition of five times penalty over and above the normal seigniorage fee is absolutely illegal. It is contended that the respondents have no power or jurisdiction to levy penalty of five times of normal seigniorage fee, as the petitioner-company had never committed any default in paying the seigniorage fee. It is submitted that the penalty cannot be levied in the facts and circumstances of this case. It is contended that the action is ultra vires.
61. We have already noticed the relevant provision. The petitioner-company admittedly did not pay the mineral revenue due to the Government for the mineral consumed by it in the process of filling work undertaken by it pursuant to the contract entered into with the BHEL. Rule 26 (3) (ii) of the Rules provides that any person who used or consumed or in possession of any mineral be liable to pay five times of normal seigniorage fee as penalty in addition to the normal fee leviable under the Rules, if no documentary proof is produced in token of having paid the mineral revenue due to the Government.
62. However, the learned Senior Counsel appearing on behalf of the petitioner-company relied upon the decision of the Supreme Court in Hindustan Steel Ltd. V. State of Orissa, in support of his submission that even in case of default in payment of mineral revenue, penalty will not be imposed unless it is established that the individual concerned had acted in conscious disregard of his obligation to pay the mineral revenue. The Supreme Court while interpreting Section 9(1), read with Section 25 (1) (a) of the Orissa Sales Tax Act, 1947 observed:
"Under the Act penalty may be imposed for failure to register as a dealer: section 9(1), read with section 25 (1)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the company in failing to register the company as a dealer acted in the honest and genuine belief that the company was not a dealer. Granting that they erred, no case for imposing penalty was made out."
63. Similar is the view taken by the Supreme Court in E.I.D. Party (I) Ltd. V. Assistant Commissioner of Commercial Taxes, . The said case also arises under the Tamil Nadu General Sales Tax Act (1 of 1959). The Supreme Court in the said case came to the conclusion that it would not be correct to say that the petitioners therein had acted deliberately in defiance of law or that their conduct was dishonest or that had acted in conscious disregard of their obligation under the Sales Tax Act. It is under those circumstances, the Supreme Court came to the conclusion that the High Court had committed an error in upholding the orders of penalty.
64. In the case on hand, we have noticed the conduct of the petitioner-company and conscious efforts made by it to avoid its obligation to pay the mineral revenue under the rules. The petitioner-company did not raise any serious objection whatsoever before the government for levy of penalty except a vague statement that it had "no intention to cause any default under the relevant Act/Rules......" Rule 26 (3) (ii) of the Rules does not confer any discretion upon the authority either to impose or not to impose penalty against a person who used or consumed or in possession of any mineral without paying the mineral revenue due to the government. The liability is absolute. The discretion available to the officer nominated by the Director of Mines and Geology under sub-rules (1) and (2) of Rule 26 of the Rules is to impose penalty as against the persons carrying on the quarrying operations and transporting minor minerals in contravention of the Rules. In such contingency, the discretion is conferred upon the authority to impose penalty not exceeding ten times the normal seigniorage fee. So far as the imposition of penalty under Rule 26 (3) (ii) is concerned, there is no discretion conferred upon the authority except to impose five times of the normal seigniorage fee as penalty in addition to the normal seigniorage fee leviable under the Rules. The penalty is leviable the moment when the consumer of minor mineral fails to produce the documentary evidence in token of having paid the seigniorage fee in respect of the minor mineral consumed by him. Nothing further is required to be proved.
65. The principle laid down by the Supreme Court while interpreting the provisions of the Orissa Sales Tax Act, 1947 and Tamil Nadu General Sales Tax Act (1 of 1959) in the decisions of the Supreme Court referred to hereinabove has no application and the same do not render any assistance in the matter since the Rule 26 (3) (ii) of the Rules is explicit and unambiguous in its width and scope, whereunder an absolute liability is imposed upon the consumer of the minor mineral to pay the penalty on failure to produce the documentary proof in token of having paid the seigniorage fee payable in respect of the minor mineral consumed.
66. In the case on hand, the sequence of events and the attempts made to avoid the liability, undoubtedly, indicate that the petitioner herein and other sub-contractors have deliberately acted in defiance of law and acted in conscious disregard of their obligation. It is not a case of any technical or venial breach of the provisions of the Rules flowing from a bona fide belief that they are not liable to pay the seigniorage fee. The discretion vested in the authority to impose penalty has been exercised properly and on a consideration of all the relevant facts and circumstances.
67. However, the contention that the respondents in the impugned demand notice included certain amounts already paid has some merit. In the circumstances, we hold that the amounts already paid by the petitioner-company towards the seigniorage fee are liable to be excluded from out of the total demanded amount.
68. No other point is urged.
69. While upholding the revisional order dated 4-2-2002 passed by the Government, we accordingly direct the second respondent-Director of Mines and Geology to issue the revised demand notice to the petitioner-company deducting the amounts, if any, already paid by it.
70. No other relief could be granted.
71. The writ petition is accordingly disposed of modifying the consequential demand notice dated 20-2-2002 issued by the second respondent-Director of Mines and Geology to this limited extent. No order as to costs.
W.P. No. 5683 of 200272. We have already noticed the facts in detail leading to passing of the revisional order dated 4-2-2002 by the Government in exercise of its revisional power under Rule 35-A of the Rules. The petitioner-company in the instant writ petition is also one of the sub-contractors, like the petitioner in W.P. No. 6916 of 2002. The facts in this writ petition, more or less, are similar to that of the facts in W.P. No. 6916 of 2002. The work undertaken by the petitioner-company is also similar having entered into an agreement with the BHEL - principal contractor. We have also noticed as to how and in what manner the concerned Deputy Director of Mines and Geology conducted himself and acted against the interest of the Government.
73. We need not repeat and recapitulate the factual scenario leading to filing of this writ petition, except to notice that the petitioner herein filed W.P. No. 1990 of 1999 challenging the action of the respondents in deducting the seigniorage fee from out of the bills payable to it. In the said writ petition it was inter alia contended that the civil works entrusted under the package needs "utilisation of Road Metal, building stone, gravel Morrum, earth etc. Road metal, building stone, gravel and morrum are all minor minerals and the company has been paying the relevant seigniorage fee and has been obtaining transit bills issued by the Assistant Director of Mines and Geology, while so the seigniorage fee for earth which is not a mineral." The said writ petition was disposed of on 3-3-1999 declaring that in the absence of notification issued by the Central Government declaring the Earth as minor mineral, the State Government is not competent to collect seigniorage fee under Rule 10 read with Schedule I. The respondents were accordingly directed not to collect the seigniorage fee on Earth, only used as filling material.
74. Obviously, the question as to whether the petitioner-company, in fact, was utilising only the Earth as filling material did not come up for consideration in the said writ petition. Admittedly, the petitioner-company has been utilising the gravel, morrum, etc., which is a minor mineral. The question as to what quantity of Earth and what quantity of minor mineral in respect of which seigniorage fee is liable to be paid was not the subject matter of the said writ petition.
75. We have already noticed that the Government vide G.O.Ms. No. 155, Industries and Commerce (M.I) Department, dated 14-5-1999 issued amendment amending item No. 6 from column 2 of Schedule-I in Rule 10 of the Rules, including the gravel, morram, shingle and any other filling material except ordinary soil/earth.
76. The facts up to the stage of issuing of show cause notice dated 1-4-2000 by the Assistant Director of Mines and Geology to BHEL to show cause as to why the seigniorage fee along with five times penalty shall not be collected are the same as in W.P. No. 6916 of 2002, which we have already noticed in detail.
77. On 28-7-2000, the Deputy Director of Mines and Geology, Visakhapatnam issued a demand notice to the petitioner-company raising the demand for an amount of Rs.1,40,03,230/- towards normal seigniorage fee and Rs.7,00,16,150/- towards five times penalty, totally for an amount of Rs.8,40,19,380/- for a quantity of 14,00,323 cubic meters of minor mineral used by them. For whatever reason, the Deputy Director having issued the demand notice did not take any further steps for realisation of the said amounts. It is, however, stated that the petitioner-company addressed a letter dated 12-8-2000 to the Deputy Director of Mines and Geology requesting him to re-consider the demand notice dated 28-7-2000. The same is not made available for the perusal of this Court.
78. Thereafter, the Deputy Director of Mines and Geology addressed letter to the BHEL dated 5-1-2001 in which it is inter alia stated that "as per the information available, the consuming agency, BHEL, Parawada has to pay seigniorage fee for further 2,22,000 M(3) of filling material supplied by M/s. Nagarjuna Constructions Company Limited. The normal seigniorage fee is Rs.22,20,000/- (Rupees Twenty two lakhs and twenty thousand only)." The BHEL was accordingly requested to release the seigniorage fee of Rs.22,20,000/-. This was followed by another letter dated 24-2-2001 expressing No Objection to clear the part bill pending with the BHEL, since the Deputy Director had already received a Banker Cheque dated 22-2-2001 for a sum of Rs.22,20,000/-.
79. It is required to notice that the Director of Mines and Geology, vide his Memo dated 16-2-2001 required the Deputy Director of Mines and Geology, Visakhapatnam asking him to collect the amount as per the demand raised earlier on 28-7-2000 and not to deviate from the demand raised as any such deviation would be totally unauthorised. As usually, the Deputy Director defied the directions of the Director and issued a demand notice dated 24-2-2001 asking the petitioner to pay the normal seigniorage fee of Rs.1,30,82,720/- only. As to for what reasons, the Deputy Director of Mines and Geology deviated from the demand notice dated 28-7-2000 is not clear from the record. But he did it for obvious reasons, and in spite of the directions of the Director of Mines and Geology, he failed to realise the amounts pursuant to the demand notice dated 28-7-2000.
80. We have already noticed that the Government in exercise of its suo motu revisional jurisdiction passed orders on 4-7-2001 setting aside the demand notice issued by the Deputy Director of Mines and Geology, Visakhapatnam dated 28-7-2000 holding that he has no authority to review his earlier demand and the same was without any authority of law. It is true that the said revisional order has been set aside by this Court at the instance of the petitioner-company in W.P. No. 15370 of 2001, since the same has been passed by the Government without putting the petitioner-company on notice. We find it difficult to countenance as to why the Government had passed the orders without putting the petitioner-company and other effected parties on notice. It appears as though, none involved in the decision making process were acting innocently. Each for their own reasons. Otherwise, there is no reason why the Government could have disposed of the suo motu revision without affording any opportunity of being heard to the petitioner-company and other sub-contractors. In these matters, there is obviously something more than meets the eye.
81. Pursuant to the orders of this Court dated 13-7-2001 made in W.P. No. 15370 of 2001, necessary notices were issued to the petitioner-company also along with other sub-contractors and a reasonable opportunity of hearing has been provided by the Government. Thereafter, the Government disposed of the matter confirming the demand notice dated 28-7-2000.
82. More or less similar contentions, as urged in W.P. No. 6916 of 2002, are urged in this writ petition.
83. The petitioner-company, pursuant to the notice issued by the Government requiring it to participate in the hearing of the revision petition, filed a bunch of material papers on 22-9-2001 duly signed by the counsel. No objections as such are filed. No cause as such is shown as to why the demand notice dated 28-7-2000 issued by the Deputy Director of Mines and Geology requiring the petitioner-company to pay an amount of Rs.1,40,03,230/- towards normal seigniorage fee and Rs.7,00,16,150/- towards five times penalty, totally for an amount of Rs.8,40,19,380/- for a quantity of 14,00,323 cubic meters of minor mineral used by them should not be enforced. However, it appears that certain submissions were made by the counsel appearing on behalf of the petitioner-company along with other learned Advocates appearing on behalf of the other sub-contractors and each one of those submissions are dealt with by the Government in its revisional order.
84. However, in this writ petition also reliance is placed upon the so-called technical reports of Civil Engineering Department of Andhra University, about which we have already expressed our opinion and the same need not be reiterated here.
85. One of the contentions urged by the learned counsel for the petitioner-company is that the inspection reports determining the nature of soil used by the petitioner-company were not made available to the petitioner-company in order to enable it to file its objections, and the levy of seigniorage fee based upon such inspection reports is void and inoperative. We do not find any merit in this contention. It is clear from the record that the results of the detailed enquiry of the spot inspection and the conclusions are set out in the report dated 23-12-1999 submitted by the then Deputy Director. This exercise itself was undertaken pursuant to the decisions arrived at between the contractors and officials of the State Government, BHEL and NTPC in a joint meeting held of which the minutes were duly communicated to all the concerned. The sub-contractors including the petitioner herein themselves made available the details of the areas where the excavations have been made and only those places were visited and inspected by the then Deputy Director and his team of officers.
86. We are also required to notice that as in the case of the petitioner-company in W.P. No. 6916 of 2002, no details are furnished by the petitioner-company about the private lands purchased by it for undertaking the excavation of the material used and consumed by it in the process of filling work. We have no reason to disbelieve the material available on record including the averments made in the counter affidavit that the quarrying undertaken by the petitioner-company itself was totally illegal. The petitioner-company failed to produce the permissions, if any, granted by the department or the Panchayat for such excavation. The enquiries reveal that the excavations were carried out only in government lands and tank bed lands unauthorisedly. It is shocking to realise that such things could happen. We have already observed that but for the active collaboration of the concerned at the gross root level no such activity could have been taken place adversely affecting the public interest.
87. The learned counsel for the petitioner-company further contended that no show cause notice has been issued setting out the reasons for the proposal to revise the demand notice dated 28-7-2000 and in the absence of such show cause notice, the impugned order becomes void and inoperative. It is also contended that the impugned order is contrary to the directions of this Court issued in W.P. No. 15370 of 2001. We do not find any substance in this contention. This Court merely set aside the earlier order of the State Government dated 4-7-2001 holding that the same is misconceived and unsustainable on account of having been issued without any notice or opportunity. This Court observed that if the Government seeks to initiate any fresh proceedings, it shall do so, if permitted by law, after notice and opportunity to the affected parties. Notice of hearing has been given. The petitioner-company participated in the hearing of the revision petition without raising any objection whatsoever. The petitioner-company never demanded for any inspection reports in order to enable it to submit any detail objections as such. Hence, we hold that the objections raised in this writ petition are only after thought.
88. For the same reasons recorded in W.P. No. 6916 of 2002, we hold that the penalty imposed apart from the levy of normal seigniorage fee is not vitiated for any reason. The petitioner-company did not raise any objection whatsoever with regard to the levy of penalty, during the course of hearing of the revision petition. There is nothing on record to suggest that the petitioner-company raised any objection with regard to the levy of penalty.
89. It is, however, urged by the learned counsel for the petitioner that in the earlier round of proceedings the respondents herein have categorically admitted that the petitioner-company utilised the earth only as filling material and in such view of categorical admission, no seigniorage fee is liable to be paid. In the additional counter affidavit filed by the Joint Director of Mines and Geology, Hyderabad, it is explained that in the counter affidavit filed on behalf of the respondents dated 18-2-1999 in W.P. No. 1990 of 1999, the then Assistant Director made a statement that the excavated material is earth, which is also liable for levy of seigniorage fee. 'This was a mistake'. By the time the counter affidavit filed, the Department had no precise knowledge of the locations where excavation was going on or the nature of the soil, which was being excavated. It is only much later in December, 1999 pursuant to a meeting between the various contractors and the concerned officials, during which it was decided that the locations of the excavation should be disclosed to the department, the then Deputy Director and Assistant Director inspected the areas and opined that the excavated material was not simple earth but gravel and clay. Both of them are the qualified geologists and competent to assess the nature of the material. The explanation offered is convincing. Obviously, the statement made in the counter affidavit by the then Assistant Director was on account of inadvertence. At any rate, as we have observed hereinbefore the question as to what was the material utilised by the petitioner for re-filling purpose was not gone into in W.P. No. 1990 of 1999 and the Court merely made a declaration that no seigniorage fee is to be levied if the material used for re-filling is only ordinary earth. In such view of the matter, we do not find any merit in this contention.
90. No other contention is urged.
91. For the same reasons recorded in W.P. No. 6916 of 2002, we hold that the impugned order of revision passed by the Government is not vitiated for any reason. The conclusions recorded by us in W.P. No. 6916 of 2002 will equally hold good and applicable to the petitioner herein also.
92. The writ petition fails and shall accordingly stand dismissed. No order as to costs.
W.P. No. 6248 of 200293. The same revisional order dated 4-2-2002 is challenged by the petitioner herein also on more or less similar grounds. The contentions raised in this writ petition are similar to the one raised in W.P.Nos.6916 and 5683 of 2002.
94. It is evident from the record that the Deputy Director of Mines and Geology, Visakhapatnam issued a demand notice dated 25-5-2000 to the petitioner-company raising a demand for an amount of Rs.1,60,98,180/- towards normal seigniorage fee and Rs.8,04,90,900/- towards five times penalty, aggregating to Rs.9,65,89,080/- for a quantity of 16,09,818 M3 gravel/ordinary clay consumed by the petitioner company.
95. The petitioner-company addressed a letter to the Deputy Director of Mines and Geology, Visakhapatnam requesting him to reconsider the demand notice dated 25-5-2000. The Deputy Director reiterated the demand vide notice dated 23-10-2000. The petitioner-company has filed W.P. No. 22322 of 2000 challenging the demand notices dated 25-5-2000 and 23-10-2000 and obtained an interim suspension from this Court on 18-11-2000. The said writ petition was, however, dismissed as withdrawn with a liberty to the petitioner-company to avail the revisional remedy available under the rules, vide order dated 30-8-2001. The petitioner-company obviously filed the said writ petition perhaps having failed to obtain any interim order from the revisional authority. The petition itself appears to have been filed as early as on 10-3-2001 and the same appears to have been treated as an explanation/objection by the Government and accordingly disposed of the suo motu revision by its order dated 4-2-2002.
96. Be it as it may, the Deputy Director vide his proceedings dated 15th December, 2000 addressed letter to the BHEL - principal contractor giving No Objection for release of an amount of Rs.50.00 lakhs to the petitioner-company.
97. The Director of Mines and Geology vide his letter Memo No. 4832/MR.I/99, dated 16-2-2001 directed the Deputy Director of Mines and Geology, Visakhapatnam asking him to collect the amounts as per the demand raised earlier without deviating from the demand raised by the department, as the deviation was wholly unauthorised. Undeterred by such direction issued by the Head of the Department, the Deputy Director vide his demand notice dated 24-2-2001 required the petitioner-company to pay the normal seigniorage fee of Rs.1,76,41,920/- only. The Government vide its order dated 4-7-2001 in exercise of suo motu revisional jurisdiction under Rule 35-A of the Rules set aside the demand notice issued by the Deputy Director of Mines and Geology, Visakhapatnam dated 24-2-2001 reviewing his own earlier demand dated 25-5-2000 and 23-10-2000. We have already noticed that the said revisional order was set aside by this Court at the instance of another sub-contractor vide order dated 30-7-2001 in W.P. No. 15370 of 2001. The fact remains that the petitioner-company never challenged the order dated 4-7-2001 passed by the Government, whereunder the revised demand notice dated 24-2-2001 was set aside.
98. The petitioner-company appears to have taken advantage of the said order passed by this Court, and the Government also without unnecessarily joining the issue directed notice dated 4-9-2001 to be issued to the petitioner-company for hearing of the revision petition afresh in accordance with law. The petitioner-company thereafter did not file any fresh objections or explanation in the matter. However, the petition dated 10-3-2001 filed by the petitioner-company has been taken into consideration and the Government accordingly disposed of the said revision petition.
99. The contentions advanced in this writ petition are similar in nature to that of those advanced in other writ petitions, which we have already dealt with. No other submissions are made.
100. We are constrained to observe that none of the parties before us have given full and required particulars in any of the affidavits filed in support of the writ petitions. The affidavits are, no doubt, lengthy. Nor the counter affidavits filed in the matter provide the required details. The deteriorating standards in the matter of presentation of pleadings are writ large in this group of cases. Innumerable writ petitions were filed one after the other by the parties on one or other pretext. They have succeeded in their attempts in prolonging the litigation. Records made available reflect the utter chaos, confusion and recklessness on the part of all the concerned. No doubt, inconsistent demands were made by the respondents levying and charging the seigniorage fee payable by the petitioners. They were all motivated resulting in utter confusion and chaos for the obvious reasons already noticed. The duty to analyse and cull out the relevant facts and the sequence of events had fallen on us. In the process, we have to undergo the ordeal of looking into each and every paper in the record not so well maintained.
101. Like other sub-contractors-petitioners, there is no evidence of the petitioner-company ever obtaining any permission/lease to quarry any mineral. The petitioner-company without obtaining the necessary licences and permits transported the material illegally and consumed the same in the process of filling work. We have no reason to disbelieve the averments made in the counter affidavit that the petitioner-company has obtained the filling material from the government lands and only a some portion i.e. 40,464 cubic meters from the private lands.
102. We have already observed that the so called certification given by the Civil Engineering Department of Andhra University may at the most reveal as to the quality and suitability of the material supplied by the petitioner-company towards the contractual work. It is nothing to do with the question relating to the levy of seigniorage fee. Even that certification of the Civil Engineering Department discloses that the material consumed by the petitioner-company has some physical properties, which come within the ambit of mineral.
103. We have absolutely no reason to disbelieve that the petitioner-company had used ordinary clay from the tank beds, which is quite evident from the places of excavation made by them.
104. For the aforesaid reasons, we do not find any reason or ground to take a different view other than the one taken by us in W.P.Nos.6916 and 5683 of 2002 referred to hereinabove. We reach the same conclusions as the one arrived at by us in the above writ petitions.
105. We have noted the only relevant facts peculiar and particular to each of the cases, though all the writ petitions are preferred against the common order dated 4-7-2001. The findings and the conclusions reached by us in each case, however, would equally be applicable to the other cases also. Main contentions are urged in W.P. No. 6916 of 2002, which we have dealt with in detail.
106. We do not find any merit in this writ petition. The same shall accordingly stand dismissed. No order as to costs.