Cause title — parties, addresses and appearances
CWP No. 3967 of 2023 (O&M) 2023:PHHC:047633-DB
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 3967 of 2023(O&M)
Date of Decision:29.03.2023
M/s Super Fine Grit Udyog and another
......Petitioner
Versus
State of Haryana and others
...... Respondents
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
HON’BLE MRS. JUSTICE RITU TAGORE
Present:
Mr.Hari Ram Nath, Advocate
for Mr.Arun Avasthy, Advocate
for the petitioner.
Mr. Ankur Mittal, Addl.AG., Haryana
with Mr. Saurabh Mago, AAG., Haryana.
*****
LISA GILL, J(Oral).
Prayer in this writ petition is for direction to respondents no. 1
to 4 to activate E-Raawana Portal of the petitioners and to re-inspect the
crusher plant of the petitioners.
It is pleaded that petitioner no.1 is a proprietary firm with its
GST registration no. 06ABVFS0589C1TZ at village Silkho, Sub-Division
Tauru, District Nuh authorizing it to run the business of crusher/grinding
unit. Petitioner was granted crushing license from 30.01.2002 to 30.01.2005
which was renewed regularly for a period of three years thereafter. Mines
and Geology Department, Haryana, started E-Rawaana Portal on 01.01.2020
with crusher owners as well as contractor & Mineral Dealer License (MDL)
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2023.04.03 13:47
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integrity of this document
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owners being asked to register themselves on the said portal, so that E-
Rawaana can be generated for sale and purchase of mineral. It is stated that
total crushing capacity of 25,000/- Metric Tonne (for short – ‘MT’) of the
petitioner was reduced by the Mining Department to 3750 MT on
16.05.2022 allegedly without any notice or information to the petitioners.
Due to this, petitioners could not upload their product material, as a result of
which uploading quantity of 3264.880 MT was left out on the portal. Joint
team comprising of members from Mines and Geology Department,
Panchayat Department and Police Department were constituted to check all
the stone crushers in July 2022 by the Deputy Commissioner, Nuh. The
abovesaid joint team inspected and measured the stock lying with the
petitioners, wherein it was revealed that 4552 MT mineral was in
excess/illegal as 8882 MT mineral was found on the crusher site with only
3830 MT reflected on the E-Rawaana Portal. It is stated that this
inspection/search was conducted by the joint team without any notice to the
petitioners.
Show cause notice dated 22.07.2022 and 18.08.2022 were
issued to the petitioners by the Mining Officer, to explain their position and
deposit the penalty within three days of receipt of notice. Reply to the show
cause notice was submitted by the petitioners with the submissions that
deactivation or closing down of the online portal of the petitioners was
unjustified and arbitrary. It was stated that difference of 4552.060 MT was
appearing due capacity of the petitioners being reduced by the Mining
Department prior to 16.05.2022.
It is submitted that without passing of any specific order by the
competent authority, E-Rawaana Portal of the petitioners was deactivated in
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2023.04.03 13:47
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integrity of this document
CWP No. 3967 of 2023 (O&M) 2023:PHHC:047633-DB
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an unjustified manner on 14.10.2022. Representation dated 20.10.2022, it is
stated was submitted by the petitioners before respondent no.2-Director
General/Director, Mines and Geology Department, Govt., of Haryana, but
no action was taken by respondent no.2. It is stated that petitioner has
maintained complete record of E-Rawaana Portal of recent months and
difference in the quantity i.e., 4552.060 MThas been duly explained before
the department, but still in an unfair and unjust manner, E-Rawaana Portal of
the petitioners was deactivated leading to filing of the present writ petition.
While noting contentions on behalf of the petitioners that
pursuant to reply filed by the petitioners to show cause notice dated
27.07.2022, no specific order had been passed by the prescribed authority,
but E-Rawana Portal was illegally deactivated, learned counsel for the
respondent-State, on advance notice was asked to seek instructions in this
respect on 27.03.2023.
Learned counsel for the respondent-State on 14.03.2023
apprised the Court that order dated 13.03.2023 had subsequently been
passed by the Director Mines and Geology, Haryana, whereby it is
concluded that stone crusher was having excess mineral than that of actual
stock as per E-Rawaana portal, which was procured illegally from
unauthorized sources and directed that till the time of default the E-
Rawaana Portal of the petitioners would remain suspended. Copy of order
dated 13.03.2023 passed by the Director, Mines and Geology, Haryana,
furnished in Court today is taken on record subject to just exceptions.
Director, Mines and Geology, Haryana, while noting that
pursuant to inspection by the joint team on 21.07.2022, show cause notice
dated 22.07.2022 and 18.08.2022, were issued by the Mining Officer to the
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2023.04.03 13:47
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integrity of this document
CWP No. 3967 of 2023 (O&M) 2023:PHHC:047633-DB
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petitioners. Reply on its behalf was admittedly received, however Mining
Officer, Nuh forwarded the matter to Director, Mines and Geology,
Haryana, with a request to deactivate the E-Rawaana Portal of the crusher.
E-Rawaana Portal was deactivated on 14.10.2022. It is stated in order dated
13.03.2022 that petitioners after deactivation submitted reply along with
bills/e-Rawaana bills, which were not updated on E-Rawaana Portal, while
explaining that capacity of stone-crusher was exhausted, due to which
complete information could not be uploaded. Gist of bills sent to the IT Cell
for examination as detailed in the impugned order, are reproduced as under:-
Sr. No.
Details
No. of Bills
A
No. of bills entered after date of
inspection (21.07.2022) till date of
suspension of generation of e-rawaana
(14.10.2022)
141
B
No. of bills which have not been entered
on e-rawaana portal but are of prior to
the date of inspection
23
C
No. of bills entered on portal prior to the
date of inspection
16
D
No. of bills which have been entered by
some
other
crusher
unit
(mineral
purchased by other entity)
07
E
No. of bills already entered
01
It is stated that opportunity of personal hearing was afforded to
the petitioners, however on finding variation between the stock of the
mineral physically present as well as stock present on E-Rawaana Portal, it
is concluded by the Director, Mines and Geology, Haryana, that petitioners
failed to justify as to why bills pertaining to month of January 2022 to July
2022, were not entered on the E-Rawaana Portal within time. Director,
Mines and Geology, Haryana, found that the stone-cursher was having
excess mineral than that of actual stock as per E-Rawaana Portal, which was
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2023.04.03 13:47
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integrity of this document
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procured illegally from unauthorized sources of mineral. Accordingly, it is
held that petitioner was found indulging in illegal mining/procurement of
illegal mined mineral/ misuse of E-Rawaana Portal. It is thus ordered that in
terms of Rule 104 of the Haryana Minor Mineral Concession, Stocking and
Transportation of Minerals and Prevention of illegal Mining Rules, 2012 (for
short ‘the State Rules), action on recovery of penalty/fine as per Rules
should be initiated by the Mining Officer, Nuh immediately and till the time
of default, E-Rawaana of the petitioners, should remain suspended.
Learned counsel for the petitioner points out that license of the
petitioners expired on 30.01.2023. He applied for renewal thereof. Haryana
State Pollution Control Board, has granted consent to operate 24.01.2023,
Annexure P-2, from 24.01.2023 to 31.03.2027. It is submitted that
suspension of E-Rawaana Portal of the petitioners is in complete violation of
the applicable rules and by passing of order dated 13.03.2023, renewal of the
petitioners license is also under cloud. It is vehemently argued that
deactivation of the E-Rawaana Portal without any application of mind is
apparent on record causing grave prejudice to the petitioners.
Learned counsel for the respondent-State, per-contra submits
that present writ petition is rendered infructuous after passing of order dated
13.03.2023 which is an appealable order. He submits that in case, an appeal
is filed by the petitioners, same would be decided within ten (10) days.
Heard learned counsel for the parties.
At this stage, it is relevant to refer to the relevant provisions
applicable in the present scenario. Rule 95 of the State Rules, defines default
and breach and the same is reproduced as under:-
“95. A mineral dealer shall be held to be committing a default
or breach of the conditions of license in the following events,
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(1) Default
(i) failure to display the details of license on a sign
board as stipulated under rule 89;
(ii) failure to file the monthly return of stocks as
prescribed under rule 90;
(iii) failure to maintain the up-to-date registers
prescribed under rule 90;
(2) Breach
(i) accepting minerals, in raw or processed form,
from unauthorised and unexplained sources;
(ii) storing and stacking minerals that do not tally
with the entries in opening and closing balance
stock register;
(iii) permitting the sale of mineral, in raw or
processed form, without issuing a valid mineral
transit pass;
(iv) loading of mineral in a carrier without issue of
a mineral transport permit;
(v) operating the Stock-yard without a valid
license;
(vi) repeatedly found committing the defaults.”
Consequences of default and breach are provided in Rule 96 (1)
and (2) of the State Rules, which are reproduced as under:-
“(1) Default
(i)
Where a licensee is found to be committing a
default, he shall be directed to remedy or rectify
such default within a period of fifteen days in the
first instance;
(ii)
in case of a second default, he shall be suitably
directed to rectify the default and shall also be
liable to a fine, which may extend up to Rs.
10,000/-; Returns to be filed with the Department.
Checking of unauthorised dealings in mineral.
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2023.04.03 13:47
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Inspection and verification of stocks. Checking of
accounts. Noncompliance or violation of the terms
and conditions of the license. Consequences of
conditions of default and breach.
(iii) A third time default or the continuation of the first
or second default, in spite of opportunities given to
rectify the same, would amount to a ‘breach’ and
dealt with accordingly.
(2) Breach
Where a licensee is observed to be in breach of the
conditions of license, the licensing authority may take
any or all of the following actions:
(i)
suspension of the license with stoppage of receipt
or purchase or sale of any mineral in raw or
processed form in or from the stockyard. The
dealer shall be holding the inventory of stocks,
duly assessed at the time of suspension of license,
till such time the suspension order is revoked. The
period of suspension may continue up to a period
of three months or till such time the breach
condition is rectified, whichever is earlier;
(ii)
temporary seizure of the stocks till such time the
stocks are reconciled with the records and
established to have been accepted from legal
sources;
(iii) forfeiture of the stocks and their disposal by the
competent authority and termination of the dealer
license;
(iv) cancellation of license with provision for a ban for
5 years to grant any fresh license to the individual/
firm/ company.”
Procedure for dealing with default and breach of conditions as
well as the competent authority to take action is detailed in Rule 97 of the
State Rules, which is reproduced as hereunder:-
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“97. (1) An officer authorised by the Licensing Authority shall
be
competent to take action in matters amounting to
‘default’
conditions.
(2) Where the officer-in-charge of the district concerned
is of the view that a licensee has committed ‘breach’ of
the license conditions, he shall immediately report the
matter to the Director alongwith such supporting
material, as may be required.
(3) The Director, either on his own motion or on the
report of a subordinate officer or on the complaint of any
public person, shall be competent to take action in the
breach cases. In cases where the Director is satisfied that
immediate interim action is required to stop any
eventuality of the continuity of any breach condition, he
may pass such interim orders as considered appropriate.
A show cause notice would be issued to the licensee in
order to enable him to present his defence and an
opportunity of personal hearing granted, if so requested,
before passing a final order. (4) Whenever any person is found storing any mineral or its products in contravention of the provisions of these rules, the authority under these rules may seize the mineral or its products together with any carrier used in committing such offence and shall be liable for punishment under rule 104 of these rules. (5) Any authority seizing illegally extracted, transported or stored mineral or its products, tools, equipments and carrier under these rules shall give a receipt of the same to the person from whose possession such things are so seized and shall have the authority to prefer complaints in courts having juri iction to try such offence. (6) All properties seized under these rules shall be liable to be confiscated by an order of the court trying the offence, if the amount of fine and other sum imposed are not paid within a period of one month from the date of order.” SANJAY KHAN 2023.04.03 13:47 I attest to the accuracy and integrity of this document Learned counsel for the respondent-State, has sought to justify deactivation of the e-Rawaana Portal on the ground that as per Rule 97 (3) of the State Rules, Director Mines and Geology, Haryana, has the power to take immediate interim action which may be required to stop any eventuality of continuation/continuity of any breach condition. Perusal of Rule 97 (3) of the State Rules, reveals that the Director either on his own motion or on the report of a subordinate officer or on complaint of any public person, is competent to take action in breach cases.
Doubtlessly, Director is vested with power to take immediate interim action in a situation where it is necessary to put a stop to continuation of any of the breach condition/s. It is further provided that a show cause notice would be issued to the licensee in order to enable him to present his defence and provide an opportunity of personal hearing, if so requested, before passing a final order. However, plain language of Rule 97 (3) of the State Rules, envisages application of mind to a situation by the Director before passing any interim order which may be required to take care of an emergent situation. It is incumbent upon the Director to pass interim order as considered appropriate before taking any action/ in the present case for deactivation of the e-Rawaana Portal. The rule in question provides that before taking any interim action, satisfaction of the Director is a sine qua non. Such satisfaction can only be gathered if a specific order is passed by the authority. It is noted that suspension of E-Rawaana portal does entail serious consequences for the dealer/licensee, therefore, it is essential that reasons for the same should be forthcoming.
It is to be noted, at this stage that learned counsel for the State was asked to inform whether there is even a noting on the relevant official SANJAY KHAN 2023.04.03 13:47 I attest to the accuracy and integrity of this document file which would indicate application of mind by the Director before the action of deactivation of e-Rawaana Portal of the petitioners was carried out. No such document was placed before us and neither any such satisfaction claimed to have been recorded.
In our considered opinion, Rule 97(3) of the State Rules, commands the authority to record its satisfaction for any immediate interim action as may be required in a particular situation. Any action taken de hors recording of such satisfaction would be violative of the abvoesaid rule. Petitioner, in this case is admitted to have submitted its reply to the show cause notice, however, interim action for deactivation of the e-Rawaana Portal of the petitioner was taken without passing any specific order thereon.
We are, however, presented with a situation where final order in the interregnum has been passed by the Director, Mines and Geology, Haryana, on 13.03.2023. Order dated 13.03.2023, is admittedly an appealable order in terms of Rule 109 of the State Rules.
Therefore, in the given facts and circumstances, we do not consider it appropriate to undertake the exercise of examining the merits of the controversy. We thus relegate the petitioner to its remedy of appeal in terms of Rule 109 of the State Rules. In case, an appeal is filed by the petitioners within the next seven (07) working days, the same be considered and decided by the competent authority in accordance with law after affording due opportunity of hearing to all concerned within the next ten (10) working days. In the meanwhile, no coercive steps shall be taken for recovery of penalty/fine.
Before parting with this order, we deem it appropriate to direct that in situations where interim orders are required to be passed to deal with SANJAY KHAN 2023.04.03 13:47 I attest to the accuracy and integrity of this document any emergent situation in terms of Rule 97(3) of the State Rules, competent authority shall pass specific orders to this effect, recording its satisfaction regarding necessity of passing of immediate interim orders.
Writ petition is disposed of accordingly. Pending application, if any, stands disposed of accordingly.
( LISA GILL )
JUDGE
(RITU TAGORE) March 29, 2023. JUDGE s.khan
Whether speaking/reasoned : Yes/No.
Whether reportable
: Yes/No.
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