M/s High Way Construction And Crusher vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The application, seeking condonation of delay of 188 days in preferring this Special Appeal, is not opposed by Ms. Puja Banga, learned Brief Holder

appearing on behalf of the State Government, and the delay is, therefore, condoned.

This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 1972 of 2019 dated 10.07.2019 to

the limited extent the learned Single Judge directed the appellant-writ petitioner to deposit 50% of the amount of penalty before the District Magistrate,

Haridwar as a condition precedent for hearing.

Facts, to the limited extent necessary, are that the appellant-writ petitioner, a stone-crusher unit, is situated in Fatuwa Rampur Village, Tehsil

Laksar, District Haridwar. A joint inspection was conducted on 16.11.2018 by a team headed by the Deputy Director, Mining which found 247.90

cubic meters of minor minerals less than the quantity contained in Form “Lâ€. As against the quantity, as per Form “Lâ€, of 11840.90 cubic

meters, the inspection team held that, on measurement, the minor minerals found were only 11593.00 cubic meters and there was a deficiency of

247.90 cubic meters. The inspection team also opined that two pits were dug, admeasuring 1125 cubic meters and 5400 cubic meters, adjacent to the

stone-crusher unit; and a total of 6525 cubic meters of minor minerals had been removed therefrom. On receipt of the report, the District Magistrate,

Haridwar issued a notice to the appellant-writ petitioner asking them to submit their reply thereto within one week showing cause why penalty of Rs.

52,24,250/- should not be imposed on them.

It is the appellant-writ petitioner’s case that the said show-cause notice was not served upon them and they were, therefore, unable to submit

their reply to the District Magistrate. The appellant-writ petitioner claims to have made a complaint to the District Magistrate alleging that the adjacent

pits were dug not by them, but by some other persons who were carrying on illegal mining operations. It is also their complaint that, without serving a

copy of the show-cause notice, the District Magistrate, Haridwar had passed the impugned order dated 14.03.2019; and rules of natural justice had

been violated thereby. Aggrieved by the order passed by the District Magistrate, Haridwar, the appellant-writ petitioner preferred an appeal to the

Commissioner, Garhwal Region who considered the matter on merits without examining the question whether or not a copy of the show-cause notice

was served on the appellant-writ petitioner. Aggrieved by the order passed by the Commissioner, Garhwal Region dated 17.06.2019, the appellant-writ

petitioner invoked the jurisdiction of this Court.

In the order under appeal, the learned Single Judge observed that a penalty of Rs. 52,24,250/- was imposed upon the appellant-writ petitioner by the

District Magistrate, Haridwar, by order dated 14.03.2019, on the ground of illegal storage of river-bed material; the appeal preferred by the appellant-

writ petitioner was dismissed by the Commissioner, Garhwal Region on 17.06.2019; and the counsel for the appellant-writ petitioner had submitted that

no opportunity of hearing was given to them by the District Magistrate, Haridwar while passing the order dated 14.03.2019. The Writ Petition was

disposed of directing the District Magistrate, Haridwar to give the appellant-writ petitioner an opportunity of hearing after appreciating their case,

provided the appellant-writ petitioner deposited 50% of the amount of penalty before the District Magistrate, Haridwar as a condition precedent to the

hearing.

Mr. B.S. Adhikari, learned counsel for the appellant-writ petitioner, would submit that, pursuant to the appellate order passed by the Commissioner,

Garhwal Region, a recovery citation was issued; since the order of the District Magistrate, Haridwar dated 14.03.2019 was affirmed in appeal, the

appellant-writ petitioner’s remedy was only to invoke the jurisdiction of this Court under Article 226 of the Constitution of India; the learned Single

Judge had directed the District Magistrate, Haridwar to re-examine the matter without even setting aside the order passed by the appellate authority,

or the recovery citation; the order under appeal was passed at the stage of admission without even ascertaining, from the respondents, whether or not

a copy of the show-cause notice was served on the appellant-writ petitioner; the extant Rules only require a sum of Rs. 5,000/- to be deposited for an

appeal to be entertained; there is no provision in the Rules for 50% of the penalty amount to be deposited, that too as a condition precedent for the

matter to be re-examined by the District Magistrate; and, as the order under appeal suffers from a patent illegality, the said order, as well as the

orders impugned therein, must be set-aside.

On the other hand, Ms. Puja Banga, learned Brief Holder appearing on behalf of the State Government, would submit that the learned Single Judge

has, while directing the District Magistrate, Haridwar to re-examine the matter, exercised his discretion to impose the condition that 50% of the

penalty amount should be deposited; in case the appellant-writ petitioner’s contentions were to be accepted by the District Magistrate, the amount

so deposited may be liable to be repaid to them; exercise of discretion by the learned Single Judge is not of such a nature as to warrant interference in

an intra-Court appeal; and the Special Appeal must, therefore, be dismissed.

The appellant-writ petitioner had invoked the writ jurisdiction of this Court contending that the order passed by the District Magistrate, imposing a

penalty of Rs. 52,24,250/- on them, was an order passed in violation of the rules of natural justice, since the show-cause notice, which preceded the

impugned order, was not served upon the appellant-writ petitioner.

It does appear that, though this contention was raised before the appellate authority, the Commissioner, Garhwal Region (appellate authority) has

failed to consider this aspect. Failure on the part of the District Magistrate, to have a copy of the show-cause notice served upon the appellant-writ

petitioner, would require the order passed by him to be set-aside for violation of principles of natural justice, leaving it open to him to serve a copy of

the show-cause notice on the appellant-writ petitioner, grant them a reasonable opportunity to submit their reply thereto; and, thereafter, to pass an

order afresh in accordance with law. The question which would, however, necessitate examination is whether or not the appellant-writ petitioner is

justified in its claim that a copy of the show-cause notice was not served upon them. These facts could only have been ascertained on a counter-

affidavit being filed by the respondents, and on the records being perused, to determine whether or not a copy of the show-cause notice was indeed

served on the appellant-writ petitioner. The Writ Petition was disposed of at the stage of admission, without inviting a counter-affidavit from the

respondents.

As these contentions have not been examined in the Writ Petition, this Court would not be justified in examining these contentions for the first time

in an intra-Court appeal. We are satisfied, therefore, that the order under appeal must be set-aside, and the Writ Petition restored to file. The order

under appeal is, accordingly, set-aside and the Writ Petition is restored to file.

While Mr. B.S. Adhikari, learned counsel for the appellant-writ petitioner, would seek a direction to the learned Single Judge to decide the Stay

Application at an early date, it would be wholly inappropriate for us to determine the board of the learned Single Judge. We have, however, no reason

to doubt that, on a request being made on behalf of the appellant-writ petitioner for the Stay Application to be heard at an early date, the learned Single

Judge would give such a request its due consideration.

The Special Appeal is, accordingly, disposed of. No costs.

Let a certified copy of this order be issued to all the parties, on payment of the prescribed charges, by 27.02.2020.