M/S Trikuta Stone Crusher & Others vs Union Territory J&K & Others

1) The petitioners have filed these petitions seeking, inter alia, following directions:

(i) A direction to the respondents to allow them to procure raw material from lessees of the Geology and Mining Department;

(ii) A direction to the authorities of Power Development Department to restore power connections;

(iii) A direction to restrain the authorities of Geology and Mining Department from interfering in their business premises and allow them to operate

their stone crushers;

(iv) A direction for quashing the orders passed by District Mineral Officer whereby the raw material lying in the units of the petitioners has been

seized and the petitioners have been put on show cause notice for recovery of royalty and imposition of penalty on account of said seized material.

2) The directions prayed for have been sought on the following grounds:

(i) That once this Court while disposing of WP(C) No.1980/2020 vide order dated 18th of December, 2020, and having passed similar orders in other

petitions, has allowed the petitioners to operate their stone crushers on failure to accord consideration to the representation within the stipulated period

of four weeks, provided they are legally established and legitimately procured the raw material, the respondents on their failure to accord such

consideration cannot restrain the petitioners to operate their stone crushers;

(ii) That the units of the petitioners have been established under a single window system and provisions of SRO 302 could not be applied to them, more

so when SRO 302 is in conflict with the provisions of SRO 105 of 2016;

(iii) That there is no justification for snapping the electricity supply to the petitioner Units, more so when there is no complaint of the petitioners

operating their units during the period they are sealed;

(iv) That the sealing of the petitioners’ stone crusher units is otherwise illegal as there is no such direction passed in WPPIL No.19/2012 in this

regard.

3) The writ petitions are opposed by the respondents contending, inter alia, that the petitioner units were found running without obtaining mandatory

licence envisaged under SRO 302. They were also found involved in illegal extraction from river Tawi in violation of the directions passed by the

Division Bench of this Court in WPPIL titled Ashish Kumar vs. State & others. The committee constituted by the respondents found huge material

collected on the premises of the petitioners which entailed closure of petitioner units after issuance of notice to them. It is further contended that the

petitioner units even after sealing were found involved in illegal extraction of minerals which led the competent authority to issue a direction for

disconnection of their electricity supply. It is submitted by the respondents that SRO 302 was, in fact, framed for streamlining the registration of Minor

Mineral based units in pursuance of the directions passed by the Division Bench on 24th of July, 2015, in WPPIL No.794/2009 titled Mohammad

Maqbool Lone vs. State and others. It is also denied by the respondents that no consideration has been accorded to the representation of the

petitioners. It is, however, concluded by the respondents by submitting that the petitioner units are repeatedly indulging in illegal mining and, therefore,

are liable to be penalized under the relevant provisions of law.

4) During the course of arguments, the learned counsel for the parties were ad idem that the position has drastically changed after the promulgation of

S.O 60 dated 23rd of February, 2021, whereby the Jammu and Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021, have

been promulgated. S.O 60 of 2021, it is submitted, has simplified things. It is, thus, urged by the learned counsel appearing for the parties that these

petitions can be settled by directing the respondents to allow the petitioners to operate their stone crushing units provided they are established in

conformity with S. O. 60 of 2021 and the Government Orders issued on the subject subsequent thereto from time to time. So far as the issue of

imposition of ten times penalty on the petitioner units is concerned, the same shall be taken to have been imposed under Rule 70 of SRO 105 of 2016

against which an appeal is maintainable under Rule 85 of SRO 105 of 2016 before Director, Geology and Mining.

5) It is further urged that so far as the payment of royalty and penalty is concerned, the same can be dealt with in terms of communication

No.MNG/Crusher/15/2021 dated 25th February, 2021.

It is also urged that in so far as the allegation of illegal mining from river Tawi is concerned, there is no doubt that the same has been prohibited by the

Division in WPPIL titled Ashish Kumar vs. State & others and the petitioners are ready to execute an undertaking that they shall not be using any

material in their stone crushing units extracted from river Tawi and in case they do so, they would be liable for action which may include the closure of

their units.

6) Having heard learned counsel for parties and considered the matter in the light of developments that have taken place after the respondents

liberalized the mining regime and issued the Jammu and Kashmir Stone Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021, it is seen that

SRO 302 of 2017 dated 19.07.2017, which had mandated a licence for establishing stone crusher units/hot and wet mixing plants and imposed other

obligations, has now been superseded by the aforesaid Rules. It is not disputed before me that in case a stone crusher unit is found in possession of the

raw material, the legitimate procurement whereof is not established, the District Mineral Officers concerned, in terms of Rule 70 of SRO 105 of 2016

is competent to impose penalty which is ten times the royalty payable for such material.

7) Without going into the legalities of the issues raised in these petitions and with the consent of parties, these petitions are disposed of by providing as

under:

(I) That the units of the petitioners if established or found to have been established in terms of the Jammu and Kashmir Stone Crushers/Hot and Wet

Mixing Plants Regulation Rules, 2021 issued vide S.O 60 dated 23rd of February, 2021, shall be permitted to operate. The respondents shall keep in

view the communication of Under Secretary to Government, General Administration Department, bearing No.GDC/31/CM /2021 dated 5th of March,

2021, making a transitory provision for facilitating operation of the units under S. O. 60 of 2021 for a period of six months within which period the

stone crusher units/hot and wet mixing plants shall obtain the consent to operate from the Jammu and Kashmir Pollution Control Board.

(II) That the stone crusher units who have been issued show cause notice(s) or have been directed to pay royalty and penalty, shall be entitled to

challenge the such order/orders by way of an appeal(s) under Rule 85 of Chapter XIII of SRO 105 of 2016 before the Director, Geology and Mining.

They shall also be entitled to file further appeal before the Government as provided under the aforesaid Rules.

(III) With a view to facilitate the availing of remedy of appeal as envisaged under SRO 105 of 2016, and going by the statement of Mr. F. A. Natnoo,

Additional Advocate General, made under the instructions from the District Mineral Officer, Jammu, who is also present in the Court, the penalties

imposed or sought to be imposed shall be deemed to have been made Rule 70 of Chapter IX of SRO 105 and, therefore, appealable under Rule 85 of

Chapter XIII of the said SRO. It shall not be open to the respondents to contend that the order of penalty passed or proposed to be passed against the

erring stone crushers is under SRO 302, which now stands repealed vide S.O. 60 of 2021.

(IV) That pending disposal of the appeal/appeals, if any preferred by the petitioners, the petitioners shall pay outstanding royalty/penalty in terms of

communication No.MNG/Crusher/ 15/2021 dated 25th of February, 2021, and an undertaking in this regard shall be submitted to the competent

authority. The payment of royalty/penalty to the respondents shall remain subject to final determination of the appeal(s) envisaged under SRO 105 of

2016 and the order/orders of penalty attaining finality in law.

(V) That the petitioners shall submit a formal undertaking to the District Mineral Officer concerned that they would operate their stone crusher units

by using the raw material obtained from legitimate source(s) and that they will not extract or procure such raw material from river Tawi and will

faithfully and sincerely adhere to the directions passed by the Division Bench of this Court in Public Interest Litigation titled Ashish Kumar vs. State &

others. In case of any violation of the undertaking by the petitioners, the respondents shall be free to take any action against the petitioners as per law.

(VI) That in case the petitioners, whose electricity supply has been snapped by Power Development Department, fulfils the conditions mentioned

hereinabove and are permitted by the competent authority of Geology & Mining Department to operate their stone crusher units, their electricity

connections shall be immediately restored by the authorities of Power Development Department so as to facilitate operation of their units, provided

such units are not in default of payment of arrears of electricity dues.

In view of the disposal of main petitions, there is no point in keeping these contempt petitions pending, the same are, accordingly, disposed of.

8) Copy of this order be placed on each file.