Allowed

Ramjit Mehta And Ors. v. State of Jharkhand And Ors.

Jharkhand HC7 Mar 2022WPC/3511/2008

Case brief

AI extract

What is this about?

The Single Judge quashed an order imposing financial demand for alleged illegal mining. The Court held that despite the existence of an alternative remedy, Article 226 jurisdiction was justified due to the violation of principles of natural justice (lack of notice) and absence of material evidence against the petitioners.

What did the court decide?

Quashing of the order dated 13.03.08 / 15.3.08 passed by Deputy Director, Department of Mines; Direction to Secretary Mines, Govt of Jharkhand to take legal recourse against responsible officers.

Ramjit Mehta And Ors. Vs State of Jharkhand And Ors. — Land Acquisition | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction)

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W.P.(C) No. 3511 of 2008

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….....

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Ramjit Mehta

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Bhim Mehta

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Shambhu Mehta

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All are the sons of Late Nilkanth Mehta, resident

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of Village- Lengra Piper, Domchanch, P.S. & P.O.- Domchanch, District- Koderma. …. ..... Petitioners Versus

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State of Jharkhand

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Deputy Director, Department of Mines, North Chhotanaggpur Circle, Hazaribagh 3. Assistant Mining Officer, Koderma …. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Petitioners : Mr. Anil Kumar, Sr. Advocate : Mr. Nitish Parth Sarthi, Advocate. Ms. Chandana Kumari, Advocate. For the Respondents/State : Mrs. Vandana Singh, Sr. S.C.-III. : Mr. Sandeep Verma, A.C. to Sr. S.C.-III

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........ 16/07.03.2022.

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Heard, learned counsel for the parties.

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Learned senior counsel for the petitioners, Mr. Anil Kumar assisted by learned counsel, Mr. Nitish Parth Sarthi and Ms. Chandana Kumari has submitted that petitioners namely (1) Ramjit Mehta (2) Bhim Mehta and (3) Shambhu Mehta, all sons of Late Nilkanth Mehta have filed this writ petition for quashing the order dated 13.03.08 / 15.3.08 passed in Appeal No. 01/05 by respondent No. 2 i.e. Deputy Director, Department of Mines North Chhotanagpur Cirlce, Hazaribagh, which has been preferred on the presumption that petitioners have excavated, the Minor Minerals from Plot No.6(P), Area-25.21 Acres, Mouza- Domchanch, for which a criminal case vide Domchanch P.S. Case No.452/2004 has been instituted.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has submitted that a show-cause was issued by respondent no.3 i.e. Assistant Mining Officer, Koderma vide letter No.609 dated 27.04.2004 referring an inspection on 08.04.2004 and 16.04.2004 with regard to excavation and transportation of stones illegally i.e. approximately 50,000 CFT Bolders, from Plot No.6(P) of Village- Domchanch in the absence of any evidence, as such, the show-cause issued by respondent no.3 is arbitrary and bad in law.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that on the basis of public complaint, which is annexed as Annexure- B to the supplementary counter affidavit dated 29.10.2021, a false complaint was filed duly signed by certain villagers before the Deputy Commissioner, Koderma regarding illegal excavation of stones. The same was endorsed to the Inspector Mines on 27.05.2004 for inquiry, but prior to the aforesaid complain inspection was already done on 08.04.2004 and 16.04.2004. On the basis of that, it was presumed by the State authority that illegal mining has been done by the petitioners, though no material evidence has been found by the Inquiring Officer or the Mining Department that these petitioners have mined out the said Plot No.6(P), rather a Police case was instituted vide Domchanch P.S. Case No.452/2004 and in which the petitioners have already been acquitted, as such, the ground on which such inquiry has been initiated by the Mining Officer is without any basis.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that subsequently another show-cause contained in letter No. 1439 dated 1.11.04 issued by respondent no. 3, wherein the petitioners have been directed to deposit the amount towards the royalty and value of the amount on the basis of the inquiry report submitted dated 30.10.2004 with regard to the illegal mining, is arbitrary and in the aforesaid show-cause calculation has been made in the absence of any material evidence and no notice has been issued earlier to the petitioners with regard to the said measurement or enquiry.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that father of the writ petitioners namely Nilkanth Mehta was granted mining lease of stone with respect to Plot No.11372 (P) Area 2.50 Acres in the Village- Domchanch. After death of Nilkanth Mehta the said lease was transferred in the name of writ petitioner No.1 namely, Ramjit Mehta being eldest son vide Memo No.758 dated 15.05.2004, but nothing was found by the respondent-authorities to hold that writ petitioners are the persons, who were doing illegal mining over Plot No.6(P).

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that State counsel has taken a plea that earlier these

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petitioners have claimed aforesaid land to be raiyati land, which was negated. The petitioners came before this Hon’ble Court in W.P.(C) No.5094/2004, which was also disposed of in terms of order dated 22.09.2004 directing the Deputy Commissioner, Koderma to pass reasoned order. On the basis of the aforesaid order passed by the Hon'ble High Court, the Deputy Commissioner, Koderma has found that land of Plot No.6(P) is a Forest land and on the basis of such findings, the petitioners never claimed the said land and accepted it like a noble citizen and never excavated any Minor Mineral from the aforesaid plot and as such, the case which has been filed against the petitioners is bad.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that there is no material to say that it is the petitioners, who have excavated the minor mineral from the Plot No.6(P) and secondly the quantum of compensation calculated has been without any basis though, there is a provision of revision under Rule 45 of the Bihar Minor Mineral Concession Rule, 1972, now since 29.07.2004 as Jharkhand Minor Mineral Concession Rule, but petitioners did not avail the same against the order of Appellate Authority as proceeding has been wrongly initiated, as such, the instant writ petition was filed in the year 2008 itself against the order dated 13.03.2008 / 15.03.2008 passed by the Appellate Court.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted that in the first counter affidavit, which was filed on 05.01.2012 by Feku Ram, District Mining Officer, Koderma no such plea was taken regarding alternate remedy or regarding maintainability of writ petition, rather in subsequent supplementary counter affidavit dated 29.10.2021 filed by one Daroga Rai, District Mining Officer, Koderma such plea has been taken, but by that time 13 years have elapsed of filing writ petition.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has placed reliance upon the judgment in the case of M/s Magadh Sugar & Energy Ltd. Vs. The State of Bihar & Ors. reported in 2021 (4) JLJR 180(SC). Para-19 of which may profitably be quoted hereunder:-

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“19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and

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efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahni v. Indian Oil Corporation Ltd.(2003) 2 SCC 107. Recently, in Radha Krishan Industries v. State of Himachal Pradesh 2021 OnLine SC 334, a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

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“28. The principles of law which emerge are that:

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(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

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(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

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(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction ; or (d) the vires of a legislation is challenged;

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(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

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(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

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(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

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(emphasis supplied)

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that writ petition is maintainable before this Court as the impugned order, which has passed against the petitioners are not sustainable in the eyes of law, as no material evidence has been brought on record to establish, that it is only the writ petitioners, who have excavated Minor Mineral from the plot. The police case instituted vide Domchanch P.S. Case No.452/2004 ended in acquittal and the same attains finality. No prior notice has been served before the inquiry as such, instead of remanding this matter, this Court may adjudicate and protect the writ petitioners from the litigations as during the writ petition, the original writ petitioner No.1 Ramjit Mehta has died and his son has owe all the responsibility of his father by filing interlocutory application vide I.A. No.1035/2022.

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Learned senior counsel for the petitioners, Mr. Anil Kumar has further submitted, that even in the first counter affidavit such plea has not been taken though he has fairly submitted that such application can be filed before revisional court under the statute, but after such a long delay, there is no chances of holding the petitioners guilty for such demand made by the Assistant Mining Officer, Koderma, which ought to have been recovered from their salary under a departmental proceeding in accordance with law for causing loss to the State for which they have been appointed. This Court may exercise extra ordinary power under Article 226 of the Constitution of India.

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Learned counsel for the State, Mrs. Vandana Singh, Sr. S.C.-III assisted by learned counsel, Mr. Sandeep Verma, A.C. to Sr. S.C.-III has placed reliance upon the judgment passed by Apex Court in the case of Seth Chand Ratan Vs. Pandit Durga Prasad (D) By Lrs. & Ors. reported in ( 2003) 5 SCC 399. Para-13, which may profitably be quoted hereunder:-

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“13. Even otherwise, the view taken by the Division Bench of the High Court for repelling the objection of the appellant regarding the maintainability of the writ petition that an alternative remedy does not divest the High Court of its powers to entertain petitions under Article 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability is created by a statute,

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which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or Tribunal. On the contrary, by virtue of Subsection (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfilment of some othre conditions for entertaining the appeal.”

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Learned counsel for the State, Mrs. Vandana Singh, Sr. S.C.-III has further submitted, that the revisional court is the appropriate forum for adjudication under Rule 45 of the Bihar Minor Mineral Concession Rule, 1972, and thus this Court may not entertain such writ petition though it has been filed in the year 2008.

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After hearing learned counsel for the parties, perused the materials brought on record. It appears that on the basis of public complaint an enquiry was held and such enquiry has been done without notice to the petitioners. It also appears that no materiel evidence has been collected to suggest in remotest possible manner, that these writ petitioners can be held responsible for illegal excavation and transportation of Minor Mineral in Plot No.6(P), Area-25.21 acres nor any chit of paper was brought on record to establish that any material has been transferred in the name of petitioners.

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It also appears that mere on the basis of loss of Minor Mineral from the State, the Mining Officer, Koderma thought it proper to institute a case, adopting a method to pressurize the petitioners and thus Domchanch P.S. Case No.452/2004 instituted, which has also been ended in acquittal. Even during the criminal trial no evidence has been found against these petitioners, rather the Appellate Court has passed an order on the premises that there is ample material in the criminal case.

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This Court has examined the entire record and found that no document has been brought on record to establish that these petitioners have illegally excavated or have transported any minerals from the Plot No.6(P) of Domchanch nor the quantum, which has been assessed is based on any scientific basis to claim such demand, rather it shows that the officers of the State have failed in their duty in protecting the Minor Mineral and to protect themselves such criminal case has been instituted before the Domchanch Police Station just to protect themselves from the liability of the State under the aforesaid rules.

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So far, the contention raised with regard to the alternative remedy in terms of Rule 45 of the Bihar Minor Mineral Concession Rule, 1972, which is now Jharkhand Minor Mineral Concession Rule, wherein provision of revision persist under the aforesaid rules. The Hon'ble Apex Court in the catena of judgment has held that if effective and efficacious alternative remedy is available, does not by itself bar the High Court to exercise its jurisdiction under Article 226 of the Constitution of India in certain contingencies. The exception to the rule of alternate remedy aroses where there is infringement of the fundamental right or violation of principle of natural justice.

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The Hon'ble Apex Court in the case of Genpact India Private Limited v. Deputy Commissioner of Income Tax, reported in 2019 SCC OnLine SC 1500. at paras-23, 24 & 26, which are profitably quoted hereunder:-

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“ 23. We now turn to the question whether the High Court was justified in refusing to entertain the writ petition because of availability of adequate appellate remedy. The law on the point is very clear and was summarised in Commissioner of Income Tax v. Chhabil Dass Agarwal (2014) 1 SCC 603 as under:—

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“ 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh AIR 1958 SC 86, Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433 : 1983 SCC (Tax) 131, Harbanslal Sahnia v. Indian Oil Corpn. Ltd.(2003) 2 SCC 107 and State of H.P. v. Gujarat Ambuja Cement Ltd.(2005) 6 SCC 499. 12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission AIR 1954 SC 207, Sangram Singh v. Election Tribunal AIR 1955 SC 425, Union of India v. T.R. Varma AIR 1957 SC 882, State of U.P. v. Mohd. Nooh AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras AIR 1966 SC 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja NainarAIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar AIR 1965 SC 1321 : (1965) 2 SCR 653, Siliguri Municipality v. Amalendu Das(1984) 2 SCC 436 : 1984 SCC (Tax) 133, S.T. Muthusami v. K. Natarajan(1988) 1 SCC 572, Rajasthan SRTC v. Krishna Kant(1995) 5 SCC 75 : 1995 SCC (L&C) 1207 : (1955) 31 ATC 110, Kerala SEB v. Kurien E. Kalathil (2000) 6 SCC 293, A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, L.L. Sudhakar Reddy v. State of A.P.(2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (2001) 8 SCC 509,

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Pratap Singh v. State of Haryana(2002) 7 SCC 484 : 2002 SCC (L&S) 1207 :(1955) 31 ATC 110 and GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72.]

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15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419, Titaghur Paper Mills case (1983) 2 SCC 433 : 1983 SCC (Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

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24. Recently, in Authorised Officer, State Bank of Travancore v. Mathew K.C.(2018) 3 SCC 85, the principles laid down in Chhabil Dass Agarwal (2014) 1 SCC 603 were reiterated as under:

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“The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the welldefined exceptions as observed in CIT v. Chhabil Dass Agarwal (2014)1 SCC 603…”

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26. In State of U.P. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under:

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“ 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari AIR 1992 All 331 that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that “petition cannot be rejected on the ground of availability of alternative remedy of filing appeal”. But it has not been so held in the actual

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decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331)

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“2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed.”

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(emphasis supplied)

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Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.”

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In view of judgment passed by the Apex Court in the case of Union of India and Others Vs. Tantia Construction Private Limited reported in (2011) 5 SCC 697 , paras-33 and 34, which is quoted hereunder:-

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“ 33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place,

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has to be struck down as an anathema to the rule of law and the provisions of the Constitution.

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34. We endorse the view of the High Court that notwithstanding the | provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits.”

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In the view of judgment rendered by the Apex Court in (1) Genpact India Private Limited (supra), (2) Tantia Construction Private Limited (supra) and (3) M/s Magadh Sugar & Energy Ltd.(supra), this Court is of the opinion that the instant writ petition is pending before this Court for last 14 years and it would not be proper to dismiss the present writ petition on the ground of availability of alternate remedy. Since, there is no material to hold that these petitioners may be responsible for the same and no notices have been served upon the petitioners before conducting any inquiry, which is against the principles of natural justice. This Court considering it to be a serious matter where in the absence of any cogent evidence and violating the principles of natural justice, show-cause and inquiry has been conducted just to harass the citizen or common people.

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Under the aforesaid circumstances, it is hereby directed to the Secretary Mines, Government of Jharkhand to look into such matter by taking legal recourse against the responsible officer, who has failed to protect the Minor Mineral of the State causing loss to the State.

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Accordingly, the instant writ petition is hereby allowed.

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Let a copy of this order be communicated to the Secretary Mines, Government of Jharkhand.

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(Kailash Prasad Deo, J.)

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Jay/

Ramjit Mehta And Ors. v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Ramjit Mehta And Ors. v. State of Jharkhand And Ors.

Case brief

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What did the court decide?

What the court decided

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