Dismissed

M/s. Ncl Industries Limited v. The State of Telangana

Telangana HC6 Sept 2024WP/17233/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a demand notice for excessive mineral extraction. The Court held that the petitioner availed an effective alternative remedy via revision under the Mines Act, warranting dismissal without examining the merits of the dispute.

What the court decided

AI extract

M/s. Ncl Industries Limited Vs The State of Telangana — Property and Title | Telangana HC (2024)

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[³³⁰⁰ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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FRIDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA

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WRIT PETITION NO: 17233 OF 2022

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Between:

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M/s. NCL Industries Limited, (A Company incorporated under the Companies Act, 1956) Represented by its Authorized Signatory, Sri Ch. Anil Kumar, S/o Sri CH. Penchalaiah, Age 48 years, 6th and 7th Floors, NCL pear, S.D. Road, Secunderabad.

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.....PET|T|ONER

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AND

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1 . The State of Telangana, Represented by its Principal Secretary, lndustries and Commerce Department, Secretariat, Hyderabad.

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The Director of Mines and Geology, Government of Telangana, Hyderabad.

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The Deputy Director of Mines and Geology, Government of Telangana, Hyderabad.

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The Assistant Director, of Mines and Geology, Suryapet, Nalgonda District.

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.....RESPONDENTS

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Petition Under Article 226 ot the Constitution of lndia praying that in the circumstances stated in the affidavit filed therdwith, the High Court may be pleased to issue writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS, declaring the action of the Respondents in causing the alleged inspection by the 4th respondent dt.2210712021 and the ETS survey dt. 241912021 and thereby issuing the impugned Demand Notice No.16B43iNCL|SRPT12021 , dt1710312022, as illegal, arbitrary, unconstitutionat and in utter violation of the principles of natural justice and the Mines and Mineral (Development and Regulation) Act, 1957, and Rules framed thereunder and consequently quash and set aside the Demand Notice No. 1 6843/NCL/SRPT t2021, dtd.17 t03t2022.

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I.A.NO:1 OF 2022

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Petition under section 1 51 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to direct the respondents not to interfere with the mining operations of the petitioner and to continue to issue dispatch permits for extracting Lime stone from the mining leases held by the petitioner company in Survey No. 540 of pedaveedu Village, Mattampally Mandar, Suryapet District (earrier Nargonda District) pending disposal of the writ petition.

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l.A.NO:2 OF 2022

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Petition under section ib1 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to suspend the impugned Demand Notice No 1643/NCL/sRpr/2 021 , dt.17to3r2o22, and all further proceedings pursuant to the same, pending disposar of the writ petition.

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|.A.NO:3 OF 2022

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Petition under section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to modify the lnterim orders dt. 06-04-2022 in w.p No..r 7233 ot 2022, by reraxing and modifying the condition imposed and permit the petitioner to furnish a Bank Guarantee for an amount equivarent to 2ook of the demand raised by way of the impugned Demand Notice No. 16843/NCL/SRprtzo2l , dtd17.03.2022 as a condition for suspending the demand notice dated 17 -03-2022 and continuing mining operations.

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|.A.NO:1 OF 2023

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Petition under section i51 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be preased to grant stay of all further proceedings incruding the quarry operations in Sy.No. 540 of Pedaveedu viilage, Mattampaily Mandar, suryapet District, pending disposal of the main W.p.No.17233 of 2022, in the interest of justice.

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ounsel^{for the Petitioner: SRI SIVARAJUSRINIVAS}

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Counsel^{for the Respondents: GP FOR MINESAND GEOLOGY}

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The Court^{made the following ORDER}

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HON'BLE SRI JUSTICE^{NAGESHBHEEMAPAI(A} WRIT PETITI^{ON No. I 72330F 2022}

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o RDER:

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The Present Writ Petition^{is filed to declare the} action of the^{4th respondent} -^{Assistant Director of Mines &} Geologr in causing^{the inspectionon 22'07 '2o2 1 and ETS} survey on^{24.O9 .2021, thereby issuing demandnotice} No.16843/NC^{LISRr|./2021dated17'O3'2O22, asillegal,} arbitrary,^{unconstitutional and inutter violation ofthe} principles of^{naturai justice, Mines & Mineral (Development &} Regulation) Act,^{1957 and the Rules framed thereunder and} consequentiy,^{toset-aside theDemand Notice, dated} t7.03.2022.

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The case of^{petitionerCompany is that theyhave} been in the^{business of manufacturing cement from its factory} in Suryapet^{Districtand as it is well knor'vn,Lime Stone is one} of the essential^{raw materials required for manufactureof} cement. Petitioner^{Companyhad therefore,applied for and was} granted three mining^{leasesinthe areas surroundingthe} factory and uses^{Lime Stoneextractedfrom these mines as the} source of raw materials lor^{cement manufacturingunit'It is} stated that^{the present controversy is with respect to the mining} leases^granted to^{petitionerfor Lime Stone over an extent of} -

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42.82 Hectares in Survey No. 54O of pedaveedu Village, Mattampally Mandal, Suryapet District by way of permitting transfer of lease from Sri K. Rama Chandra Raju to the Company ur'de orders in G.O.Ms.No.265, Industries and Commerce (M.Il) Departn,rent, dated 3l.OZ.tgg7 for the unexpired period of lease. This lease was initially valid up to 2017, however, pursuant to the introduction ol. Section gA to the MMDR Acr, 1957, the 1.t respondent State had issued orders in G.O.Ms. No.63, Industries and Commerce (M.I) Department, dated 23.O8.2O17, thereby extending the lease period to 50 years ie up to 28. 10.2046.

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It is further stated that petitioner has been manufacturing cement over 3o years with Lime Stone extracted from the mining reases granted; there has never been a complaint against petitioner company and its operations and whatever minor violations were noticed have always been addressed and compounded or complied with. While so, the 4ft respondent issued the notice dated Og.OB.2O2L informing the company that pursuant to an inspection said to have been conducted by the Technical Staff on 22.02.2021, it has been noticed that company is operating a huge pit within the lease area by deveioping two benches for mining operations and that the first bench is having an average height of S.5 meters whiie

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the second was having a^{height of 4.2 metersand that as per} average measurements^{from both the benches, itcan be} concluded that a total^{quandry ol 15,46,528.5 Metric Tons of} Lime Stone^{was excavated from the leasedarea as againstthe} totai rlispatch^{permitsobtained by the company to a quantityof} only 4,24,350^{Metric Tons since the inceptionof lease.The4th} respondent accordingly,^{put petitioneron notice to showcause} as to why action^shall not^{be taken for realizationof royaities} along with the saie^{price of minerai and differentialquantityof} I I ,21 ,678.5 Metric^Tons.

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Petitioner company immediately submitted explanation on 21.09.2021^{pointingout that as per the ETS} Survey conducted by^TRAC during^{2Ol9'2O, ithas been} specifically concluded that there was^{no discrepancyin the} quantities of mineral excavated from^- all the three^mines belonging to petitioner including the subject one, up^to 22.07 .2019. It was further contended that notice^{that was} issued in 2O19 with similar ailegations^{had beenput to rest by} the proceedings issued by the 3'a^{respondent inMemo} No.3101/NCL/SRPI/2019, dated 02.12.2019^{dropping atl} further proceedings in the^matter. It^{was further pointed out} that the estimated^{quantitieshave} been^taken by^assuminga Rectangular Cube and that this would not be accurate

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representation of the quantities excavated. Finally, it was pointed out that there was a big valiey portion near the working pit which is also visible from the Eastern part of the pit and that therefore there was no variation in the mined quantity, AS 15 being alleged.

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It is aiso stated that once it has been found that excavated quantities arrived at under the ETS Survey were matching the dispatch permits for material issued up to 22.07.2019, it was impossible now to say that petitioner had excavated mineral in excess of 2O takh tons i.vithin a span of 2 years. It is further stated that once all the quantities of mineral excavated and permits issued had been found to have been matched up to 22.02.2019, issuing a notice once again contending that there is an excess quantity excavated would amount to revisiting a settled dispute arid re_opening the case without there being statutory power. It is stated that as on 22.O7.2O2L, the entire leased area and the pit was inundated with rain water and that it was therefore, physically impossible to have measurements_ Therefore, there is no sanctify to the alleged inspection conducted on 22.07 .2021 . It was further stated that having submitted reply to the authorities, petitioner thought that the issue was settled, however, the 4& respondent seems to have approached the TRAC for conducting ETS Survey

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once again and on 24.09.2021, officers of the 4rt, respondent and TRAC had arrived at quarry and spent over 6 hours. Around 3.00 PM of 24.9.2021 petitioner,s employees were informed that survey was concluded and that a detaiied report would be made available^,,soon,,. Thereafter, a fresh notice was issued by the 3'd respondent on 74.1O.2021, purportedly based on the alleged inspection by the 4th respondent said to have been conducted on 22.OT.2021 calling petitioner to show cause as to why action should not be taken for the quantity of L I ,21 ,678.5 Metric Tons. It may be relevant to note that there is no reference of ETS Survey done on 24.09 .2021 , in all probability as the report was not made ready tilt then. In any event, petitioner had requested the 3.d respondent to furnish details of the report together with calculation sheet so as to get an opportunity to refute the report pursuant to the survey dated 22.O7 .2021 , urde petitioner's letter dated 26. I I .2021 , ra,hiie also reminding the 3.d respondent about ETS Report in 2019. Undeterred, the 4tr respondent uide letter dated 01. 12.2021 lurnished an alleged inspection report in reply to petitioner,s request. Petitioner company uide letter dated 31. l2.2o2l submitted a reply to the show cause notice reiterating the contentions taken by petitioner in its explanation datecl 21.09.2021 mentioned above, while also contending that. the alleged inspection conducted on 22.OT.2O21 was one that was

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conducted without their knowledge or presence. [{o.,r,ever, to the surprise of petitioner and its officers, the 3.d respondent issued yet another notice dated 15.01.2022 revising the quantity of Lime Stone in discrepancy from I 1,21 ,6Tg.5 to t6,32,O2g.2O5 Metric Tons allegediy relying on the report of TRAC and ETS survey conducted on 24.O9.2021. petitioner addressed a letter to the 3rd respondent oo 29.01.2022 requesting copies of ETS Survey Report and further time lor submitting explanation after studying the said report. The 4d. responde nL uide letter dated 04.O2.2O22 furnished a copy of the inspect.ion report alleged to have been conducted by him on 22.02.2021 and copy of the report of the ETS survey conducted by TRAC cn 24.09.2021 along with panchanama and statement of petitioner,s Senior Mines Manager as evidence. Further it is stated that a bare perusal of ETS report would show that ground and bottom levels of the entire pit under two benches were said to have been recorded at an interval of every l0 meters. This, by itself, is an impossibility as even on 24.O9.2021, the entire pits were water_ logged and therefore, making it impossible to accurately record the levels of the bottom of the benches. Further, to the shock of petitioner, survey report by TRAC reflects that they obtained 1,1 16 readings at an interval of every lO meters u,hich action is physicaily-impossible as to obtain so many readings it would take a minimum of 4 to 5 days. Each reading would require at

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least 4 to 5 minutes of time as it involves^{movement of Prisms,} equipment and personnei. ln any event, the^{bottomlevels of the} pits cannot be recorded when the pits were inundated with rainwater. Finally, it is stated that petitioner had specifically taken all the above contentions uide letter dated O9.O3.2O22, submitted in reply to the show cause notice dated, I3.O1.2O22 taking the following specific grounds:

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i) The bottom levels mentioned in the ETS Survey Report would necessarilr- be concluded as hypothetical, as the mine was inundated n,ith rain u'ater, which fact can be conhrmed . by the Panchanama itselL

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ii) The resolutions at intervals of 10 meters also was not possible and the conclusions are contradiction to the data being recorded for submission of statutory details to the Indian Bureau of Mines only in Form H-8.

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ii i) lt rvas an absurdity to state that levels were recorded over the entire leased area of 42.82 Hectares rvith a frequency of 1O meters in one single day and that therefore the report could not be factual. The alleged inspection dt. 22.07 -2Q21 said to have been conducted by the 3a Respondent had reported that the average height of the first bench to be 5.5 meters while that of the second bench to be 4.2 meters only in contrast with the EIS survey report where both the benches have shown as height of 7.5 meters. This contradiction alone rvould amount to a variance of 37o/o it case of the first bench and. 44<% in case of the second bench which it is again a physical impossibility particularly during monsoon period and that when the mine l'as rvater logged.

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However, according to petitioner, the 3.d respondent issued the

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impugned demand notice casually brushing aside the

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contentions put forth by petitioner, by peculiarly taking a vier,r'

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that since ETS survey was conducted in the presence of the officers of petitioner, it is deemed that the entire procedure is valid, therefore, it is not open for petitioner to contend that ETS measurements are erroneous. All the other contentions put forth have been causally ignored and not even rel_erred to, as such, the impugned .emand notice is riabre to be quashed.

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3 The case of the 4tr, respondent is that M/s NCL Industries Cements Limited had three Mining leases for Limestone granteci by the Government, details of which are:

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S1. No the Name Leaseof Location Extent Minera Period Periocl
1n I from I
Holder upto
Iiects
01 Ind ustrr'eM/ s. NCL ofSy.No.540 42.82 Lime I 29.10.199 2a.to.204
s I-rd Pedaveedu Stone () 6
Village,
Mattampall
Mandal.
I o2 IndustrieM/ s. NCL Sy.No.63 & i30.3 Lime 22.10.199 21.1o.2C4
s Ltd Gundlapall17O /P 8 Stone 0 0
y Village
Mattampall
Mandal
I 03 IndustrieM/ s. NCL Sy.No.88 46.35 Lime 14. io. 198 i 3.10.203
s Ltd 4ofComp. No. 1 6 Stone 0 0
I
Sulthanpur
RF,
Mattampall
Mandal

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It is further stated that the office technical stalf conducted inspection on the mining lease area of M/ s NCL Industries Limited in Survey No. 54O of peddaveedu Village Mattampally Mandal, Suryapet District over an extent of 42.92

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HeCtarSofi22.o|.2o2landdulyobtainedmanualaverage measurements^{andsubmittedreport' As per thereport'} M/s NCL^{Industries Limited had opened one hugepit within the} Ieased^{area with developedtwo benchesin which one bench} average^{heightis 5.5Mts and another one average height is 4'2} Mts. It^{is further observed,the 2'd bench is partly under} waterlogged^{condition' As per the measurements of two Benches} (up to water^{logged condition),total quantilv \s 4'74'3753} +1,44,236.4M3 =6,18,611'4M3'^{The total quantity of Limestone} in MT is^{worked by taking specihc gravity of Limestoneas 2'5} (As per Mining^{Plan)' Thereforethe Tonnagevalue is} 6,i8,611.4M3X2.5=15,46,528'5MT'Aspertherecords'the lessee had^{obtainedtotal permit for a quantityof 4,24,350MT of} Limestone,^{but the lease-holderhad excavated and dispatched} more than^{the permittedquantity' The detailsare as follows'}

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BcnchIQrv	B.nch²Qr)ⁱⁿ N1'l	totat^t-imestoneQtY	Qry^{iN MT}		Ditference Qtv uMT
		'	{Lll		A.(B+C)
4,7-1,375M3	1_^{1+.2 36.+ r'13}	-rr,rS51l.1Nl:
Ot 11.U) 937^5l\i1'	Or 3.60 591MT i	Or 15,46,528.5MT	4,24,350^MT	500 MT	1i,21,678^{5 MT}

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It is stated^{that subsequently' the officeuide letter} dated^{3 1 .OB} '202^{1 requested the Deputy Directorof Mines &} Geologr,^{Hyderabadto take necessaryaction against the lease} holder M/s^{NCLIndustries Ltd' for realization of Royaltyalong}

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with sale price of mineral on the excess quant ity l l,2l,61g.s MT of Limestone extracted and dispatched more than permitted quanriry as per Section 2l(S) ot the 1957 Act. Ir is further stated that the Deputy Director of Mines & Geologz, Hyderabad issued show cause Notice dated l4.l(-.2L2l to petitioner to show cause within l5 days from the date of receipt of the notice as to why action should not be taken for realization of Royalty along with other statutory charges on the difference quantity 11,21,67g.5MT of Limestone extracted, dispatched and consumed more than permitted quantity as stipulated under Section 2l(S). The royalty for Limestone as per schedule rates is Rs.80/- per MT and the sale price of Limestone.as per IBM monrhly report is Rs.4gSl_ per MT.

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2.1 t ?r)t I i)\1 ftt?o;
I
I i
I l I J
22 7 zrt
-?l
I 15. ra,.5 I ,24,8 I 1,2 t,6 a,97,34: i
50 78.5 2ao o735.r ,40,14, 2a42,69,20, J 686t7,94., 6a6t7.94 0096(r.a2.s8

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It is stated that petitioner urde letter dated Ol.1t.2O2l requested the Deputy Director of Mines & Geolog, time ro submit reply by 31.12.2021 and not to initiate any further proceedings until receipt and review of response on the show cause notice. It is further stated that the Regional Vigilance and Enforcement Officer, Nalgonda Unit issued telephonic instructions ron O9.Og.2O2l directing this office to

conduct^{joint surveyand inspection of M/s NCL Industries} Limited^{for three mining lcases i) Survey No' 54O of Pedaveedu} Village, 2)^{Survel'No.63 & l7OlP ol Gundlapally Village and 3)} Survey No.^{88 Comp No' t4 ol Mattapally Village' Sulthanpur} R.F of Mattampally^{Mandal'Based on the said instructions'the} office requested^{M/sTelangana StateRemoteSensing} Applications^{Centre,Hyderabadto conduct detailed survey for} the above^{mentionedmining leases and submit detailedETS} report, so^{as to submit rcportfor further necessaryactionin the} matter.Further,itisstatedthatM/sTelariganaStateRemote Sensing Applications^{Centre, Hvderabad conductedETS Survey} for the mining^{leasc for the three mining leases heldby} M / s NCL^{Industries Limited along with technical staff and} Regional^{Vigilance and EnforccmentOffrcials'Nalgonda Unit} and in the^{presence of officialsof M/s NCL Industries Limited} on 24.O9.2021^{and submittedreportas {ollows'}

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L Sy No,^{540of PedaveeduvillageMattampalty Mandal Over an extentof} 42 -82Hecls

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Sl.No OI	Nime of kssec M/s.NCL Industries Limited	Locatldr Sy.No.5-1o^of Pedaveedu Village, MattamPaltY Mandal-	Asper the ETS Repott thcTotal Volumein^MT upto 23.8.2021 20.66.378.205	Permits obtained inMT upto ETS Suruey 4,34,350 (UptoETS Survev ')4.9.2021)	Dillercntial Quantrlvⁱⁿ MT o 16,32,028.205	Rcma-rks Shortfall of RoyaltY I I

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It is lurther^{statedthat as per the report' out of} three mining^{leases in SI'No'O2 and 03 at Para No 3' total}

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excavation of pits are covered by Royalty and SI.No.01 in Survey No. 54o of pedaveedu Village over an extent of 42.g2Hectares is found extracted and rlispatched more than permitted quantity. The office has already initiated action for a quandty of 11,21,629.5 MT of Limesrone under Sections 2t(5) and 9(t) of the Act. In this connec on, it is stated that the office technical staff conducted inspection with manual process only by tape measurement method and in addition to this reason, there was two more months gap between manual method e2.o2.2o21) and ETS Survey (24.Og.2O21). Hence, the difference quantiry 5, t0,349.7OSMT is arrived, the dehils as mentioned below.

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As per I'TC
Repo( et!, in MT I,lT rt Qrv (Upro in Diflcre nce Mf Qty rn Already actioo i llrl a-ncc k) be
l 21.9.2O2 t1 rnitiated and
actron p.oposcd I
l (At Show Caus€ Qrym MT i
I
lrrl / Notice issued ety
I
{A 8) (c)
[--r*,= I .tl ,350 I t) 3 2 0 2B 205 IJ C

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A"p er ETS Survey report,. excess extracted and dispatched quant ity against permitted quantity of Limestone is 5, 10,349.705MT, hence acdon is proposed. Accordingly, at the request of this offiee, the Depuf Director of Mines & Geologr, Hyderabad issued nolice to M/s NCL lndustries Ltd. dated 13.01.2022 show cause as to why action should not be taken for collection of evaded royalty along with other statutory charges under Sectio n 21(S) of the Act , for which the Ieaseholder submitted explanation on O9.O3.2O22, wherein it is

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stated that ETS Survey was not done properly as the saicl survey report shows thc ground and bottom level with an interval of 1O mts. of covering entire pit having two benches, the bottom levels mentioned in the drawing appears to be more hypothetical rather than the actual for the reason that there is a difference in height between ADM&G and ETS Survey reports. Further, M/ s NCL Industries Ltd. requested to drop further action in this regard. The explanation was considered by the Deputy Director of Mines & Geologr, Hyderabad and panchanama dated 24.O9.2O2 1 discloses that the representative of M/s NCL Industries Ltd. Sri A.Mahipal Reddy, Senior Manager was present during the entire procedure of survey, measurements were recorded in his presence, thus, the ETS measurements were recorded without any error and there are no deviations in levels etc. and finally concluded that M/s NCL Industries Ltd. is liable for necessary action as per Section 21(5) of the Act. The Deputy Director of Mines and Geologr, Hyderabad issued demand notice dated 17.03.2O22 to M/s NCL Industries Ltd for payment of required . amounts on the differential quantiry 16,32,O2a.2O5 MT of Limestone within 15 days from the date of receipt of the same, failing which necessary action would be initiated under RR Act, 1890 and Mining lease would be cancelled as per Rule 12(10) of M.C Rulcs, 2015. Lastly, it w'as stated that as per the orders of this

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-.,-

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Court, M/s NCL Industries Limited paid 2O,,/oot. the demandecl amounr i.e., Rs. 1g,28,53,244/- through rreasury challan No.62OO336 l2t Dt.2a.O4.2O22 at SBI Suryaper and further requested the Director of Mines and Geologr, Hyderabad f61 3.a .party survey in the demand notice issued Mining Lease area which is under process soon after completion of survey, the department would take further action in accordance with law.

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The Srh respondent filed the counter_affidavit stating that there is no illegality or infirmity in the rmpugned demand notice dated 12.3.2022 and the petitioner without any valid or substandal grounds by-passing the procedure contemplated under Section 30 of the Act filed the present Writ petition. Further, it is stated that petitioner was granted mining lease ficr Iimestone and was indu.lging in illegal minir ":qr 'ru,ng operations and consumption of excess , ,,'_.^-^ or Rovartv thereby causing ,J ::":',":;::',:"rment the Government exchequer. The Srh respondent is stated to hz u-r -o&Ve made written compraints to the autho.,r,-- ^-.,-.'vu mining rease area ", :::::.;:'J., ;." ;J::"" that leaseholder excavated and dispatched limestone more than the permitted quantity and finally submitted proposals for realization of Royalty including sale price thereof along with other qh61gs. from petitioner for the differential quantity. It

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was also stated that petitioner by suppressing the material facts obtained Environment Clearance from the Ministry of Environment, Forests and Climate Change (lmpact Assessment Division), Govt. of India by misrepresentation and as per the clearance certihcates, it was revealed that production of limestone was expanded from O.5 to 1.O M PTA and lurther there is no mention about pendency o[ the Writ Petition, which clearly goes to show their mala ftde intention. Hencc sought for dismissal of the writ petition with exemplary costs.

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Heard learned Senior Counsel Sri Sivaraj Srinivas on behalf of petitioner, learned Government Pleader for Mines and Geolory and Sri S. Srinivasa Chary, learned counsel for the 56 respondent.

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After hearing learned counsel on either side and on perusing the material available on record, the point that arises for consideration is Whether the impugned demand notice is just and proper and can be interfered by this Court under Article 226 of the Constitution of India.

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In the circumstances narrated above, it rs necessary to see the scope of this Court in interfering with the matters where there is efficacious alternative remedy available to the

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partres:

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B. The Supreme Court in pHR Inaent Educational Societg vs. UCO Bankl reiterated anri approved the ratio laid down in tfnited. Bank of India v. Satgawati Tond.on2

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Paragraph 29, it w.as held as under

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...,r;n .r".p,31"" r;i:lo thus clearlJ be seen thar rhe courr has carved our could be ..,J*i..0",. 1",1 [ti,,o1 .under^Anicte 226 of the c"""irir,i# them are thus: * .., ipite ol availability of an alternative *rn"dr..i",i."Ji (i) where the statutorv a pl"_1"'..1" ;ilh;;;..,;.;llITJJ",[X:^{not a.ed in accordance} wirh rhe {u, rt has acted in defir procedure; ance of the fundamental principles of judicial (ii, it has resorted to rnvok, (iv) when ,. r.a.r"#" ",rj^{lhc provisionsuhich} are repealed: ancl natural justice., ''en passed in total violation of the principles of

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In the light of the above settled position of law, it is to be seen whether this Writ petition filed challenging the impugned order would fall under any of the exceptions carved out as stated supra. Before proceeding further, it is imperative to extract the interim order grantecl by this court in I.A.No.2 of 2022 on 06.04.2022

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'- .,.......Considerir andtheErs".,-"_u.o,0,"1"off ff:'.:':":t;T:r1J:::"::J#:: there was no discrepanc_v in the quantities of mineral excavated from the dispatch permits issued till then and also cor"iae.i.rg the lacunas pointed out by the petitioner in the ETS su.y.o.rducted by TRAC on 24.09.2021 contending thar survev report itself, pits were water logged, as such, ,, ,."",1-lil,,tle or bottom or the benches ",jT::"#""Jj;;:: ffi:.:j::::: they obtained 1,116 readings at an interval of every 10 meters, which was physically impossible. to obtain so many readings it would take a

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<024^{SCC Onlinc} SC 528 (2010) 8SCC tro

yF__

minimum of 4 to 5 days and each reading would require 4 to 5 minutes of time as it involves, movement of prisms, equipment and personnel, the bottom levels of pits could not be recorded as the pils rvere inundated with rain water, as such, the bottom levels mer]tioned in the ETS survey report were hypothetical, as confirmed by the_panchanama, the inspection report dated 22.07.2021 reported the average height ol the first bench to be 5.5 meters and the second bench as 4..2 rneters in contrast with ETS survey report, where both the benches were shor.n to be at a height of 7.5 meters, the said contradiction alone $.ould bring a variance of 37o/o in case of hrst bench and 44o/o in case of second bench and no corroborative material was filed to show that huge quantities had been extracted, transported and dispatched, and the said aspects require a detailed consideration, it is considered fit to suspend the demand notice dated 17 .O3.2022 conditionally.

¶108

Accordingly, the demand notice dated 17 .O3.2O'22 issued by the 3.d respondent is suspended on condition of the petitroner paying 2Oo/o of lhe demanded amount of Rs.91,42,66,22Ot/ within a pcriod of four (4) weeks from the date of receipt of a copy of this order and the petitioner can request for a third party survey and can make an application before the Director of Mines and Geolog' to issue dispatch permits in accordance with law on compliance of the above said condition."

¶109

However, petitioner carried the said order in Writ Appeal No. 254 of 2022 and the Division Bench uide order dated 13.O4.2022 dismissed the same with the observation as under:

¶110

'..........Though there is a remedy of hting a revision before the Central Government under Section 3O of the Act, the appeltant has rushed to this Court without availing the alternative rernedy. The order in the present case has been passed by an authority competent to do so. Meaning thereby, there is no jurisdictional error in the matter. However, as the writ petition was preferred before the learned Single Judge, the learned Single Judge has granted an interim order on condition of the appellant payrng 2Oo/o of the demanded amount keeping in view the facts and circumstances of the case.

This Court doesj not find ary reason to interfere with the order passed by the rearned and is not 3 commenting upon the merits of the case, ." ,nttt*'t "o*" e matter is still pending before the learned Single Judge.

¶115

dismissed Resultantly, the admission is declined and the writ appeal is 11. It appears, pursuant to the interim directions dated 06.04.2022, petitioner made paymen t of 2Oo/o of the demanded amount and to that effect, the 4rL respondent in his counter acknowiedged the same and further there is also a request from petitioner to conduct 3.d party survey in terms of the interim order. From the perusal of the material documents, it divulges that show cause notice dated 14.1O.202 I was issued by the 3.a respondent to petitioner for detection of dispatch of Limestone in excess than the permitted quantity without payment of Royalty for difference quantity for which petitioner sought time on 8.17.2021 to file reply on or belore 3().11.2O27 and, thereafter, petitioner sought for details of reports together with calculations sheets of depth levels recorded during the inspection conducted by the 4th respondent on 22.O7.2021 through their letter dated 26.11.2O2t. Vide letter dated 01.12.2021, the 4e respondent furnishecl the detailed report to petitioner, however, finally, petitioner filed reply on 31.12.2O2L on the ground that notice that was issuecl in 2019 ,ith similar allegations had been put to rest by the proceedings issued by

¶116

¶117

,r.'

¶118

the 3'd^{resPondentin Memo dated 02'122019droppingall} further^{proceedingsin the matter and again' within a span o[} come^toa two^{years as to how the 4t1' respondentcould} quantitY^of conclusion^{that such a huge and unimaginable} Iimestone^{couldbe dispatched' In the meantlme'a revised} 13.1.2022^{was issued to petltloner} show^{cause notice dated} sand at^{their request'the 4fi respondentonceagainuide letter} d,ated^{O4-O2.2O22furnisheddetailedworking calcuiationsheets} of M/s^{TRACAgency and Surveyand Inspection reports'}

¶119

The most^{pertinentaspectin this case is whenETS} also drar'r'n^on conducted, Panchnama^was survey^was it was^clearlY and in^{the said Panchnama'} 24.o9.2021 mentioned^{that representatives of M/s NCL Industries i c' Sri A'} Mahipal^{Reddy, Senior Managerwas very muchpresent along} with other^{officials and also the Sft' respondentwho is the} complainant^{before the 4ft respondent' Viewed from any angle'} itcannotbe'saidthatETSsurveywasconductedbehindthe back^{of petitioner and the said fact is also ciearlyobserved in} the impugned^{orderby the 3'd respondent: This Court finds} that^{petitionercouldnot satisfyas to how his case would fali} under the^{exceptionscarved out in PIIR Invent Educational} Societg'scase,^{as such the impugned demand notice cannotbe} interfered^{bY this Court'} --4',

¶120

--4',

¶121

l()

¶122

The Hon'ble Supreme Court in Satgaworti ?ondon's case, while deciding the question of interlerence of High Court under writ jurisdiction r,r.hen an eflective and efficacious alternative remedy is available, held as under:

¶123

" Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective alternative remed-r. is available to the aggrieved person and that this rule applies ,r,i,h g..o,., rigour in matters involving recovery of taxes, cess, fees, other t-vpcs of public money and the dues of banks and other financial institutions....

¶124

It is true that the rule of exhaustion of alternatile remedy is a rule of discretion and not one of compulsion, brrt it is difficult to fathom any reason why the High court should entcrtai, a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedl, b-v lrling applications, appeal, revision, etc. and the particular iegislation contains a detailed mecha4ism for redressal of his grievance,,.

¶125

The law on the Iegal position i.e. .Writ petition is not maintainable if the aggrieved person is having an effective alternalive remedy, is settled in plethora of cases. In view of the above settled Iegal position, against the impugned demand notice dated 12.3.2022 itself, since remedy of Revision is provided to petitioner under Section 30 of the Act ro the Revisional Authority i.e. centrar Government and since petitioner, without exhausting the said remedy, flled this Writ Petition, though both the parties have made averments and counter-averments, this Court is not inclined to go into merits of the same. When an efficacious and alternative remedy of

Revision is available to petitioner, it is not appropriate for this Court to entertain the Writ petition invoking its jurisdiction under Article 226 ol the Constitution of India. The Writ Petition is therefore, liable to be dismissed-

¶130

The Writ^petition is accordingly, dismissed, leaving it open to petitioner to avail statutory remedy. It shall aiso be open to both the parties to raise a the contentions which are sought to be canvassed in this Writ petition before the Revisional authority. No costs.

¶131