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LPA/2182/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2182 of 2009
In
SPECIAL
CIVIL APPLICATION No. 4195 of 2002
=========================================================
NARENDRABHAI
I PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
K.M. PATEL, LD. SR. COUNSEL WITH MR. ASHISH H. SHAH
for
Appellant(s) : 1,
MR. M.G. NANAVATI, AGP, for Respondent(s) :
1,
RULE SERVED for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/05/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Heard
learned counsel for the parties. The allegation against the appellant
is that though as per measurement actual quantity of black trap
excavated comes to 79339 metric tones, he has submitted returns
showing clearance of 19988 metric tones. Therefore, show cause notice
for recovery of market price was issued invoking Section 21(5) of the
Mines and Minerals (Regulations & Development Act, 1957.
The
Collector by his order dated 1.5.1998 confirmed the demand. The
Government by its order dated 25.1.2002 dismissed the revision of the
appellant. Lerned Single Judge also dismissed the petition.
Learned
Sr. Advocate Mr. K.M. Patel with Mr. Ashish H. Shah appearing for the
appellant submits that from the facts alleged in the show cause
notice and found by the authorities, it cannot be said to be a case
of unlawful excavation as contemplated under Section 21(5) of the
Act, 1957. At best it can be said to be a case of clearance of
minerals without payment of royalty which the authorities can
recover. He further submitted that since the lease was granted to the
appellant, this is not a case of raising of minerals without lawful
authority or theft of minerals for which the authorities can recover
the market price as per the provisions contained in Section 21(5) of
the Act. He further submitted that the authority could have asked for
payment of royalty for the excess quantity.
Learned
AGP opposing the appeal submitted that excavating minerals without
proper declaration or by making a false declaration would amount to
unauthorized excavation of minerals and therefore the Collector was
right in demanding from the appellant herein the market value of the
minerals. He has therefore submitted that the order passed by the
Collector which is confirmed by the appellate authority is proper and
calls for no interference.
Without
going into the question whether excavating minerals in excess of the
declared quantity would amount to unauthorized excavation and thereby
empowering the authority to recover the market price for the minerals
raised or excavated under Section 21(5) of the Act, we think that
the ends of justice would meet if the appellant herein is directed to
pay royalty with interest on the quantity excavated in excess of the
declaration made by the appellant.
We,
therefore, quash and set aside the order dated 1.5.1998 passed by the
District Collector, Kheda; the order passed by respondent No. 1 dated
25.1.2002 at Annexure-P and the order passed by learned Single Judge
in so far as it relates to the present appeal with a direction that
the appellant shall pay royalty on the difference quantity with
interest at the rate of 10% from the date of the order of the
Collector till actual date of payment. The appeal is partly allowed
to the aforesaid extent.
(BHAGWATI
PRASAD, J)
(J.C.
UPADHYAYA, J)
(pkn)
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