Sr. No.112

Before Notice

IN THE HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

(THROUGH VIRTUAL MODE)

WP(C)No.928/2021

CM(3894/2021)

CM(3895/2021)

M/S SWASTIK STONE CRUSHER

…PETITIONER(S)

Through: Mr. Parag Sharma, Advocate.

Vs.

UT of J&K & Ors.

….RESPONDENT(S)

Through: Mr. F. A. Natnoo, AAG.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR,

JUDGE

(ORDER)(ORAL)

04.06.2021

CM No.3895/2021

Instant application seeking extension of time for annexing/

depositing the requisite court fee etc. with the writ petition, in view of

the grounds urged therein, is allowed. The petitioner shall deposit the

requisite court fee with the Registry of this Court within a period of one

week from the date Registry resumes normal functioning.

WP(C) No.928/2021

CM No.3894/2021

1.

Petitioner is a stone crushing unit owned by one Shri Vijay

Sharma and is aggrieved of an order of District Mineral Officer,

Geology & Mining Department, Jammu, the respondent No.3, issued

vide his No.DMO/J/Illegal-Extraction/2021-22/482-85 dated 27^th of

April, 2021, whereby a fresh penalty to the tune of Rs.10692440/ has

been imposed. The petitioner has also sought a direction to respondent

No.1 to 3 to allow him to operate his stone crusher in view of S.O. 60

dated 23^rd of February, 2021, whereby the Jammu and Kashmir Stone

Crushers/Hot and Wet Mixing Plants Regulation Rules, 2021, have

been promulgated.

2.

Learned counsel for the petitioner at the outset would submit that

the second relief prayed in the writ petition has been rendered

infructuous in view of the respondents having permitted the petitioner

to operate his stone crusher as per the provisions of S.O. 60 of 23^rd

February, 2021. He, however, would assail the impugned order of

penalty, primarily, on the ground that for the same offence, the

petitioner has been vexed twice which is not permissible in law. It is

submitted that with regard to the same omission/offence earlier also, a

penalty of Rs.1366750/ has been imposed by the respondents, which is

subject matter of appeal before the Appellate Authority.

3.

It is argued by Mr. Sharma, learned counsel for the petitioner,

that assuming though not admitting that the respondents are entitled in

law to issue the fresh order of penalty on the basis of actual

consumption of electricity in the petitioner unit, yet no such order could

have been passed by the respondents without affording an opportunity

of being heard to the petitioner.

4.

It is the grievance of the petitioner that by issuing the impugned

order of penalty, the petitioner has been condemned unheard and,

therefore, the impugned order falls foul of Article 14 of the

Constitution of India.

5.

Mr. F. A. Natnoo, learned AAG, appearing for the respondents,

has filed objections and has contradicted the position projected by Mr.

Sharma. He would submit that fresh penalty has been imposed on the

basis of fresh material. It is sought to be clarified that the earlier

penalty was imposed on the basis of a report submitted by a Committee

constituted by the Divisional Commissioner, Jammu, whereas the

impugned order of fresh penalty has been passed on the basis of actual

consumption of electricity by the petitioner unit. It is submitted that the

record of the Power Development Department shows that a huge

amount of electricity was consumed even during the period the unit

was sealed and non-operational. It is, however, not disputed by Mr.

Natnoo that before issuing the impugned order, no opportunity of being

heard was ever given to the petitioner.

6.

Having heard learned counsel for the parties and perused the

record, I am of the considered view that the order impugned visits the

petitioner serious civil consequences and the same could not have been

passed without complying with the principle of audi alteram partem.

7.

After the judgment of A.K.Kraipak v. Union of India. (1969) 2

SCC 262, a thin line of distinction between an administrative powe