To The Mining officer, Kangra at Dharamshala (Himachal Pradesh) Dated 22.10.201 Su !ect"# $e%l& to the 'otice 'o.

(d&og ( )hu) K*$.+m%. ,-P 'o# 2./202001#2112 Dated 22.1. 201/ to de%osit com%ounding 3ee of $s############# Sir, Kindl& refer to &our office notice 'o. (d&og ( )hu) K*$.+m%. ,-P 'o#2./202001#2112 dated 22.1.201/ and it is su mitted that"# 1. The 'otice dated 22.1.201/ is illegal and the demand to %a& com%ounding fee of $s. for e4tracting#######tones of mineral during the %eriod u% to /1./.2005 is 6ithout asis and h&%othicall& calculated and the De%artment has failed to %oint out , ho6 the de%artment has arri7ed to this demand amount and 8uantum of illegal e4tracted mineral. +t is the dut& of the De%artment to issue sho6 cause and afford reasona le o%%ortunit& to hear other side against the alleged charges and the sho6 its intention to raise demand for an& reason. Thus, the undersigned has een denied to %resent his case and to defend himself efore raising an& demand. The notice is against the %rinci%al of natural !ustice and is 7oid in the e&es of la6. The demand notice is totall& illegal and 6ithout an& !urisdiction and authorit& of la6. + 6ant to %resent some facts efore &our good self to e ta9en into consideration efore %roceeding further in the matter and to a7oid unnecessar& litigation and also not to force the State into a7oida le litigation, 6asting *o7t. mone& and mis utilisation of man %o6er 6hich can e utilised for some other constructi7e and %roducti7e acti7ities. 2. +t is denied that + 6as engaged in illegal mining acti7ities during the %eriod 1.5.200: to /1./.2005 as alleged in the notice and that + ha7e e4tracted ######################## metric tonnes of mineral illegall&. +n fact, the undersigned has used the stac9ed material 6hich 6as e4tracted %rior to /0...200: 6hen 6e 6ere allo6ed to e4tract the material 6ithout regular mineral concession from an&6here and 6ere su%%osed to %a& fi4ed ro&alt& ; $s. 20000 %er month %er crusher for the manufacturing of grit in the stone crusher. -e 6ere allo6ed to e4tract material of unlimited 8uantit& right u% to /0...200:. Since 6hen the mineral rights in the area 6ere ta9en o7er & the De%artment of ro&alt& 6as enforced on the flat rates, + 6as entitled to e4tract the material as %er m& stac9ing ca%acit& and 6as to %a& fi4ed ro&alt& on the functioning

of the stone crusher. +f the stone crusher did not function, the ro&alt& 6as not due to e %aid as the asis of %a&ment 6as functioning of the stone crusher and not installation of the stone crusher, ho6e7er in m& case , + o%erated the stone crusher regularil& and %aid fi4ed ro&alt& on the functioning of the stone crusher u% to /0...200:. The material 6hich 6as e4tracted %rior to /0...200: and stac9ed, 6as legall& e4tracted and 6as legall& entitled to use this material after /0...200: and to %a& ro&alt& as %er ne6 arrangement0 instructions of the De%artment on the asis of scheduled rates as notified in the Himachal Pradesh Mining Mineral (concession) $e7ised $ules, 1151. The mineral e4tracted %rior to /0... 200: and stac9ed does not attract the %ro7ision of rule :/ of the Himachal Pradesh Minor Mineral (,oncession) $e7ised $ules, 1151 and does not call for an& action for the use of this material as that %oint of time no mineral concession 6as re8uired. <our good office 6as also informed of this fact that 6e ha7e huge stoc9 of material during the month of =une, 200: and the de%artment could ha7e ins%ected the stoc9 for the authenticit& of our claim. The then Mining >fficer, Shri Madan ?al 6hile on 7isit to Damtal area also had gi7en loo9 to the dum%ing %lace and had also a%%reciated our efforts that 6e ha7e good %lanning to create uffer stoc9 to e used %ending regular mining lease. Sim%licit&, this is the reason, 6h& the de%artmental officers %osted at that %oint of time did not initiate an& action under rule :/ of the Himachal Pradesh Minor Mineral (,oncession) $e7ised $ules, 1151. @s %er la6, + 6as su%%oded to %a& ro&alt& on this mineral 6hich + 6as %a&ing on the mineral consumed in the stone crusher for the manufacturing of grit on the mineral e4tracted0 stac9ed %rior to /0...200:, on the asis of the %roduction of the grit to e com%uted on the asis of electricit& consum%tion and other measures and the de%artment 6as also acce%ting the same 6ithout an& o !ection. + also %rocured some short term %ermits during the %eriod under dis%ute as a trial case, 6here from a mining lease in m& fa7our had een recommended. Since, + had no sur%lus %lace for stac9ing in the stoc9 &ard, 6e %rocured %ermit of limited 8uantit& as %er s%ace a7aila le 6ith us. +t is sur%rising that the de%artment in the &ear 201/ after a ga% of si4 and half &ears, issued demand notice 6ithout issuing a sho6 cause or affording an& o%%ortunit& and also 6ithout 7erif&ing the record and going into the merit of the indi7idual case in a casual manner. The demand notice dated 22.1.201/ is unla6ful issued either inad7ertentl& 6ithout going through the

facts of indi7idual case in a casual a%%roach or has een issued to esca%e from o6n res%onsi ilit& and thro6 urden on the other %art& and esca%e from o6n res%onsi ilit&. The fact of ha7ing stoc9 %rior to /0...200. for 6hich + 6as not su%%osed to su mit an& monthl& return and 6as entitled to use this mineral in the future for crushing %ur%ose and %a& ro&alt& as %er schedule rates on the asis of consum%tion of electricit& and 6hich the de%artment has acce%ted 6ithout an& o !ection, issue of illegal e4traction of material after a %eriod of si4 and half &ears is irrele7ant and does not hold good in the e&e of la6. +t is unla6ful to issue demand notice on the ac9 of the noticee, 6ithout affording him an o%%ortunit& to e4%lain his stand. The demand notice dated 22.1 201/ needs to e reloo9ed and facts stated a o7e needs to e ta9en into consideration efore ta9ing an& further action. /. 3urther, it is su mitted that + ha7e ne7er found engaged in illegal mining nor an& such notice 6as e7er issued to me during the alleged %eriod of dis%ute and ne7er acce%ted an& 7iolation nor consented for com%ounding of offence, 6hich + ha7e ne7er done. The State has assumed the %o6ers of e4ecuti7e as 6ell as of the =udiciar& to allege and %rosecute 6hich is e&ond its !urisdiction. This action of the State is high handedness of the authorities and ar itrar& a%%lication of the %o6ers entrusted to the authorities and %utting its citiAen to harassment on the %rete4t of some court order. The court has ne7er called the state authorities to harass its citiAen 6ithout going in to the facts and e4amine the facts on record and e7aluate the material on record. Had the authorities 6ould ha7e issued Sho6 ,ause 'otice, efore issuing demand notice, the situation 6ould ha7e not aroused to issue this 6rong demand notice. 2. +t is also su mitted that the %ro7isions of Mines and Mineral (De7elo%ment B $egulation) @ct, 11:5 and the Himachal Pradesh Minor Mineral ( ,oncession ) $ules, 1151 are for the %rotection of the alleged offenders from the ar itrar& acts of the officers of the State, and the %rimar& o !ecti7e is to %rosecute the offenders after a fair trial in the com%etent court of la6 and to afford a fair chance to defend himself as %ro7ided under section 21 and 22 of the @ct, or other6ise ma& a%%l& for com%ounding under section 2/@ at the o%tion and a%%lication of the alleged offender to the %erson authorised to file com%laint under section 22 of the Mines and Mineral (De7elo%ment B $egulation) @ct, 11:5. The com%ounding %ro7ision comes after later in the scheme of the @ct, and is in the alternati7e to the %rosecution on the a%%lication of the offender to settle the matter out of

the court. +t is su mitted that the %erson authorised to file com%laint under section 22 of the i id @ct cannot a dicate the dut& cast under the %ro7ision & finding a short cut & com%ounding or harassing the alleged offender & unilaterall& com%ounding the alleged offence. The authorit& raising demand has e4ercised oth the %o6ers of the e4ecuti7e and the court & le7elling allegation and im%osing %enalt& in the name of com%ounding of offence. The state @uthorit& ar itrar& cannot force the force the charge on an& one that he is in7ol7ed in illegal mining 6ithout esta lishing the charge in the com%etent court of la6 and onl& thereafter the 8uestion of com%ounding or realising %enalt& shall arise. +n this case, + 6as not gi7en a chance to e4%lain the facts nor the authorities has gone through the record a7aila le in his office to find out 6hether, illegal e4traction has een done or not. The demand has een raised in haste and needs to e reloo9ed and afford me an o%%ortunit& to %resent m& case efore the authorit&. Till the case is reloo9ed0 re#e4amined in the light of facts stated a o7e, it is re8uested to 6ithdra6 the notice dated 22.1.201/
:. +n

terms

of

the

%ro7isions

of

Mines

and

Mineral

(De7elo%ment B $egulation) @ct, 11:5 and the Himachal Pradesh Minor Mineral (,oncession) $ules, 1151, it is

not for straight6a& issuing the demand notice and no shoe cause is re8uired. +t is onl& in case of mineral admitted to e illegall& e4tracted that com%ounding fee

can e charged on the a%%lication of the offender to sa7e from %rosecution and con7iction. -here the illegal mining is not admitted or dis%uted, the com%ounding cannot e done straight 6a& & sim%l& issuing a demand notice to %a& com%ounding fee0 amount. +n m& case, e7en %rima facie, there is no e7idence that an& illegal mining has een done. Provision in the Himachal Pradesh Minor

Minerals (Concession) Rules, 1971, Rule 54 provides that cogni ance

can !e ta"en #$ithin si% months o& the date on $hich said o&&ence is alleged to have !een committed, this provision to serve a notice to &ile a complaint $ithin a period o& ' months or in a reasona!le time has also not !een &iled and the case is time !arred to !e &urther proceeded( )he action o& the respondents, it is respect&ull*

su!mitted, is !arred !* limitation and the impugned demand notice has to !e +uashed and set aside( '( ,t is respect&ull* su!mitted that *our action is also !arred !* limitation( )he ma%imum penalt* prescri!ed in section -1 &or an* o&&ence under section 4 o& the Mines and mineral (./R) 0ct, 1957, is t$o *ears and a &ine o& Rs -511123( 0n* alleged o&&ence, !eing pursued !* the department against me had allegedl* !een

committed !e&ore 41(4(-117 as per the impugned compounding order dated -4(9(-114, that is, a!out ' *ears and ' months a&ter the alleged illegal mining( ,t is su!mitted that the department $ould not discovered the o&&ence at a later stage !ut must have !een in the "no$ledge since at least -117, the action o& the 5tate is dela*ed and !arred !* limitation( , could not have !een prosecuted( )he la$ and the procedure as provided in section 4'6 Cr P C $ould appl* in &avour o& me &or this purpose( 5imilar provision in the Himachal Pradesh Minor Minerals (Concession) Rules, 1971, Rule 54 provides that cogni ance can !e ta"en #$ithin si% months o& the date on $hich said o&&ence is alleged to have !een committed $hich reads as 7 8o Court shall ta"e cogni ance o& an* o&&ence punisha!le under these rules e%cept upon a complaint in $riting made !* the .irector or an* other o&&icer authorised !* him in this !ehal& $ithin si% months o& the date on $hich said o&&ence is alleged to have !een

committed9( )hus the action o& the 5tate, is !arred !* limitation and the impugned demand notice is illegal(

Therefore, it is not difficult to conclude that the notice has een issued in haste and 6ithout going through the facts as stated a o7e and needs to e 6ithdra6n in the interest of !ustice and not to com%el me to go for litigation against the state 6hich is a7oida le & correcting &our action at this stage onl&.

<ours Sincerel&, Sd0#

,o%& for6arded to" The State *eologist, Himachal Pradesh for s&m%athetic consideration 6ith the re8uest to direct the Mining >fficer, Dharamshala to e4amine the facts and 6ithdra6 notice dated 22.1 210/ or to 6ithhold further action till the issue is re# e4amined at the a%%ro%riate le7el on the facts on record after affording me due o%%ortunit& to defend the le7elled allegation.