M/S K.M.C. Constructions Limited v. State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.28762 of 2017 ORDER:

Heard learned counsel for the petitioner and learned Government Pleader for Mines and Geology for the respondents.

In the present writ petition, challenge is to the demand notice, dated 05.08.2017, issued by the Assistant Director of Mines and Geology, Banaganapalle, Kurnool District, 4th respondent herein. By way of the impugned demand notice, the 4th respondent raised a demand of Rs.39,42,83,177/- towards normal seigniorage fee, five times penalty etc. According to the petitioner, it is a company incorporated under the Companies Act, 1956 and it is a contractor to M/s. Rayalaseema Expressway Private Limited, which has been executing the work for the four lane road between Kadapa - Kurnool Section of National Highway No.18 from the existing 167.750 km to 356.502 km in the State of Andhra Pradesh under NHDP Phase-III on build, operate and transfer (BOT) toll basis.

Earlier, when there was demand, the petitioner filed W.P.No.3259 of 2017 before this Court and this Court on 09.02.2017 granted two weeks time to the respondents to file an affidavit and the necessary documents. Thereafter, the 4th respondent issued show cause notice, dated 18.03.2017.

According to the learned counsel for the petitioner, as a consequence of the said show cause notice, dated 18.03.2017, W.P.No.3259 of 2017 was closed as infructuous. Questioning the validity of the said notice, dated 18.03.2017, the petitioner filed W.P.No.11343 of 2017 and this Court dismissed the said writ petition by way of an order, dated 31.03.2017, giving liberty to the petitioner to file explanation to the show cause notice. Against the said order of dismissal, the petitioner filed W.A.No.461 of 2017 and the same is pending consideration before the Division Bench. Now, pending the said writ appeal, the 4th respondent by way of the impugned demand notice, dated 05.08.2017, passed a final order, asking the petitioner to remit the amount indicated supra.

It is the submission of the learned counsel for the petitioner that the impugned action on the part of the 4th respondent is patently illegal, arbitrary, unreasonable and violative of Articles 14 and 19(1)(g) of the Constitution of India besides being opposed to the very spirit and object of the provisions of the A.P. Minor Mineral Concession Rules, 1966 (hereinafter called "the Rules"). It is the further submission of the learned counsel that when the writ appeal is pending consideration, the 4th respondent grossly erred in issuing the impugned demand notice and ought to have awaited till the outcome of the writ appeal.

On the contrary, it is vehemently contended by the learned Government Pleader for Mines and Geology appearing

for the respondents that there is absolutely no illegality in the impugned action and there is no order of stay granted in the writ appeal filed by the petitioner, as such, the 4th respondent is perfectly justified in issuing the order under challenge. Apart from the above submissions, it is contended by the learned Government Pleader that as against the impugned order passed by the 4th respondent, under Rule 35 of the Rules appeal lies to the Director of Mines and Geology and it is open for the petitioner to raise all these contentions before the appellate authority, if he is advised to do so. Rule 35 of the Rules prescribes appeal to the Director of Mines and Geology against any order passed by the Assistant Director or Deputy Director or Joint Director, within a period of two months from the date of communication of such order. In view of the above efficacious remedy of appeal available to the petitioner, this Court is not inclined to entertain the present writ petition and adjudicate upon the validity of the impugned demand notice passed by the 4th respondent.

For the aforesaid reasons, the writ petition is disposed of, leaving it open to the petitioner to file an appeal along with stay petition against the impugned demand notice, dated 05.08.2017, issued by the 4th respondent, within a period of one week from the date of receipt of this order and if any such appeal is filed along with stay application, the same be considered and appropriate orders be passed by the Director

of Mines and Geology, 2nd respondent, in the stay application, within a period of two weeks thereafter after giving formal hearing to the petitioner and the 2nd respondent shall also make an endeavour to dispose of the main appeal as expeditiously as possible. It is made clear that the petitioner is entitled to raise all the contentions, which have been raised in the present writ petition, in the appeal and it is open for the 2nd respondent to consider the same and pass appropriate orders. No order as to costs.

Miscellaneous petitions, if any, shall also stand disposed of.

__________________ A.V.SESHA SAI, J Date: 28.08.2017 ES