Rajasthan High Court - Jodhpur
Devi Lal vs State And Anr (2024:Rj-Jd:36884) on 4 September, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:36884] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3356/2000 Devi Lal S/o Shri Khem Rajji, R/o Village Bharja, Tehsil Pindwara, District Sirohi.
----Petitioner Versus (1) The State of Rajasthan, through the Mining Engineer, Mines and Geology Department, Sirohi.
(2) Assistant Mining Engineer, (Recovery), Mines and Geology Department, Sirohi.
----Respondents
For Petitioner(s) : Mr. Sunil Bhandari
For Respondent(s) : Mr. Jitendra Kumar Mishra
JUSTICE DINESH MEHTA
Order
04/09/2024
1. By way of the present writ petition, the petitioner has challenged the demand notices dated 25.02.1986; 01.08.1986; 06.07.1987; 05.11.1992; proclamation of sale notice dated 01.07.1999 so also the order of the Board of Revenue dated 30.06.2000.
2. Apprising the Court about the facts germane, Mr. Bhandari, learned counsel for the petitioner submitted that on 25.02.1986, Mining Engineer issued a notice/order asking the petitioner to deposit a sum of Rs.87500/- on the allegation that when the Inspector of the Mining Department was patrolling on 30.11.1985, he found that one Kalu Ram s/o Amra was excavating the limestone with ten laborers and 50 ton limestone so excavated was lying at the site.
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3. It was also alleged in the notice that the petitioner had transported 1200 ton limestone in vehicle No. RST 7979 to his cement factory.
4. Petitioner filed a reply/response dated 03.03.1986 to the said notice/order and pleaded that he did not know any Kalu Ram and that said Kaluram was not working under his instructions, while clearly asserting that the petitioner did not have any concern or nexus with him.
5. Another notice dated 01.08.1986 came to be issued by the Mining Engineer reiterating almost similar allegation with additional fact that the petitioner was a Director of Shreenath Cement Factory, Bharja to which 1250 ton of limestone was sent.
6. On receiving such notice on 09.08.1986, the petitioner replied that the vehicle No. RSY 7974 belong to Shreenath Cement Industries Pvt. Ltd., in which he is only a Director, while also highlighting that the returns/particulars of the said company have been examined and found correct and therefore, the amount in question cannot be recovered from him.
7. Another notice dated 06.07.1987 was issued to the petitioner directing him to pay an amount of Rs.96,250/- within 15 days or to appear in the office of Mining Engineer to put forth defence. On 20.07.1987, the petitioner appeared and filed his reply/representation and denied allegation of excavation and that he had employed anyone for such purpose.
8. After filing of the above reply, for 5 years, the petitioner did not hear anything from the respondents and on 05.11.1992, he came to receive a notice under Rule 24 read with section 229 of the Rajasthan Land Revenue Act, 1956 calling upon the petitioner (Downloaded on 10/09/2024 at 08:34:14 PM) [2024:RJ-JD:36884] (3 of 8) [CW-3356/2000] to deposit a sum of Rs.96,250/-, failing which the amount would be recovered under the provisions of the Rajasthan Land Revenue Act.
9. Again for seven years, nothing happened and suddenly a proclamation of sale dated 01.07.1999 came to be published and petitioner's agricultural land was put to distress.
10. The petitioner preferred a revision petition against above referred proclamation of sale notice dated 01.07.1999 before the Board of Revenue, wherein though an interim order was granted by the Board of Revenue, but the same was finally dismissed on 30.06.2000, as not maintainable.
11. Dismissal of the petitioner's revision petition has led the petitioner to prefer the present writ petition.
12. It is admitted fact that pursuant to the interim order, the petitioner had deposited 25% of the due amount and by the time, the writ petition was considered for admission, the remaining amount had been deposited.
13. Learned counsel argued that the Mining Engineer had issued a notice with pre-meditated mind and as a matter of fact the same cannot be treated to be a notice inasmuch as the petitioner was called upon to deposit the amount (Rs. 87,500/-).
14. Learned counsel further submitted that the respondents had proceeded to issue proclamation of sale without undertaking any adjudication of petitioner's liability or without there being any determination of dues to be recovered from the petitioner. He submitted that in response to three notices that were issued by the respondents, the petitioner had given satisfactory reply and therefore, it was incumbent upon the Mining Engineer to consider (Downloaded on 10/09/2024 at 08:34:14 PM) [2024:RJ-JD:36884] (4 of 8) [CW-3356/2000] the same and at least pass a speaking order fixing petitioner's liability.
15. The challenge to the judgment dated 30.06.2000 passed by the Board of Revenue, whereby petitioner's revision petition was held to be not maintainable, has been dropped. Mr. Bhandari prayed that the writ petition be decided on its merit and correctness, legality and propriety of the impugned notices/order and recovery proceedings which have been undertaken by the respondents be examined.
16. Mr. Mishra learned counsel appearing for the respondents on the other hand submitted that the petitioner has simply challenged the order of proclamation of sale without availing any remedy available against the demand that has been raised against him. He further submitted that the demand in question was raised by the notice/order dated 01.08.1986 and 06.07.1987 against which, the petitioner did not take any remedy and he came into action only when the proclamation of sale notice came to be issued.
17. In substance his argument was that unless basic demand is challenged, challenge to the notice of proclamation of sale is not maintainable.
18. In relation to the challenge to the demand, learned counsel submitted that the petitioner was having statutory remedy in the form of Rule 47 of the Rajasthan Minor Minerals Concession Rules, 1986 which he did not avail and hence, the writ petition is not maintainable.
19. Heard.
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20. So far as argument of alternative remedy advanced by the learned counsel for the respondent is concerned, this Court is of the view that in the cases like the one in hand, wherein no order of adjudication has been passed and amount has been recovered in high handed manner, the Constitutional Court cannot turn a flat face and ask the petitioner to prefer a revision petition after keeping the petitioner queued up for 24 years.
21. This Court would not like to non-suit the petitioner on the ground of availability of statutory remedy also because of the fact that present petition had been admitted by this Court on 16.01.2002. Hon'ble the Supreme Court in the case of L. Hriday Narayan vs. Income Tax Officer, reported in 1971 AIR 33 held that an admitted petition cannot be thrown out on the ground of availability of alternate remedy.
22. For the reasons aforesaid and considering that the recovery proceedings have been initiated against the petitioner without lawful adjudication and with premeditated mind and based on conjectures and surmises and contrary to the principles of natural justice, this Court would not shy away from exercising its extra ordinary jurisdiction.
23. In this regard, a gainful reference of judgment of Hon'ble the Supreme Court rendered in the cases of Whirlpool Corporation vs. Registrar of Trademarks, Mumbai & Ors. reported in (1998) 8 SCC 1 and State of H.P. vs. Gujrat Ambuja Cement Ltd., reported in (2005) 6 SCC 499 can be made. The Division Bench of this Court has reiterated the position in the case of Ambuja Cements Ltd. vs. The State of Rajasthan reported in 2019 (1) WLC (Raj.) UC 595.
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24. A perusal of the record reveals that the first notice (dated 25.02.1986), which was issued to the petitioner was pre- meditated. That apart, it is not clear as to whether the communication dated 25.02.1986 was a notice or an order.
25. A look thereat reveals that the Mining Engineer had already decided that a sum of Rs. 87,500/- was recoverable from the petitioner and that too solely on the basis of alleged statement given by one Kalu Ram. It is pertinent that the communication dated 25.02.1986 makes a reference of some statement given by said Kalu Ram and also records that Kalu Ram did not sign the statement.
26. According to this Court, proceedings with such preconceived notion cannot be countenanced. If the communications were to be construed to be notices, then it was enjoined upon the Mining Engineer to have considered petitioner's reply and pass a reasoned order dialating upon petitioner's defence/stand.
27. The replies, which the petitioner had filed on 03.03.1986 and 09.08.1986 shows that the petitioner had not only denied any nexus or relationship with said Kalu Ram but also asserted that the vehicle in question belonged to Shreenath Cement Industries Pvt. Ltd. in which the petitioner was simply a Director.
28. The petitioner could well remain under an impression that once he had filed reply/response to the notices dated 01.08.1986 and 06.07.1987, the respondents had dropped the proceedings inasmuch as they went in hybernation for five long years.
29. By way of an additional affidavit, the petitioner has placed on record a notice dated 09.02.1987 which was issued to said Kalu Ram and its corresponding reply given by him, in which said Kalu (Downloaded on 10/09/2024 at 08:34:14 PM) [2024:RJ-JD:36884] (7 of 8) [CW-3356/2000] Ram had clearly stated that he had excavated the minerals on his own accord.
30. This Court is firmly of the view that the proceedings impugned are per-se illegal and arbitrary inasmuch as neither any report was furnished to the petitioner nor statement of Kalu Ram (if any) was provided to him. In absence of any such report or statement, recovery of the amount from the petitioner that too without adopting any adjudicatory process is illegal and violative of fundamental rights.
31. A series of communications, name them notices or orders, which have been issued to the petitioner cannot clear the test of reasonableness or fairness on the touchstone of Article 14 of the Constitution of India. The language of these communications raises a doubt - whether they are notices or orders.
32. It is not in dispute that it was Kalu Ram and not the petitioner, who was found excavating the limestone and regardless of such fact, the petitioner has been roped in on the basis of purported version of Kalu Ram according to which, he was excavating the mineral at the instance of the petitioner.
33. No incriminating evidence or material has been relied upon or even placed on record to establish that it was the petitioner at whose instance the mineral was being excavated. Even the statement which is claimed to have been given by Kalu Ram was neither provided to the petitioner nor has been placed for Court's consideration. The matter does not end here - there is nothing on record to show that huge quantity (1200 ton limestone) was transported in vehicle No. RSY 7974.
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34. Besides above, there is a clear discrepancy in relation to particulars of vehicle, which is evident from comparison of notices (Exhibit-1 and Exhibit-3) issued by the respondents - in the notice dated 25.02.1986, the number of vehicle has been stated to be RST 7979, while in subsequent notice, the vehicle number has been indicated as RSY 7974. Such omissions on the part of the State shows that there was a complete lack of material and the proceedings are without application of mind.
35. As a consequence of discussion foregoing, writ petition is allowed.
36. The impugned notices/orders dated 25.02.1986; 01.08.1986; 06.07.1987 and 05.11.1992 and consequential notice for recovery and proclamation of sale order dated 01.07.1999 are hereby quashed.
37. Respondents are directed to refund the amount of Rs.96250/- deposited by the petitioner alongwith interest @ 6% per annum from the date of deposit to the date of payment. The same be refunded within a period of three months from today.
(DINESH MEHTA),J 3-raksha/-
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