Rajasthan High Court - Jaipur
M/S Agarwal Bricks Udhyog vs State Of Raj & Anr on 18 February, 2011
Author: M.N.Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R M/S. AGRAWAL BRICKS UDYOG VS. STATE & ORS. (S.B. CIVIL WRIT PETITION No. 2095/2011.) Date of Order : FEBRUARY 18, 2011. HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Satish Khandelwal for Mr. D.D. Khandelwal for the petitioner. BY THE COURT :
By this writ petition a challenge has been made to the show cause notice dated 20.10.10 at Annex.2. Perusal of the order shows that the petitioner is alleged to be involved in running of industry of manufacturing of bricks in an unauthorised manner, thus as per rules, penalty was proposed. He was served with the show cause notice pursuant to Rule 48 of the Rajasthan Mines Minerals Concession Rules of 1986 (hereinafter to be referred to as the Rules of 1986) and 15 days time was given for that purpose. A reply to th aforesaid was given vide letter dated 7.12.10.
According to the petitioner, without conducting survey, penalty cannot be imposed. The exercise of the respondents in imposing penalty pursuant to Annex-2 is violative of Rule 48 of the Rules of 1986. The petitioner has otherwise deposited all necessary amount yet not permitted to allow to run industry for manufacturing of bricks. He has supported his argument by the judgment of this court in the case of Smt. Saroj Sharma Vs. State of Rajasthan & Ors. reported in 1993(2) WLC (Raj.) 745 and also the judgment in the case of Rasid Ahmed Vs. State of Rajasthan & Anr. reported in 1999 (3) WLC (Raj.) 736.
I considered the submissions made by counsel for the petitioner.
A perusal of Annex-2 does not show it to be an order imposing the penalty rather it is only a show cause notice calling upon the petitioner to show cause as to why the penalty should not be imposed pursuance to the provisions of Rule 48 of the Rules of 1986. The petitioner has wrongly construed it to be an order of imposing penalty. No order has been placed before me showing imposing penalty other than Annex.2. A writ petition is not maintainable against the show cause notice unless it shows to be without jurisdiction. It is alleged that show cause notice was issued without survey. The petitioner was at liberty to take up that issue while filing reply to the show cause notice. The reply does not disclose the aforesaid. Thus petitioner is trying to make out a new case which was otherwise made out while filing reply to the show cause notice. In any case if penalty is imposed, petitioner would be at liberty to file an appeal and therein to raise aforesaid ground.
Now coming to reference of judgments of this court, in the case of Rasid Ahmed (supra) imposition of penalty was without affording an opportunity of hearing. The facts in judgment therein are different and have no application in the present matter because petitioner has been given show cause notice and no final order has been passed imposing penalty. If any such order is passed petitioner is having alternative efficacious remedy under the Rules of 1986 itself. In the case of Rasid Ahmed (supra) the show cause notice was duly replied and thereafter SDO rejected the objections taken therein. In the light of the aforesaid the judgment of Rashid Ahmed (supra) has no application to the facts of the present case.
So far as the judgment in the case of Smt. Saroj (supra) is concerned, again penalty was imposed without notice and without opportunity of hearing to the party. Order was found to be non-speaking thus set aside. The facts of judgments cited are distinguishable then of the present case. In the light of the aforesaid no case is made out to cause interference against the show cause notice. Accordingly challenge to the show cause notice cannot be accepted.
It is, however, made clear that if the respondents confirms the demand raised by them and the penalty is confirmed as mentioned in the show cause notice, the petitioner would be at liberty to challenge the order accordingly. It is further made clear that if no order is passed imposing penalty and the petitioner is not allowed to manufacture bricks, he would be at liberty to make a representation to the respondents and the said representation would then be decided then within a month and that too by a speaking order.
With the aforesaid the writ petition stands disposed of so as the stay application.
(M.N.BHANDARI), J.
mrg.