Vineet Kothari, J.@mdashThis second appeal has been filed by the appellant-plaintiff Shree Cement Limited against the concurrent dismissal of its suit for injunction against the recovery of dues raised by the defendant - Mining Department to the extent of Rs. 4,20,000/- on account of illegal mining outside the area leased to the plaintiff - company on the basis of survey made by the mining authorities on 24.6.1995. The learned Trial Court of Civil Judge (Junior Division), Bar dismissed the suit of the plaintiff appellant being Civil Original Suit No. 43/1995 - Shree Cement Ltd. vs. State of Rajasthan and ors. vide judgment and decree dtd. 19.4.2005 and the first appeal was dismissed by the learned Additional District Judge (Fast Track) No. 1, Headquarter Jaitaran, Dist. Pali vide judgment dtd. 29.4.2006 in Civil First Appeal No. 93/2005 - Shree Cement Ltd. vs. State of Rajasthan and ors. Being aggrieved by the same, the appellant - company has preferred this second appeal on stated substantial questions of law before this Court.
2. The learned counsel for the appellant - Company, Mr. Arvind Shrimali urged that the survey report (Mauka Panchnama) was not prepared in presence of the any official of the appellant - Company and according to the plaintiff - company, the illegal mining was not done outside the area leased to them and consequently the demand of royalty raised without giving an opportunity of hearing to the plaintiff company was illegal and therefore, the injunction suit filed by the plaintiff - company deserved to be decreed in its favour. He submitted that in absence of any opportunity of hearing and presence of official of plaintiff - company at the site at the time of survey on 24.6.1995, the demand in question could not be recovered from the plaintiff-company. He relied upon the decision of this Court in the case of Smt. Saroj Sharma vs. State of Rajasthan and ors. reported in 1993 (2) WLC (Raj.) 745 in which the learned Single Judge of this Court held that order imposing penalty under Rule 48 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as MMCR, 1986) could not be passed without notice and without giving an opportunity of hearing to the party concerned and the said order was not sustainable. Another decision cited at Bar is in the case of Mubarak Hussain alias Dalda vs. Mining Engineer and anr. - SBCSA No. 62/2008 decided on 24.10.2008 wherein this Court quashed such demand notice straightway issued by the defendant - Mining Engineer without giving any opportunity of hearing to the plaintiff.
3. On the other hand, Mr. R.K. Soni, learned counsel appearing for the defendants - respondents, the Mining Department submitted that the survey in question was conducted by the competent authorities in presence of independent witnesses on 24.6.1995 and survey report is signed by one Devi Singh and Rameshwar Prasad besides concerned Assistant Mining Engineer. He also submitted that after the said survey on 24.6.1995, a show cause notice was issued to the plaintiff - company for the proposed demand or cost of the mineral illegally mined at 10 times of royalty on 4.7.1995, Ex. 2, to which the plaintiff - company duly filed its reply dtd. 15.7.1995 signed by its Joint Vice President (Mining) Mr. V.P. Sinha, Ex. 1, Thereafter concerned Assistant Mining Engineer passed the appropriate order over-ruling and rejecting the said objections of the plaintiff-company vide order dtd. 28.8.1995 and held that for illegal mining on specified area of 200 x 20 x 0.5 meters, taking 50% recovery of mined mineral at 1000 cubic meter, 10 times royalty amount would come to Rs. 4,20,000/- for which proper and consequential demand notice was issued under Rule 29 read with Section 229 of the Rajasthan Land Revenue Act on 12.9.1995. He, therefore, submitted that not only opportunity of hearing was given to the plaintiff - company, but the plaintiff - company failed to establish any case before the adjudicating authority, namely, the Assistant Mining Engineer and therefore, the demand was raised in accordance with provisions of Rule 48(5) in Chapter VII of the MMCR.
4. Mr. R.K. Soni also urged that remedy availed by the plaintiff - company by way of civil suit was itself misconceived in the first instance as the Mining Act as well as MMCR, 1986 provide complete code and mechanism of alternative remedies is available before the higher Authorities under the said special law and therefore, the general remedy by way of civil suit could not have been availed by the plaintiff - company and the courts below have rightly observed this fact also in the judgment under appeal that such remedy was available to the plaintiff - company.
5. On merits of demand raised against the plaintiff - company, the learned counsel Mr. R.K. Soni for the respondent - Mining Department submitted that 10 times amount of royalty payable under Chapter VII for unauthorized working is not really a penalty, but cost of mined mineral at higher rates to check and prevent illegal mining, therefore, the same cannot be said to be penalty in stricto sensu. He, therefore, submitted that there is no perversity in the judgments under appeal and no substantial questions of law arise in the present second appeal filed by the plaintiff company.
6. I have heard the learned counsels at length and perused the judgments under appeal and also record of the case placed before the Court by the learned counsels.
7. In the considered opinion of this Court, no substantial question of law arises in the present second appeal so as to require interference u/s 100 C.P.C. The judgments cited at the bar by the learned counsel for the appellant Company turned on the simple ground of non-affording the opportunity of hearing in compliance with the principle of natural justice to the affected parties. The basic principle of audi alterem partem goes to the root of the matter always and since no body can be condemned unheard, raising of demand even by the Mining Department could not be sustained in those cases, but here the facts are diagonally opposite. It was not necessary for the mining authorities to summon officials of plaintiff - company itself while conducting survey. Rule 54 of the MMCR provides for powers of Assessing Authority of entry, inspection of records and seizure of books of accounts of a dealer/lessee. Sub-Rule (4) nowhere specifically stipulates for the presence of party against whom case of illegal mining has to be made out. Sub-Rule (11) of Rule 54 of course provides that the provisions of Code of Criminal Procedure relating to searches shall apply, so far as may be, to the searches made under these Rules and consequently the only requirement could be the presence of two independent witnesses at the time of survey. It is not the case of the plaintiff - company that Rameshwar Prasad and Devi Singh who have signed the said survey report/Mauka Panchnama on 24.6.1995 are not the independent witnesses. Though the said document furnishes ground or foundation to proceed against the plaintiff - company on the basis of alleged illegal mining done by them beyond their demarcated mining area, but the plaintiff - company was afforded the opportunity of hearing by way of show cause notice dtd. 4.7.1995 and the plaintiff company itself has filed reply thereto denying any such illegal mining vide its reply dtd. 15.7.1995 signed by its Sr. officer, namely, Mr. V.P. Sinha, Joint Vice President (Mining). A perusal of the said reply also shows that besides making a bald denial against illegal mining and showing much higher requirement of said mineral marble/high grade lime-stone, the plaintiff - company has not adduced any evidence in support of its averments made in the reply. The said reply was considered by the Assistant Mining Engineer and the objections were rejected by him vide order dtd. 28.8.1995, which was duly received by the appellant company on 30.8.1995. Giving reasons therein, the Assistant Mining Engineer raised the said demand of royalty at 10 times of amount of royalty which would have been payable in normal course for the mined mineral from its own area at Rs. 4,20,000/-. Issuance of demand notice on 12.9.1995 was simply a consequential act for recovery of the amount by the Mining Department.
8. The contention of the learned counsel for the plaintiff - company that the den and in question was raised without giving opportunity of hearing to the plaintiff - company falls to the ground on the basis of these documents. Once show cause notice was issued by the Mining Department for any tax or royalty, initial onus of tax gatherers shifts to the tax assessee and it is for him to establish that mining was in fact done within his own area with the help of evidence, documentary or oral or otherwise. If plaintiff - company rest contended by filing merely a bald denial reply on 15.7.1995 without leading any evidence in support of its averments, it has to thank itself and not the Mining Department.
9. This Court also finds considerable force in the submissions of the learned counsel for the defendants - respondents that approaching the Civil Court by way of civil suit u/s 9 C.P.C. despite availability of statutory alternative remedy to the plaintiff - company against the demand of royalty raised against it was misconceived in the first instance. The injunction suit against the recovery of tax/royalty by the Mining Department does not affect the civil rights of party concerned in that sense, where it can approach the Civil Courts for appropriate relief. Injunctions are normally refused against the demand of tax levies where relevant Acts provide mechanism and remedies under the Act itself. When a special law provides for remedy under the Act itself leaving aside those remedies, approaching civil Court by way of civil suit cannot be said to be a proper remedy availed by the plaintiff company. Be that as it may, the plaintiff availed that remedy and having failed there twice over, the plaintiff company can hardly complain of breach of principles of natural justice, when the facts and documents speak otherwise. The evidence on record clearly shows that such an opportunity was duly given to the plaintiff - company and it availed it. Therefore, this contention too is found to be devoid of any merit.
10. Whether the demand of amount of 10 times the amount of royalty at prevalent rates as prescribed under Rule 48(5) of the MMCR, 1986 amounts to collection of royalty/tax or price of goods mined to be assessed at particular higher rates, namely, 10 times the normal rates or is a penalty is a question of law which deserves to be dilated upon, since the learned counsel for the appellant also argued that it is penalty and being quasi criminal in nature, breach of principles of natural justice would result in quashing thereof. Rule 48(5) of MMCR, 1986 is quoted below in extenso for ready reference:
(5) Whenever any person without a lawful authority or in contravention of the terms and conditions of the mining lease/quarry licence, short term permit or any other permit raises any mineral from any land and for that purpose bring on the land any tool, equipment, vehicle or other thing such mineral, tool, equipment like wire saw, crane, excavator, loader, power hammer, compressor, drilling machine, crusher etc., vehicle like dumper, tractor trolly, half body trucks, full body trucks, trolla etc. or other thing may be seized by the authorities mentioned in sub-rule (4).
Provided that where mineral so raised has already been despatched or consumer, the authorities mentioned in sub-rule (4) may recover cost of the mineral along with rent, royalty or tax chargeable on land occupied or mineral excavated which will be computed as 10 times the royalty payable at the prevalent rates.
Provided further that every officer seizing any property or mineral under this rule shall give a receipt of the property so seized to the person from whose possession the property or mineral is so seized and make a report of such seizure to his superior officer and to the Magistrate having jurisdiction over the area to try offence.
11. A bare perusal of proviso to Rule 48(5) of the MMCR, 1986 reveals that whenever any person without a lawful authority or in contravention of the terms and conditions of the mining lease/quarry licence raises any mineral from any land, the concerned tool, equipment, vehicle or other thing, may be seized by the authorities as provided in the said proviso to Sub-Rule (5). The concerned authority may also recover cost of mineral along with rent, royalty or the tax chargeable on land occupied or mineral excavated which will be computed as 10 times the royalty payable at the prevalent rates. This proviso to sub-rule (5) of Rule 48 contained in Chapter VII dealing with "Offences Penalties and Prosecutions" provides for essentially to recover the cost of the illegally mined mineral. Not only the cost, but rent of the land from which illegal mining was done, royalty or the tax chargeable on land occupied or mineral excavated which has already been despatched or consumed from the site in question. Levy or assessment at higher rate of 10 times the amount of royalty has been provided to give a uniform basis for determination of such amount of cost of mined mineral along with rent, royalty and tax chargeable to avoid any discrepancy or discretion to the concerned departmental authorities. The only premise or foundation which is required to be established for making such demand is quantum of alleged illegally mined mineral beyond leased area of the party concerned. The higher rate of royalty at 10 times is obviously to provide a deterrent value or a deterrent check against the illegal mining, but the said 10 times of amount of royalty is really a combination of cost of mined mineral along with rent, royalty or tax chargeable which would have been payable in normal course, had such illegal mining beyond the leased area would not have been done by the party concerned. The parameters of assessment provided in this process is penalty in the nature only to the extent of illegal mining, but once the illegal mining or the quantum thereof is established on the basis of estimation on the basis of area so excavated outside the leased area, then computation of amount to be paid is mathematical thing which is provided in the said proviso and to that extent it is no more a penalty prescribed in law.
12. Therefore, the contention of the learned counsel for the plaintiff - company that it is penalty in law and to this extent, the ratio as held by the Coordinate bench of this Court in the case of Saroj Sharma vs. State of Rajasthan (supra) would apply is also not correct. The learned Single Judge of this Court in the judgment cited at Bar in the case of Saroj Sharma (supra) did not at all go into this question as to whether levy under Rule 48(5) is a penalty or cost of the mineral along with rent, royalty or the tax chargeable on the land occupied. On the other hand, the learned Single Judge clearly held in para 5 that the order imposing penalty under Rule 48 is quasi judicial order, but the said order must be passed after notice and giving opportunity of hearing to the affected party. To this extent, there is no quarrel with the proposition of law laid down by the learned Single Judge in the judgment cited at Bar by the learned counsel for the plaintiff - appellant, but since facts are otherwise, the said judgment is of little help to the plaintiff - appellant in the present appeal. Thus, this Court finds that the appeal against judgments under appeal dismissing the injunction suit of the plaintiff - company on the aforesaid ground does not have any merit and no substantial question of law arises in the present second appeal so as to require any further consideration by this Court. Accordingly the present second appeal is dismissed. No order as to costs.
