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2011 DIGILAW 2820 (RAJ)

Aandhi Marbles Pvt. Ltd. v. State of Rajasthan

2011-12-23

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The applicant-appellant has preferred this civil misc. appeal against the order dated 29.8.2011 passed by Additional District Judge (Fast Track) No. 2, Jaipur District, Jaipur in Civil Misc. Application No. 68/2010 whereby the application for grant of temporary injunction under Order 39 Rule 1 & 2 CPC was partly allowed and it was ordered that if the appellant deposits the disputed amount within one month from the date of order, the respondent-non-applicants during the pendency of the suit shall neither interfere in the work of mining of the appellant nor auction his property on the basis of demand notice dated 16.9.2009. It was also ordered that if the appellant fails to deposit the required amount within the period of one month as ordered by it, the respondent would be free to proceed according to law. 3. The brief relevant facts for the disposal of this appeal are that the appellant filed a suit for declaration and permanent injunction before the Court below with the averment that regarding mining lease, which has been transferred in favour of the appellant, royalty amount of Rs. 1,09,42,781/- was imposed upon the appellant without giving opportunity of hearing to him on altogether wrong basis and that amount was deposited by the appellant under protest and it was ordered by the competent authority that after giving opportunity of hearing to the appellant, the matter may be reconsidered, but even after the lapse of several years, the matter has not been reconsidered. It was further submitted that although the matter is still pending, a demand notice dated 16.9.2009 was issued and an amount of Rs. 29,41,480/- was demanded as interest on the ground that the royalty amount was deposited by the appellant with a delay. It was prayed by the appellant in the suit that the demand notice dated 16.9.2009 may be declared void and ineffective and permanent injunction may also be issued against the respondents to the effect that the amount of interest is not recoverable from the appellant and they are not entitled to interfere in the mining work of the appellant. Alongwith the suit, an application for temporary injunction was also filed praying therein that temporary injunction of the similar nature may be passed during the pendency of the suit. A reply to the application was filed by the respondents. Alongwith the suit, an application for temporary injunction was also filed praying therein that temporary injunction of the similar nature may be passed during the pendency of the suit. A reply to the application was filed by the respondents. Affidavits and documents were also filed by both the parties. The learned Court below after hearing the respective parties by passing the impugned order only partly allowed the application. Feeling aggrieved, the applicant-appellant is before this Court by way of this appeal. 4. The learned Court below although came to a conclusion that prima facie case to this extent is in favour of the appellant that if he deposits the amount of demand notice under protest within a period of one month, the res-pondents would not interfere in the mining work of the appellant on the basis of demand notice, but the questions regarding balance of convenience and irreparable loss were decided against the appellant by the reason that accord-ing to the trial Court the demand is only for a certain amount. Although, two of the points essential for granting temporary injunction were not held in favour of the appellant, even than the application was partly allowed on the ground that to some extent the prima facie case was found in favour of the appellant. 5. The learned counsel for the appellant has assailed the impugned order on various grounds, but in my considered view the appeal is liable to be dismissed on the ground that in such a case suit for permanent injunction itself is not maintainable and, therefore, the application for temporary injunction was also not maintainable. I am of view that the amount of interest as demanded by way of demand notice dated 16.9.2009 is recoverable as land revenue under the provisions of Rajasthan Land Revenue Act, 1956 (hereinafter referred to as "the Act"). 6. Section 25of the Mines and Minerals (Development & Regulation) Act, 1957 provides that any rent, royalty, fee or other sum due to the Government under this Act or the rules made thereunder may on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an arrear of land revenue. This provision further provides that any rent, royalty, tax, fee or other sum due to the Government either under this Act or any rule made thereunder may on a certificate of such officer as may be specified by the State Government in this behalf by general or special order be recovered in the same manner as if it were an arrear of land revenue and every such sum which becomes due to the Government after the commencement of the Mines and Mineral (Development & Regulation) Amendment Act, 1972 together with interest due thereon shall be a first charge on the assets of the holder of the permit etc. Rule 61 of the Rajasthan Minor Mineral Concession Rules, 1986 provides that interest @ 20% shall be charged on all dues in respect of dead rent, royalty, quarry licence fee and royalty collection contract amounts after 15 days from the date of it becomes due whereas Rule 62 provides that notwithstanding anything contained in these rules, Government may recover any dues in respect of dead rent, royalty, quarry licence fee, royalty collection contract amount cost of mineral, penalties and any other dues under these rules together with interest as arrears of land revenue under the law in force relating to such recovery. It is thus clear that if any interest is due against any person, it is recoverable as land revenue not only under the provisions of the Mines and Minerals (Development & Regulation) Act, 1956, but also under Rule 62 of the Rules of 1986. Section 256 of the Act enumerates those moneys which may be recovered under the provisions of the Act in the same manner as an arrear of revenue. Section 256 of the Act is as below: "256. Section 256 of the Act enumerates those moneys which may be recovered under the provisions of the Act in the same manner as an arrear of revenue. Section 256 of the Act is as below: "256. Recovery of miscellaneous revenue and other moneys.- The following moneys may be recovered under this Act in the same manner as an arrear of revenue:- (a) all sums of money declared by this Act of by any law for the time being in force, other than the Rajasthan Public Demands Recovery Act, 1952 (Rajasthan Act 5 of 1952),- (i) to be recoverable or realizable as an arrear of revenue or land revenue or rent, or (ii) to be a demand or a public demand or to be recoverable or realizable as a demand or a public demand or as an arrear of a demand or a public demand; (b) all sums of money payable to the State Government or to a department or an officer of the State Government or to a local authority on account of rates, duties, taxes, charges or other dues under any law or rule having the force of law, notwithstanding that such law or rule does not declare the same to be recoverable or realizable as an arrear of revenue or land revenue or rent or to be a demand or a public demand or to be recoverable or realizable as an arrear of a demand or a public demand; (c) all sums of money payable to the State Government or to a department or an officer of the State Govt. or to a local authority,- (i) by way of fees, penalties, compensation or costs imposed or awarded by any authority, not being a civil or criminal court, under this Act or under any other law for the time being in force, or (ii) on account of pasturage, forests-rights, fisheries mills, natural products of land, water-rates, irrigation charges, main-tenance and management of irrigation works and the like; (d) all rents, premia, cesses, rates, fees and royalties due to the State Government on account of the use or occupation of land or water or other immovable property, whether belonging to the State Government or not, or on account of any products thereof or proceeds therefrom or on any other account; (e) all sums of money due to the State Government under any grant, lease or contract which provides that they shall be recoverable as arrears of revenue or land revenue." It is thus clear that if any sum is declared by any law for the time being inforce to be recoverable or realizable as an arrear of revenue or land revenue, it is liable to be recovered as an arrear of revenue under the provisions of the Act. Similarly, any money payable to the State Government or to a department or an officer of the State Government is also recoverable in the same manner as an arrear of revenue under the provisions of the Act. Section 257-B of the Act provides that if proceedings are taken under Chapter 10 of the Act against any person for the recovery of any sum of money referred to in Section 256, such person may at any time, before any property is attached in such proceedings is knocked down at a sale thereof, pay the amount claimed and at the same time deliver a protest signed by himself, or by his authorised agent to the revenue officer taking such proceedings. This provision also provides that subject to the provision contained in this Section the person making a payment under protest in accordance with sub-section (1) shall have the right to institute the suit for the recovery of the whole or a part of the sum so paid under protest. This provision also provides that subject to the provision contained in this Section the person making a payment under protest in accordance with sub-section (1) shall have the right to institute the suit for the recovery of the whole or a part of the sum so paid under protest. According to Section 229 of the Act when an arrear of revenue or rent becomes due, a writ of demand calling on the defaulter to pay the amount within a time therein stated or a citation to appear on a date therein mentioned may issue. It is an admitted fact that the Assistant Mining Engineer (Recoveries) have been entrusted with the powers of Collector under the provisions of the Act and thus, he is competent to issue demand notice and initiate recovery proceedings. In the present case, the competent officer has already issued demand notice under Section 229 of the Act and thus, the recovery proceedings has already been commenced. 7. The learned Single Bench of this Court in the case of Ratanlal vs. State reported in RLW 1978, 437 has held that process of recovery once started should not be arrested till the payment is enforced or is made under protest, if the party questions the recovery. Where a party questions that nothing is due from him then he is required to pay the money under protest. Sub-section (3) of Section 257-B of the Act enables the party to institute a suit for the recovery of the whole or a part of the sum so paid under protest. According to learned Single Judge although, it is open to the party to show that the amount was not recoverable, but before making payment under protest the party cannot be allowed to arrest the course of the recovery proceedings. It was also held that once the proceedings had commenced with the making an application by an officer or authority to whom any sum of money referred to in Section 256 is due and payable, the Court will not be competent to issue an injunction restraining the recovery of the amount as per the application. 8. In the present case also, as the process of recovery has commenced as demand notice under Section 229 of the Act has already been issued, I am of the view that the suit filed by the appellant to the extent of permanent injunction is not maintainable. 8. In the present case also, as the process of recovery has commenced as demand notice under Section 229 of the Act has already been issued, I am of the view that the suit filed by the appellant to the extent of permanent injunction is not maintainable. As the suit for permanent injunction itself is not maintainable, the application for temporary injunction was also not maintainable and it is liable to be dismissed on that ground alone. 9. So far as the case law relied upon by the learned counsel for the appellant is concerned, in none of them the sum of money which was being recovered by the Government or on behalf of the Government was of such nature recoverable as an arrear of land revenue under Section 256 of the Act. Therefore, being based on different set of facts the same are of no help to the appellant. Learned counsel for the appellant failed to cite any decision of Hon'ble Supreme Court or of this Court in which view contrary to the view taken in the above case has been taken. As the suit for permanent injunction as well as temporary injunction is not maintainable, therefore, the appeal is liable to be dismissed without going into the merits of it. 10. Consequently, the appeal being devoid of merit is, hereby, dismissed at the admission stage itself without any order as to costs.